The Issue Whether Respondent's licenses to operate two group homes should be renewed, or whether renewal should be denied for the reasons charged in the administrative complaints issued by Petitioner.
Findings Of Fact APD is the state agency charged with licensing and regulating group home facilities. The statewide headquarters, or "central office," is in Tallahassee. Regional offices carry out the licensing and regulatory functions within their designated regions, or "areas," in coordination with the central office. APD Area 14 covers Polk, Hardee, and Highlands Counties. Beginning in 2007 and at all times material to this proceeding, HIOTW has been a provider of various residential and non-residential services to developmentally disabled persons in Lakeland, Polk County, Florida, within APD Area 14. In 2007, HIOTW was licensed by the Agency for Health Care Administration (AHCA) to provide non-residential homemaker and companion care services. In November 2008, HIOTW became licensed by the APD Area 14 office to operate Paces Trail Group Home to provide residential habilitation services to developmentally disabled adults. Shortly thereafter, HIOTW was licensed by the APD Area 14 office to operate its second group home, Hampton Group Home. HIOTW was licensed by the APD Area 14 office to operate Timbergreen in May 2009. In February 2010, the APD Area 14 office issued a license to HIOTW to operate its fourth group home in Lakeland--Lake Miriam. The group home license renewal of these two group homes, each with a capacity to serve six adult male residents with developmental disabilities, is at issue in this proceeding. After initial licensure of a group home, the license must be renewed annually. All of HIOTW's group homes successfully have gone through the license renewal process one or more times, except for Lake Miriam, which is seeking its first license renewal. On November 12, 2010, HIOTW submitted an application to the APD Area 14 office to renew its license to operate Lake Miriam. On March 3, 2011, HIOTW submitted an application to renew its license to operate Timbergreen. By letter dated March 25, 2011, Petitioner denied the Lake Miriam license renewal application (March 25 Denial Letter). Petitioner relies on the following charges alleged in the March 25 Denial Letter as the basis for Petitioner's decision: On or about April 14, 2010, an employee of the applicant left two vulnerable adult group home residents alone in a car for at least ten minutes while that employee conducted business inside a bank. One of the adult residents who was left unsupervised in the car had a history of sexually molesting children and other vulnerable adults. The other resident who was left unsupervised in the car was non-verbal. This instance threatened the health, safety, and well being of the applicant's residents in violation of page A-8 of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook and Rule 65G-2.012(15)(b), F.A.C. On or about September 29, 2010, an employee of the applicant was transporting group home residents when one of the residents left the vehicle without the driver's knowledge. The vulnerable adult resident was later located at a neighborhood store. This instance threatened the health, safety, and well being of the applicant's residents in violation of page A-8 of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook and Rule 65G- 2.012(15)(b), F.A.C. The March 25 Denial Letter also alleged that HIOTW failed to submit a current approved emergency management plan as a third reason to deny the license renewal application. However, Petitioner abandoned the third charge at the outset of the final hearing. Petitioner sought to support its proposed denial of the Lake Miriam license renewal application solely as a penal measure based on the two alleged incidents quoted above. As such, but for these two alleged incidents, Petitioner acknowledges that Lake Miriam's license renewal application is otherwise entitled to approval. By letter dated April 29, 2011, Petitioner denied the Timbergreen license renewal application (April 29 Denial Letter). The April 29 Denial Letter set forth the same two charges that were alleged in the March 25 Denial Letter as the basis for Petitioner's decision. In other words, the same two incidents were asserted as grounds for denying both the Lake Miriam license renewal application and the Timbergreen license renewal application. But for these two incidents, Timbergreen's license renewal application, like Lake Miriam's application, is otherwise entitled to approval. First Alleged Incident (on or about April 14, 2010) The credible evidence established the following facts relevant to the first charged incident. In early April 2010, an employee of HIOTW's licensed companion care service, Frank Davis, was providing companion care to R.O., a developmentally disabled adult. R.O. was not a resident of any HIOTW group home. Instead, R.O. received only non-residential companion services through HIOTW from its employee Frank Davis. As previously noted, companion care services are licensed and regulated by a different agency, AHCA. R.O. was classified as developmentally disabled due to mild mental retardation and behavioral problems. R.O. had a history of sexually abusing children and vulnerable adults. R.O. also had a known tendency of "telling big whoppers," i.e., he was known to be a habitual liar. R.O. apparently told someone two stories of alleged incidents involving his companion, HIOTW employee Frank Davis. On April 14, 2010, the person to whom R.O. told the stories reported the two alleged incidents to the hotline operated by the Department of Children and Families (DCF), which fields reports of possible abuse or neglect.2/ One story told by R.O., as reported to DCF, was that Mr. Davis had left R.O. alone with Mr. Davis's three-year-old daughter. The other story told by R.O., as reported to DCF, was that Mr. Davis had left R.O. alone in a car with a non-verbal vulnerable adult for a period of time while Mr. Davis went into a bank to conduct some business. If true, these allegations of R.O. allegedly being left alone with a child in one instance and with a non-verbal vulnerable adult in the other instance would be of great concern. Both the child and the non-verbal vulnerable adult with whom R.O. was allegedly left alone would have to be considered at great risk of abuse by R.O., given R.O.'s known history of sexually abusing both children and vulnerable adults. With regard to R.O.'s first story, involving Mr. Davis's three-year-old daughter, a DCF adult protective investigator (API) was able to quickly determine that the allegation was completely baseless. In screening this allegation to determine if a formal investigation was warranted, the API spoke with R.O. and then with Samuel Cooper, one of the owners of HIOTW, on April 15, 2010, the day after the hotline call. Mr. Cooper provided a detailed description of the physical appearance of Frank Davis's daughter. When Mr. Cooper's description of Mr. Davis's daughter was compared to R.O.'s description of the girl with whom he was supposedly left alone, the two descriptions were so vastly different that the API was able to, and did, immediately determine that R.O. had fabricated the story, and the matter was closed without a formal investigation. The same API conducted an investigation of R.O.'s second story that he was left in Mr. Davis's car with a non-verbal vulnerable adult while Mr. Davis went into a bank. However, the API did not mention this story when he spoke with Mr. Cooper, nor did the API inform anyone from HIOTW that he was conducting a formal investigation. In conducting his investigation, the API spoke with R.O., twice with Mr. Davis, and with O.J. Bennett, another owner of HIOTW. HIOTW initially learned of R.O.'s story about the bank trip by a phone call from R.O.'s waiver support coordinator. Mr. Bennett immediately investigated the matter, speaking with Mr. Davis and also with the bank manager who was present and had personally observed the events that day. Mr. Bennett's report from his investigation was that when Mr. Davis drove up to the bank with R.O., he left R.O. in the car only to walk about nine feet from the car to the bank's glass entrance area. Mr. Davis signaled to a bank employee who came to the door. Mr. Davis told the employee he wanted to set up an account to make direct deposits of his paycheck. When Mr. Davis was told he would have to come into the bank and it would take a few minutes, Mr. Davis went back to the car for R.O. and brought him into the bank to wait while Mr. Davis set up the account. R.O. remained in Mr. Davis's sight at all times. Based on Mr. Bennett's report, which he reviewed with Mr. Cooper, HIOTW determined an unusual incident report (UIR) was not required, because there was no reason to suspect neglect of R.O. Several weeks later, when HIOTW learned from an APD employee that DCF was conducting a formal investigation, HIOTW submitted a UIR that set forth the details of Mr. Bennett's investigation and concluded that R.O. had been in Mr. Davis's sight and adequately supervised at all times. The APD Area 14 administrator confirmed in her testimony that if the facts were as Mr. Bennett found them to be in his investigation, there would not have been inadequate supervision, and there would have been no reason to submit a UIR. Of greatest significance with regard to R.O.'s story about the bank incident, the API determined that R.O. had lied about being left with a non-verbal vulnerable adult. Instead, the API found that