Findings Of Fact Minnie Chestnut was employed in 1974 by the Hillsborough County School System as a teacher aide in an Early Childhood Learning Center at Carver School (Carver). At all times relevant hereto she was a classified employee of the county and covered by the Hillsborough Civil Service Regulations. She had previously worked in the school system from 1965 until 1968 as a teacher aide in elementary school. When terminated in 1968 Respondent was told she was let go because there was inadequate funding to employ her at the school where she worked. Early Childhood Learning Centers are the programs which followed the Head Start program. These centers take preschool age children from six months to six years whose parents or parent qualify for Aid to Dependent Children fund, and provide day-care centers for these children. The primary function of these centers is social services rather than academic, and the primary goal of the program is to create in the child an understanding and awareness of his worth as an individual. The program in Hillsborough County is headed by a Supervisor who has direct supervision over all centers. Most centers are located in a school with a building principal, however the centers are under the supervision of a coordinator or team leader and each class has a teacher supervising several paraprofessionals or teacher aides whose primary function is to act as surrogate mothers to these preschool age children. These aides feed the children, clean up after them, change and potty them when necessary, tell stories to the children and do some teaching when the teacher is absent. While the teacher aides have some responsibility for disciplining the children, corporal punishment may be administered only by instructional personnel. In June 1975 Respondent was admonished for spanking a child who was fighting with and choking another child. This admonishment was memorialized in memorandum of June 17, 1975 (Exhibit 1). In January 1978 the team leader at Carver, accompanied by the team leader at Meacham Early Childhood Learning Center (Meacham) and a teacher, while conducting a visitor through the school, observed from the doorway of the classroom what appeared to them to be Respondent striking a three-year-old boy on the knuckles with a primary pencil. The pencil used was produced by Respondent at the hearing. A primary pencil is a "fat" pencil with big lead and is 3/8 to 1/2 inch in diameter. The pencil produced by Respondent measured 4- 1/2 inches long. By memo dated 1-31-78 this team leader sent Respondent a memorandum deploring the conduct observed, refusing to accept Respondent's explanation of the incident and stating a copy would be sent to the Supervisor and "will remain in your file like other letters of this nature." (Exhibit 3) The only other letter of this nature produced at the hearing was Exhibit 1. Exhibit 3 further reminded Respondent that she was already on warning and this, too, appears to relate to Exhibit 1 sent two-and-one-half years earlier. No other evidence of probation or warning was presented. Respondent denied any striking with the pencil and insisted, as she did immediately following the incident, that she was using the pencil to indicate each mischievous finger as she went through the "bad finger" routine. Respondent testified the child was laughing with the other children during the "scolding" while Petitioner's one witness who testified regarding the incident he had observed from the classroom door testified the child was crying. Another aide in the room at an adjacent table heard Respondent talking to the children and saw the pencil in her hand but saw Respondent strike no child with the pencil nor did she hear any child crying. This witness was considerably closer to the child than was the witness at the doorway. Upon receiving a copy of the team leader's letter the Supervisor conferred with Respondent and, although Respondent denied striking the child with the pencil, decided to fire Respondent and requested the Personnel office to take the necessary steps. Respondent contacted the General Area Director for Carver and professed her innocence. This individual concluded that the case for dismissing Respondent was too weak and he directed the Supervisor to transfer Respondent to Meacham until a job opened up in the custodial or food services areas (Exhibit 14). At Meacham, Respondent also served as a teacher's aide. On March 20, 1978 a Ms. Salter came to Meacham School to see Respondent about an incident reported to her by her five-year-old son. Respondent was not present that day and Ms. Salter was questioned by Team Leader Oats, a supervision of Respondent. Immediately following this conversation Oats called his immediate superior, the Admissions Coordinator, Lee Stark, and on March 27, 1978 wrote a memorandum to the Supervisor reciting the information received from Mrs. Salter (Exhibit 5). Lee Stark, on 20 March immediately sent a memorandum to the Supervisor repeating the information Oats told her he had received from Salter (Exhibit 4). No explanation was presented why Oats' memo to the Supervisor was one week later than Stark's. Ms. Salter testified that her son, Eldred, liked the school program and it helped him a lot, but he played too much. In March, 1978, he told her Respondent was picking on him by "hitting him beside the head" and he was scared to go back to school. She went to the school to talk to Respondent, but talked to Oats when told Respondent was not at school that day. In her testimony Ms. Salter made no reference to Respondent hitting Eldred on the hand with a pencil as reported in Exhibit 5 (but not in Exhibit 4) and no testimony was given that Eldred told her Respondent threatened to whip or "beat" him if he told his mother. Exhibits 4 and 5 contained these threats. Eldred Salter was not in Respondent's class and she only had him under her supervision during naptime and circle time when aides have responsibility for children not necessarily in their class. One of these times Respondent had Eldred in her circle group she was showing the children how to play Duck, Duck, Goose. During this game while the children are in a circle one taps the others on the head while saying "Duck", "Duck", and "Goose" as the tapping proceeds. Apparently "Goose" then chases the tapper. The only witness to the incident whose testimony was presented was that of Respondent. All other evidence of this incident comes from Ms. Salter, who was not a witness to the incident and can repeat only what she heard from her five-year- old son. Accordingly, Exhibit 4 is based on third-hand hearsay while Exhibit 5 is based on second-hand hearsay. Children of tender years are not reliable reporters of events. The evidence was unrebutted that such children can be induced to report whatever an adult would like them to say. Respondent is a 56-year-old high school graduate who raised two sons, a nephew and a niece. She is a good worker good with the children, gets to work on time, is seldom absent from work and has uniformly received high evaluation marks. On her performance rating dated January 20, 1970 covering the period 3/16/77 to 3/16/78 Respondent was rated 94, which is the top of Excellent or Better Than Average performance scale. A rating of 95 to 100 means a consistently outstanding performance (Exhibit 13). The Supervisor reviewed this evaluation on February 20, 1978, following her receipt of Exhibit 3 which formed the basis upon which she first decided to fire Respondent; and, by memorandum, reduced these rating factors to 70's. Howard Harris, the Principal at Carver and Meacham schools, was called as a rebuttal witness. Harris signed a letter dated August 29, 1978 (Exhibit 15) in which it is stated that during the period 1967-1969 Respondent was employed as a teacher's aide at Carver and that she was dismissed from that program "because of difficulties encountered with the discipline of pupils." (This difference in the dates as testified, to by Respondent and Harris is not material.) While on the witness stand Harris testified he wrote the letter, couldn't recall the name of the administrative staffer who requested he submit the letter, that Respondent was laid off in 1969 because of insufficient funds, that she was not laid off because of any misbehavior on the job, and that she had been a good teacher's aide while under his supervision. The fact that Exhibit 15 is dated August 29, 1978 and date-stamped into the Affirmative Action office on August 29, 1978 would indicate the letter was hand-delivered or typed and signed in the office to which addressed. With respect to the charge of conduct unbecoming an employee of the school system one of Petitioner's witnesses, the Supervisor, testified that the only basis for terminating Respondent was because she administered corporal punishment after being specifically told teacher's aides were not to do so under any circumstances; and another witness, the Personnel Officer, testified the unbecoming conduct was the same conduct which led to the charges of insubordination or serious breach of discipline.
