The Issue The issues in this case concern whether the Respondent is entitled to renewal of her license to provide residential services for persons who are developmentally disabled.
Findings Of Fact Introductory and background facts At all times material to this proceeding, the Respondent provided, and was licensed to provide, residential services for persons who are developmentally disabled. The Respondent provided these services in a group home where she had from 4 to 6 clients at any one time. From time to time representatives of the Department would identify deficiencies in the way the Respondent was providing the residential services. Typically, the Department would advise the Respondent of specific deficiencies following a visit to the Respondent's group home. The Respondent would often take steps to correct the identified deficiencies, but some deficiencies tended to occur again and again. The Department attempted to work with the Respondent to help her remedy deficiencies and to help her prevent future deficiencies. Eventually, on February 25, 1999, the Department advised the Respondent by letter that it did not intend to renew her license to provide residential services for persons who are developmentally disabled. The Department's letter of February 25, 1999, advised the Respondent that the "quality of care by your facility does not meet the minimum licensure standard[s] as specified in Chapter 10F-6," and went on to list a number of specific concerns under the major categories of "Administration" and "Health and Safety." The concerns itemized in the letter were as follows: Administration Records of expenditure from individual residents' accounts are not maintained. Lack of accountability of client's personal allowances. Inappropriate use of client's personal allowance. Inadequate receipts for client's expenditures. Incomplete employee files. Employees without personnel files. Health and Safety Clients locked inside the house without supervision. Gate/Entrance chained. Lack of evidence of all night supervision. Clients left unsupervised during a week- end. Inadequate food supply. Clients' lack of access to food. Food prepared away from residence. Menus not posted. The letter also advised the Respondent of her right to request an administrative hearing if she wished to contest the Department's proposed course of action. After some initial difficulties complying with the Department's requirements, the Respondent's group home (which had been moved from its original location without sufficient notice to the Department) was issued a conditional license on January 1, 1998, followed by a standard license issued on March 1, 1998. The standard license was valid for one year from the date of issuance. In March of 1998 when the standard license was issued, conditions at the Respondent's group home appeared to be satisfactory. For the first few months following the issuance of the standard license, the Department did not have any significant concerns about the manner in which the Respondent's group home was being operated. The Respondent appeared to be responsive to suggestions by Department personnel and appeared to be trying to work with Department personnel to operate her group home in a proper manner. From March through most of June of 1998, there were no major problems at the Respondent's group home. The incident on June 27, 19982 On June 27, 1998, an incident occurred at the Respondent's group home that caused the Department a great deal of concern. On that day, at approximately 4:30 p.m., Mr. L. N. arrived at the Respondent's group home, in Boynton Beach, Florida, to visit his son who is mentally retarded. He was unable to enter because the gate to the fence surrounding the home was chained and locked. He observed some of the group home residents in the front yard and others in the house. Still unable to enter the gate later when he returned, Mr. L. N. telephoned police. Road Patrol Officer Susan Gitto responded. At approximately 6:45 p.m., Officer Susan Gitto arrived at the group home and climbed the fence. One of the men at the group home kept pointing to the house next door, north of the group home. Officer Gitto found no one on the premises other than the six mentally handicapped men who were in their pajamas and inside watching television. Based on information from Mr. L. N., Officer Gitto telephoned the responsible agency, the Department of Children and Family Services (DCF). A DCF case worker supervisor, Anna Glowala, arrived at the group home at approximately 9:00 p.m. She described the residents as nervous. Most of them were functioning at a level below the ability to respond to emergencies, that is, unable to telephone 911 or to evacuate in case of a fire. Ms. Glowala prepared a preliminary report on her findings at the group home. Sometime after 9:00 p.m., a woman who identified herself as Elvira Brown arrived with a key to the group home. She intended to take care of the clients that evening, but was sent away by Officer Gitto, who also left the home soon after that. At approximately 12:45 a.m., on June 28, 1998, Ms. Glowala's supervisor, William D. Shea, arrived at the group home. Mr. Shea relieved Ms. Glowala and stayed with the residents for the rest of the night. The six adult residents, according to Mr. Shea, were lower functioning and non-verbal. At 6:15 a.m., a woman who identified herself as Sharon Butler arrived to cook breakfast and supervise the residents. She assured Mr. Shea that she was an employee of the group home and would remain at the group home until the licensed operator returned from an out-of-town trip. After he left, Mr. Shea asked Ms. Glowala to continue to monitor the group home by telephone until the operator returned. Mr. Shea did not check the woman's identity or determine whether she was, in fact, a qualified employee, as required by DCF. Mr. Shea testified that a group home operator may leave properly screened employees to relieve them when they are absent. The screening includes fingerprinting for police background checks. DCF witness, Sue Pearlman Eaton, received the report of the incident on June 30, 1998. On July 1, 1998, she initiated an investigation by visiting the group home. When she arrived, she found one resident in