The Issue The issue for consideration in this matter is whether Respondent’s Extended Congregate Care (ECC) license for the facility at 302 11th Avenue, Northeast, in St. Petersburg, Florida, should be renewed, and whether her license to operate that assisted living facility should be disciplined because of the matters alleged in the denial letter dated April 16, 1998, and in the Administrative Complaint filed herein on December 15, 1998. Ms. Berthelot requested formal hearing on those issues, and this hearing ensued.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration (Agency) was the state agency in Florida responsible for the licensing and regulation of assisted living facilities in this state. Respondent Marlene C. Berthelot operated Four Palms Manor, a licensed assisted living facility located at 302 11th Avenue, Northeast, in St. Petersburg, Florida. Ann DaSilva had been a surveyor of assisted living facilities for the Agency for at least five years at the time of the initial survey in this matter that took place in December 1997. On that occasion, Ms. DaSilva, in the company of another surveyor, Mr. Kelly, inspected the facility in issue on a routine basis. At that time, Ms. DaSilva noted that with regard to at least one resident, there was no health assessment by the resident’s physician in the resident’s file. A health assessment should contain the physician’s evaluation of the resident’s capabilities and needs, as well as his or her initial status upon admission. In this case, Ms. DaSilva found that the health care provider had not addressed the skin integrity of the resident at the time of admission as should have been done. This is important because if the resident had had a skin problem or some other health problem, the resident might well not have been eligible to reside in the facility because facilities of this kind normally do not have the capability of treating pressure sore ulcers. Ms. DaSilva also found that the health assessment did not accurately reflect the resident’s status at the time of the survey. She found the resident was far less capable of doing what the health assessment said she could do, and the assessment was neither current nor accurate. The resident required assistance in all activities of daily living, and it was reported the resident fell out of bed because she could not stand. This situation was written up as Tag A-403. Tag A-403 was re-cited in a follow-up survey conducted on March 26, 1998. At that time the surveyor found that the health assessment did not address the resident’s method of medication administration. On admission, the resident was receiving no medications at all. After she began taking medications, the facility failed to get an order from her physician to indicate how the medications were to be administered, self or with help of staff administration. Tag A- 403 was cited for a third time in the October 1998 survey where the same deficiency, as cited in the March survey, the failure of the file to reflect how the resident’s medications were to be administered, was again cited. The record still did not indicate how the resident was to receive her medications. This tag was classified as a Class III deficiency and that classification appears to be appropriate. Tag A-406, which deals with the facility’s need for an evaluation of the resident’s ability to self-preserve in case of emergency, was also cited as a deficiency in the December 30, 1997, survey. There was no evidence in the file that such an evaluation was accomplished during the first 30 days after admission regarding this resident as is required by rule. Ms. DaSilva observed the resident in bed at 9:30 a.m., and the nurses’ notes reflected she was totally dependent and needed help with locomotion. The resident suffered from cerebral palsy with severe paresis (weakness) on one side. This situation raised the surveyor’s concern as to whether the resident could get out of the facility in the event of an emergency. No indication appeared in the records or documentation regarding this resident, and no supplement was provided upon the request of the surveyor. Ms. DaSilva also heard the resident call out for assistance, a call which remained unanswered because the one staff member on duty at the time was not in the immediate area. Ms. DaSilva observed that the resident was not able to stand without assistance but the facility’s paper-work indicated the resident could self-ambulate. This was obviously incorrect. When the facility administrator, Ms. Berthelot, was called by her staff manager, she came to the facility to assist in finding the requested paperwork, but was unable to locate in the file any evaluation of the resident’s capability to self-preserve. Tag A-406 was re-cited in the March 1998 survey because again there were two residents who had been in the facility for over 30 days without any evaluation of their ability to self- preserve. It was cited for a third time during the October 1998 survey when the surveyor found two other residents who had been in the facility for over 30 days but who had not been