Mr. Davis drove to a bank with R.O., and no one else, in the car. The DCF investigator's report summarized the differing versions of events told to him by R.O. and by Mr. Davis. R.O.'s version was that Mr. Davis left him in the car for the whole time that he went into the bank. Of course, R.O. also said that he was left with another adult, and that was not true. Therefore, R.O.'s statement to the DCF investigator could not be considered credible or reliable. According to the DCF investigator, Mr. Davis told him that he left R.O. alone in the car to go into the bank, but came back out of the bank to get R.O., who he then brought into the bank to wait while he conducted his business. However, Mr. Davis testified that he only told the DCF investigator that he walked up to the bank while R.O. was in the car. Mr. Davis's version of what happened and what he told the DCF investigator is more credible than the DCF investigator's report of what Mr. Davis told him. Mr. Davis's version was corroborated by the hearsay account of the bank manager, who told Mr. Bennett that Mr. Davis brought R.O. in the bank with him, only having left R.O. alone to walk up to the bank entrance. The bank manager confirmed Mr. Davis's testimony that R.O. was in Mr. Davis's sight at all times. In crediting Mr. Davis's version of events, corroborated by the bank manager, the undersigned finds it significant that Mr. Bennett told the DCF investigator about the bank manager eyewitness, and Mr. Bennett was under the impression that the DCF investigator would follow up by calling the bank manager. But the DCF investigator did not attempt to interview anyone at the bank, despite the fact that persons at the bank would have been the only other eyewitnesses besides Mr. Davis, who had a self-interest in the incident, and R.O., the habitual liar whose other story about Mr. Davis had been proven false. Petitioner did not undertake its own investigation of the facts, either at the time of the incident or at the time it was considering whether to rely on the incident as grounds to, in effect, revoke two of HIOTW's group home licenses. Instead, according to the area administrator for APD Area 14, Petitioner simply relied on the DCF investigation report. Indeed, the area administrator did not even seem to understand the DCF report, because at the hearing, she was adamant in her belief that DCF confirmed the allegation that Mr. Davis left R.O. in a car with a vulnerable non-verbal adult group home resident. The area administrator conveyed her misimpression to the central office in discussions to consider whether to non-renew two HIOTW group home licenses based on this incident. Ultimately at hearing, the area administrator conceded that she was improperly interpreting the DCF report, thinking that the allegation portion of the report contained the actual DCF findings. Even so, she steadfastly (and erroneously) asserted that she did not give any false information to the central office regarding HIOTW.3/ In addition to the misimpression conveyed about the R.O. incident, the area administrator testified that she had an employee convey numerous reports of allegations or suspicions of HIOTW improprieties to the central office in a single packet for the purpose of a decision on whether to renew the two HIOTW group home licenses. The area administrator explained other information about allegations and suspicions were sent in the same package so that the central office could also consider whether to terminate HIOTW's Medicaid waiver provider agreement at the same time. However, she admitted that the whole packet of material was sent for the purpose of review and a decision on whether to non-renew HIOTW's two group home licenses. As such, it would be difficult to ignore the extraneous allegations when making decisions regarding the license renewal applications, "[o]f course, you have all of that in your mind[.]" The actual transmittal package to the central office was not produced, apparently because it was sent by electronic mail, and there were some APD email system problems that got in the way of producing the email transmittal package. Nonetheless, the area administrator's description of what she believes was sent in a single package to the central office was sufficient to paint the picture of a litany of negative missives regarding HIOTW, intended, in part, to support the area administrator's recommendation to deny license renewal.4/ Petitioner did not allege in the administrative complaints and did not prove at the hearing that HIOTW itself was blameworthy for the R.O. incident. The APD Area 14 administrator testified that in recommending non-renewal of the two HIOTW group home licenses, a significant factor that she took into account was that HIOTW failed to promptly submit a UIR to report the R.O. incident. The facts found with respect to the R.O. incident do not demonstrate that a UIR was required. Moreover, HIOTW was not charged, in either administrative complaint, with a violation of its UIR reporting obligations. The DCF incident report concluded with a verified finding of inadequate supervision. The DCF investigator testified that it was his finding that "[p]rimarily, Mr. Davis was responsible for the inadequate supervision" of R.O. When asked whether HIOTW was also responsible as Mr. Davis's employer, the investigator said, "being his employer, and trainer, yes." However, neither the DCF investigator, nor Petitioner, presented any evidence to suggest that HIOTW was negligent in its hiring, training, or supervision of its companion care employees, generally, or Mr. Davis, in particular. Nor was there any evidence that HIOTW failed to appropriately respond to the R.O. incident once it was made aware of the incident. The DCF incident report found that Mr. Davis was an appropriately screened employee with no adverse history. Petitioner presented no evidence to the contrary. Both the DCF investigator and the area administrator for APD Area 14 concluded that HIOTW took appropriate action regarding the R.O. incident, by removing Mr. Davis from serving as R.O.'s companion and by putting Mr. Davis through additional "zero-tolerance" training. Mr. Davis's employment was terminated shortly thereafter for reasons unrelated to the R.O. incident. Although the DCF incident report verified a finding of inadequate supervision, the report concluded that the overall risk associated with the finding was low because of appropriate corrective action taken by HIOTW.5/ The area administrator for APD Area 14 candidly admitted at the final hearing that HIOTW handled the R.O. incident appropriately and took corrective action that was deemed sufficient by APD and alleviated any health and safety concerns. Inexplicably, she continued to support the charges in the two denial letters, which alleged that the R.O. incident "threatened the health, safety, and well being of the applicant's residents," because R.O., with his history of being sexually abusive, had allegedly been left alone with a vulnerable, non-verbal adult group home resident. Since the R.O. incident did not involve any HIOTW group home residents, but rather, involved non-residential services provided under HIOTW's companion care license, one would expect that if licensure disciplinary action was warranted against HIOTW at all for this incident, it would have been initiated by AHCA as the licensing agency for companion care services. No evidence was presented that AHCA took any disciplinary action against HIOTW's companion care license. Instead, the evidence established that HIOTW's companion care license remained in good standing as of the final hearing, more than one and one-half years after the R.O. incident. Notwithstanding APD's knowledge in June 2010 of the DCF report and findings regarding the R.O. incident, APD proceeded to renew annual licenses for the period of October 1, 2010, through September 30, 2011, for two other HIOTW group homes--Pace's Trail Group Home and Hampton Group Home. The license certificates state that the facilities comply with the licensure rules of APD. No evidence was presented that APD issued administrative complaints seeking to revoke these group homes' licenses; however, the area administrator made clear that she did not intend to renew any licenses for any HIOTW group homes in the future. Second Alleged Incident (on or about September 29, 2010) The facts regarding the second alleged incident involving HIOTW employee Donyell Goodman, were not disputed. At the time of the incident, Ms. Goodman had been employed by HIOTW for three years, with a very good, unblemished employee record. On the day in question, she was serving as a van driver to transport several HIOTW companion care clients to various sites within the local community. E.K. was one of those clients receiving companion care services that day; E.K. also was a resident of HIOTW's Lake Miriam Group Home. E.K. is developmentally disabled due to his diagnosis of mental retardation. Ms. Goodman stopped to let off one client, and she watched the client walk to the appropriate destination and go inside. She then resumed driving. When she had driven for about five minutes, she glanced in her rear view mirror and realized that E.K. was not there. Ms. Goodman immediately called LaDonna Bennett, the third owner of HIOTW, to report that E.K. must have snuck out of the van at her last stop, and she was going back to find him. Ms. Bennett also headed over to where Ms. Goodman said she had stopped, to assist. When Ms. Goodman returned to the site of her last stop, she found