The Issue The issue in this case is whether Respondents discriminated against Petitioners based on race regarding the renting of a house.
Findings Of Fact LM Rentals owns 80 houses, which it rents. Mr. Peeples manages LM Rentals. LM Rentals contracts with Vantage to provide management of the rental properties, and Ms. Mossow is employed by Vantage. LM Rentals rented a house to the Odoms for approximately eight years, beginning in 2003. Mrs. Odom is a Native American. Mr. Odom is White and is not a Native American. No evidence was presented to establish that either anyone from LM Rentals or Ms. Mossow was aware that Mrs. Odom is a Native American. Mrs. Odom's physical appearance, her speech, and her surname could reasonably lead one to think that she is not a Native American. Her appearance would lead one to believe that she is White. The application which the Odoms filled out to rent the house did not require the Odoms to state their race. Mrs. Odom never informed employees of LM Rentals or Ms. Mossow that she is a Native American. Mrs. Odom claims that her children have darker skin than she, and, therefore, Ms. Mossow and employees of LM Rentals should have known that she is a Native American by looking at her children. However, no testimony was presented that Ms. Mossow or anyone from LM Rentals ever met Mrs. Odom's children prior to the filing of the discrimination complaint. Ms. Mossow did not meet any of Mrs. Odom's children until a short time before the final hearing when she delivered copies of exhibits to the Odoms' home. Mr. Peeples, the representative of LM Rentals, did not meet the Odoms' children and never met the Odoms until a few days before the final hearing. The house which the Odoms rented from LM Rentals developed a mold problem. Instead of bringing the mold problem to the attention of Ms. Mossow or anyone at LM Rentals, the Odoms contacted the Polk County Health Department (Health Department), which sent an environmental specialist to investigate the mold situation in January 2010. LM Rentals received a letter from the Health Department concerning the mold. LM Rentals hired a third-party testing company to test the house for mold. The coils on the air conditioner were replaced. The Odoms were not satisfied and requested that Ms. Mossow find them another rental house in the same school district in which they currently resided. LM Rentals has an average vacancy rate of five percent, which equates to about four houses at any given time. At the time that the Odoms requested to be relocated, there was only one house vacant in the school district which the Odoms wanted. The Odoms did not like the house and refused to relocate. Mrs. Odom claims that there were other houses available, but could not point to any specific house. Her claim is based on sheer speculation. The Odoms requested that the carpet be replaced, but, based on the tests of the third-party testing company, LM Rentals refused to do so. About the time they were having the mold problems, the Odoms' daughter was suspended from school. Mrs. Odom attributes the suspension to discrimination by Respondents. Mrs. Odom called, as a witness, the teacher who made the referral which resulted in Mrs. Odom's daughter being suspended. The teacher did not know Ms. Mossow and did not know Mr. Peeples. The teacher, who is also an attorney, was not sure if she had ever represented LM Rentals in the past as an attorney. The suspension was totally unrelated to any mold problems and any alleged discrimination. Mrs. Odom also claims that her son was arrested for disorderly conduct about the time of the mold problem, and she lays the arrest at the door of Respondents. Her rationale for her claim is that the arrest happened at the time they were dealing with the mold issues and that LM Rentals knew people. There is not a scintilla of evidence to connect the arrest of the Odoms' son to any actions by Respondents. In April 2010, during the period in which the mold was an issue, a code enforcement inspector saw a small grill on the Odoms' driveway, which was apparently a code violation. The inspector told the Odoms that the grill needed to be removed. LM Rentals received a letter from the code enforcement department stating that LM Rentals would be fined if the violation was not corrected. Ms. Mossow contacted the Odoms in an attempt to get the grill removed in order to avoid being fined. Mrs. Odom claims that Ms. Mossow and LM Rentals caused the code enforcement inspector to come to the Odoms' home and ask that the grill be removed. Mrs. Odom's claim is without merit. It is unlikely that Ms. Mossow or LM Rentals would request a code enforcement inspector to find a code violation which would result in LM Rentals, as owner of the property, being fined. No evidence was presented to show that Respondents treated non-minorities any differently than the Odoms were treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Lawrence and Candace Odom's Petition for Relief. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 6th day of December, 2011.
The Issue The issues in this case concern whether the Respondent is entitled to renewal of her license to provide residential services for persons who are developmentally disabled.