evaluated for their ability to self-preserve, and notwithstanding a request for such documentation, none was found or produced. This resulted in Tag 406 being classified as a Class III deficiency. At the March 26, 1998, survey, Ms. DaSilva cited Tag A-504, which deals with the requirement for direct care staff to receive training in patient care within 30 days of being hired. The Agency requires documentation of such training, and surveyors look at the files of the staff members on duty to see if the employee’s file contains certification of the proper training, appropriate application information, references, and like material. This information is needed to ensure that the employee is qualified to do the job. Here, examination of the facility’s files failed to show that the one staff person on the premises during the evening shift Monday through Friday, Employee No. 1, had had the proper training. It also appeared that Employee No. 3, who was hired to work alone on Thursday and Friday evenings and Saturday and Sunday day shifts, also did not have any record of required training. This subject matter was again cited during the October 1998 survey. When Ms. DaSilva requested the file of the individual on duty, there was nothing contained therein to reflect the individual had had the required training. This was properly classified as a Class III deficiency. Tag A-505 was also cited as a result of the March 1998 survey. This tag deals with the requirement for staff who provide personal services to residents to be trained in providing those services. Ms. DaSilva asked for and was given the facility’s files but could find no evidence of proper training having been given. This subject matter was again cited as a result of the October 1998 survey. At the hearing, Respondent presented certificates of training in personal hygiene, medication policy and training, and direct care 2-hour staff training, given to all employees of all Respondent’s facilities. These certificates reflect, however, that the training was administered on April 22, 1998, after the March 1998 survey but before the October 1998 survey, though that survey report reflects the item was again tagged because of employees scheduled to work alone who did not have documentation of appropriate training. This was a Class III deficiency. As a result of the December 1997 survey, Ms. DaSilva also cited the facility under Tag A-602, which deals with medication administration, and requires staff who administer medications to be trained in appropriate methods. At the time of the survey, Ms. DaSilva observed a staff member pour medications from prescription bottles into her hand, take the medications to the resident, and give them to her. This staff member was not a licensed person and only licensed staff may administer medications. At the time, when asked by Ms. DaSilva, the staff member admitted she was not licensed and had not received any training in medication administration. Tag A-602 was again cited as a result of the March 1998 survey because at that time Ms. DaSilva observed a staff member assist a resident correctly, but when she looked at the records, she found the member had not received the required training. This has, she contends, a potential for improper medications being given which could result in possible harm to the resident. This Tag was again cited as a result of the October 1998 survey. On this occasion, Ms. DaSilva’s review of records or employees who had indicated they had assisted with medications revealed no evidence of appropriate training. Here again, the training was certified as having been given in April 1998, and Respondent contends that by the time of the October 1998 survey, the certificates were in the records. They were not found by the surveyors, however, and it is the operator’s responsibility to make the records available. This constitutes a Class III violation. Under the rules supporting citation Tag A-703, a facility must have an ongoing activities program into which the residents have input. On December 30, 1997, Ms. DaSilva interviewed the residents who indicated there was no activities program at Four Palms. Ms. DaSilva observed no planned activities taking place over the six to seven hours she was there. This deficiency was re-cited during the March 1998 survey. Again, Ms. DaSilva interviewed the residents who indicated they watched TV or walked. A calendar of activities was posted, but there was no indication any were taking place, and upon inquiry, a staff member indicated none were being done that day. The activities calendar provided by the staff member merely listed potential activities, but did not indicate when or where they would take place. Ms. DaSilva again cited the facility for a deficiency in its activities program as a result of the October 1998 survey. At this time, she observed no activities during the time she was at the facility. The staff member on duty reported that the planned activity was not done because she did not have time to do it. At that time, residents were observed to be lying on their beds or watching