E.K. there, inside the corner store. E.K. was fine and returned to the van without incident. E.K. apparently admitted to sneaking out of the van, saying he just wanted some fresh air. The entire incident spanned about ten minutes. Ms. Bennett and Ms. Goodman both immediately prepared and submitted UIRs to report the incident. Ms. Goodman received a written reprimand in her HIOTW personnel file and was suspended for several days. When she resumed work, she underwent additional training, was removed from the van driver position, and reassigned to the "third shift" with no direct interaction with residents. The UIR reports triggered a DCF investigation. The AIP who conducted the investigation confirmed the facts that were set forth in the two UIRs. The AIP's investigation included an assessment of E.K. at the Lake Miriam Group Home where E.K. was a resident. The DCF incident report concluded as follows: Victim Safety Factors Implications: No implications for the [victim's] safety. [Perpetrator] Factors Implications: Based on the informaiton [sic] rec'd, API has determined the [adult perpetrator] to pose no threat to the [victim]. No implication [sic] for the [victim's] safety. Facility Factors Implications: Based on the [victim] to the grouphome [sic], API has determined the [victim] to not be at any risk. The API found that the overall safety assessment was low; however, based on the UIRs and interviews with Ms. Goodman and Ms. Bennett, the incident report concluded with a verified finding of inadequate supervision. The API who conducted the investigation testified at hearing and confirmed that the inadequate supervision finding was directed to Ms. Goodman. When asked if HIOTW was also responsible because it was Ms. Goodman's employer, the API said he did not know and could not answer that question. Petitioner did not allege in the administrative complaints, and did not prove at the hearing, that HIOTW itself was blameworthy for the E.K. incident. Neither the DCF investigator, nor Petitioner, offered any evidence that HIOTW had negligently hired, trained, or supervised its employees, including Ms. Goodman in particular. Both the DCF investigator and the APD Area 14 area administrator agreed that HIOTW acted appropriately in response to the E.K. incident to alleviate any concerns about health and safety, by imposing appropriate discipline against Ms. Goodman for her lapse that caused the incident, and by taking steps to ensure no reoccurrence of the incident. In 2011, well after APD had knowledge of the DCF reports and findings on both the R.O. and E.K. incidents, APD issued a series of temporary or conditional licenses to both Lake Miriam and Timbergreen during the license renewal process to give HIOTW time to respond to certain identified omissions in the renewal applications, such as dental records, fire inspection reports, and the like. The temporary and conditional license certificates issued in February and March 2011 state on their face that the facilities comply with the licensure rules of APD. According to the APD Area 14 administrator, each of the DCF reports on the R.O. and E.K. incidents resulted in "a verified abuse finding." The area administrator testified that any DCF report resulting in a verified abuse finding is classified as a Class I offense, which is the most serious class of offenses and is sufficient, without more, to give APD legal authority to deny licensure or renewal of a license to a licensed applicant named in the report. Yet, despite the verified finding regarding the R.O. incident, Petitioner did not deny license renewal applications for other HIOTW group homes. Despite the verified findings in both the R.O. and E.K. incidents, Petitioner issued temporary and conditional licenses to Timbergreen and Lake Miriam during the license renewal process. Thus, Petitioner has not exercised its discretion consistently in dealing with HIOTW. Petitioner has not exercised its discretion consistently in contexts far more egregious than the two incidents charged here. For example, Petitioner acknowledged that a recent incident of abuse and neglect, resulting in the death of a group home resident, did not trigger action by Petitioner to take away all of the group home licenses held by the licensee. Instead, Petitioner only acted to suspend the license of the specific group home where the deceased resident had resided. Petitioner did not attribute this very serious incident to all facilities licensed by the same entity. It would be unreasonable for APD to automatically, without discretion, equate all verified findings--whether of abuse or neglect, whether deemed low risk or high risk, whether risk of death or imminent bodily injury was found or not found. A protracted period of abuse or neglect that actually causes death of a group home resident is on a different plane, in terms of seriousness, from a brief employee lapse in which an individual is not caught when he sneaks away, but is recovered without harm or incident ten minutes later. No explanation was offered by Petitioner as to why, in the more serious situation where a verified incident resulted in death, action was not taken to revoke all group home licenses held by the licensee, whereas here, two incidents verified as low risk situations by DCF (one of which was not proven at the hearing), would cause Petitioner to act more harshly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Persons with Disabilities, approving Respondent's applications to renew its annual licenses to operate Lake Miriam Group Home and Timbergreen Group Home and issuing standard licenses for one-year terms to those facilities. DONE AND ENTERED this 3rd day of February, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 3rd day of February, 2012.
The Issue The central issue in this case is whether the Petitioners are entitled to the renewal of their foster care license.
Findings Of Fact At all times material to this case, the Petitioners operated a shelter foster home in Dade County, Florida, pursuant to a license that was issued by the Department. Mr. Ezewike investigated allegations of neglect at the Petitioners' home. According to Mr. Ezewike, children residing at the home were left without adult supervision. Such children ranged in ages from a few months to teenager. Mr. Welch investigated allegations of verbal abuse against Petitioners. The report of these allegations was closed without classification. Thus the Petitioners were not identified as the perpetrators of verbal abuse. According to Mr. Blum, who also visited the home, children residing with the Petitioners were left without adult supervision. Mr. Blum observed that the interior of the house was dirty and messy. His report concluded that there were some indications of conditions hazardous to health as a result of the unkept home. Mr. Blum further observed that a refrigerator at the Grice home was encircled by a chain with a lock which prevented it from being opened. Mr. Blum also observed and overheard an interaction between Mr. Grice and some of the foster children. According to Mr. Blum, Mr. Grice used harsh and inappropriate language with the children. Jackie Hodge, supervisor of the licensing unit, received a report from another worker responsible for supervising the Grice foster home. Such report cited Mr. Grice for inappropriate and harsh language. According to Ms. Hodge, licensing standards, including the quality of care and supervision provided by foster parents, must be a part of the evaluation to determine the suitability of a home during a relicensing review. According to Ms. Hodge, the Department does not permit foster parents to be verbally abusive, including harsh or inappropriate language, with the children in their care. Ms. Hodge further explained that the condition of, and cleanliness of, the home are also part of a relicensing evaluation. Based upon the Department's practice, the failure to meet any of the licensing standards is grounds for denying a renewal of license. Ms. Hodge recommended that the Petitioners' home not be relicensed. Petitioners were timely notified of the Department's denial and timely requested an administrative review.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Petitioners' request for licensure renewal. DONE AND RECOMMENDED this 6th day of January, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4951 Rulings on the proposed findings of fact submitted by the Petitioners: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Hilda Fluriach District 11 Legal Office Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, N-1014 Miami, Florida 33128 Willie and Geraldine Grice 18830 N.W. 43rd Avenue Carol City, Florida 33055 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Bonita Jones-Peabody The Executive Building 3000 Biscayne Boulevard Suite 300 Miami, Florida 33137