Findings Of Fact Introductory and background facts At all times material to this proceeding, the Respondent provided, and was licensed to provide, residential services for persons who are developmentally disabled. The Respondent provided these services in a group home where she had from 4 to 6 clients at any one time. From time to time representatives of the Department would identify deficiencies in the way the Respondent was providing the residential services. Typically, the Department would advise the Respondent of specific deficiencies following a visit to the Respondent's group home. The Respondent would often take steps to correct the identified deficiencies, but some deficiencies tended to occur again and again. The Department attempted to work with the Respondent to help her remedy deficiencies and to help her prevent future deficiencies. Eventually, on February 25, 1999, the Department advised the Respondent by letter that it did not intend to renew her license to provide residential services for persons who are developmentally disabled. The Department's letter of February 25, 1999, advised the Respondent that the "quality of care by your facility does not meet the minimum licensure standard[s] as specified in Chapter 10F-6," and went on to list a number of specific concerns under the major categories of "Administration" and "Health and Safety." The concerns itemized in the letter were as follows: Administration Records of expenditure from individual residents' accounts are not maintained. Lack of accountability of client's personal allowances. Inappropriate use of client's personal allowance. Inadequate receipts for client's expenditures. Incomplete employee files. Employees without personnel files. Health and Safety Clients locked inside the house without supervision. Gate/Entrance chained. Lack of evidence of all night supervision. Clients left unsupervised during a week- end. Inadequate food supply. Clients' lack of access to food. Food prepared away from residence. Menus not posted. The letter also advised the Respondent of her right to request an administrative hearing if she wished to contest the Department's proposed course of action. After some initial difficulties complying with the Department's requirements, the Respondent's group home (which had been moved from its original location without sufficient notice to the Department) was issued a conditional license on January 1, 1998, followed by a standard license issued on March 1, 1998. The standard license was valid for one year from the date of issuance. In March of 1998 when the standard license was issued, conditions at the Respondent's group home appeared to be satisfactory. For the first few months following the issuance of the standard license, the Department did not have any significant concerns about the manner in which the Respondent's group home was being operated. The Respondent appeared to be responsive to suggestions by Department personnel and appeared to be trying to work with Department personnel to operate her group home in a proper manner. From March through most of June of 1998, there were no major problems at the Respondent's group home. The incident on June 27, 19982 On June 27, 1998, an incident occurred at the Respondent's group home that caused the Department a great deal of concern. On that day, at approximately 4:30 p.m., Mr. L. N. arrived at the Respondent's group home, in Boynton Beach, Florida, to visit his son who is mentally retarded. He was unable to enter because the gate to the fence surrounding the home was chained and locked. He observed some of the group home residents in the front yard and others in the house. Still unable to enter the gate later when he returned, Mr. L. N. telephoned police. Road Patrol Officer Susan Gitto responded. At approximately 6:45 p.m., Officer Susan Gitto arrived at the group home and climbed the fence. One of the men at the group home kept pointing to the house next door, north of the group home. Officer Gitto found no one on the premises other than the six mentally handicapped men who were in their pajamas and inside watching television. Based on information from Mr. L. N., Officer Gitto telephoned the responsible agency, the Department of Children and Family Services (DCF). A DCF case worker supervisor, Anna Glowala, arrived at the group home at approximately 9:00 p.m. She described the residents as nervous. Most of them were functioning at a level below the ability to respond to emergencies, that is, unable to telephone 911 or to evacuate in case of a fire. Ms. Glowala prepared a preliminary report on her findings at the group home. Sometime after 9:00 p.m., a woman who identified herself as Elvira Brown arrived with a key to the group home. She intended to take care of the clients that evening, but was sent away by Officer Gitto, who also left the home soon after that. At approximately 12:45 a.m., on June 28, 1998, Ms. Glowala's supervisor, William D. Shea, arrived at the group home. Mr. Shea relieved Ms. Glowala and stayed with the residents for the rest of the night. The six adult residents, according to Mr. Shea, were lower functioning and non-verbal. At 6:15 a.m., a woman who identified herself as Sharon Butler arrived to cook breakfast and supervise the residents. She assured Mr. Shea that she was an employee of the group home and would remain at the group home until the licensed operator returned from an out-of-town trip. After he left, Mr. Shea asked Ms. Glowala to continue to monitor the group home by telephone until the operator returned. Mr. Shea did not check the woman's identity or determine whether she was, in fact, a qualified employee, as required by DCF. Mr. Shea testified that a group home operator may leave properly screened employees to relieve them when they are absent. The screening includes fingerprinting for police background checks. DCF witness, Sue Pearlman Eaton, received the report of the incident on June 30, 1998. On July 1, 1998, she initiated