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Donald L. Katz, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0111863. The last license issued was as a broker, c/o KLF, Inc., 7991C Johnson Street, Hollywood, Florida 33024. At all times pertinent to this proceeding, respondent was a member of the Veteran Administration (VA) Fee Panel, and appraised properties for the VA in Broward, Dade and the upper half of Monroe Counties. On or about October 2, 1989, Unified Mortgage Company, which apparently held a mortgage guaranteed by the VA on the property and was in the process of foreclosure, requested that respondent do an "as is" appraisal of the residential property located at 11950 SW 176th Street, South Miami, Dade County, Florida. Consequently, respondent undertook to appraise the property as requested, and thereafter submitted an appraisal report to the VA which identified the property that was appraised as being located at 11950 SW 176th Street, South Miami, Florida, and estimated its market value at $32,900.00. Unfortunately, respondent had erroneously identified the residential property located at 11940 SW 176th Street, which lay immediately next door to the subject property, as the property to be appraised and, consequently, his appraisal was not of the correct property. Such error was, however, promptly caught by the VA, and there was no apparent damage to anyone as a result of respondent's error. Regarding the origin of such error, the proof at hearing demonstrated that the two residential properties, which lay next to each other, were quite similar, although not identical, and that their improvements were in similar states of disrepair. Each property was abandoned, both were boarded up, their lots were extremely overgrown, and neither had any identifying sign or number. As a consequence of such difficulties, although exercising his best judgment, respondent erred in his identification of the correct property. Such error was not, however, shown to have resulted from any act or failure on his part that a reasonable appraiser under similar circumstances would have done differently. To the contrary, petitioner offered no proof as to what, if anything, respondent could or should have done, that he did not do, to correctly identify the property.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which dismisses the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of May 1992. WILLIAM J. KENDRICK 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 8th day of May 1992.
The Issue Whether Respondent’s license as a group home should be revoked for failing to comply with the requirements of chapter 393, Florida Statutes, and Florida Administrative Code Chapter 65G-2, as alleged in the Administrative Complaint (“Complaint”).
Findings Of Fact The Parties and Principal Allegations of the Complaint APD is the state agency charged with licensing of foster care facilities, pursuant to authority provided in chapter 393 and chapter 65G-2 and ensuring facility compliance therewith. KRM, operated as Dale’s, is a licensed foster home (#5442-3-FA) in Wesley Chapel, Florida, with a capacity of three residents. Dale’s obtained its license in 2012 and APD annually renewed its license until 2018. Ms. Bogan, KRM’s president, manages the home and lives there with her husband, Celestine Oliver, and their minor daughter. Their 21-year-old daughter, Justine Oliver, comes home from college over the summer. All family members are background screened because they interact with the foster children and, except for the minor daughter, all have the required medical screenings because they also provide care to the foster children. Ms. Bogan and Mr. Oliver own the property where the home is located. At all times relevant hereto, three minor children resided in Dale’s——D.M., Z.M., and N.B.3/ D.M. was a client of APD, which contracted with Dale’s to pay for his room and board and other services provided by the home.4/ N.B. was a client of YMCA Sarasota. Z.M. was a client of Eckerd Connects Community Alternatives (“Eckerd”), though Ms. Bogan and her husband adopted her in November 2018. APD conducts monthly and annual license visits of foster homes to ensure compliance with the law. During a monthly visit, an inspector tours the home, observes staff with the clients, audits one client’s file, and audits medications to ensure they are current and clients are receiving them. During an annual visit, an inspector does a more thorough physical walk-through and an in-depth audit of the files of all of the staff and at least half of the clients. On July 25, 2018, APD issued a six-count Complaint seeking to revoke Dale’s license under section 393.0673 for the following violations of statutes and rules: Failing to timely notify APD about a foreclosure action filed against Ms. Bogan, as required by rule 65G-2.007(18)(a) and (c); Failing to have level two background screening performed for two family members from another country who stayed at the home in and around January 2017, in violation of section 393.0655(1)(d); Willfully or intentionally misstating its financial ability to operate the home in the 2017 application despite the pending foreclosure action, in violation of rule 65G-2.007(20)(a); Failing to have level two background screening for a substitute caretaker who stayed in the home with one foster child while Ms. Bogan was out of town in July 2017, as required by rules 65G-2.008(2) and 65G-2.011(3), and making willful misstatements about that issue to APD staff, in violation of rule 65G-2.007(20)(a); Failing to furnish sufficient proof of its financial ability to operate the facility for at least 60 days in the 2018 application, as required by section 393.067(6), and willfully or intentionally misstating its financial ability in that application despite the bankruptcy petition, in violation of rule 65G-2.007(20)(a); and Willfully or intentionally misstating in the 2018 application that Ms. Bogan was not a “party responsible for a licensed facility receiving an administrative fine,” when she owned a facility that received two prior fines in 2008 and 2011, in violation of rule 65G-2.007(20)(a). Foreclosure, Bankruptcy, & Financial Ability - Counts I, III, V In 2010, Ms. Bogan hired an attorney to help her modify the mortgage on the property. They were initially unsuccessful. On June 25, 2013, the lender electronically filed a notice of lis pendens to foreclose the mortgage on the property. On January 3, 2018, a final judgment of foreclosure was filed. The judgment scheduled a public sale for March 5, 2018. On January 29, 2018, Ms. Bogan notified Ms. Giordano, an APD inspector, about the foreclosure during a monthly visit. This was the first time that Ms. Bogan had notified APD about the pending foreclosure action. On March 1, 2018, Ms. Bogan filed a petition for personal bankruptcy in the U.S. Bankruptcy Court for the Middle District of Florida based on the advice of foreclosure counsel. She also filed a suggestion of bankruptcy in the pending foreclosure action. As permitted, she applied to pay the $310 filing fee in the bankruptcy case in monthly installments. Ms. Bogan filed for bankruptcy to stop the foreclosure sale, which was accomplished by filing the suggestion of bankruptcy. In November 2018, the lender modified the mortgage, Ms. Bogan dismissed the bankruptcy petition, and they have remained in the home ever since. In