The Issue The issue for disposition in this proceeding is whether Petitioner is entitled to relicensure as a family day-care home.
Findings Of Fact Sherill Gomez resides in Kissimmee, Osceola County, Florida, and had a provisional license to operate a family day- care home at her residence. The license was issued on April 13, 1998, and expired six months later on October 13, 1998. In 1989, Ms. Gomez was involved in an incident of child neglect. She had been babysitting in her home and left two children under the age of 3 sleeping but unattended when she went out shopping. In her absence a 2 1/2-year-old, Andre, got out the door and was picked up by the police. When Ms. Gomez returned she called the police and learned that they had Andre. Apparently all she knew about the child's mother was that she worked at Disney Village. Ms. Gomez took a three-hour course for family day-care and received explicit instructions regarding her duty to provide adult supervision at all times, both inside and outside the house. When she applied for licensure and assured DCFS that the 1989 incident never would occur again, the licensing supervisor, Kathy Swaggerty, agreed to a six-month provisional license with close agency scrutiny of the home during that period. During the provisional license period, Barbara Ivey inspected Ms. Gomez's home several times, both announced and unannounced. She found several violations in July 1998 regarding record-keeping, bedding for the children, and access to unsafe items such as bleach, kitty litter, a weed-wacker, bicycles, and barbeque grills. Concerned that Ms. Gomez did not understand her obligation, Ms. Ivey spent about two and one-half hours with her on that visit explaining the rules. Ms. Ivey also explained the importance of adequate supervision. Ms. Ivey returned on August 5, 1998, and found some violations had been corrected, but there were still problems with two of the children's records; the bicycles were still accessible, and the carpet was dirty. On a subsequent visit in August everything but a nutrition card for one infant had been corrected. Ms. Ivey and Ms. Gomez discussed supervision again and Ms. Ivey emphasized that with one adult caregiver all of the children needed to be in the house or out in the play yard together. Ms. Gomez applied for relicensure and Ms. Ivey scheduled another inspection visit on September 30, 1998, shortly before the provisional license was due to expire. Ms. Ivey arrived at the home and was admitted by Ms. Gomez, who led her into the kitchen area where there was a round table with chairs in front of a large picture window looking onto the backyard. Through the window Ms. Ivey could see two children, ages 3 and 4 years, playing in the yard. A 5-month old infant was in a carry-all near the table in the kitchen. Ms. Ivey told Ms. Gomez that the children needed to come in. Ms. Gomez said that the children were all right, that they could be watched through the window, but Ms. Ivey insisted that the children should come in. When Ms. Ivey went out the backdoor she found another child, an infant, sitting alone on the patio out of view of the window and unable to be observed from inside the house. The backyard is not fenced and leads into a wooded area. The infant could have crawled away into that area. After the children were brought inside Ms. Ivey continued with her inspection but explained that the lack of supervision was a problem. Ms. Gomez also had six children enrolled, a number which was in excess of her approved capacity when her own child was home from school. In the October 13, 1998, license denial letter, inadequate supervision was the specific basis for DCFS' finding that Ms. Gomez's home failed to meet minimum standards. At the hearing Ms. Gomez explained that the reason the children were left alone is that she had to go the door when Ms. Ivey arrived. This explanation does not justify her leaving the infant alone unobserved on the patio nor does it justify Ms. Gomez's delay in retrieving the children after Ms. Ivey's arrival. Moreover, under DCFS standards, she should have brought all of the children inside when she went into the house.