an investigation by visiting the group home. When she arrived, she found one resident in the front yard sleeping on a lawn chair, and others inside watching television. One resident took her to a room in response to her request for help finding the owner/operator, but no one was there. She noticed where five of the six residents of the home were located, and what they were doing. After approximately twenty minutes to a half hour, Ms. Pearlman-Eaton observed the operator coming into the house. She was angry and said she had been in the backyard with the sixth resident feeding her dogs. She told Ms. Pearlman-Eaton that she hired Ms. Butler to stay at the group home during her previous weekend trip to Tampa. The operator reported that she left at approximately 12 o'clock noon on Saturday, and that Ms. Butler was present when she left. Ms. Pearlman-Eaton also questioned Ms. Butler, as a part of her investigation. As she apparently confirmed, Elvira Brown, Ms. Butler's cousin, was supposed to stay at the group home from 2:00 p.m. until 10:00 p.m., while Ms. Butler worked at another job. According to Ms. Pearlman-Eaton's report, Ms. Brown telephoned Ms. Butler and told her that her work at the group home was completed between 6:00 p.m. and 7:00 p.m., and that the residents were in bed. The report indicated that Ms. Brown stated that Ms. Butler asked her to help by feeding the residents and getting them ready for bed. Then she was to lock the gate and leave. Based on Ms. Butler's statement to Ms. Pearlman-Eaton that the group home owner/operator Mrs. V. R. T. approved Ms. Butler's plan to have Ms. Brown serve as an interim caretaker, the investigators concluded that both of them were perpetrators of abuse by neglecting clients who require 24-hour supervision. DCF failed to present the testimony of either Ms. Brown or Ms. Butler at the hearing. Therefore, the testimony of Mrs. V. R. T. and her credibility could not be weighed against that of any other person with direct knowledge of the incident on June 27, 1998. Ms. Pearlman-Eaton's report noted that the group home clients and facility were neat and clean, with no clients "acting out" or appearing to be in distress. Prior to the time that the group home owner/operator came in from the backyard on July 1, 1998, Ms. Pearlman-Eaton did not look in the backyard or hear a car arrive. She also did not determine whether or not there were dogs in the yard. During Ms. Pearlman-Eaton's questioning of Ms. Butler, Ms. Butler told her that she also worked at the Flamingo Clusters, another facility licensed by the State to provide developmental services. Clients of Flamingo Clusters are more severely handicapped than those at the V. R. T. group home. Ms. Pearlman-Eaton was initially investigating Ms. Butler and Ms. Brown. She added the group home operator to the neglect report, after she waited for her for up to a half an hour after arriving, on July 1, 1998, to conduct her investigation. While she was waiting to find Mrs. V. R. T., her report indicates that Mrs. Pearlman-Eaton telephoned Anna Glowala, the case work supervisor. She was advised by Ms. Glowala that ". . . it was not necessary for residents to be in eye range of the supervisor continually and its [sic] okay for them to be left alone for no more than 1/4 hr." Anna Glowala also noted the condition of the group home when she stayed with the clients. She remembered there were two large dogs, one a Rottweiler, in the backyard. She also saw a pathway between the two adjacent houses, the group home and the house next door, which is owned by the owner/operator's husband. Ms. Glowala also saw laundry and other items on a sofa in the garage where the owner/operator claims that she sleeps. The garage area also included a refrigerator, washer and dryer. Kay Oglesby, a DCF senior case manager, testified that she had previously warned the owner/operator that the gate to the fence should not be locked and that the residents needed constant supervision. She believed that during her first year supervising the facility, the owner/operator and her husband occupied a master bedroom in the group home. After DCF requested that they take in two additional clients, in May 1998, the owner/operator said she moved to the garage. Ava Kowalczyk, a DCF Human Services Program Specialist, confirmed that only screened and approved employees may work in a group home. The owner/operator has the responsibility for assuring that group home employees are qualified. She expressed concern that the owner/operator may have left the residents with her husband before he was properly trained. Ms. Kowalczyk described the cluttered condition of the sofa in the garage as inconsistent with Mrs. V. R. T.'s assertions that she sleeps in the garage. Finally, DCF employee Martin J. Fortgang confirmed the need for adequate supervision and the DCF's determination that inadequate supervision constitutes neglect. The group home owner/operator, the Respondent, Mrs. V. R. T., testified that two years ago she married her husband, who had lived next door for 18 years. While he lived with her in the group home, her husband's house next door was leased. She knew she was required to live on the premises and testified that she has done so, initially in the master bedroom. After accepting two more clients, on an emergency basis after another group home closed, she moved to the garage. Her husband has apparently moved back to his home next door. In March 1998, Mrs. V. R. T. submitted to DCF, as confirmed by Ava Kowalczyk, the names of her husband, Sharon Butler, and another employee for screening and approval. The document included fingerprints and a police report, which showed that Ms. Butler had a prior arrest for armed burglary. Mrs. V. R. T. denied ever giving permission for Elvira Brown to substitute for Sharon Butler. Although Sharon Butler had numbers to reach Mrs. V. R. T. by pager and cellular phone, and at her hotel in Tampa, Mrs. V. R. T. denied that Ms. Butler ever