Count I, APD alleged that Dale’s violated rule 65G- 2.007(18)(a) by failing to “provide notification to the Regional office within two business days of receipt of a foreclosure notice.” Id. Ms. Bogan admitted that the notice of lis pendens was “electronically” filed on June 23, 2013, but testified that the notice was not served on her at the time, that she was unaware of it because her attorneys were handling the case, and that, in any event, she did not know of the requirement to notify APD. Ms. Bogan did not immediately notify APD of the foreclosure judgment because she remained unaware of that requirement. According to Ms. Leitold, APD’s residential program supervisor in the Suncoast Regional Office, Ms. Bogan violated the rule by failing to notify APD within two days of either: the date the notice of lis pendens was filed, June 25, 2013, or the date the foreclosure judgment was entered, January 2, 2018. Although there is no dispute about the dates on which the notice of lis pendens and foreclosure judgment were filed, the record is devoid of evidence as to when Ms. Bogan received those foreclosure pleadings, which is the triggering date under rule 65G-2.007(18)(a).5/ In Counts III and V, APD alleged that Ms. Bogan willfully or intentionally misrepresented her financial ability, in violation of rule 65G-2.007(20)(a), by attesting as follows: I hereby state that I have sufficient capital, income or credit to staff, equip, and operate this facility in accordance with Rule 65G-2 for sixty days without dependence on client fees or payments from the State of Florida. In Count III, APD alleged that the foreclosure action proved Ms. Bogan lied in the 2017 application. In Count V, APD alleged that the bankruptcy action proved Ms. Bogan lied in the 2018 application. Ms. Bogan testified definitively that she never willfully or intentionally lied about her financial ability in either application. She maintained that Dale’s has always had sufficient capital to operate the home. Indeed, it continued to operate throughout 2017 and 2018 while the foreclosure and bankruptcy cases were pending, apparently without receiving several monthly room and board payments or Medicaid payments for services it provided, as confirmed by Mr. Smith. APD acknowledged its burden to prove that Ms. Bogan willfully or intentionally lied in the applications. But it elicited no testimony from Ms. Bogan as to Dale’s or her financial situation in 2017 and 2018, or whether they had access to the financial sources listed in the application, i.e., capital, other income, or credit. It never asked Ms. Bogan about the underlying circumstances of the foreclosure, why she filed for bankruptcy, what she understood about the cases, or what she intended by signing the attestation. Such evidence is key to proving willful or intentional misstatements, especially given Ms. Bogan’s credible testimony to the contrary. APD chose instead to rely on the mere existence of the foreclosure and bankruptcy actions (and that Ms. Bogan asked to pay the filing fee in installments) to prove that she lied. However, the foreclosure and bankruptcy filings offer no insight into Dale’s financial ability, which is the applicant and licensed entity. Although Ms. Leitold said APD considers the financial ability of both the entity and individual owners, the application explicitly refers to proof of financial ability “of the licensee.” The attestation is also signed by the owner on behalf of the facility and notes APD’s right to request more financial documentation from the “applicant.” The statute is in accord. See § 393.067(6), Fla. Stat. (“The applicant shall furnish satisfactory proof of financial ability ”). Even as to Ms. Bogan’s financial ability, the foreclosure and bankruptcy pleadings offer little detail, much less credibly undermine her testimony that she did not lie. This is particularly so given that the bankruptcy apparently was just a strategy to modify her loan. Ms. Leitold’s testimony suffers a similar fate. She conceded this was the first foreclosure action against a foster home she had experienced and that she lacked knowledge of the foreclosure process and the rules of bankruptcy. She only reviewed the pleadings filed by APD in this case and had not researched other documents. She did not know if Ms. Bogan had in fact paid the filing fee in installments, though she based her belief that Ms. Bogan lied on that request. In Count V, APD also alleged that Dale’s failed to furnish satisfactory proof of financial ability in its 2018 application, in violation of section 393.067(6). With a renewal application, APD typically does not ask for proof beyond an annual budget. Indeed, APD renewed Dale’s license in 2017 based on the budget alone. Ms. Leitold testified that APD knew about the foreclosure and bankruptcy cases in 2018, which is why she requested more documentation. But the record is unclear as to what Ms. Leitold requested from Ms. Bogan, how she requested it, or what proof would have been deemed sufficient; there also was substantial confusion that APD’s counsel and witness had about whether this issue was even part of the Complaint.6/ The confusion about this allegation and how it was handled bear directly on the weight of the evidence and APD’s burden in this proceeding. What appears to be clear is that Ms. Bogan initially submitted a budget and attested to Dale’s financial ability on March 20, 2018. Presumably based on a request by Ms. Leitold, Ms. Bogan submitted a revised budget, a new attestation signed on June 2, 2018, and a bank statement in her daughter’s name, payable on death to Ms. Bogan, with a balance of $10,050. Ms. Bogan believed she had provided all of the information requested by APD to establish sufficient financial ability and never heard otherwise. Indeed, APD had granted the initial license in 2012 with proof of capital of only $7,000. Ms. Leitold received the statement, but she deemed it insufficient because the account was Ms. Oliver’s, who was not an officer of KRM, and it was only payable on death to Ms. Bogan. Ms. Leitold made this decision without knowing whether and to what extent Ms. Oliver may be involved in the business. She believed proof of financial ability of corporate officers was required, though she conceded the law did not so specify. Ms. Leitold never explained what document or amount would have been satisfactory or cite a statute or rule articulating those standards. Nevertheless, Ms. Leitold did not contact Ms. Bogan to inquire, obtain clarification, or request more documentation. She did not believe she was obligated to do so for a second time, even though the attestation Ms. Bogan signed on June 2, 2018——the form sent to APD with the bank statement——expressed APD’s right to request and obtain additional documentation to substantiate financial ability. Background Screenings – Counts II and IV In Count II, APD alleged that Dale’s failed to conduct level two background screenings for two of Ms. Bogan’s family members who were from another country and resided in the home, in violation of section 393.0655(1)(d). During a monthly visit on or around February 20, 2017, Ms. Bogan informed Ms. Giordano that her sister and niece were visiting from out of the country. Ms. Bogan credibly explained that they were visiting the U.S. for about three months, but would not be staying with her the entire time. She explained that they