TV. The one staff person on duty was cooking, cleaning, or helping residents with care issues. This is a Class III deficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Respondent renewal of a license to operate Four Palm Manor, an assisted living facility at 302 11th Avenue, Northeast in St. Petersburg, Florida; granting renewal of the ECC license for the same facility; and finding Respondent guilty of Class III deficiencies for Tags 403, 406, 504, 505, 602, and 703 on the surveys done on December 30, 1997, and March 26, 1998. An administrative fine of $100 should be imposed for each of Tags 403, 404, 504, and 505. DONE AND ENTERED this 13th day of December, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1999. COPIES FURNISHED: Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33901 Renee H. Gordon, Esquire Gay and Gordon, P.A. Post Office Box 265 St. Petersburg, Florida 33731 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issues in this matter are whether Respondent, Willine Gracia, operated an assisted living facility without the required license, thereby engaging in unlicensed activity; and, if so, the appropriate penalty.
Findings Of Fact The Agency is the state agency responsible for the licensure of assisted living facilities (“ALFs”) in the State of Florida. See Ch. 429, Part I; and Ch. 408, Part II, Fla. Stat. As part of its responsibilities, the Agency serves as the enforcement arm regarding the licensed (and unlicensed) activity and operation of ALFs. See gen., Chs. 408 and 429, Fla. Stat.; Fla. Admin. Code R. 58A-5 and 59A-35. Respondent owns a house located at 4502 Conley Street, Orlando, Florida. In January 2016, the Agency received a complaint alleging the unlicensed operation of an ALF at the 4502 Conley Street location. The Agency maintains records of ALF licenses and license applications pursuant to chapter 408 and rule 59A-35. Keisha Woods currently serves as an Operations and Management Consultant in the Assisted Living Unit for the Agency. Ms. Woods testified that she searched the Agency’s databases on October 26, 2016, and November 9, 2016, and found no record that Respondent was currently licensed as an ALF or had ever applied to be licensed as an ALF. Tresa Johnston is a Senior Human Services Program Specialist, also known as a “surveyor,” for the Agency. Ms. Johnston investigated the complaint on behalf of the Agency. On January 14, 2016, Ms. Johnston visited Respondent’s house located at 4502 Conley Street, Orlando, Florida. Ms. Johnston arrived around 8:30 a.m. Respondent was not present. Ms. Johnston knocked at the front door. An individual who Ms. Johnston later concluded was residing in the house, greeted her at the door and allowed her entry. Upon entering the house, Ms. Johnston met three individuals who she determined were living in the residence. She observed that the house contained three bedrooms and one bathroom. The residents informed Ms. Johnston that they stayed in two of the three bedrooms. Ms. Johnston also found personal effects in the bedrooms and bathroom that belonged to the residents. In the house, Ms. Johnston observed a combined living room/dining room area in which she found a piano, a small refrigerator, and a microwave. In the refrigerator, Ms. Johnston discovered several frozen meals and drinks. In the bathroom, Ms. Johnston did not find any toilet paper. She also noticed that the bathroom was lit only by a nightlight. On the doorway to the kitchen, Ms. Johnston encountered a sign that read, “Do not enter kitchen at any time.” The residents informed Ms. Johnston that Respondent forbad them from entering the kitchen. Disregarding the sign and entering the kitchen, Ms. Johnston saw that the refrigerator was chained and locked. She found canned foods on the counter and packaged food in the pantry. Ms. Johnston also discovered a dead rat on the floor. Ms. Johnston found the house was extremely cold. All three residents were wearing coats. The residents advised Ms. Johnston that Respondent did not allow them to manage the temperature. Respondent arrived at the house around 9:10 a.m. Respondent was carrying a plastic bag containing medication for all three residents. Upon entering the house, Ms. Johnston testified that she saw Respondent take several prescription bottles out of the bag, pour a dosage of medication into the caps of each bottle, and instruct the residents to ingest the medication. The residents then placed some medications in a daily pill box for a one-day supply. Respondent observed that one medication bottle was empty. She shook it and advised one of the residents, “I owe you one of these. I have to refill it.” Respondent, after giving the residents their medication, put the medication bottles back into the plastic bag. Ms. Johnston also heard Respondent declare that she would have to return in the afternoon to give a resident her medication. Thereafter, Ms. Johnston interviewed Respondent. During this interview, Respondent informed Ms. Johnston that she: does not live at 4502 Conley Street; is not related to any of the three residents; provides