telephoned her for approval to leave Ms. Brown at the group home. Despite her arrest record, the documents which Mrs. V. R. T. submitted and received from DCF appear to confirm that Ms. Butler was an acceptable employee. One memorandum labeled a "Routing and Transmittal Slip" dated 3/31/98 states: Per your request, I have processed the Transfer of Request Form for Sharon Butler. Please see enclosed printout and Transfer form. Please maintain the [sic] these in your personnel files. The record indicates that Mrs. V. R. T. received written notice that Sharon Butler was not an approved caretaker on July 16, 1998. In contrast to the apparent approval form of March 31, 1998, the notice on July 16, 1998, from Ava Kowalczyk asserted that: This is to document my visits to your house on June 30, 1998 and July 2, 1998. At that time you informed us that for a year you have had an employee Sharon Butler, who acts as caretaker in your absence. This employee did not meet basic standards of licensing requirements. Ms. Butler's file consisted of her fingerprint card and local law enforcement checks completed on her on or about March 31, 1998. This was the first time you brought to our attention that you employed someone other than yourself and your husband. Considering the contents of the Routing and Transmittal Slip attached to the documents dated March 31, 1998, it was reasonable for Mrs. V. R. T. to believe that Sharon Butler was an approved employee. One section on the Request for Transfer of Records indicates that Ms. Butler was approved for dual employment at the group home and another facility, having had her screening originally completed on October 3, 1994. DCF has failed to demonstrate, by a preponderance of the evidence, that Mrs. V. R. T. knew that Sharon Butler was not properly screened and approved on June 27, 1998, when she left her in charge of the group home. DCF has also failed to demonstrate that Mrs. V. R. T. knew or approved of plans for Sharon Butler to leave the group home clients in the care of Elvira Brown while she was out-of-town. Other problems at the Respondent's group home On some occasions the Respondent would lock the doors of the group home while the clients were inside. When she did so, she would leave the door keys on top of the television set inside the group home.3 On some occasions the Respondent would lock the gate in the fence around the group home property while clients were on the property. The Department usually made monthly review visits to the Respondent's group home. Some of the problems noted during these monthly reviews are described in the paragraphs which follow. During the review visit on June 30, 1998, some of the food for the clients was stored away from the group home premises, and was not readily available to the clients. Specifically, no drinks or snacks were readily available for the clients that day. The required 5-day supply of food was not present on the premises, and the food that was present did not correspond to the menu. During the review visit on August 26, 1998, there were errors in the personal allowance logs of the clients. Also, on this date once again the food supplies did not correspond to the menu. During the review visit on September 22, 1998, the personal allowance logs of the clients were not up to date. Specifically, there were no receipts, there was no documentation of the personal allowance received by any of the clients, and there was no documentation of the SSI/SSA benefits received by any of the clients. Once again, the food supplies did not correspond to the menu, and there were inadequate food supplies for a hurricane emergency. During the review visit on October 28, 1998, the personal allowance logs for the clients were again incomplete. Receipts for client expenses were missing, and there was inadequate documented information about the expenses. There were no menus posted on this day. Also, the gate to the fence around the Respondent's group home was chained shut when the Department personnel arrived. This condition was of particular concern to the Department personnel, because the chained gate was an obstruction to any emergency evacuation of the group home. During the review visit on November 20, 1998, the personal allowance logs for the clients were again incomplete and inadequate. Again, receipts were missing. Again, the food present at the group home was insufficient to constitute the required 5-day supply of food. Again, no menus were posted. Also, on this occasion the meals for the clients were being prepared next door, rather than in the group home, as required. All of the clients at the Respondent's group home were developmentally disabled adult males. All of the clients functioned at a very low developmental level. Some were just barely verbal. Clients at this level of disability need constant supervision while they are in the group home. They cannot be left unsupervised without exposing them to serious risk of harm to their well-being. Even at night when such clients are sleeping, a responsible, appropriately trained, adult must be present in the group home to provide supervision and assistance if one of the clients wakes up in the night and needs direction or assistance.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Children and Family Services District issue a Final Order in this case denying the renewal of the Respondent's group home license. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000