ultimately stayed with her for about a week, went to Atlanta for a few weeks, came back for two days, and then went to New York for the rest of their trip. APD presented no evidence as to when the visitors arrived or left, how old they were, or whether they were alone with the children or had access to their living areas. Ms. Giordano testified that Ms. Bogan said the visitors would be staying for four months, but confirmed that she did not know when they arrived or how long they stayed. She also was unsure as to when she saw the visitors at the home or how many times, though she did not believe it was more than once or twice. Upon learning of the visitors, Ms. Giordano was unsure if they needed to be screened, so she asked Ms. Leitold. Because Ms. Leitold had never dealt with a foreign visitor before, she e-mailed an APD lawyer to inquire. In that e-mail, Ms. Leitold confirmed that the home would accommodate the guests and noted that the foster children lived on the first floor and the guest rooms were on the second floor. On February 21, 2017, the APD lawyer advised that the visitors would need to have level two background screening performed under section 393.0655(1)(d), as they were visiting for four months and living at the home during their stay. Ms. Leitold forwarded the response to Ms. Bogan and informed her that she needed to conduct the level two screenings immediately. Ms. Bogan attempted to obtain screenings for the relatives, but could not because they were not U.S. citizens. She had name searches conducted by the Hillsborough County Sheriff’s Office, which revealed no arrests for either visitor. On March 23, 2017, Ms. Giordano conducted an annual license inspection of Dale’s and Ms. Bogan informed her that the screens could not be obtained. There is no credible evidence that the visitors were still there at that time, as Ms. Giordano could not recall and, though Ms. Leitold believed they were, her belief was not based on fact because she never visited the home and had no independent knowledge.7/ Because screens of the visitors could not be obtained, APD required Dale’s to sign a child safety plan to ensure that the foster children were never left alone with them. The evidence was undisputed that the visitors never stayed in the home after the child safety plan was issued on March 28, 2017. Despite APD’s belief that Dale’s had violated the law by failing to obtain the screenings, it did not cite Dale’s for the violation at the time. Instead, it executed the safety plan, allowed the children to stay in the home, and renewed Dale’s license in 2017 notwithstanding the purported violation. In Count IV, APD alleged that Dale’s violated rule 65G-2.008(2) by leaving a child with an unscreened person while Ms. Bogan was out of town in July 2017. In July 2017, Ms. Bogan traveled to Grenada. She planned to take the YMCA child with her and arranged for the APD child to stay with his parents. Ms. Bogan did not want to take the 11-year-old Eckerd child, who she and her husband have since adopted, because she is severely mentally disabled. Ms. Bogan did not, however, want to put the Eckerd child in a respite home. Although Ms. Bogan’s 21-year-old daughter had the medical screenings to serve as a caregiver, Ms. Bogan did not want to place that responsibility solely on her. Instead, Ms. Bogan asked her sister, Becky John, who was a foster mom in Atlanta, to stay in the home with her daughters. Before she arrived, Ms. John obtained her medication administration assistance certification from APD, effective March 2, 2017, and had sufficient background screening under Georgia law. But, she could not obtain a level two background screening for APD until she was present in Florida, so she planned to obtain that screening upon arrival. Ms. Bogan left first and took the YMCA child with her. Her husband and two daughters remained in the home, all of whom were background screened. Ms. John arrived at the home late at night on July 17, 2017. The next morning, Mr. Oliver departed for Grenada, leaving the Eckerd child with his two daughters and Ms. John. That same morning, however, an emergency required Ms. John to travel back to Atlanta immediately. Ms. John had only been in the house for about ten hours at that point. Ms. Bogan credibly testified that she called an APD respite home and asked it to keep the child for one day until Ms. John returned from Atlanta, as she wanted the child to be able to be in their home. Eckerd approved this plan. Ms. Bogan informed Ms. Giordano and Ms. Leitold that Ms. John had been screened in Georgia and had that documentation sent to APD. Ms. John dropped the child off at the respite home on her way back to Atlanta. She returned to Florida the next day and got fingerprinted, but the home would not allow her to pick up the child on instructions from APD. Several days later, on July 21, 2017, the background screening was approved and APD deemed Ms. John eligible. Ms. Bogan decided to return home from Grenada early. Upon her return, the respite home brought the Eckerd child back to Dale’s. The child had spent between 11 and 14 days there. Ms. Giordano and Ms. Leitold offered conflicting testimony, but neither of them visited or called the home. Neither had personal knowledge of the details of Ms. John’s involvement or what transpired while Ms. Bogan was away. They lacked consistent and definitive details about how they obtained the out-of-state screening documents and who arranged for the child to be moved to the respite home. They based much of their testimony on what Ms. Bogan purportedly told them, which was in stark contrast to her credible testimony to the contrary. The witnesses also waivered at times while testifying. For example, Ms. Giordano testified that Ms. Bogan called on July 12, 2017, to say that her husband and family were with her in Grenada, yet later testified that Ms. Bogan never mentioned her daughters on that call. When asked whether she recommended Dale’s license be renewed with knowledge of this issue, Ms. Giordano said she does not write a recommendation because she has no say in that process. However, Ms. Giordano signed the 2017 application checklist and attested, “I have reviewed this application licensure package and, based upon the information contained therein, recommend the issuance of a one year license.” Ms. Giordano also testified that having an unscreened adult in the home is a violation even if Mr. Oliver or his daughters were there, yet testified many times that unscreened persons can be in the house for less than ten hours per month as long as a screened caregiver is also there. Based on the weight of the credible evidence, the undersigned finds that Ms. John was in the house for less than ten hours and was never alone in the house with the child, as either Mr. Oliver or Ms. Oliver was there at all times. Prior Administrative Fines - Count VI In Count VI, APD alleged that Ms. Bogan willfully or intentionally misstated in the 2018 application that neither Dale’s nor one of its controlling entities had ever been “the party responsible for a licensed facility receiving an administrative fine,” even though Ms. Bogan served as the director of another facility that had received administrative fines. APD alleged a violation of rule 65G-2.007(20)(a). In 2005, Ms. Bogan and Mr. Oliver incorporated Welcome Home Elite Kids, Inc. (“Kidz, Inc.”), serving as its