Recommendation Based on the foregoing, it is RECOMMENDED: that the Department of Children and Family Services enter its final order denying Sherill Gomez' application for family day-care home licensure. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 7th day of May, 1999. COPIES FURNISHED: Sherill Gomez 3689 Penshurst Place Kissimmee, Florida 34758 Carmen M. Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are whether Petitioner was a prevailing small business party in Division of Administrative Hearings Case No. 98-2043, and if so, whether he is entitled to reimbursement of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On April 3, 1996, Respondent issued Petitioner a provisional license to operate a foster home. This license was effective until August 3, 1996. On August 3, 1996, Respondent lifted the provisional license and issued Petitioner a regular foster home. The latter was effective through March 31, 1997. On March 31, 1997, Respondent again issued Petitioner a provisional license. This provisional license was effective until July 31, 1997. On July 31, 1997, Respondent issued Petitioner a regular foster home license. This license was effective until March 31, 1998. On February 27, 1998, Respondent issued an Administrative Complaint seeking to revoke Petitioner's foster home license. Said complaint gave Petitioner the right to request an administrative hearing to contest the factual allegations contained within the complaint. Petitioner's counsel filed an Answer to Administrative Complaint dated March 27, 1998. Said answer requested a formal administrative hearing to contest the factual allegations contained within the complaint. Respondent referred Petitioner's request for a formal hearing to the DOAH on May 4, 1998. DOAH assigned Case No. 98-2043 to this matter. On October 16, 1998, Petitioner's counsel filed a Motion for Summary Judgment and/or Motion to Dismiss in DOAH Case No. 98-2043. Said motion asserted that the Administrative Complaint should be dismissed because Petitioner had never had foster children placed in his home. The motion also references, among other things, the "denial and suspension" of Petitioner's foster home license and the "subsequent denial of re-licensing in April 1998." The motion does not argue that Petitioner's current license had expired, rendering the issue of revocation moot. The motion was denied by order dated October 22, 1998. On October 27, 1998, Petitioner's counsel filed a Notice of Withdrawal of Request for Hearing in DOAH Case No. 98-2043. A telephone conference on the motion was held that same day. On October 28, 1998, an Order Closing File was entered in DOAH Case No. 98-2043. This order cancelled the formal hearing scheduled for November 2-3, 1998, and relinquished jurisdiction to Respondent. On December 4, 1998, Respondent entered a Final Order in DOAH Case No. 98-2043, revoking Petitioner's foster home license. Petitioner did not appeal the Final Order and the time for an appeal has expired. At the hearing on the instant case, Petitioner presented no evidence that he prevailed in DOAH Case No. 98-2043. The pleadings and orders entered in that case conclusively establish that he did not prevail. Likewise, Petitioner presented no evidence that he was a small business party. Family foster homes are distinct from larger operations, such as residential child-care facilities, which might under some circumstances be construed as businesses. A foster home license is not a permit to engage in a business activity for profit. Instead, foster home parents act as temporary surrogate parents. Payments to foster parents are reimbursements for moneys advanced by the parents for the care of children placed in their care. The payments are not fees for services rendered. They are not taxable as income. Through out the proceedings in the instant case, Petitioner maintained that he never authorized his attorney to withdraw his request for formal hearing in DOAH Case No. 98-2043 as to the merits of that case. He did not personally receive a copy of his counsel's Notice of Withdrawal of Request for Hearing, the Order Closing File, or the Final Order until sometime after January 5, 1999. Therefore, Petitioner filed his request for fees and costs in the instant case on December 14, 1998, believing that he had prevailed as a small business party in DOAH Case No. 98-2043. He was under the mistaken impression that his counsel's withdrawal of his request for hearing and the subsequent Order Closing File in DOAH Case No. 98-2043 deprived Respondent, as well as DOAH, of jurisdiction in that case. Even after receiving copies of the above referenced pleading and orders, Petitioner maintained a good faith belief that because his foster home license expired on March 31, 1998, there was no license for Respondent to revoke in its Final Order dated December 7, 1998. Petitioner mistakenly believed that the Final Order was a "nullity" because Respondent had not amended the Administrative Complaint to deny his March 1998 request for re-licensure.
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
The Issue The issue in this case is whether Respondents, Liang Jian and Doinghui Lee (Owners), discriminated against Petitioner, Gabriel Sauers (Sauers), through actions of the Owners’ representative, Joseph Palmer (Palmer), on the basis of Sauers' purported handicap in violation of the Florida Fair Housing Act.