The Issue Whether Petitioner should be granted an exemption from disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: In July 2001, Petitioner and his wife filed an application with the Department for a license to operate a family day care home. As part of the license application process, Petitioner was required to undergo background screening. The screening process was conducted in August 2001, and through that process, the Department obtained documents showing numerous criminal charges against by Petitioner between 1992 and 1997. The charges included driving under the influence, aggravated battery, aggravated assault with a firearm, armed robbery, and grand larceny. On August 30, 2001, the Department informed Petitioner that he was ineligible for employment in a position of trust working with children because of two disqualifying offenses identified through the background screening process, i.e., “larceny general – felony” and “robbery with firearm.” The letter identifies the date of the offenses as February 13, 1997. That date corresponds to the date that Petitioner was arrested on the charge of conspiracy to commit armed robbery. The case number for that offense was CR97-1756. On March 5, 1997, the State Attorney for the Ninth Judicial Circuit (State Attorney) filed a "No Information Notice" in case number CR97-1756 because the "case [was] not suitable for prosecution [because the] evidence submitted by [the] law enforcement agency [was] insufficient to prove guilt beyond a reasonable doubt." On March 11, 1997, while Petitioner was still in custody, the State Attorney filed charges against Petitioner in two separate cases. In the first case, number CR97-1735, Petitioner was charged with one count of robbery with a firearm (with a mask), three counts of aggravated assault with a firearm (with a mask), and one count of grand theft third degree. The offenses allegedly occurred on January 22, 1997. In the second case, number CR97-1736, Petitioner was charged with one count of attempted robbery with a firearm (with a mask). The offense allegedly occurred on January 31, 1997. On July 25, 1997, Petitioner accepted a plea bargain to resolve both of the cases. In case number CR97-1735, Petitioner pled guilty to grand theft, third degree. In case number CR97- 1736, Petitioner pled guilty to the lesser included offense of attempted robbery. In exchange, the State Attorney filed a nolle prosequi as to the other counts in case number CR97-1735, and Petitioner was sentenced to time served (163 days), placed on probation for two years, and assessed court costs and fines of approximately $800. The circumstances surrounding the offenses are not entirely clear. The credible evidence indicates that Petitioner and two of his friends (Jimmy Briggs and Jermane Dixson) fit the description of persons involved in a series of robberies in late January 1997, and an aborted robbery attempt on February 13, 1997. In this regard, the arrest report states: On 2-13-97 at 0329 hours, encountered three individuals, who had just plotted to commit an armed robbery. There was a sawed off shotgun, a toy gun, binoculars and several articles of clothing recovered from their vehicle. There was also another gun and a black shirt recovered from the residence of Jimmy Briggs. All three defendants confessed to planning the robbery and almost carrying it out, but got on the scene and changed their minds. Defendant Bryant Lee did confess to an armed robbery, that he said that he and defendant #2 (Briggs) and #3 (Dixson) participate [sic] in. [Lee] said it occurred at the Food Lion on Oakridge Rd. but would not be specific on the time, however indicated about three weeks ago. Defendant #2 (Briggs) and #3 (Lee) both confessed to plotting a robbery tonight and both wrote sworn statement [sic] to this effect. Despite his confession and his subsequent guilty pleas, Petitioner continues to deny any involvement in the crimes. He testified at the hearing that he was a victim of circumstances and poor judgment through his association with a bad crowd of friends. Petitioner further testified that he only agreed to the plea bargain because he wanted to get out of jail and go home to his son. In addition to the two cited disqualifying offenses, the record reflects that in December 1996, Petitioner pled nolo contendre and was adjudicated guilty of discharging a firearm in public, a misdemeanor. Petitioner was sentenced to time served (1 day) and assessed costs in the amount of $115. Petitioner was 24 years old at the time of his arrest in 1997. He is now 29 years old, and by all accounts, he has begun to turn his life around. He successfully completed his probation on July 24, 1999. He has not been charged with any criminal offenses since his 1997 arrest, and he has not even received a traffic citation. Petitioner has been married to his current wife for the past three years. They have two children together, and his wife's nine year-old daughter, Keyanna, also lives with them. Petitioner shares custody of his six year-old son from a previous relationship, and he is “getting current” on his child support obligation for that child. Petitioner is currently unemployed, but over the past five years he has worked as a chef in various restaurants. Petitioner testified that he is no longer working as a chef because he feels that his calling is to work with children in his community to steer them away from the path of criminal activity with which he was associated in his youth. The record includes glowing character references for Petitioner. One reference describes him as “a well rounded good hearted person, and one of the nicest people I know.” Another reference details Petitioner’s active participation in Keyanna’s school and states that he “has proven to be a model parent.” In November 2001, Petitioner successfully completed the 30-hour Family Child Care Training Course developed by the Department pursuant to Sections 402.305(2)(d), Florida Statutes, and Rule 65C-22.003, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 14th day of May, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Bryant L. Lee 725 Grand Street Orlando, Florida 32805 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue Whether the Medicare-certified, home health agency license held by Petitioner, Mederi of Dade County, Inc. (Mederi), terminated such that it may not, as a matter of law, be transferred to Petitioner, Home Health Link, Inc. (HHL), pursuant to a request for change of ownership application.