officers. That same year, Kidz, Inc., registered the fictitious name, Creative World School – New River (“Creative World”), which was a franchise business owned by Ms. Bogan. Creative World, initially licensed in 2005, was a daycare with 29 employees and 172 children. Ms. Bogan was neither trained nor licensed as a director. Instead, she hired a director, Patricia Tiller, and an assistant director, who were trained, licensed, and responsible for operations. Ms. Tiller completed the school’s license applications with the Department of Children and Families (“DCF”). In July 2017, Ms. Giordano reached out to DCF as to whether Creative World had previously been disciplined. She did this because Ms. Bogan mentioned owning a school in the past and having an unfavorable view of inspectors, so Ms. Giordano searched sunbiz.org for other entities owned by Ms. Bogan and found Kidz, Inc. DCF ultimately forwarded a set of documents, which included two administrative complaints against Creative World that resulted in the imposition of fines totaling $225. The first complaint, issued in 2008, named Ms. Tiller, Director, Creative World, as respondent. The complaint sought to impose $50 in fines for two staff training violations. Ms. Bogan was neither named in nor served with the complaint. Creative World paid the fine on a check drafted on its petty cash account, but the signature is not legible. The second complaint, issued in 2010, named Kidz, Inc., d/b/a Creative World, as respondent. The complaint alleged that Ms. Tiller was the director and sought to impose $175 in fines for three violations. DCF served the complaint on Ms. Tiller. Ms. Bogan was neither named in nor served with the complaint. Creative World paid the fine on a check drafted on its petty cash account, but the signature again is not legible. Ms. Bogan credibly explained that, if there was a prior fine, Ms. Tiller may have mentioned it to her but she did not recall anything specific. Ms. Tiller was the director, had access to the checks, and ran the business. It, thus, makes sense why DCF’s documents referred to Ms. Tiller and not Ms. Bogan. And, given that the fines were over eight years old and totaled only $225, it is not surprising that Ms. Bogan did not recall them in 2018, even if she knew of them years before. Ms. Bogan’s testimony was largely unrebutted. None of APD’s witnesses could credibly testify that Ms. Bogan knew about the fines, much less willfully or intentionally lied about them. They had no knowledge of her involvement in the business. APD never asked Ms. Bogan if she knew about the complaints or had her review them to jog her memory. It never asked any witness, including Ms. Giordano (who had testified to being familiar with Ms. Bogan’s signature as it related to the 2017 and 2018 applications), if Ms. Bogan signed the checks. These answers could have shed light on Ms. Bogan’s memory and veracity. FINDINGS OF ULTIMATE FACT It is well settled under Florida law that determining whether alleged misconduct violates a statute or rule is a question of ultimate fact to be decided by the trier-of-fact based on the weight of the evidence. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Determining whether the alleged misconduct violates the law is a factual, not legal, inquiry. APD has the burden to prove its allegations against Dale’s by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Avalon’s Assisted Living, LLC v. Ag. for Health Care Admin., 80 So. 3d 347, 348-49 (Fla. 1st DCA 2011) (citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)). As the Florida Supreme Court has stated: Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). Count I - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.007(18), by not “provid[ing] notification to the Regional office within two business days of receipt of a foreclosure notice involving the property.” Though the notice of lis pendens was electronically filed on June 25, 2013, and the final foreclosure judgment was filed on January 3, 2018, APD presented no credible evidence as to when Ms. Bogan received the “foreclosure notice,” which is the critical date triggering the obligation to notify APD under rule 65G-2.007(18). Count II - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated section 393.0655(1)(d), by not obtaining level two background screenings for two family members. The weight of the credible evidence established that the family members visited the home for no more than two weeks and, thus, were not “residing with a direct services provider,” as required to prove a violation of section 393.0655(1)(d). Count III - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.007(20)(a). The weight of the credible evidence did not prove that Ms. Bogan lied about Dale’s or her financial ability in the 2017 application or did so willfully or intentionally, much less that such a lie concerned “the health, safety, welfare, abuse, neglect, exploitation, abandonment or location of a resident” as required by rule 65G-2.007(20)(a). Count IV - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.008(2). Apart from the fact that APD failed to cite what provision of section 393.0655 or chapter 435 was violated, the weight of the credible evidence established that Ms. John visited the home for less than ten hours and was never alone in the house with the child without a screened caregiver. Count V - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.007(20)(a). The weight of the credible evidence does not prove that Ms. Bogan lied about Dale’s or her financial ability in the 2018 application or did so willfully or intentionally, much less that such a lie concerned “the health, safety, welfare, abuse, neglect, exploitation, abandonment or location of a resident,” as required by rule 65G-2.007(20)(a). Count V - Based on the findings of fact above, APD also failed to prove by clear and convincing evidence that Dale’s violated section 393.067(6), by not furnishing satisfactory proof of financial ability in its 2018 application. APD’s confusion as to this issue and the conflicting testimony as to whether and to what extent more documents were requested from Ms. Bogan make it impossible to find the evidence clear and convincing. APD also failed to present credible evidence as to the level of proof that it would have deemed satisfactory or cite a statute or rule where such standards are articulated. Count VI - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.007(20)(a), by swearing that she had not been “the party responsible for a licensed facility receiving an administrative fine” in the 2018 application. The weight of the credible evidence did not prove that Ms. Bogan even knew about the prior fines or lied about them in the 2018 application, much less that such a lie concerned “the health, safety, welfare, abuse, neglect, exploitation, abandonment or location of a resident,” as required by rule 65G-2.007(20)(a).
Conclusions For Petitioner: Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 For Respondent: Marcia A. Taylor, Qualified Representative Taylor Solutions Group, LLC 1221 Southwest 34th Terrace Cape Coral, Florida 33914
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities issue a final order dismissing the Administrative Complaint against Dale’s Foster Home. DONE AND ENTERED this 30th day of August, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 30th day of August, 2019.