The Issue The issue for consideration in this matter is whether Respondent’s license to operate a foster home in Florida should be disciplined because of the matters alleged in the Administrative Complaint issued herein on October 11, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Department of Children and Families was the state agency responsible for the inspection and licensing of foster homes in this state. Respondent, Blanche Hadley, was issued an initial foster home license, No. 1095-13, for one child, for her residence at 1107 East Humphrey Street in Tampa, on October 21, 1995. The license was to continue in effect for one year, and several months before the license is due to expire, the Department does a study of the licensed home to see if re- licensing is appropriate. Ms. Hadley filed an application for renewal of her foster home license on July 5, 1996, several months before the license expired. Because the Department did not act in a timely manner to deny the application, it became a license by default. In the interim, however, on both August 15 and August 20, 1996, Francine McGee, a Department relicensing counselor, called Respondent on the telephone to discuss her relicensing and to schedule the Department’s visit to the home, because the license was due to expire on October 20, 1996. Ms. McGee also wanted to discuss certain items which, in her opinion, had to be corrected. During the August 15 call, Ms. McGee and Respondent discussed the need for a mandatory check of and re-tagging of the fire extinguishers in the home to insure they were working. This could be done only by one of several companies licensed to do so, or the fire department. Ms. Hadley did not want to do this, however. She got angry with Ms. McGee and hung up on her. Ms. McGee called back several days later in a second effort to resolve the fire extinguisher issue and, in addition, to discuss the fact that the home appeared to be overcrowded due to the presence of Ms. Hadley’s two grandchildren who were, purportedly, living there as well. Ms. Hadley again got angry and hung up on Ms. McGee. That same day, August 20, 1996, Ms. Altman, Ms. McGee’s supervisor, also called Ms. Hadley by phone, but Ms. Hadley hung up on her as well. The following day, Ms. McGee wrote to Ms. Hadley about the fire extinguishers and the two extra children in the home and also asked about the location of the nearest disaster shelters. It appears that in discussions about shelters with Ms. McGee in April, 1996, Ms. Hadley had indicated she did not believe in preparing for disasters, adopting instead the philosophy that, “when it’s your time to go, it’s your time to go.” She also hung up on Ms. McGee during that conversation, though she ultimately complied with the Department’s request and identified the closest shelters of which she knew. Ms. McGee, however, was not satisfied and wanted shelters closer to the house. Respondent also hung up on Ms. McGee during a telephone conversation held on May 22, 1996 about 5:30 in the evening. When reached by Ms. McGee, Respondent immediately said she didn’t have time to talk and hung up. This was a routine check call which would have taken no more than five minutes or so. Ms. Hadley responded to Ms. McGee’s August 20, 1996 letter by her own letter in which she did not address the Department’s concerns. Instead, she indicated that if it had been necessary for her to change any of the conditions existing at her home, she would have been told of the defects in the safety inspections done on it. She claimed she would not be used by the system. Ms. McGee tried to explain to Ms. Hadley that these matters were not an attempt by the Department to use her but merely an attempt to enforce the Department rules which had to be followed. Ms. Hadley, as early as February 27, 1996, was asked by Ms. McGee to purchase an additional smoke detector to supplement those already there. One existing detector was located between the bedrooms occupied by Respondent and her brother, who lives with her, and the second is located in the family room near the foster child’s bedroom, which was not occupied at the time. Ms. McGee claims she merely suggested the placement of a third detector near the kitchen to give quicker notice of kitchen fires. This was not a requirement by the Department rules, but Respondent still resisted compliance. Though Respondent now denies any of her grandchildren live with her, Ms. McGee recalls a conversation she had with Respondent on August 15, 1996, when Respondent indicated she had two grandchildren living in the home with her. This, if true, constituted overcrowding since with the two adults, (Ms. Hadley and her brother) and the two grandchildren, and only four beds in the house, there would have been no room for any foster child. Ms. Hadley had initially indicated the children only came for dinner from time to time, and this was acceptable, but, allegedly, she later changed her story to indicate they did live there. Ms. Hadley denies having said this. When Ms. McGee raised the issue with Respondent, Respondent allegedly claimed the grandchildren slept with her, and when Ms. McGee indicated that was too crowded, Respondent hung up on her and on Ms. Altman who called later in the day. In light of the obvious mutual animosity between Ms. Hadley and Ms. McGee, it is clear there was a miscommunication on this issue, and in the absence of some independent evidence of the fact that the grandchildren resided at the house, it is found they did not. Department records indicate no foster children have ever been placed in Respondent’s facility. Whenever she was called to take children, she would not accept them. A foster home has to be prepared to receive foster children, and the deficiencies identified by Ms. McGee, if accurate, would disqualify this home. Based on the above, and due to a continuing lack of ability to communicate with the Respondent, Ms. McGee recommends that Respondent’s license to operate a foster home be disciplined. Ms. Hadley tells a somewhat different version of Ms. McGee’s story. She contends that when Ms. McGee came to her home for the first time, somewhat after a letter had been sent to her, she received McGee warmly. From the very first, however, Ms. Hadley was put off by what she described as Ms. McGee’s “snotty” attitude. Respondent claims that she went to classes to learn what she had to do as the operator of a foster home and did it. In addition, Ms. Hadley claims she followed to the letter the dictates imposed as a result of the safety inspections her facility underwent, though she admits she was resistant to re-tagging the fire extinguisher because it had never been used. She didn’t want to pay $16.00 to have it re-tagged if it was not a bona-fide requirement. Unfortunately for her, fire requirements mandate a yearly check and re-certification whether the unit is used in the interim or not. As for the allegations that she hung up on Ms. McGee and Ms. Altman, Ms. Hadley claims she asked Ms. McGee not to call her at work but to call at home. When McGee called her at home and got “hostile”, Hadley admits to hanging up on her. With regard to the call from Ms. Altman, when that call was made, Ms Hadley was still at work and Hadley merely indicated that she could not talk with Altman at the time. She denies hanging up on a Department representative more than one time, and claims she did it that time only from work when the party calling her continued to talk after she advised she could not take calls at her work place. Ms. Hadley works from 8 to 5 each day and goes home for lunch from 12:05 to 12:45. She requested that Ms. McGee call her at home during that period. McGee admits to this, but claims her schedule did not always allow her to make calls at that time. When she called and Respondent was not at home, she would leave a message on the answering machine and called at work when those messages went unanswered. Ms. McGee stays at her office until 6:30 PM most days, and could see no reason why Respondent could not return her calls after she got home from work at 5:30. McGee tries to convenience foster parents in the matter of phone calls and visits, and she admits that often Respondent did return calls left on the answering machine during the lunch hour, but by that time, McGee was again out of the office. Hanging up on a Department representative is unacceptable without justification. It is clear Ms. Hadley did so, but the question of how often she did so is not resolved by the evidence. Most likely, from the obvious hostility indicated, it was more than once. Ms. Hadley candidly admits to resisting making additional changes to her home which were not called for either in the training classes she took or the pre-licensure inspection made of the home. She agrees to have the fire extinguisher check and recharged if that is a requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order suspending the license for the foster home operated by Blanche Hadley at 1107 East Humphrey Street, in Tampa, pending compliance with all legitimate safety and operating requirements and a demonstration by the Respondent of a more cooperative attitude toward the Department staff. DONE and ENTERED this 25th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1997. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Families 4000 West Dr. Martin Luther King Jr. Boulevard Tampa, Florida 33614 Blanche Hadley 1107 East Humphrey Street Tampa, Florida 33604 Richard A. Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard Building Two, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Families Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are whether, pursuant to section 393.0673(1), Florida Statutes (2018), Respondent, which holds a license to operate a group home facility, was identified in a verified report by the Department of Children and Families (DCF) as the perpetrator of exploitation of a vulnerable adult, failed to disclose on a renewal application a perpetrator of "the . . . abuse, neglect, or exploitation of a vulnerable adult" (Maltreatment),1 and allowed a new employee to begin working at the group home before completing all of the background screening requirements; and, if so, what penalty should be imposed against Respondent's license.