Findings Of Fact Sauers is a young Caucasian male with purported disabilities, including post-traumatic stress disorder, ADHD, Oppositional Defiance Disorder, and others. He is a high school graduate, having received his education in an exceptional student education class. Sauers did not testify as to whether he is currently employed. He receives food stamps and Supplemental Security Income from the Social Security Administration. That income appears to be his sole means of support. The Owners (who did not appear at the final hearing) are Asians. The property at issue (referred to herein as the Apartments) is a multi-family residential building located at 419 North Wild Olive Avenue. At all times relevant hereto, Sauers was residing in Apartment #7, an efficiency apartment. In October 2012, Sauers rented a one-bedroom apartment from the Owners. Palmer was the manager of the Apartments and handled the negotiations with Sauers for the apartment. After a short time living in the apartment, Sauers asked to rent the efficiency apartment instead of the apartment he had originally leased. There was a difference of about $100 per month in rent between the two apartments. On or about November 1, 2012, Sauers moved into the efficiency apartment, i.e., Apartment #7. Sauers had inspected the apartment and did not list any concerns on his written lease agreement. After living for a short time in the efficiency, Sauers asked for a different refrigerator because the one in the efficiency was too small. He asked that the refrigerator from his prior apartment be moved down to the efficiency or that one be purchased for the efficiency as a replacement. Palmer told Sauers that he (Sauers) could purchase a refrigerator and Palmer would give him a $100 credit on his rent. Sauers never purchased a refrigerator and Palmer did not take any further action on Sauers’ request. While living in the efficiency, Sauers heard loud music being played in one of the other apartments on a regular basis. Sauers’ efficiency was in a building other than where the other apartments were located, but it was in close proximity. Sauers also reported seeing drug transactions taking place around the Apartments. He reported his findings to Palmer, but Palmer just told him to call the police. Sauers called the police on multiple occasions. Sauers had arguments and disagreements with other residents residing in the apartment complex. He admitted that his psychological conditions caused him to argue with other residents from time to time, but said he was singled out by some residents. Sauers raised complaints about the presence of palmetto bugs and roaches in his efficiency. However, the entire complex was under an extermination contract and Ryan’s Pest Control came out regularly to spray for insects. Some invoices and statements from Ryan’s were offered into evidence, but Sauers maintains they only address a few days of his residence at the Apartments. It is likely there were bugs in the efficiency; it is also true that Palmer and the Owners attempted to minimize the problem by having regular pest control service. The stove/oven in the efficiency was improperly grounded when Sauers moved in. He received several electrical shocks when touching the stove. Palmer was made aware of the problem and contracted with Parks Electric Company to remedy the situation. On April 25, 2013, the stove was rewired to alleviate the electrical problem. The Owners had a policy in place that tenants would pay their rent by way of a certified check or money order. Sauers often requested and was allowed to pay in cash. Sauers complained frequently to Palmer about the condition of the efficiency, the dangerous environment around the apartment complex, and other real or imagined problems. Sauers’ father, who helped Sauers move into the apartment complex and notified Palmer about some of Sauers’ disabilities, agreed that the area around the Apartments seemed unsafe. The father, a large man, was accosted on one of his visits to the Apartment, by some unknown person. Sometimes Sauers’ mother would call Palmer to ask questions or raise concerns. She was never able to reach him via telephone, but Palmer returned her calls--to Sauers’ father’s phone--on many occasions. It is abundantly clear that Sauers and Palmer do not get along well. When Sauers was absent from his apartment for several weeks in the summer of 2013, Palmer assumed that the efficiency had been abandoned. He placed a three-day notice on the door of the efficiency, telling Sauers he had to pay the rent which was due or that eviction proceedings would be commenced. When notified that Sauers did not plan to return to the apartment, Palmer went in--only to find that the efficiency was filthy and required significant cleaning. Sauers claims discrimination on the part of the Owners because Palmer had asked him to vacate the apartment at one point in time. The suggestion, made by Palmer, was based on Palmer’s perception that Sauers was extremely unhappy living at the apartment