The Issue Whether the Respondents The School Board Of Marion County, Florida (Board) discriminated against Petitioner, Dorothy Quibell because of her race while employed with the Board.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Petitioner is a white female who was employed by Respondent as a substitute custodian on January 27, 1987. Petitioner was hired as a four-hour custodian at Howard Academy Community Center (Howard) on February 10, 1987. During Petitioner's employment the Board offered her, on more than one occasion, an eight-hour night-time custodial position but Petitioner declined any night-time position because she needed to be at home at night. During Petitioner's employment with the Board she continued to request assignment to an eight-hour day-time custodial position. At no time during Petitioner's employment with the Board did any supervisor complain of the quality of her work. On May 9, 1988, Juanita P. Cunningham, Program Manager for Howard Academy Community Center, who is black, wrote a letter to Petitioner criticizing her punctuality and reliability. There was insufficient evidence to show that Ms. Cunningham's criticism of Petitioner was unjustified. On May 13, 1988, Glen Cook, Area Coordinator of Custodial Services, issued a written reprimand to Petitioner with regard to her absence from work and failure to contact Ms. Cunningham of Petitioner's absence. There was insufficient evidence to show that the reprimand was unjustified. During the same time period that Petitioner was employed and received her reprimands, disciplinary actions were taken against eleven custodial employees within the school system, two of whom are white and nine of whom are black. Jack D. Copeland, Jr., Supervisor of Custodial Services, who is white, offered, and Petitioner agreed to, a re-location to Shady Hill Elementary School (Shady Hill) on a trial basis as an eight-hour day custodian with the understanding that the job included learning to drive a tractor and mowing twenty acres. Petitioner was re-located to Shady Hill on or about June 27, 1988. It is customary practice in the school system for eight-hour day custodians to be located in schools on a trial basis subject to final approval by the principal. This trial period does not mean that an employee who has reached permanent status is placed back on probationary status but, only that the assignment is on a trial basis so that a principal can determine if the custodian is compatible with the administrative staff, teachers and students of that school. The eight-hour day custodian who was located at Shady Hill on a trial basis prior to Petitioner was black and was transferred out for disciplinary reasons. Petitioner was returned to Howard from Shady Hill on or about August 28, 1988 at the request of Charles McAulay, principal of Shady Hill, who is white, after an unsuccessful trial period due to her constant questioning of whether the requested task was within her description and general attitude about performing her job. After Petitioner was returned to Howard from Shady Hill, she was given the opportunity to interview for a custodial position at Fort McCoy School, but was not selected for that position. The custodian selected for the position at Fort McCoy School was white. Petitioner was neither requested nor required to perform duties at Howard or Shady Hill other than those duties included in the job description for a custodial position. While it is clear from the record that Petitioner continually questioned her immediate supervisors in regards to whether a particular duty assignment was within her job description, sometimes even going to a higher level of supervisor, it is also clear from the record that the responses given by the supervisor did not always clarify the situation for the Petitioner. Therefore, because of this continuous questioning by Petitioner the supervisors concluded that she did not have a "good attitude" about her work. Regardless of the supervisor's opinion concerning Petitioner's attitude toward her work, Petitioner continued to perform her duties as a custodian up to and sometimes exceeding standards and, was treated no differently than other custodial employees of Board.
Recommendation Based on the foregoing Findings of Fact, the Conclusions of Law, the evidence off record, the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Florida Commission On Human Relations enter a final order denying relief to the Petitioner, Dorothy Quibell, and dismissing her Amended Petition. DONE AND ENTERED this 20th of July, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 20th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5252 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner has presented her Proposed Findings of Fact by categories and they will be addressed in the same fashion. Category 1: Exhibits 3, 4 Cunningham & Cook's Reprimands. 1, 2, and 3 (numbered 2). Rejected as not being supported by substantial competent evidence in the record. Category 2: Tape Recording FCHR. a. - d. Rejected as not being part of the record. Category 3: Notarized Statement. 1, 2(a-b), 3(d-e)(there was no a-b), 4, and 5. This mostly a restatement of testimony or questions asked in the transcript but if considered as findings of fact where possible they would not be material or relevant or would be unnecessary. But see Findings of Fact 14, 15 and 16. Category 4: Important Facts Concerning the Transfers. 1.-14. Same as for Category 3 above. But see Findings of Fact 11.-16. Category 5: Job Schedule. 1.-5. Same as for category 3 above. But see Findings of Fact 15 and 16. Category 6: Job Description. 1.-4. Not supported by any substantial competent evidence in the record. Category 7: Contradictions in Testimony. 1.-11. Same as for Category 3 above but additionally they are not supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-15. Adopted in Findings of Fact 1, 2, 6, 7, 8, 4, 9, 10, 11, 13, 12, 13, 14, 15 and 17, respectively. COPIES FURNISHED: Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dorothy Quibell, Pro Se 5914 Northwest 56th Place Ocala, Florida 32675 Janet W. Behnke, Esquire 121 Northwest Third Street Ocala, Florida 32670
The Issue The issue is whether Respondent has unlawfully discriminated against Petitioner on the basis of her disabilities in connection with her rental of an apartment, in violation of the Florida Fair Housing Act, section 760.23(2), Florida Statutes.
Findings Of Fact Petitioner suffers from bipolar disorder, surgically repaired spinal injuries, and a cardiac condition requiring a pacemaker, as well as unspecified environmental allergies. Petitioner thus has a physical or mental impairment that substantially limits one or more major life activities and has a record of having, or is regarded as having, such physical or mental impairment. At all material times, Respondent has managed Cutler Meadows, which is a Section 8 housing community that is part of the Housing Choice Voucher Program administered by the U.S. Department of Housing and Urban Development. Cutler Meadows is a complex of three three-story buildings comprising 225 apartments: 36 two-bedroom units and 189 one-bedroom units. A maintenance person resides in one of the two-bedroom apartments, so only 35 two-bedroom apartments are available for rent. These units are popular and infrequently become available for rent. By application dated September 5, 2000, Petitioner applied for a one-bedroom apartment at Cutler Meadows. Her application disclosed that Petitioner was disabled. Respondent approved the application, and, in November 2000, Petitioner moved into unit A-108, which is a ground-floor, one-bedroom unit. At the same time, Petitioner's disabled son moved into his own one-bedroom apartment on the third floor of the same building. In March 2010, Petitioner asked to be moved either to a one-bedroom apartment on the third floor or a two-bedroom apartment. Petitioner submitted a physician's note stating that she required a higher floor due to her allergies. A subsequent physician's note asserted that Petitioner's grandson needed to live with her to assist with her activities of daily living. Although her reported medical needs would seem to have required a two-bedroom unit on the third floor, by asking for a unit that satisfied either of these conditions, Petitioner appears to have been content with a higher one-bedroom unit or a lower two-bedroom unit. Prior to Respondent's reassigning Petitioner to another unit, on January 5, 2011, Petitioner's grandson, who had moved in with Petitioner, knifed his father, Petitioner's son, who, as noted above, resided at Cutler Meadows. Respondent commenced