Findings Of Fact At all material times, as authorized by the License, Respondent, a Florida not-for-profit corporation, has provided services to intellectually disabled persons residing at the Group Home. At all material times, Respondent's directors have been Etha Griffith, her daughter Kim Griffith, and Francis Griffith. The record does not disclose if Respondent has any members. Etha Griffith, who is 79 years old, serves as an officer and the onsite manager of the group home, for which Kim Griffith and Francis Griffith serve as the backup managers or supervisors of the Group Home. Petitioner presented no admissible evidence in support of Count I. Prominent among the excluded evidence is the Verified Report, as to which Petitioner failed to demonstrate its relevance, as explained in the Conclusions of Law, or its authenticity, given that it is unsigned and bears other indicia of an investigation that, although closed, was never completed.5 In support of Count II, Petitioner introduced the Application,6 which was filed on November 12, 2018. Etha Griffith7 completed the Application by providing the information requested on Petitioner's application form, which serves a natural person or legal entity who or that is an applicant or licensee seeking the issuance or renewal of a group home facility license (Application Form). Etha Griffith signed the Application as Respondent's designated representative, and her signature was notarized on November 8, 2018. The Application states the answer, "no," to the question posed in Section V, Item 2: "Have you or ownership controlling entity affiliated with this application ever been identified as responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult?" For several reasons, Petitioner failed to prove by clear and convincing evidence the material facts in support of Count II. First, "no" was correct because the question refers to a determination, not allegation, of Maltreatment. The Application Form does not define "identified," whose common meaning is not "alleged," but "established,"8 such as after a completed investigation. As explained in endnote 5, the evidence fails to establish that DCF determined that Etha Griffith is the perpetrator of Maltreatment. Second, even if there had been a determination of Maltreatment in the Verified Report by November 12, 2018, "no" was not a willful or intentional misstatement or a false statement because neither Etha Griffith nor any other agent of Respondent knew about the Verified Report or DCF's determination of Maltreatment--and not for a lack of inquiry. Aware that an investigation had taken place during the summer of 2018, in October 2018, Kim Griffith contacted the DCF protective investigator who had conducted the investigation and asked for any findings. The investigator returned to her, not the Verified Report, but a Notice of Conclusion, stating only that the investigation was "complete" and "closed," and DCF had recommended no additional services. Etha Griffith has never received a copy of the Verified Report. No agent of Respondent knew anything about the Verified Report until preparing for the hearing in this case. On these facts, Etha Griffith and Respondent's other agents had no reason to think, as of November 12, 2018, that DCF had determined that Etha Griffith had perpetrated Maltreatment. Third, even if, by November 12, 2018, Etha Griffith were aware that DCF had determined that she had perpetrated Maltreatment, the failure to disclose this fact or the Verified Report was not material. An audit of the Group Home by Petitioner led to DCF's protective investigation, and the findings of the protective investigation, such as they were,9 implied that any misappropriation involved substantially smaller sums than those specified in the audit.10 Knowledge of the audit findings would thus include knowledge of the protective investigation findings. Fourth, as discussed in the Conclusions of Law, "no" is correct because, in the question posed in Section V, Item 2, "you" refers to the applicant or licensee, and "ownership controlling entity affiliated with this application" does not effectively refer to Etha Griffith. The Application Form does not define these terms. Items 1, 3, and 4 also contain questions posed to "you." The questions in Items 1 and 3 alternatively address a "controlling entity affiliated with this application," so, except for dropping "ownership," the questions in Items 1 and 3 are directed to the same addressee as is the question in Item 2. The question in Item 4 is directed only to "you." All four of these items frame questions seeking potentially important information about past license discipline and adverse action involving the Medicaid and Medicare programs.11 Judging from her testimony at the hearing, Etha Griffith possesses modest language skills. Given the level of analysis required to determine the meaning of "you" and "ownership controlled entity affiliated with this application," Etha Griffith could not possibly have understood that the question in Section V, Item 2 addressed her. The two key issues in Count III are whether Ms. Meliard was an employee or a covered volunteer, as defined in the Conclusions of Law, and, if so, whether she had completed her local screening. Ms. Meliard did not testify, nor did Petitioner direct any questions to Kim Griffith as to Count III. Petitioner's investigator testified that, upon his unannounced arrival at the Group Home at 2:05 p.m. on January 1, 2019, he found Ms. Meliard "seated in a chair by the front window," presumably in a common area of the house, such as a living room. Tr., p. 63. Ms. Meliard was alone in the Group Home, as the residents typically returned from their day programs around 3:00 p.m. Tr., p. 63. On the investigator's arrival, Ms. Meliard called Etha Griffith, who arrived at the Group Home very shortly after the call. Tr., p. 64. On her arrival, Etha Griffith told the investigator that she was "trying to give [Ms. Meliard] a job." Tr., p. 64. The testimony recited in this paragraph is credited. Petitioner's witnesses were in conflict as to the screening that Ms. Meliard had cleared. Petitioner's operations management consultant testified that Ms. Meliard had not cleared level 1 or 2 screening. Tr., p. 44. Petitioner's investigator testified to the same effect, but immediately corrected himself by saying that she had cleared Level 2 screening, but not local screening. Tr., pp. 65-66. Petitioner is unable to produce documentary evidence of screenings because this material is confidential, even in hearings of this type, according to Petitioner's counsel. Tr., p. 46. When asked if Ms. Meliard had cleared her level 2 screening, Etha Griffith testified, "That is the one we got, yeah." Tr., p. 95. No one asked Etha Griffith directly if Ms. Meliard had not yet passed her local screening. In a clear-and-convincing case, no finding is possible based on the negative implication inherent in Etha Griffith's statement. Her modest communication skills and laconic communication style betray a lack of mental acuity, so no inference is possible by Etha Griffin's use of the definite article, "the." A personnel file, which may be opened for a candidate for employment, typically contains evidence of a local screening, which comprises an inquiry to the relevant local law enforcement agency and a response from the agency. Tr., p. 83. Proof of a failure to obtain a local screening thus depends on a negative-- the absence of documentation in the personnel file. Unable to recall clearly whether he had seen evidence of a level 2 screening, Petitioner's investigator testified that he recalled not seeing evidence in Ms. Meliard's personnel file of clearing the local screening. Tr., p. 83. The testimony on the issues of employment and local screening is too vague and uncertain to support findings by clear and convincing evidence that, on January 10, 2019, Ms. Meliard was employed by Respondent and had not passed her local screening. The investigator presented himself as exceptionally capable and articulate, but nothing in the record suggests that he investigated with any diligence the employment or local screening issues involving Ms. Meliard.
Recommendation It is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding Respondent not guilty of all counts set forth in the Administrative Complaint. DONE AND ENTERED this 26th day of November, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2019.
The Issue Whether Petitioner's application for renewal of her family foster home license should be denied on the grounds set forth in the June 20, 1995, letter from the Department of Health and Rehabilitative Services (HRS), Respondent's predecessor, to Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is (as was its predecessor, HRS) a state government licensing and regulatory agency. From September of 1989 to June 30, 1995, Petitioner was licensed by HRS (on a yearly basis) to operate a family foster home at her residence in Palm Beach County. In May of 1994, as part of the licensure renewal process, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children" (Agreement). In so doing, she agreed that she would, as a licensed foster parent, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the department," "immediately report any injuries or illness of a child in [her] care," and "abide by the department's discipline policy." The previous day (May 23, 1994), Petitioner had received and signed a copy of HRS's "discipline policy," which provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of Physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. This section of administrative Rule 10M- 6, which deals with discipline is reproduced in the following paragraph. "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the child develops the self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselors who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content and agree to abide by it. A. G. is a 12 year-old foster child who currently resides in Boys Town in Tallahassee. Before entering the foster care system, he had been the victim of abuse. In 1994, A. G. lived in Petitioner's family foster home along with three other male foster children, J. W., M. M., and B. P., all of whom were teenagers with troubled pasts and juvenile records. On or about December 15, 1994, the day before A. G. was scheduled to leave Petitioner's home for another foster home, the other boys angrily reported to Petitioner that A. G. had misappropriated a gift certificate that belonged to M. M. and a watch that belonged to B. P. M. M. was particularly upset and angry about what A. G. had done. Upon receiving this report, Petitioner instructed the boys to "take care of" the matter. The boys then went to A. G.'s room and proceeded to hit A. G. with their hands and a belt. A. G. sustained a number of bruises on his buttocks and the back of his legs as a result of the attack. A. G. yelled and screamed as he was being hit. Petitioner was in her bedroom, which was adjacent to the room where the beating took place. At no time during the attack did she leave her bedroom to tell the boys to stop beating A. G., nor did she take any other action to stop the beating. Petitioner exercised extremely poor judgment in instructing the older boys to "take care of" the matter. She should have realized that the carte blanche she gave J. W., M. M., and B. P., who were upset and angry with A. G., placed A. G.'s physical safety at risk. She compounded her error by not carefully monitoring the older boys subsequent activities to make sure that they resolved the matter appropriately without harming A. G. The following morning, A. G. left Petitioner's home for another foster home, that of Janet Kerimoglu and her husband. A. G. arrived at the Kerimoglu home with very few belongings. Moreover, his physical appearance concerned Ms. Kerimoglu. A. G. appeared to be very thin. Furthermore, he had head lice and fresh bruises on his body. When asked about the bruises, A. G. explained that he had been beaten up by some teenagers the day before at Petitioner's home. A report that A. G. had been the victim of abuse while at Petitioner's home was made to HRS's abuse registry. The report was investigated by HRS's protective services investigative unit. On January 10, 1995, following the completion of the investigation, FPSS Report No. 94-117809 issued. The report classified as "proposed confirmed" the allegation that Respondent was guilty of neglect in connection with the beating that A. G. received at her home on or about December 15, 1994. According to the report, the beating occurred "because of [Petitioner's] lack of supervision and [her] failure to protect [A. G.]," a finding which is supported by the preponderance of the record evidence in the instant case. A request to expunge or amend the report was denied on June 6, 1995. By letter dated June 20, 1995, Petitioner was advised that her foster family home license would not renewed because of the finding of neglect made in FPSS Report No. 94-117809.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 4th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 4th day of September, 1998.