Findings Of Fact The Department is the state authority charged with the responsibility of regulating and licensing entities pursuant to Chapter 400, Florida Statutes. Such entities include home health care agencies. Mederi was licensed, license #20689-95, as a home health care agency and was Medicare certified. Mederi did not have a CON but was nevertheless "grandfathered" under the law to operate. Mederi has provided services in Dade and Monroe Counties since December of 1973. It offered a full range of skilled nursing services as well as physical therapy, speech therapy, home health aide services, occupational therapy, and medical social workers. In 1994, Mederi generated approximately five million dollars in revenue. As of the time of hearing, the company was not operating. HHL sought to obtain the license held by Mederi and filed an application with the Agency to do so on or about May 10, 1996. The license issued to Mederi in 1995 was valid through April 30, 1996. The renewal for this license was due sixty days prior to its expiration date. In January or February 1996, the Department sent HHL a letter together with a change of ownership application in order for Petitioner to initiate the proposed license transaction with Mederi. At that time HHL did not have a formal written agreement with Mederi but had contacted the Department to ascertain whether Mederi’s grandfathered status under the CON provisions could be transferred to HHL. Such letter advised Mr. Jansak that the application would be due sixty days prior to the effective date of the change of ownership. In response to the letter, the Department received the application for change of ownership filed by HHL on May 10, 1996. Typically, the Department sends a notice to a licensee ninety days prior to the expiration of a license with an application for renewal. In this case, the Department cannot establish that such notice was provided; however, there is no evidence that it was not issued. Historically, Mederi had timely filed applications for license renewal. On or about July 9, 1996, Ms. McKinstry sent Mederi a letter notifying it that it had failed to renew its license. Also on July 9, 1996, Ms. McKinstry sent HHL a letter notifying it that the change of ownership could not be accepted since Mederi’s license had expired. Instead, the Department suggested that the application be reviewed and considered as an initial application for licensure. The renewal application for Mederi was due on or about February 28, 1996. For every day thereafter in which the application for renewal was not filed, Mederi could be subject to a fine of $100.00 per day up to the amount of $5,000.00. In this instance, Mederi did not file a renewal application within the time allotted (prior to its license expiration or May 1, 1996) and no fine was imposed. The Department does not fine holders of expired licenses. HHL did not reply to Ms. McKinstry’s letter of July 9, 1996. On September 20, 1996, she sent a letter advising HHL that the application would be considered an initial application and requested additional documentation. The Agency then sent a letter to HHL on October 16, 1996, denying the initial application for licensure as the requested additional documentation had not been provided. The Department expects licensed agencies to understand, and comply with, applicable provisions of Florida law. Because Mederi failed to timely seek renewal of its license, the value of it as an asset has plummeted from approximately $250,000 to nothing. Under the agreement between Mederi and HHL, it was Mederi’s responsibility to keep the license current.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying Petitioners the remedies sought. DONE AND ENTERED this 30th day of June, 1997, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 30th day of June, 1997. COPIES FURNISHED: Jean Claude Dugue, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 Louise T. Jeroslow, Esquire Zack, Sparber, Kosnitzky, Spratt & Brooks, P.A. 100 Southeast Second Street, Suite 2800 Miami, Florida 33131 Sam Power, Agency Clerk Agency For Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308-5403
The Issue The issues to be resolved in these consolidated cases concern whether the licenses of Myrtle Grove, Inc. and M.H. Mikhchi should be subject to administrative fines for alleged failure to timely correct seven class III deficiencies at Three Oak Manor (hereinafter Respondent) and, if so, in what amount.