a short-lived eviction proceeding against Petitioner, but agreed to drop the matter if the grandson moved out and was not allowed to visit the complex. A couple of weeks after reaching the settlement with Respondent, Petitioner filed an application seeking, again, a two-bedroom unit or a one-bedroom unit on a higher floor. Shortly after filing this application, Petitioner learned that unit A-316, which was vacant, was about to be furnished with new appliances. Petitioner asked to be assigned this apartment, and, two days later, Respondent assigned this apartment to Petitioner. On October 21, 2013, Petitioner requested a two-bedroom apartment. Respondent has a written policy for the assignment of apartments. For the relatively scarce two-bedroom units, Respondent maintains two waiting lists: one for persons with medical needs justifying a two-bedroom unit and one for all other persons. As long as anyone is on the medical-needs waiting list, no one on the other list is assigned a two-bedroom unit. In this case, Respondent implemented its written policy. On receipt of Petitioner's application, Respondent placed her on the medical-needs waiting list, which had four persons ahead of her. Petitioner has failed to prove that any of these persons was not disabled. As each two-bedroom apartment became available, Respondent assigned it to the person at the top of the medical-needs waiting list. When Petitioner reached the top of the list, she received the next available two-bedroom unit, which, in fact, took place in March 2016 when Respondent assigned her a two-bedroom apartment, unit A-224, and Petitioner moved into the apartment. When asked, Petitioner could not say how Respondent discriminated against her on the basis of any of her disabilities. The crux of her case seems to turn on one or two misconceptions. Petitioner complained that a two-bedroom apartment was vacant because its tenant resided in southwest Florida, but she clearly lacked sufficient understanding of the facts of that transaction to establish any wrongdoing on Respondent's part. Petitioner seems to think that other persons, besides the four ahead of her on the medical-needs waiting list, obtained two-bedroom units before she did, but Petitioner has no evidence to support this opinion, which appears to be incorrect. Petitioner badly undermined her own judgment when she complained, at an earlier time, when Respondent assigned a higher one-bedroom apartment to someone whose home had burned, rather than to her. In sum, Petitioner has provided no direct evidence of discrimination, nor any basis whatsoever for an inference of discrimination. Petitioner has failed to provide any evidence even suggestive of unfair treatment of her by Respondent.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on March 22, 2016. DONE AND ENTERED this 21st day of April, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Ann Hervas Apartment A224 11280 Southwest 196th Street Miami, Florida 33157 Andrew L. Rodman, Esquire Jon K. Stage, Esquire Stearns Weaver Miller Weissler Alhadeff and Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 (eServed) Kara S. Nickel, Esquire Stearns Weaver Miller Weissler Alhadeff and Sitterson, P.A. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether the Respondent, North Hill Manor, Inc., committed the violations set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. North Hill Manor is an assisted living facility which is owned by North Hill Manor, Inc. North Hill Manor is operated by the owner, Douglas Koontz, who is assisted by his wife, Kelly Koontz, as well as other family members. While North Hill Manor is a family business, both Mr. and Mrs. Koontz held employment elsewhere and are parents of five young children. North Hill Manor has a licensed capacity of 32 beds and is housed in a restored historic home located in Pensacola, Florida. The Surveys Pursuant to a complaint, Sandra Corcoran, a registered nurse specialist employed by Petitioner, conducted a survey on September 26, 2000, of Respondent's facility. Ms. Corcoran concluded that there were deficiencies in two areas. First, that the facility had failed to provide a separate bank account for advance payments (Tag A106) from one of its residents (hereinafter Resident #1) and that the facility had not provided a refund of these advance payments to Resident #1 in a timely manner after she no longer lived in the facility (Tag A323). Ms. Corcoran designated the date of correction for the Tag A106 deficiency to be 10/26/00 and the date of correction for Tag A323 to be "Immediately (9/29/00)." The Koontz's were cooperative and provided Ms. Corcoran with an accounting of Resident #1's charges and payments. The survey form used by AHCA provides space for a corrective action plan to be written. Mrs. Koontz inserted the following as to Tag A106 and Tag A323, respectively: North Hill Manor has changed its policy to no longer accept any advanced payments. In addition, all bookkeeping including accounts payable and receivable, are being transferred to an independent accountant. Transfer is to be completed by January 1, 2001. On October 11, 2000, an additional $31,200.00 was sent to guardian of client. The total amount refunded to date is $60,500.00. There is approximately $30,000.00 remaining. However, expenditures on behalf of client have to be adjusted from this amount. In addition, North Hill Manor is diligently working to secure the liquidity of the money needed to make final refund. We anticipate complete settlement within 30 days. Mrs. Koontz discussed this corrective action plan with Kathy Roland of AHCA. The notation, "POC accepted KR 10-19-00" appears on the corrective action portion of the form. On October 23, 2000, Mary Sweeney, a registered nurse specialist surveyor employed by Petitioner, conducted a follow-up survey of North Hill Manor. Ms. Sweeney concluded that the deficiencies referenced in the September 26, 2000 survey had not been met. However, at the time of both the September 26, 2000 survey and the October 23, 2000 survey, Respondent was no longer accepting advance payments from residents and was not co-mingling residents' funds with Respondent's business account (Tag A106). As for the issue of the refund (Tag A323), Mrs. Sweeney noted that the facility had not refunded a $30,000.00 balance to the resident. The date of correction was designated as 11/24/00 on the October 23, 2000 survey. The corrective action plan written by Mrs. Koontz stated in pertinent part as to Tag A323: HUD has approved the re-financing of the mortgage and the $30,000.00 minus the cost of armoire and drug bill will be completed within 45 days. We will also keep you updated by mailing a copy of the commitment letter to you from the HUD lender as soon as possible . . . . There is no indication on the October 23, 2000 form as to whether the corrective action plan was accepted or not by AHCA. The Koontz's continued to be cooperative with the investigation. Another follow-up survey of North Hill Manor was conducted on December 1, 2000, by Ms. Sweeney. The survey continued to cite Tag A106 regarding co-mingling of funds stating that this deficiency had not been corrected. However, funds were no longer co-mingled at the time of this report, as was the case on the dates of the two previous survey reports. As to Tag A323, Ms. Sweeney noted on the December 1, 2000, survey that, based on a telephone interview with Mrs. Koontz, the deficiency had not been corrected in that North Hill was still waiting for the HUD commitment letter and that funds would be available no later than December 31, 2000. Resident #1 Resident #1 moved into North Hill Manor in 1996. She had very little family involvement. As a consequence, the Koontz's did a lot of things for her on a more personal level than with other residents including taking her to their home on holidays and purchasing birthday presents for her. The Koontz’s considered Resident #1 to be part of their family. In March or April of 1998, Resident #1 began making prepayments to North Hill. Mrs. Koontz tried to persuade Resident #1 not to make prepayments but Resident #1 insisted. The prepayments were deposited into North Hill Manor's account and apparently were used for the operation of North Hill Manor.2 Accounting System/Computer Crashes During 1998, Resident #1 made $12,800.00 in advance payments to North Hill. At that time, North Hill used a computer program called Quick Books for its accounting system. There was a resident account for each resident that enabled the administrator to track payments by Resident #1 and credit them to her account. In May of 1998, North Hill Manor, Inc., began expanding