The Issue Whether Respondents’ renewal foster home license application should be denied based upon allegations that Respondents violated a foster child’s safety plan, refused to sign a corrective action plan, and refused to work in partnership with Petitioner.
Findings Of Fact The Parties DCF is the state agency responsible for licensing foster care parents and foster homes pursuant to section 409.175, Florida Statutes. DCF administers foster care programs by contracting with third-party private entities. In Circuit 19, which is the geographic area encompassing Port St. Lucie, DCF has contracted with Devereux Community Based Care (“Devereux”) to be the “lead agency” to provide the majority of child services. Devereux, in turn, has subcontracted with Camelot Community Care (“Camelot”), which is licensed as a child placement agency. Respondents, who are husband and wife, are foster care parents in a foster care home licensed by DCF. At all times material hereto, Mr. and Mrs. Arias have fostered children at their home in Port St. Lucie. Respondent, Kathleen Arias (“Mrs. Arias”), does not work outside the foster home. She is a “stay-at-home” foster mom. Over the past 16 years, Mrs. Arias has fostered many children. Mrs. Arias is very loving to the foster children in her care, and she has provided a great benefit to the foster children in her care.2/ Kenneth Strout’s Prior History of Sexually Inappropriate Behaviors Kenneth Strout (“Kenneth”), who recently turned 18 years old, was placed into Respondents’ foster home in 2013. Prior to his placement in Respondents’ home, Kenneth engaged in inappropriate sexual behaviors. As a therapeutic foster child in Respondents’ home, Kenneth received therapeutic services, including therapy, psychiatric services, support, and therapeutic parenting by a trained therapeutic foster parent, Mrs. Arias. Despite receiving therapeutic services, Kenneth continued to engage in inappropriate sexual behaviors while living in Respondents’ home. During the time in which Kenneth lived in the home, he had a history of sexually touching others, exposing himself, and masturbating in close proximity to others. On one particular occasion on September 17, 2014, Kenneth was sitting on the couch watching television, and Mrs. Arias’ sister walked in the room. While she had her back to Kenneth, he dropped his pants, exposed himself to her, and pressed his penis against her buttocks. The Applicable Safety Plan Requirements As a result of this incident, an updated safety plan was developed.3/ The safety plan was signed by Mrs. Arias on October 8, 2014. Mrs. Arias reviewed the safety plan and is aware of the requirements of the safety plan. Specifically, the safety plan requires, in pertinent part: “Client needs to be within eyesight and earshot of a responsible adult, who is aware of and will enforce the safety plan at all times.” The May 28, 2015, Incident at LA Fitness and its Aftermath Against this backdrop, on May 28, 2015, at approximately 8:00 p.m., Mrs. Arias took Kenneth, who was 17 years old at the time, to LA Fitness, a gym facility in Port St. Lucie. Mrs. Arias had a membership at LA Fitness and frequented the facility on a regular basis. Despite Ms. Arias’ knowledge of Kenneth’s inappropriate sexual propensities, Kenneth often accompanied Mrs. Arias to the facility, where he would play basketball on an indoor basketball court, while Mrs. Arias exercised in another area at the facility. During the evening of May 28, 2015, Kenneth had been playing basketball on the indoor basketball court. He left the basketball court and approached Mrs. Arias and told her that he needed to use the bathroom. Mrs. Arias gave Kenneth permission to go to the bathroom. The men’s restroom is located inside the men’s locker room. At this point, Kenneth walked toward the men’s locker room, and entered the men’s locker room through the door leading from a hallway into the men’s locker room. Mrs. Arias did not go into the men’s locker room with Kenneth, nor was Kenneth accompanied by an adult when he entered the men’s locker room. Once Kenneth entered the men’s locker room, he walked to the other end of the locker room to another door, which led to the Jacuzzi area. Kenneth then opened the door from the men’s locker room leading to the Jacuzzi area. At this point, Kenneth observed a female, Concepcion Alvarado, sitting alone in the Jacuzzi. Ms. Alvarado was in her swimsuit. At this point, Ms. Alvarado was relaxing in the Jacuzzi with her eyes closed. After observing Ms. Alvarado for a moment, Kenneth stripped down to his boxer shorts, entered the Jacuzzi, and inappropriately touched Ms. Alvarado on her leg. Upon realizing that somebody touched her leg, Ms. Alvarado opened her eyes, saw Kenneth in front of her, and said to him: “What are you doing, little boy?” “Just get out of my way, or do your own stuff.” Kenneth then touched Ms. Alvarado on her shoulder. At this point, Ms. Alvarado became very angry and said to Kenneth: “Why are you touching me? You’re not supposed to do that.” “Just get out.” Kenneth smiled at Ms. Alvarado as Ms. Alvarado exited the Jacuzzi. Ms. Alvarado then entered the nearby pool. Kenneth followed Ms. Alvarado and jumped in the pool as well. Ms. Alvarado recognized Kenneth because he had engaged in similar inappropriate sexual behavior a week earlier. On the prior occasion, Kenneth and Ms. Alvarado were in the Jacuzzi when Kenneth tried to kiss her and touched her leg. Ms. Alvarado did not report the prior incident. However, Ms. Alvarado reported the May 28, 2015, incident to an LA Fitness employee. Shortly thereafter, law enforcement officers arrived at the facility and arrested Kenneth. Kenneth was taken to a juvenile detention facility where he spent the night. Kenneth was not within eyeshot or earshot of Mrs. Arias or another responsible adult once he entered the men’s locker room on May 28, 2015. Kenneth was not within eyeshot or earshot of Mrs. Arias or another responsible adult when the inappropriate physical contact perpetrated by Kenneth against Ms. Alvarado in the Jacuzzi on May 28, 2015, occurred. The persuasive and credible evidence adduced at hearing establishes that Respondents violated the October 2014 safety plan by failing to ensure that Kenneth was within earshot and eyeshot of a responsible adult at all times when he was at LA Fitness. Had Kenneth been within eyeshot and earshot of a responsible adult at all times on May 28, 2015, while he was at LA Fitness, the incident in the Jacuzzi with Ms. Alvarado would not have occurred.4/ Notably, given Kenneth’s history of sexually inappropriate behaviors, Mrs. Arias knew that she was taking a risk to the public in bringing Kenneth to LA fitness because it was an environment that could be problematic for him. At hearing, Ms. Linda Green, a licensed clinical social worker formerly employed by Camelot, persuasively and credibly explained the difficulties she and Mrs. Arias faced in their efforts to deal with Kenneth’s sexually inappropriate behaviors. According to Ms. Green, a true bond developed between Mrs. Arias and Kenneth. Kenneth referred to Mrs. Arias as “mom,” and he felt like she was his mother. In an attempt to keep the family unit intact, Ms. Green wanted significant “client-directed therapy” and “advocation because the client should have the right to control their life.” On the other hand, Ms. Green was concerned about keeping society safe from Kenneth. In hindsight, Ms. Green candidly admitted at hearing that Kenneth “probably needed institutionalization sooner.” Mrs. Arias recognized her inability to control Kenneth’s sexually inappropriate behaviors and the danger he posed to society prior to the May 28, 2015, incident. Prior to the May 28, 2015, incident, Mrs. Arias requested that Kenneth be placed on a “30-Day Notice.” Kenneth was on a “30-Day Notice” when the incident at the gym on May 28, 2015, occurred. Nevertheless, Kenneth remained in the Respondents’ home as of the May 28, 2015, incident at the gym because Devereux was having difficulty finding a new placement, and Mrs. Arias agreed to keep Kenneth in the home until after the end of the school year. The school year ended the first week of June. Kenneth never returned to Respondents’ home after the May 28, 2015, incident at LA Fitness. Instead, Kenneth was discharged from the foster care program, and placed in a group facility where he has resided ever since. It is anticipated that Kenneth will remain in the group facility until he is 23 years old. Following the incident at the LA Fitness gym on May 28, 2015, DCF undertook an investigation. As a result of its investigation, DCF concluded that the safety plan was violated because Kenneth was not within earshot or eyeshot of a responsible adult when the incident at the gym on May 28, 2015, occurred. DCF’s investigation resulted in a verified finding of abuse against Respondents based on inadequate supervision. Based on DCF’s verified finding of abuse based on inadequate supervision, a corrective action plan was required by administrative rule and prepared for Respondents to execute. A corrective action plan is a document which identifies issues of concern to DCF and how DCF, as an agency, can work together with the foster parent to improve the foster parent’s performance. A corrective action plan serves as a supportive intervention and is not punitive in nature. Respondents refused to execute the corrective action plan because they were concerned that, in doing so, they would admit DCF’s investigative finding of abuse based on inadequate supervision. The persuasive and credible evidence adduced at hearing establishes that Respondents refused to execute the corrective action plan. The persuasive and credible evidence adduced at hearing fails to establish that Respondents failed to work in partnership with DCF.5/ Respondents’ foster care license was due to expire on October 18, 2015. After the May 28, 2015, incident occurred, DCF placed another child under Respondents’ care. Regardless of the incident at LA Fitness on May 28, 2015, DCF intended to re-license Respondents. DCF intended to renew Respondents’ foster care license after the May 28, 2015, incident despite the verified finding of inadequate supervision. DCF was unable to re-license Respondents because they failed to execute the corrective action plan required by rule. Had Respondents executed the corrective action plan required by DCF, Respondents’ foster care license would have been renewed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Children and Families placing Respondents’ foster care license in provisional status for six months, during which time Respondents shall execute the corrective action plan. If Respondents decline to execute the corrective action plan within six months, the provisional license will not be replaced with a regular license or renewed.7/ DONE AND ENTERED this 3rd day of June, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 3rd day of June, 2016.