Findings Of Fact The Petitioner is the state agency responsible for the licensing and regulation of ALFs in Florida. The Respondent is licensed to operate Three Oak Manor as an ALF in Pensacola, Florida. Ms. Jackie Klug was called as a witness for the Petitioner. She is a public health nutrition consultant and a registered dietitian. Her duties included surveying for both state and federal regulation for ALF's, nursing homes, hospitals, and any other health care facility licensed by the state of Florida. Ms. Klug has been in this position for three years. She is familiar with the surveys at issue in these proceedings. "Tag deficiencies" are an agency manual or policy means of indexing rule violations. Ms. Klug participated in a survey of August 11, 1998. She observed the Respondent to have failed to have menus reviewed by a registered or licensed dietitian annually. Ms. Klug testified she cited "Tag A-807" a rule violation pertaining to the appropriate amounts of food being served to the residents on a daily basis. Ms. Klug observed that the Respondent did not provide the residents with the required daily servings of food. Ms. Klug cited "Tag A-810" for failure to record menu substitutions before or at the time a meal is served. This was based on her observations of what occurred on August 11, 1998. Ms. Klug established that these rule violations are class III deficiencies. Ms. Klug observed deficiencies during the survey of October 1, 1998, as follows: "Tag A-200" for non-compliance with requirements for posting for public view the last Agency for Health Care inspection. "Tag A-205" failure to maintain records, including major incidents. "Tag A-208" failure to report a fire in the facility. "Tag A-804" pertaining to the provision of therapeutic diets according to a written order by the health care provider, as ordered. Ms. Klug observed other deficiencies during the survey of January 21, 1999, as follows: "Tag A-515" failure to maintain minimum staffing levels. "Tag A-804" pertaining to the provision of therapeutic diets according to a written order by the health care provider, as ordered. "Tag A-810" failure to record substitutions before or when the meal is served. These deficiencies are repeat citations from the prior surveys of August 11, 1998 and October 1, 1998. Ms. Klug identified the Petitioner's Composite Exhibit 1, item 6 as a copy of the license for Myrtle Grove, Inc., d/b/a Three Oak Manor with an effective date of August 5, 1998, and with an expiration date of August 4, 2000. Myrtle Grove, Inc., d/b/a Three Oak Manor is the licensee. Ms. Paula Faulkner was called as a witness for the Petitioner. She is a Health Facility Evaluator III. Her duties included investigation of consumer complaints as well as routine surveys. Ms. Faulkner is familiar with the facility at issue. She has had numerous opportunities to survey this facility. Ms. Faulkner participated in the survey of October 1, 1998. Based on her observations at this survey she found a failure to meet minimum staffing requirements in the facility. Ms. Faulkner established that Ms. Donna Danley of the agency found this deficiency still uncorrected at the January 20 through 21, 2000 survey. Ms. Faulkner had no further involvement in this case, other than her participation in the team decision to cite these violations as a class III deficiency. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 1 as a copy of the summary statement of deficiencies for the re-visit survey of January 21, 1999. Based on her observations, the Respondent was out of compliance with state regulation "Tag A-006" pertaining to an un-stageable pressure sore. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 2 as an accurate representation of deficiencies still existing during a re-visit that was made on January 21, 1999, and a re-visit of March 8, 1999. Ms. Klug participated in these surveys. Based on her observations she found the Respondent was still out of compliance due to the fact that "resident No. 7" had a stage-two pressure ulcer which had been identified and was being treated since February 16, 1999. Ms. Klug observed other deficiencies during the re- visit survey of March 8, 1999, which were previously cited on January 21, 1999, as follows: Failure to have a completed evaluation for residents; the nurse on duty failing to have a current license in the state of Florida; failure to maintain documentation on file with regard to the qualifications of individuals performing limited nursing services. In fact, the nurse had applied for Florida licensure but had not yet received it. Ms. Klug identified the Petitioner's Composite Exhibit 2, item 4 as a copy of the Respondent's limited nursing license for Three Oak Manor. The license has an effective date of August 5, 1998, and an expiration date of August 4, 2000. Mr. M.H. Mikhchi is the licensee.