housing, meals, and manages medications for all three residents; cooks two meals a day for the residents. (The residents are supposed to eat a frozen meal for their third meal); does not allow the residents into the kitchen; keeps the residents’ medications in a locked cabinet in her home because two of the residents cannot take care of their own medications without her assistance; and generally arrives at the 4502 Conley Street location between 9:00 to 9:30 a.m. each day. Respondent also called the residents her “clients.” Respondent explained to Ms. Johnston that her clients were referred to her by a local hospital. Respondent explained to Ms. Johnston that she is paid to lodge two of the residents through a payee. She was in the process of obtaining a payee for the third resident. On January 22, 2016, Ms. Johnston contacted Anthony Alexander, who is a Representative Payee for the Social Security Administration. At the final hearing, Mr. Alexander explained that the Social Security Administration designated him a payee for certain individuals who have been determined to be unable to manage paying their own personal expenses with their Social Security benefits. Mr. Alexander testified that in his capacity as Representative Payee, he made rental payments to Respondent for two of the residents Ms. Johnston found staying at Respondent’s house. Mr. Alexander recounted that he made the rental payments through direct deposit to Respondent’s bank account. Mr. Alexander further stated that he mailed weekly stipend checks for the two residents to the 4502 Conley Street address. Mr. Alexander represented that his records show that the stipend checks were cashed. In addition, Mr. Alexander testified that, as of the date of the final hearing, he is still paying rent to Respondent for one of the residents. He is also still mailing a weekly stipend check for that individual to 4502 Conley Street, Orlando, Florida. Based on her personal observations and the information provided directly to her from Respondent and the three residents of 4502 Conley Street, Ms. Johnston concluded that Respondent was engaged in unlicensed activity by operating an ALF without a license. Therefore, on January 14, 2016, Ms. Johnston issued Respondent a Notice of Unlicensed Activity (the “Notice”). The Notice instructed Respondent to immediately cease operating an ALF without proper licensure. On February 1, 2016, Ms. Johnston revisited 4502 Conley Street. Ms. Johnston again asked a resident permission to enter the house. This time she was denied entry. However, she saw that two of the three residents she met during her initial visit on January 14, 2016, were still in the house. Based on her observations, Ms. Johnston determined that Respondent was continuing to engage in unlicensed activity after receiving the Notice on January 14, 2016. Respondent was not present at the final hearing. However, in her Election of Rights she presented to the Agency, Respondent wrote: I Willine Gracia have never owned or operated a non license facility. . . . I’ve never promoted myself as such. However, I did have renters in my home and at times some of them came through Lakeside Behavioral. Each of these ladies were independent and did not require supervision and could live on their own without a caregiver. . . . I only offered meals to those ladies who wanted that. I did not provide anything more. . . . I do live at 4502 Conley Street and this is my personal home, which I can prove not a ALF or business. Based on the competent substantial evidence in the record, the facts demonstrate that Respondent was operating an ALF as that term is defined in section 429.02(5). The evidence and testimony also establish that Respondent was engaging in this activity, without the proper license, from January 14, 2016, through February 1, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order finding that Respondent Willine Gracia operated an ALF without a license in violation of chapter 429. It is further recommended that the Agency impose an administrative fine in the amount of $18,000 against Respondent pursuant to section 408.812. DONE AND ENTERED this 9th day of December, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 9th day of December, 2016.
Findings Of Fact Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12- 0128-BPS, issued by the Florida Department of Health and Rehabilitative Services. In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility. On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and 30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications. On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City. Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital. Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison. Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was. Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare. Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could. Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English. Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of $1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded. Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of the Department of Health and Rehabilitative Services enter a final order revoking the Adult Congregate Living Facility License of Cirilo Alvarez, doing business as Briar's Haven Adult Care Center. RECOMMENDED this 1st day of April, 1983 in Tallahassee, Florida. 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 1st day of April, 1983. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 NW 13th Street, 4th Floor Gainesville, Florida 32601 Mr. Cirilo Alvarez Post Office Box 2392 Lake City, Florida 32055 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue presented here concerns the question of the entitlement of Petitioners to be granted a further license to own and operate an Adult Congregate Living Facility. Pursuant to Subsection 400.414(2)(b) Florida Statutes, Respondent has denied the relicensure of petitioners based upon the contention that the facility owner or operator "lacks the financial ability to provide continuing adequate care to residents." Respondent further relies on Rule 10A-5.21 Florida Administrative Code, for the licensure denial, claiming that evidence of issuance of bad checks or accumulation of delinquent bills constitutes prima facie evidence that the owners do not have the necessary financial ability to operate the facility. In particular, Respondent offered the following explanation of the license denial: Your credit history with the local credit bureau indicates long term delinquent accounts and civil judgments. During the period from January 4, 1982, until April 8, 1982, five (5) civil judgments were filed against you in the County Court of Citrus County. Copies of those actions (Aultman, Citrus Publishing, Allen, Schultz, Citrus Memorial) are enclosed. A report, a copy of which is attached, from the Citrus County Clerk of the Court indicates you have been convicted of worthless check charges. The Marion County Sheriff's Department has confirmed the existence of an outstanding warrant against you for worthless checks, a copy of which is attached. The Citrus County Sheriff's Department has levied against the real estate on which your facility is located, on instructions from a Judgment being issued out of the County Court of Pinellas County, Florida. You stated on the License Renewal Questionnaire that you owed no accounts which were over 60 days overdue. Your credit history, the levy against your property and a letter of 5/17/82 from the Citrus County Sheriff's office refute that claim. You stated on the License Renewal Questionnaire that you had had no checks in the last six (6) months returned for insufficient funds. Pending charges, set forth in the attached copy of warrant refute that claim.
Findings Of Fact Prior to April 7, 1982, the date that Respondent received the most current application for licensure as an Adult Congregate Living Facility, Petitioners had owned and operated such a facility in Inverness, Florida, under the business name Guiding Star. On that date, Respondent received the application for relicensure, a copy of which is Respondent's Exhibit 12, 2/ in the form as shown by that exhibit with the exception of the signatures found on the fourth, fifth and sixth pages. The application form indicated that Mrs. Wilder was the owner of the facility as had been reported in the past in other periods when the facility was licensed as an Adult Congregate Living Facility pursuant to Chapter 400, Florida Statutes. On the occasions prior to the April 7, 1982, request for relicensure, records of Respondent had shown Peggy Thornburg Wilder to be the owner and had also shown her to be the operator and administrator of the facility. In actuality, Peggy Thornburg Wilder had ownership interest in the facility, to include hiring practices; however, with the exception of twenty-three (23) days in August, 1981, Roy Wilder has been in charge of the day-to-day operations of the facility. (Peggy Thornburg Wilder, Petitioner, has been variously referred to for purposes of this hearing as Peggy Thornburg Wilder, Peggy A. Wilder, Peggy Ann Stone Wilder, Peggy Wilder, Peggy Ann Wilders and Peggy Thornburg.) On April 7, 1982, the date of receipt of the application, Roy Wilder and Peggy Thornburg Wilder were divorced. Nonetheless, with the exception of the twenty-three (23) days mentioned before, Roy Wilder had continued to live in the facility. On April 24, 1982, the Wilders were remarried. On April 29, 1982, an official with Respondent spoke to Mrs. Wilder and was told that Mr. Wilder was not in charge of the facility, notwithstanding his continued involvement as operator. As a result, the official believed Mrs. Wilder to be in charge of operations on the occasion of relicensure. On May 3, 1982, Mrs. Wilder told the official, a Karen Hubbell, that Mrs. Wilder had remarried her husband. During the pendency of the communications involving the application for the annual relicensure, it was discovered that the application signatures were missing and Hubbell requested that the application he signed in the appropriate places, which