The Issue Whether Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
Findings Of Fact Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida. Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove. Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents. Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017. Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home. After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018. Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless. Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week. Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks. After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home. Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents, individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names. The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail. On February 13, 2017, Ms. Foster hand delivered a letter to Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order. Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end. In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof. Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home. Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes. Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018. Despite these multiple injunction proceedings, Ms. Cruz and Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie. Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018. On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018. Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin. Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie. Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration. Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Nidia Cruz’s Petition for Relief. DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 1st day of July, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 (eServed) James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471 Fernandina Beach, Florida 32035 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Petitioners' applications to license their group home facilities should have been approved by Respondent, Agency for Persons with Disabilities ("APD" or "Respondent").
Findings Of Fact The undersigned makes the following findings of fact: APD is the state agency that licenses foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs. § 393.067, Fla. Stat. APD is charged with reviewing all applications and ensuring compliance with the requirements for licensure. Id. Stipulated Facts Submitted by the Parties The parties stipulated to the following facts. Loving Touch Dynamic Group Home and Loving Touch A Brighter Future Group Home are owned and operated by Loving Touch Adult Family Care, Inc. Zulia Brenovil is Loving Touch Adult Family Care, Inc.'s sole shareholder. Loving Touch's applications for licensure of the A Brighter Future and Dynamic homes were ultimately complete and met all requirements for licensure. However, APD exercised its discretion to deny the applications pursuant to Section 393.0673(2)(b), Florida Statutes. The parties dispute whether such discretion was correctly applied in this case. Until the denial of the A Brighter Future and Dynamic home applications, APD had not previously denied a license application submitted by Loving Touch Adult Family Care, Inc. Loving Touch Adult Family Care, Inc., has never had a license revoked or suspended by APD. The Notice of License Application Denial/Administrative Complaint does not charge Loving Touch Adult Family Care, Inc., with making false statements or omitting material facts in its license application under Section 393.0635(2)(a)1, Florida Statutes. Loving Touch Adult Family Care, Inc., also owns three additional homes licensed by APD: Loving Touch "My Place," Loving Touch "Transition," and Loving Touch "Unity." See also (Pet. Exs. 24-26.) APD renewed the licenses of My Place, Transition, and Unity after March 2, 2018. APD had previously renewed and/or issued the licenses of My Place, Transition, and Unity after the alleged verified findings by the Florida Department of Children and Families. Petitioners are the applicants for licensure of two group home facilities. Resp. Exs. 1 and 3. Petitioners' corporate officer and operator is Zulia Brenovil. She prepared and submitted both group home licensure applications for Loving Touch "A Brighter Future" Home and Loving Touch "Dynamic" Home to APD in December of 2017. Pre-Hr'g Stip. 3.(e); Resp. Exs. 1 and 3. Upon receipt, APD reviewed Petitioners' applications for licensure and took steps to verify the accuracy of the information provided in the applications. As part of the review, APD conducted a search of the Department of Children and Families ("DCF") records on the Florida Safe Families Network. Resp. Ex. 2, pp. 80-81; Resp. Ex. 3, pp. 186-197. APD's search of DCF records revealed four DCF reports that contained verified findings of abuse, neglect, or exploitation against Brenovil. Resp. Exs. 6, 7, 8, and 10. Those cases are outlined in more detail below. DCF Case Number 2015-147636 DCF case number 2015-147636 resulted in a verified finding of maltreatment/threatened harm against Brenovil. Resp. Ex. 6, p. 190. Tiffany Perry was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that minor child E.L., a resident of one of Brenovil's group homes, was being bullied by other children and was not receiving enough food. Perry began her investigation by performing background checks on the persons involved in the report. Perry then visited Brenovil's group home. Perry interviewed all the children in the home. Perry noted that E.L.'s bedroom door had locks on the outside of the door that would allow someone to lock E.L. inside his bedroom. Initially, Brenovil denied knowing that the locks had been switched, but Brenovil ultimately admitted to Perry that Brenovil's maintenance man had switched the locks. Resp. Ex. 6, p. 191. Perry verified the findings against Brenovil because the locks on E.L.'s bedroom were on the outside of the door and this allowed E.L. to be locked in his bedroom. Resp. Ex. 6, p. 191. This also resulted in the other children locking E.L. in his bedroom. Resp. Ex. 6, p. 191. Additionally, if E.L. was locked in his bedroom she concluded that his ability to quickly and safely escape the house in the event of an emergency, such as a fire, would be impaired. Resp. Ex. 6, p. 191. DCF Case Number 2016-297713 DCF case number 2016-297713 resulted in a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 7, pp. 209-210. Charlie Parker was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that minor child L.K., a resident of one of Brenovil's group homes, was using a cell phone to send pictures of L.K. cutting herself and to send other explicit pictures. Resp. Ex. 7, p. 209. There was also an allegation that another minor child resident, O.W., was not being closely monitored. Parker began his investigation by visiting Petitioners' group home. Upon inspection, Parker found that L.K.'s safety plan was not in L.K.'s file, as required. Parker testified that L.K.'s status was "to be seen, sight and sound." "Sight and sound" means that L.K. was supposed to be within sight of the house parents at Petitioners' group home at all times, and L.K. was never to be left unsupervised. Parker stated that he made verified findings against Brenovil because the safety plans for O.W. and L.K. were not properly located in the group home as required, and that staff members of the group home did not know the contents of the plans. Brenovil admitted to Parker that she was aware that the proper information was not available to the staff members at the group home. Based on Brenovil's comments and Parker's investigation and interviews of other staff members, Parker closed the case with a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 7, p. 211. DCF Case Number 2017-125783 DCF case number 2017-125783 resulted in five verified findings of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 8, pp. 228-229. Virginia Snyder was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that five minor children at two of Brenovil's group homes were not being adequately supervised. Resp. Ex. 8, pp. 227-228. Snyder began her investigation by interviewing the minor children residents of the group homes and the staff members, including Brenovil. Part of the allegations involved a child not receiving a ride back to the group home. The child alleged that she called the group home and no one would pick her up. Brenovil informed Snyder the staff member at the group home could not pick the child up, and Brenovil could not pick the child up because she had taken headache medicine. Brenovil and Brenovil's staff member both admitted to the investigator that the minor child had been dropped off at another foster home without contacting the foster mother of that foster home in advance. Snyder verified findings against Brenovil that children were going between Brenovil's group home and another group home without staff adequately determining or knowing where the children were going or located. Additionally, one child was left at a home and neither Brenovil, nor her employees, were able to pick the child up. DCF Case Number 2009-146042 DCF