complex. Sauers failed to show that any other residents at the complex were treated differently or that Sauers was denied any reasonable accommodations for his needs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Gabriel Sauers in its entirety. DONE AND ENTERED this 9th day of May, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 May, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael Paul Kelton, Esquire Paul, Elkind and Branz 142 East New York Avenue Deland, Florida 32724 Gabriel P. Sauers Unit 1 1111 Ocean Shore Boulevard Ormond Beach, Florida 32176 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent Pat McComb is the operator of a group home in Broward County, Florida. The home operated under a license issued to Happy People, Inc. Through some unspecified channel, a report of possible abuse was received and Gloria Taylor, a Human Services Counselor II with DHRS, investigated on May 18, 1984. The investigation consisted of interviews with both former and current clients of the group home. A summary of these interviews is found in Petitioner's Exhibits 2, 3, 5, 8 and 9. The former clients and clients are all mentally retarded with secondary disabilities. The interviews were conducted in a group setting with Taylor addressing leading type questions to the group and the group responding in the negative or affirmative. Two clients were interviewed separately, with one being interviewed away from the group home. At least two of the clients changed their statements regarding whether any abuse had ever occurred. No client stated when or where or how often or how severe the alleged abuse was. Taylor saw no bruises or other physical signs of abuse at the time she interviewed the clients. There had never been any other reports or any medical treatment required for these clients. Taylor's testimony was based solely on what she was told by the clients and former clients. Based upon the written reports prepared by Taylor, Rhonda Miklic prepared and signed a letter revoking the licenses of Pat McComb and Happy People, Inc. The clients were moved from the home. The acts of Miklic in revoking the license are not discretionary. Instead, Miklic is required to revoke the license if a finding of abuse is made by the investigator. Pat McComb denied any knowledge that any client was ever hit with a belt at the facility. Instead, discipline consisted of such things as loss of privileges or having a client stand in the corner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent be DISMISSED and that the license of Respondent be reinstated. DONE and ENTERED this 11th day of January, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985. COPIES FURNISHED: Harold Braynon, Attorney 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Mark Perlman, Attorney 1820 E. Hallandale Beach Boulevard Hallandale, Florida 33009 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in the case is whether Respondent should be subject to administrative penalties, including an administrative fine not to exceed $1,000.00, for failure to comply with the residential facility requirements of chapter 393, Florida Statutes, as alleged in the Administrative Complaint dated November 12, 2009.
Findings Of Fact APD is the state agency charged with the licensing and regulation of foster care facilities, group home facilities, and residential habilitation pursuant to section 20.197 and chapter 393, Florida Statutes (2009). At all times relevant to this proceeding, Respondent held one group home facility license issued by APD for a residence at 12629 Southwest Archer Lane, Archer, Florida 32618. The group home is owned and operated by Miles Hines. C.H. is a child client of APD who has been diagnosed with moderate mental retardation and bipolar disorder. C.H. has a history of attention deficit hyperactivity disorder, post- traumatic stress disorder, and depression. At all times relevant to this proceeding, C.H. was a resident at the Jim Tin Group Home. M.K. is an adult client of APD who has been diagnosed with, among other conditions, mental retardation. At all times relevant to this proceeding, M.K. was a resident at the Jim Tin Group Home. APD alleged that M.K. sexually abused C.H. at the Jim Tin Group Home on or about January 14, 2009. APD produced no direct evidence in support of the allegation. APD relied solely on the written investigative report of a "Child Institutional Investigation" conducted by DCF protective investigator Natalie Rella between January 14 and March 11, 2009. Ms. Rella's report was reviewed and approved by her supervisor, Cheryl Hollingsworth. Ms. Rella did not testify at the hearing. None of the persons interviewed by Ms. Rella testified at the hearing. Ms. Hollingsworth testified that she did not personally participate in any of the interviews that formed the basis of Ms. Rella's report, nor did she independently investigate the abuse report that triggered the investigation. Ms. Hollingsworth relied entirely on Ms. Rella's report and Ms. Rella's conclusion that