was subsequently accomplished as shown in Respondent's Exhibit 12. It was signed by Roy Wilder as operator and applicant. Mrs. Wilder did not sign as owner/applicant, and the form continued to reflect an application made in the name of Peggy Thornburg, as opposed to Peggy Thornburg Wilder. Respondent did not attempt to have Mrs. Wilder sign the application, and the application was processed with the name Peggy Thornburg being reflected as facility owner/operator/administrator in the body of the application form, and Roy Wilder being shown as the operator and applicant by signature. Nonetheless, it is evident, as it was in the past history of the facility, that Mrs. Wilder had ownership interest in the facility and Roy Wilder was operator of the facility. In deciding the question of relicensure under the April 7, 1982, application, Respondent focused its attention on the financial responsibility of Peggy Thornburg Wilder. In this process, the following items were discovered: A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Roy L. Wilder (also known as Roy Wilder) and Peggy A. Wilder in the amount of $786.56 plus $25.00 court costs. See Respondent's Exhibit 1. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Peggy Wilder d/b/a Guiding Star Nursing Home in the amount of $100.00 and $22.00 costs. See Respondent's Exhibit 2. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, Civil Division, against Peggy Wilder and Roy Wilder d/b/a Guiding Star ACLF Home, in the amount of $275.00. See Respondent's Exhibit 3. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, against Roy Wilder and Peggy Wilder in the amount of $61.95 and $15.00 costs. See Respondent's Exhibit 4. A final judgment in the County Court in and for Citrus County, Fifth Judicial Circuit of Florida, against Peggy Wilder in the amount of 44.50 and $21.00 costs. See Respondent's Exhibit 5. In the County Court of Citrus County, Florida, a plea by Peggy Wilder to the offense of obtaining property by means of a worthless check in the amount of $300 as nolo contendere to the offense charged, a finding of guilt and $115.00 costs in an action in which restitution was made. See Respondent's Exhibit 6. Reference Peggy Wilder in the County Court of Citrus County, Florida, a misdemeanor finding of violation of probation, a nolo contendere plea to that violation, a finding of guilt, a payment of $115.00 cost, a jail sentence of thirty (30) days. See Respondent's Exhibit 7. In County Court of Citrus County, Florida, misdemeanor worthless check charge in the amount of $168.29 against Peggy Wilder, a plea of nolo contendere to the offense charged, a finding of guilt, $115.00 cost, six months probation, special conditions of payment of $25.00 per month and an indication that restitution had been made. See Respondent's Exhibit 8. Copy of a Capias for the arrest of Peggy A. Wilder for two counts of worthless check Subsection 832.05(4), Florida Statutes, dating from April 1, 1982. Respondent's Exhibit 9. From the County Court, in and for Pinellas County, Florida, a notice of levy against Peggy Ann Stone Wilder, reference property in Citrus County, Florida, Lot 8, Block E of Highlands Trailer Park. See Respondent's Exhibit 10. Correspondence from the law firm of Jenkins, Brooks, Wharrier, Kaiser & Walters reference Item 10 instructing the Sheriff's office of Citrus, Florida, to withdraw the levy, in view of indication that Mrs. Wilder would make payments towards settlement of the matter. In view of the circumstances, that have been related above, on June 9, 1982, the application for relicensure of the Adult Congregate Living Facility known as Guiding Star was denied. 3/ Mrs. Wilder gave testimony in the course of the hearing. By way of explanation on the subject of her financial problems, she indicated that, following an October, 1981, notification of accusations which had been placed against Mr. and Mrs. Wilder, related to the then current license for the subject facility, there was a reduction of clients from twelve (12) in December, 1981; two (2) in July, 1982, and finally a closing of the facility in August, 1982. (A copy of the charges involved in DOAH Case No. 82-104 and the balance of the grounds for denial of license reapplication which have been withdrawn in the present action may be found as attachment "A" to this Recommended Order, to assist in understanding Mrs. Wilder's explanation.)
The Issue The issue in this case is whether Petitioner's request for exemption from disqualification from employment in a position of trust should be granted.