by acquiring another facility in Milton, Florida. In March 1999, North Hill experienced the first of two computer crashes that erased all of its accounting records. The Koontz's contacted Tom Bacarro who is experienced with diagnosing computers with problems and computer troubleshooting. He determined that the computer was damaged and the information on the hard drive was lost. The first computer crash necessitated recreating all of the accounting records by hand. The process was extremely time consuming. While North Hill was in the process of recreating its accounting system, Resident #1 continued to make advance payments to North Hill. During 1999, Resident #1 made $61,200.00 in advance payments. In early 2000, Mrs. Koontz became concerned further about the advance payments made by Resident #1. She spoke to Resident #1 about getting a trust officer to look after her finances. Mrs. Koontz contacted Resident #1's bank to inquire as to whether they offered such services and was informed that it did not. Also in early 2000, North Hill experienced a second computer crash. The Koontz's had installed a security system at their new Milton facility and somehow a glitch in that system caused the North Hill computer to crash, once again wiping out their accounting records. Employees of the Milton facility had access to the computer which may have caused the computer problem. Thereafter, North Hill purchased a laptop computer with restricted access to use exclusively for maintaining their accounting system. Guardianship of Resident #1 On July 18, 2000, Mr. Carl Martin of the Department of Children and Family Services (DCF) came to North Hill Manor to make inquiries regarding the advance payments made by Resident #1. On July 25, 2000, Lutheran Services Florida, Inc. (Lutheran Services), was appointed Emergency Temporary Guardian of Resident #1. On July 26, 2000, Lutheran Services arrived at North Hill Manor and removed Resident #1. Lutheran Services did not provide any advance notice to North Hill of its intention to relocate Resident #1. When Lutheran Services removed Resident #1 from North Hill Manor, it also removed her belongings. Additionally, Lutheran Services removed some property that did not belong to Resident #1 but was property of North Hill Manor. The property belonging to North Hill Manor that was removed was a television set valued at $408.48 and an antique armoire estimated to be worth approximately $1,000.00. Resident #1 had also incurred charges related to medicine and medically related items during her stay at North Hill Manor, in the amount of $302.66. Partial Refund of Resident #1's Advance Payments On July 28, 2000, the attorney for Lutheran Services wrote to Mr. Koontz requesting that he transfer any remaining items of Resident #1 including all funds held in trust. On August 3, 2000, North Hill made a payment of $16,500.00 to Lutheran Services’ attorney. This amount was what Mr. Koontz calculated to be due Resident #1 for the year 2000. His letter accompanying the $16,500.00 check stated that they were attempting to reconstruct records for the other years. On August 15, 2000, Mr. Koontz again wrote the attorney for Resident #1 and enclosed a check for $12,800.00 which was the amount of overpayment he calculated for 1999. In that letter, he also advised that the armoire had been removed by the movers, and that while there was no hurry, he wanted the armoire to be returned. On September 21, 2000, Mr. Koontz again wrote to the attorney for Lutheran Services and stated that an accounting of 1999 records revealed a credit balance due Resident #1 in the amount of $61,200.00, subject to final verification for Resident #1’s medication and other expenses. He enclosed a check for $31,200.00 also dated September 21, 2000. The Koontz's then began to explore and pursue other avenues to secure enough money to repay the remainder of the refund. On May 15, 2001, the attorney for North Hill Manor wrote the attorney for Lutheran Services and enclosed a check for $26,852.77 with the words, "Full/Final Advance Pmts" on the face of the check. The letter stated: This amount represents the remainder of the advance payments made by [Resident #1] less several offsets. These offsets include: $1,612.90 for prorated rent from August 1, to August 25; 2) $234.33 for the twenty-five inch color television that was removed by the movers; 3) $1,000.00 as was the estimated cost of replacing the antique wardrobe closet that was removed from the facility; and finally 4) $300 for the estimate cost of medication related charges incurred by [Resident #1]. The attorney for Lutheran Services returned the check objecting to the reference to full and final advance payments on the check. She also requested that any offsets not be included in the calculation and requested a detailed itemization for any requested reimbursement for the items which North Hill asserted were mistakenly taken the day Resident #1 was removed from the facility. On May 31, 2001, North Hill’s attorney again tendered a check in the amount of $26,852.77 to the attorney for Lutheran Services without reference to full and final payment. The letter stated: In regards to the offsets, while we appreciate that you may dispute North Hill Manor’s entitlement to these offsets, we believe they are legitimate offsets. However, we again emphasize that the tender of this check is made in good faith and without prejudice for you to contest any of the offsets. (emphasis in original) This check was also returned by Lutheran Services with a request that the offsets not be included and that a detailed itemization with supporting documentation regarding the offsets claimed by North Hill be provided. On June 19, 2001, the attorney for North Hill again tendered a check for $26,852.77 which apparently was accepted by the attorney for Lutheran Services. At the time Resident #1 was removed from North Hill, her rent was $2,000.00 per month. The document entitled, "Admission/Retention/Discharge Policies" in effect between Resident #1 and North Hill Manor contains a provision which states in pertinent part: A resident’s occupancy at North Hill Manor will be terminated with a notice of at least 30 days, under the following conditions: * * * d. the resident and his or her family decide to seek residency elsewhere. A document entitled, "North Hill Manor's Accounting of Personal Funds & Refund Procedures" reads in pertinent part: Occupancy at North Hill Manor is on a month to month basis. . . . North Hill Manor asks that a notice of at least 30 days be given when a resident decides to move. If the move is by choice only, and not based on the appropriateness of placement, then no refund for days remaining in the month paid for is issued . . . . Lutheran Services acknowledges that it was aware that the contract used by North Hill Manor contained a 30 day notice provision and that such provisions are very common. The total amount repaid from North Hill to Lutheran Services is $87,352.77. That amount reflects Resident #1's prepayments, less the value of the armoire ($1,000), the cost of the television set ($408.48), and miscellaneous medically related expenses ($302.66). Further, this took into account a $1,612.90 charge for the remainder of rent for August 2000, as North Hill was entitled to a 30 day notice. These offsets, which totaled $1,711.14, were legitimate offsets against the total amount North Hill was to repay Resident #1. Further, North Hill notified the attorney for Lutheran Services in correspondence dated August 15, 2000, and September 21, 2000, regarding these items. These items were again referenced in correspondence from North Hill's attorney to Lutheran Services' attorney.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order imposing fines in the amounts of $100.00 for the Class III violation of Tag A323 and $173,627.88 pursuant to Section 400.424(3)(a), Florida Statutes. This recommendation is not intended to discourage the parties from negotiating a reduction of the fine imposed under Section 400.424(3)(a), Florida Statutes, if so inclined. DONE AND ENTERED this 27th day of September, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 27th day of September, 2001.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered which denies the license renewal for Morris Manor to operate as an Assisted Living Facility. DONE AND ENTERED this 19th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 19th day of May, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway 220 Tampa, Florida 33614 Wilhelmena Morris, Administrator Morris Manor Post Office box 309 Ocklawaha, Florida 32179 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