case number 2009-146042 resulted in a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 10, pp. 248-249. In that case, two residents of Brenovil's group home had improper sexual relations, due to inadequate supervision. Resp. Ex. 10, p. 248. Brenovil's Response to the DCF Verified Findings Brenovil denied switching or having someone switch the locks with respect to DCF case number 2015-147636. Brenovil testified that the safety plans for O.W. and L.K. were properly in the group home during Investigator Parker's investigation in DCF case number 2016-297713. Brenovil denied talking to an investigator with respect to DCF case number 2017-125783. Brenovil testified that she submitted both applications to APD in full in December of 2017. However, the Comprehensive Emergency Management Plans, submitted as part of the applications, were dated January 2018. Resp. Ex. 2, p. 23. Brenovil did not sign the Comprehensive Emergency Management Plan until February 16, 2018. Resp. Ex. 2, p. 37. Similarly, the Sexual Activities Policy, another document submitted as part of the licensure application, was not signed by Brenovil until January 18, 2018. Resp. Ex. 2, p. 103. Similarly, the Sexual Activity Policy submitted as part of A Brighter Future's application for licensure was not signed by Brenovil until January 18, 2018. Resp. Ex. 4, pp. 184-185. After being confronted with the late documents, Brenovil admitted that the completed applications were not submitted until after December of 2017.3/ As part of the DCF investigation in case number 2015- 147636, Perry interviewed Brenovil's board member, Mr. Phillip Alexander ("Alexander"). Resp. Ex. 6, p. 194. Alexander informed Perry that the locks had been reversed for years. Resp. Ex. 6, p. 194. When confronted with this at the hearing, Brenovil stated that Alexander did not make this statement to DCF. Brenovil later testified that she knew Alexander did not make that statement because Brenovil was present for the conversation between Alexander and Perry. However, on re-direct, Brenovil acknowledged that she was not present for the conversation between Alexander and Perry. Brenovil testified that she voluntarily gave up her licenses for her DCF licensed group homes, and that there had been no threat of administrative action from DCF. However, Michelle Windfelder, a DCF licensing specialist, testified that Brenovil relinquished her licenses in lieu of revocation. Windfelder testified that, because of problems in Brenovil's home, DCF contacted Brenovil and advised Brenovil that she had the option of relinquishing her licenses, otherwise DCF was going to revoke the licenses. Windfelder testified that because of the impending revocation by DCF, Brenovil decided to voluntarily relinquish the licenses. Petitioners offered no compelling or persuasive evidence to show that APD wrongly denied their license applications, or abused the discretion afforded to it under section 393.0673(2)(b), Florida Statutes. The undersigned finds the testimony and evidence of the DCF investigators and the DCF licensing specialist more compelling and credible than that of Brenovil. Ultimately, the Petitioners did not carry their burden of proof to show that APD abused its discretion or when it denied their initial applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying the license applications of Petitioners, Loving Touch "A Brighter Future" and Loving Touch "Dynamic." DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 28th day of May, 2019.
The Issue Whether Petitioner is entitled to a Foster Home License.
Findings Of Fact Petitioner, Marion Hanes, had for a number of years been granted custody of two very troubled female foster children by a Pennsylvania court. Ms. Hanes grew to care a great deal for these two foster children and while they were in her custody helped the two children feel loved and cared for. When Ms. Hanes and her husband moved to Florida, she asked the court to grant her permission to take the girls to Florida to live with her and her husband. Because of Ms. Hanes' good care of these children and the desires of Ms. Hanes, the children, the Pennsylvania social service agency and the Pennsylvania court, in order to maintain a consistent environment for these children, the court granted Ms. Hanes permission for the girls to live with her in Florida. After arriving in Florida, Petitioner discovered that the girls' Pennsylvania Medicaid cards would not be accepted by Florida Medicaid providers. Therefore, in order to obtain school and medical services for her foster children in Florida, Ms. Hanes had to obtain Florida Medicaid cards for her charges. In pursuit of the Medicaid cards, Ms. Hanes was informed that she would have to have a foster home license for the home in which the girls would be living. Ms. Hanes made application to the Department of Health and Rehabilitative Services for a Foster Home License for her residential home located at 1015 Edison Drive, Pensacola, Florida. The home is located in a middle-income residential area and is an ordinary brick house resembling the other homes in the neighborhood. The front bedroom windows in the house measure 15 inches in height and 34 inches in width. The bottom of the windows are approximately 46 inches off the ground. The children in Ms. Hanes' care would occupy one of the bedrooms with the 15 by 34 inch windows. On June 24, 1991, Robert Herron, Fire Prevention Specialist and licensed Fire Inspector inspected the Petitioner's home located at 1015 Edison Drive. The purpose of the inspection was to determine whether the residential home met fire safety requirements applicable to houses which will serve as foster homes. The Fire Inspector testified that the Department's long-standing, statewide policy was to require that foster homes meet Chapter 22 of the NFPA 101 Life Safety Code. The NFPA 101 Life Safety Code, Chapter 22-2.21(b), requires that windows in a residential home have a clear opening of not less than twenty-four (24) inches in height and twenty (20) inches in width, with the bottom of the opening not less than forty-four (44) inches above the floor. Mr. Herron further testified that exceptions for good cause had been granted to the window size requirement, but only when a window's dimension varied by one or two inches. The Hanes' windows were denied an exception. The Life Safety requirement has not been adopted by HRS as a rule. Nor has the Life Safety requirement been adopted as a rule applicable to residential or foster homes by the State Fire Marshals office. Additionally, the evidence did not show that the Life Safety requirement has been adopted by any local building authority which would have code authority over the Hanes' home. The agency did not put on any evidence which would demonstrate the reasoning behind this unadopted rule requirement. Mr. Herron's inspection of the Hanes's home revealed that the bedroom windows in the Hanes' home did not meet the NFPA 101 Life Safety Code standards. Specifically, the fifteen (15) inch height of the windows was short by nine inches from the NFPA Life Safety Code's standard. Importantly, the evidence did not show that the Hanes' home was unsafe. In fact, the better evidence in this case demonstrates that the Hanes' home presents a safe and secure environment for the Hanes and the foster children and the windows in their present condition appear to be big enough to allow passage in an emergency. As of the date of the hearing, the Hanes had not increased the size of the bedroom windows to twenty-four (24) inches. Mr. Hanes stated the reason these windows had not been enlarged following Mr. Herron's inspection was because other neighborhood houses were similar in style to the Hanes' house and the esthetic changes were undesirable to the Hanes. More importantly, the evidence demonstrated that removing these foster children from Ms. Hanes' care would not be in their best interest and could cause more harm than good. Put simply, the needs of these children for a consistent and loving environment outweigh the need for strict compliance with an unadopted safety standard given the fact that the home is safe. Therefore, Ms. Hanes is entitled to a foster home license for her home located at 1015 Edison Drive, Pensacola, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: that the Petitioner's application for licensure as foster parents be granted. ENTERED this 9th day of August, 1993, in Tallahassee, Florida. DIANE CLEAVINGER 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 9th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5134 The facts contained in paragraphs 1, 5 and 6 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 2, 3, 4 and 7 of Respondent's Proposed Findings of Fact are subordinate. 4. The facts contained in Petitioner's letter dated April 4, 1993, are adopted in substance, insofar as material. The characterization of Respondent's Proposed Recommended Order and testimony at the hearing are not ruled upon since no factual matters are involved. COPIES FURNISHED: Marion Hanes 1015 Edison Drive Pensacola, FL 32505 Christopher R. Hunt Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 8420 Pensacola, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