Findings Of Fact AHCA is a state agency required to conduct background screenings for individuals who provide certain types of healthcare related services under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner is seeking to become owner of a licensed nurse registry for pediatric and special needs care. As such, Petitioner is required to have a background screening check pursuant to section 408.809. Petitioner is interested in the field because his daughter was born with several disabilities. After completing Petitioner's background screening, Petitioner's 2011 disqualifying felony criminal offenses of owning, operating, or maintaining an assisted living facility without a license were identified. On March 6, 2019, Petitioner submitted a request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). In Petitioner's exemption package, he listed his work history, which included the following employment: Home Reach, LLC, from April 2013 to October 2013; Five Star Home Health from October 2013 to March 2014; unemployment from March 2014 to August 2014; Home Reach, LLC, from August 2014 to August 2018; and a leave of absence from Home Reach, LLC, starting August 2018. Petitioner also detailed his plans to comply with AHCA's laws and regulations in his exemption package. He explained that he has retained a consultant, Elisabeth Jean-Baptiste ("Jean- Baptiste"), to assist him. She is the director of the FEDEN Healthcare Education Institute, an entity that provides continuing legal and regulatory education in the healthcare field. Petitioner included in his exemption package documentation that he completed a 12-hour Adult Family Care Home course, which covered the rules and regulations for running a healthcare business. On May 15, 2019, as part of the exemption application process, Petitioner participated in a telephonic exemption hearing with AHCA. After the telephonic hearing and discussion, AHCA denied Petitioner's request for an exemption by letter dated May 30, 2019. Subsequently, Petitioner requested an administrative hearing. Disqualifying Offenses On May 26, 2011, Petitioner was arrested and charged with a two-count felony of operating, owning, or maintaining an assisted living facility without a license. Petitioner's criminal charges stem from him operating Heaven Sent Group Home, which he labeled "sober living" houses. At the two facilities Petitioner owned and operated, medication was distributed, and daily activities for the residents were performed without being licensed as an assisted living facility. On June 27, 2011, AHCA also charged Petitioner by Administrative Complaint in Case No. 2011001367 for operating Heaven Sent Group Home, which was the same unlicensed assisted living facility subject matter as the criminal Case No. 2011CF001679A. On or about September 20, 2011, Petitioner pled no contest in Case No. 2011CF001679A to the two felony counts of operating, owning, or maintaining an assisted living facility without a license. The court withheld adjudication and sentenced Petitioner to three years of probation, 100 hours of community service, court costs, and fines. On January 25, 2012, AHCA issued a Final Order in Case No. 2011001367, imposing a $99,000.00 fine for Petitioner's unlicensed activity. By letter dated October 2, 2013, Petitioner was notified that he completed his terms of probation and was no longer under the supervision of the Department of Corrections for Case No. 2011CF001679A. Hearing At hearing, Petitioner explained that he opened two facilities in 2007 to help the underprivileged. His residents included those that were released from incarceration or mentally ill and did not have place to live. He testified that most of his residents came from the courts or were referred by New Horizons. Petitioner denied receiving any AHCA notices sent to him regarding his operating the two unlicensed assisted living facilities prior to the 2011 cease and desist on Heaven Sent Group Home. Petitioner further claimed that he did not know he needed a license for the facilities he was running. Petitioner did admit that he was completely responsible for his wrongdoings and not being educated and aware of the rules and regulations regarding operating a group home or an assisted living facility. During the final hearing, Petitioner presented the testimony of Roshina Lakram, who testified that she knew Petitioner for 30 years and that he had been helping people struggling with drugs and mental illnesses with his sober living homes. Vanessa Risch ("Risch"), the health services and facilities consultant manager for AHCA's Background Screening Unit, testified at hearing that in making the decision to deny Petitioner's exemption, AHCA considered Petitioner's entire case file including exemption application, education and training records, personal letters of support, personal attestations, one employment reference letter, and Petitioner's explanations during the telephonic exemption hearing. AHCA concluded that Petitioner was not particularly candid during the May 15, 2019, telephonic hearing, because Petitioner failed to mention prior to and during the teleconference that he has the outstanding AHCA fine in the amount of $99,000.00 from his unlicensed activity from Case No. 2011001367. Although Petitioner had some positive letters of recommendation, his failure to be candid and honest in addition to his lack of effort to make any payments toward the outstanding AHCA fine was a major consideration in the denial of Petitioner's exemption. Risch testified that Petitioner failed to meet section 435.07(3)(a) and had not demonstrated by clear and convincing evidence that he was rehabilitated. At hearing, Petitioner also failed to readily admit that he owed the $99,000.00 fine to AHCA when testifying. First, Petitioner did not own up to currently owing the monies, then testified that maybe it happened while his daughter was in the hospital, and finally inquired about a payment plan. At the time of the hearing, Petitioner had not paid any amount towards the fine nor attempted to negotiate a payment plan agreement with AHCA to pay off the delinquent fine. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner was both credible and passionate in his testimony about his future and not wanting to work for other individuals for the rest of his life. He even testified that since it was America, he wanted his own. However, Petitioner failed to testify convincingly regarding the monies owed to AHCA. He was dismissive about his past instead of being honest and forthright regarding the outstanding $99,000.00. Such lack of candor and accurateness regarding the delinquent AHCA fine establishes Petitioner's ineligibility for an exemption from disqualification because he has not demonstrated by clear and convincing evidence that he has been rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Agency for Health Care Administration enter a final order upholding its denial of Petitioner's request for an exemption from disqualification for employment. DONE AND ENTERED this 10th day of October, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2019. COPIES FURNISHED: Chan Gobin 5839 Northwest Drill Court Port St. Lucie, Florida 34986 Lindsay Worsham Granger, Esquire Agency for Health Care Administration Building 1, Mail Stop 7 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was the owner of a licensed assisted living facility located at 7701 Southwest 20th Street, Miami, Florida (the subject premises). This facility was licensed for six residents. Jose Gutierrez-Marti and Maria Witt were the owners of the Respondent. The residents of the subject premises were mentally ill adults. On November 21, 1996, Arturo Bustamante, a fire protection specialist and a health facility evaluator employed by Petitioner, conducted an inspection of the subject premises. Mr. Bustamante went to the subject premises in response to a complaint and to conduct a follow-up inspection to the previous inspection. During the course of his inspection, Mr. Bustamante determined that there were eight residents living at the subject premises. This determination was initially made by counting beds and inspecting the prescription medication that was provided each resident. Mr. Bustamante confirmed that there were eight residents by interviewing the residents, and by observing that the eight residents were removed from the subject premises later that day by the Department of Children and Family Services, formerly known as the Department of Health and Rehabilitative Services. There was no running water in the subject premises on November 21, 1996. Consequently, there were no functioning bathroom facilities in the subject premises. Mr. Bustamante observed fresh feces and the smell of urine in an area of the backyard that the residents reported they used in lieu of a bathroom. Respondent had not notified Respondent that the water services had been terminated. There was no evidence that Respondent had taken any action to correct this serious deficiency. There was insufficient evidence to establish when the water service had been terminated or whether water service had been terminated previously. Mr. Bustamante observed roach droppings throughout the subject premises. Mr. Bustamante observed a box of powdered milk on a shelf inside the facility. When he opened the container to inspect the contents, five or six roaches jumped out of the box. Metro-Dade Police Officers Mary Ippolito and Mary Jo LaMont came to the subject premises at the request of Mr. Bustamante. These police officers were present when the residents were removed from the subject premises. Officer LaMont observed cockroaches in the kitchen area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds that on November 21, 1996, Respondent exceeded its resident capacity and failed to meet licensure standards. It is further RECOMMENDED that the Final Order impose an administrative fine against the Respondent in the amount of $1,000.00 for exceeding its resident and capacity. It is further RECOMMENDED that Respondent be fined $4,000 and its license revoked for failing to provide for the residents' basic sanitation needs. It is further RECOMMENDED that Respondent be permitted to reapply for licensure when it can establish that its facility meets all licensure standards. DONE AND ENTERED this 1st day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2st day of December, 1997.
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months." In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor. In another incident that occurred on May 22, 1997, Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct, especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