Recommendation Having considered the foregoing Finding of Facts, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That the Petitioner, Agency for Health Care Administration, enter a final order imposing fines totaling $2,400.00 against the Respondent, in the aggregate, for failure to timely correct seven class III deficiencies found during the above-referenced surveys, related to both administrative complaints. DONE AND ENTERED this 5th day of October, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 5th day of October, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Building 3, Suite 3408D Tallahassee, Florida 32308 M. H. Mikhchi, Owner/President Myrtle Grove, Inc., 1012 North 72nd Street Pensacola, Florida 32506 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue The issue presented is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents have been licensed by Petitioner to operate a foster home since August 1994. At all times material hereto, Mercedes and Topacio Hernandez were foster children who resided in Respondents' home. Mercedes was born on October 3, 1986, and Topacio was born on August 31, 1988. On March 1, 1996, Darlise Baron, a protective investigator for Petitioner, picked up Mercedes and Topacio from school and took them home. When she picked them up, they and their clothes were dirty. When they arrived at Respondents' home, Baron allowed the girls to play outside in the dirt while she waited for a Spanish-speaking police officer to arrive to assist her with her investigation. After Baron and the police officer entered Respondents' home, Baron inspected the kitchen area. The refrigerator contained "hardly any food", and the cabinets contained only a "couple of cans of vegetables." Respondent Ana Diaz explained to Baron that the girls received their breakfasts and lunches at school and the family had their evening meals catered. Baron noted that Mercedes was "average weight" and Topacio was "small for her weight". It is assumed from Baron's description that Topacio was overweight. Baron noticed a slide lock on the outside of the girls' bedroom door. The lock was the type where one merely raises the knob and slides the lock over. The lock was not a "dead bolt" lock. What Baron did not notice was that there were such slide locks on the outside of all the bedroom doors in Respondents' home. The purpose of the locks was to prevent Respondents' granddaughter from entering any of the bedrooms unattended. That toddler was the child of Respondents' daughter who also resided with Respondents. Baron determined that Mercedes and Topacio were not in immediate danger. She determined that the children did not need to be removed from Respondents' home. On March 4, 1996, Brenda Boston, a foster care unit supervisor for Petitioner, visited Respondents' home. She checked the sheets on the girls' bed: the top sheet was clean but the bottom sheet was soiled. In her view, the girls' bedroom was untidy because there were some packed boxes in the room. Boston checked the refrigerator and found it empty but there was a box of food in the freezer. The cupboards were also empty. Respondent Ana Diaz explained that their food was catered and showed Boston containers of warm food on the kitchen counter. There were no snacks available for the girls at that time. While Boston was there, she observed the interaction among Mercedes, Topacio, and Respondents and found it to be good. She determined that the foster children were not in any immediate danger and left them in Respondents' home. Lee C. Hickey is a social worker who has been the case manager for Mercedes and Topacio since December 1995. She sees the girls on a weekly basis, at home, at school, or in therapy. She has observed the interaction among them and the other students and the interaction among them and Respondent Ana Diaz and has found those interactions to be positive. Although she testified that there were no books in the Diaz foster home for the girls to read, she did not testify as to when that situation occurred and for how long that situation continued to exist. She did testify, however, that Topacio was in the second grade at the time and could not read. On March 26, 1996, Carol Rodriguez, a counselor employed by Petitioner, visited the Diaz foster home. She observed the children's room to be neat. Although she noticed the slide lock on the bedroom door, she did not question its presence. During that visit, Respondent Ana Diaz indicated that she was not happy with the Department and wanted Mercedes and Topacio removed from the home. On March 29, 1996, Rodriguez spoke with Respondent Ana Diaz who told her that Petitioner needed to remove the children from the Diaz home that day because Respondent Alejandro Diaz needed surgery on an emergency basis and they were leaving for Columbia the next day. Respondents did not lock Mercedes or Topacio in their bedroom for punishment, did not require them to clean the house in order to eat, did not keep them from eating meals as a family, and did not hit or threaten them. The children missed several therapy appointments when Respondent Ana Diaz was unable to transport them to therapy. They did receive therapy, however, on February 14, 1996, two days after their father died following a terminal illness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty and dismissing the charges filed against them. DONE AND ENTERED this 9th day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT 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 9th day of January, 1997. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Miami, Florida 33128 Arthur Spiegel, Esquire 1800 Northwest Seventh Street Miami, Florida 33125 Richard Doran General Counsel 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk 1317 Winewood Boulevard Building Two, Room 204-X Tallahassee, Florida 32399-0700