the front yard sleeping on a lawn chair, and others inside watching television. One resident took her to a room in response to her request for help finding the owner/operator, but no one was there. She noticed where five of the six residents of the home were located, and what they were doing. After approximately twenty minutes to a half hour, Ms. Pearlman-Eaton observed the operator coming into the house. She was angry and said she had been in the backyard with the sixth resident feeding her dogs. She told Ms. Pearlman-Eaton that she hired Ms. Butler to stay at the group home during her previous weekend trip to Tampa. The operator reported that she left at approximately 12 o'clock noon on Saturday, and that Ms. Butler was present when she left. Ms. Pearlman-Eaton also questioned Ms. Butler, as a part of her investigation. As she apparently confirmed, Elvira Brown, Ms. Butler's cousin, was supposed to stay at the group home from 2:00 p.m. until 10:00 p.m., while Ms. Butler worked at another job. According to Ms. Pearlman-Eaton's report, Ms. Brown telephoned Ms. Butler and told her that her work at the group home was completed between 6:00 p.m. and 7:00 p.m., and that the residents were in bed. The report indicated that Ms. Brown stated that Ms. Butler asked her to help by feeding the residents and getting them ready for bed. Then she was to lock the gate and leave. Based on Ms. Butler's statement to Ms. Pearlman-Eaton that the group home owner/operator Mrs. V. R. T. approved Ms. Butler's plan to have Ms. Brown serve as an interim caretaker, the investigators concluded that both of them were perpetrators of abuse by neglecting clients who require 24-hour supervision. DCF failed to present the testimony of either Ms. Brown or Ms. Butler at the hearing. Therefore, the testimony of Mrs. V. R. T. and her credibility could not be weighed against that of any other person with direct knowledge of the incident on June 27, 1998. Ms. Pearlman-Eaton's report noted that the group home clients and facility were neat and clean, with no clients "acting out" or appearing to be in distress. Prior to the time that the group home owner/operator came in from the backyard on July 1, 1998, Ms. Pearlman-Eaton did not look in the backyard or hear a car arrive. She also did not determine whether or not there were dogs in the yard. During Ms. Pearlman-Eaton's questioning of Ms. Butler, Ms. Butler told her that she also worked at the Flamingo Clusters, another facility licensed by the State to provide developmental services. Clients of Flamingo Clusters are more severely handicapped than those at the V. R. T. group home. Ms. Pearlman-Eaton was initially investigating Ms. Butler and Ms. Brown. She added the group home operator to the neglect report, after she waited for her for up to a half an hour after arriving, on July 1, 1998, to conduct her investigation. While she was waiting to find Mrs. V. R. T., her report indicates that Mrs. Pearlman-Eaton telephoned Anna Glowala, the case work supervisor. She was advised by Ms. Glowala that ". . . it was not necessary for residents to be in eye range of the supervisor continually and its [sic] okay for them to be left alone for no more than 1/4 hr." Anna Glowala also noted the condition of the group home when she stayed with the clients. She remembered there were two large dogs, one a Rottweiler, in the backyard. She also saw a pathway between the two adjacent houses, the group home and the house next door, which is owned by the owner/operator's husband. Ms. Glowala also saw laundry and other items on a sofa in the garage where the owner/operator claims that she sleeps. The garage area also included a refrigerator, washer and dryer. Kay Oglesby, a DCF senior case manager, testified that she had previously warned the owner/operator that the gate to the fence should not be locked and that the residents needed constant supervision. She believed that during her first year supervising the facility, the owner/operator and her husband occupied a master bedroom in the group home. After DCF requested that they take in two additional clients, in May 1998, the owner/operator said she moved to the garage. Ava Kowalczyk, a DCF Human Services Program Specialist, confirmed that only screened and approved employees may work in a group home. The owner/operator has the responsibility for assuring that group home employees are qualified. She expressed concern that the owner/operator may have left the residents with her husband before he was properly trained. Ms. Kowalczyk described the cluttered condition of the sofa in the garage as inconsistent with Mrs. V. R. T.'s assertions that she sleeps in the garage. Finally, DCF employee Martin J. Fortgang confirmed the need for adequate supervision and the DCF's determination that inadequate supervision constitutes neglect. The group home owner/operator, the Respondent, Mrs. V. R. T., testified that two years ago she married her husband, who had lived next door for 18 years. While he lived with her in the group home, her husband's house next door was leased. She knew she was required to live on the premises and testified that she has done so, initially in the master bedroom. After accepting two more clients, on an emergency basis after another group home closed, she moved to the garage. Her husband has apparently moved back to his home next door. In March 1998, Mrs. V. R. T. submitted to DCF, as confirmed by Ava Kowalczyk, the names of her husband, Sharon Butler, and another employee for screening and approval. The document included fingerprints and a police report, which showed that Ms. Butler had a prior arrest for armed burglary. Mrs. V. R. T. denied ever giving permission for Elvira Brown to substitute for Sharon Butler. Although Sharon Butler had numbers to reach Mrs. V. R. T. by pager and cellular phone, and at her hotel in Tampa, Mrs. V. R. T. denied that Ms. Butler ever telephoned her for approval to leave Ms. Brown at the group home. Despite her arrest record, the documents which Mrs. V. R. T. submitted and received from DCF appear to confirm that Ms. Butler was an acceptable employee. One memorandum labeled a "Routing and Transmittal Slip" dated 3/31/98 states: Per your request, I have processed the Transfer of Request