there were verified findings of inadequate supervision by Mr. Hines. Ms. Rella's report stated that its findings were based on an interview with M.K., an interview of C.H. conducted by the Child Advocacy Center, and her review of prior reports. No transcript or other account of the substance of the interviews was entered into evidence. The "narrative" portion of Ms. Rella's report stated as follows: [C.H.] is intellectual disabled [sic]. [C.H.] is high functioning but he has a lot of problems. On the night of 01/14/09, a resident tried to grab [C.H.'s] hand and put it between his legs. The resident told [C.H.] to suck his penis. [C.H.] did not but he told the supervisor who said, "I did not see it happen so there is nothing they can do." [C.H.] has spoken with the staff in the past about the resident's behavior. In the past, the other resident has tried to sexually aggress upon [C.H.]. The advances happened for a while but they stopped. The sexual advances have picked back up in the last couple of weeks. [C.H.] is frightened and scared of the resident. Ms. Rella's report contained a "prior reports" section describing previous investigations involving the same residents. One of these incidents involved a report by C.H. that he had been raped by two men and that another man had sucked C.H.'s penis while the child was at a DJJ facility. This claim was determined to be not substantiated. There were cameras in the room where the assaults were alleged to have occurred. The cameras proved that the assaults never took place. Americo Rodrigues is a certified behavior analyst with Choice Behavior Services, LLC in Gainesville. He has been C.H.'s behavior analyst since 2008 and visits C.H. weekly at the Jim Tin Group Home. Mr. Rodrigues testified that among C.H.'s behavioral problems is a propensity for making false allegations against other residents. C.H. is also very suggestible and easily led to agree with what someone tells him. Mr. Rodrigues stated that he is working with C.H. on these problems, but that they have proven relatively intractable. Mr. Rodrigues had no firsthand knowledge of the events alleged to have occurred at Jim Tin Group Home on January 14, 2009. Mr. Rodrigues testified that his impressions of the group home were that the accommodations and food seemed appropriate, and that facility staff appeared to be ensuring that the residents' activities of daily living were adequately maintained. During cross-examination, Ms. Hollingsworth conceded that C.H. changed his story during the course of the investigation. C.H. recanted his allegation and denied that he and M.K. ever engaged sexually. Ms. Hollingsworth testified that Ms. Rella had failed to conduct a site visit of the group home, that she never interviewed C.H.'s support coordinator or counselor, and that she never interviewed Mr. Hines. Ms. Rella spoke to no one who had dealt with C.H. over an extended period of time or who could provide perspective as to the child's historic patterns of behavior. Ms. Hollingsworth testified that, based on what she knew now, her recommendation would be to find that the allegations made by C.H. were "not substantiated." In fact, she had made a request to DCF headquarters in Tallahassee to change the conclusion in Ms. Rella's report. Jim Smith, APD's Area 3 administrator, testified that APD filed its complaint against Respondent in complete reliance on DCF's finding of a verified incident of inadequate supervision. APD does not conduct its own investigations and does not review DCF's reports for accuracy. Had DCF found that the allegations against Respondent were "not substantiated," APD would not have filed the Administrative Complaint that initiated this proceeding. The DCF investigative report is a hearsay document. It was admitted into evidence for the limited purpose of supplementing Ms. Hollingsworth's testimony that DCF had in fact "verified" the abuse complaint. APD argued that the report should be admitted for all purposes under the business records exception set forth in section 90.803(6), Florida Statutes. This argument is unavailing because C.H., the main source of information for the report, showed a lack of trustworthiness. APD has not demonstrated by clear and convincing evidence that Respondent failed to adequately supervise residents and sufficiently protect them from harm, neglect, and sexual abuse.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 14th day of April, 2011. COPIES FURNISHED: Julie Waldman, Esquire Agency for Person with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 M. Todd Hingson, Esquire Avera & Smith, LLP 248 North Marion Avenue, Suite 102 Lake City, Florida 32055 Christina Nieto Seifert, Esquire Avera & Smith, LLP 248 North Marion Avenue Suite 102 Lake City, Florida 32055 Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Michael Palecki, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Bryan Vaughan, Acting Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
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