Form for Sharon Butler. Please see enclosed printout and Transfer form. Please maintain the [sic] these in your personnel files. The record indicates that Mrs. V. R. T. received written notice that Sharon Butler was not an approved caretaker on July 16, 1998. In contrast to the apparent approval form of March 31, 1998, the notice on July 16, 1998, from Ava Kowalczyk asserted that: This is to document my visits to your house on June 30, 1998 and July 2, 1998. At that time you informed us that for a year you have had an employee Sharon Butler, who acts as caretaker in your absence. This employee did not meet basic standards of licensing requirements. Ms. Butler's file consisted of her fingerprint card and local law enforcement checks completed on her on or about March 31, 1998. This was the first time you brought to our attention that you employed someone other than yourself and your husband. Considering the contents of the Routing and Transmittal Slip attached to the documents dated March 31, 1998, it was reasonable for Mrs. V. R. T. to believe that Sharon Butler was an approved employee. One section on the Request for Transfer of Records indicates that Ms. Butler was approved for dual employment at the group home and another facility, having had her screening originally completed on October 3, 1994. DCF has failed to demonstrate, by a preponderance of the evidence, that Mrs. V. R. T. knew that Sharon Butler was not properly screened and approved on June 27, 1998, when she left her in charge of the group home. DCF has also failed to demonstrate that Mrs. V. R. T. knew or approved of plans for Sharon Butler to leave the group home clients in the care of Elvira Brown while she was out-of-town. Other problems at the Respondent's group home On some occasions the Respondent would lock the doors of the group home while the clients were inside. When she did so, she would leave the door keys on top of the television set inside the group home.3 On some occasions the Respondent would lock the gate in the fence around the group home property while clients were on the property. The Department usually made monthly review visits to the Respondent's group home. Some of the problems noted during these monthly reviews are described in the paragraphs which follow. During the review visit on June 30, 1998, some of the food for the clients was stored away from the group home premises, and was not readily available to the clients. Specifically, no drinks or snacks were readily available for the clients that day. The required 5-day supply of food was not present on the premises, and the food that was present did not correspond to the menu. During the review visit on August 26, 1998, there were errors in the personal allowance logs of the clients. Also, on this date once again the food supplies did not correspond to the menu. During the review visit on September 22, 1998, the personal allowance logs of the clients were not up to date. Specifically, there were no receipts, there was no documentation of the personal allowance received by any of the clients, and there was no documentation of the SSI/SSA benefits received by any of the clients. Once again, the food supplies did not correspond to the menu, and there were inadequate food supplies for a hurricane emergency. During the review visit on October 28, 1998, the personal allowance logs for the clients were again incomplete. Receipts for client expenses were missing, and there was inadequate documented information about the expenses. There were no menus posted on this day. Also, the gate to the fence around the Respondent's group home was chained shut when the Department personnel arrived. This condition was of particular concern to the Department personnel, because the chained gate was an obstruction to any emergency evacuation of the group home. During the review visit on November 20, 1998, the personal allowance logs for the clients were again incomplete and inadequate. Again, receipts were missing. Again, the food present at the group home was insufficient to constitute the required 5-day supply of food. Again, no menus were posted. Also, on this occasion the meals for the clients were being prepared next door, rather than in the group home, as required. All of the clients at the Respondent's group home were developmentally disabled adult males. All of the clients functioned at a very low developmental level. Some were just barely verbal. Clients at this level of disability need constant supervision while they are in the group home. They cannot be left unsupervised without exposing them to serious risk of harm to their well-being. Even at night when such clients are sleeping, a responsible, appropriately trained, adult must be present in the group home to provide supervision and assistance if one of the clients wakes up in the night and needs direction or assistance.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Children and Family Services District issue a Final Order in this case denying the renewal of the Respondent's group home license. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000
The Issue The issue presented is whether Respondent Jim Walter Homes and its affiliates engaged in an unlawful housing practice in their dealings with Petitioner Curtis Jefferson.
Findings Of Fact Respondent Jim Walter Homes builds homes for people on lots those people already own, and its mortgage company Mid- State Homes, Inc., finances those homes. Such was the arrangement between Petitioner and Respondent. In October 1998 Petitioner, a black man, and his fiancée Jennifer Mitchell executed a promissory note and mortgage on the home built for them by Respondent. That note and mortgage were subsequently sold to Mid-State Homes, Inc., and then to Mid-State Trust VIII. Petitioner and his fiancée, who both owned the home, began making payments, but from the beginning, the payments were frequently late. Respondent continued to work with Petitioner and his fiancée, preferring to receive the mortgage payments to foreclosing on the mortgage. Petitioner and his fiancée also failed to pay property taxes and to maintain insurance on the home. Petitioner and his fiancée failed to make the January 1, 2002, mortgage payment and did not make payments thereafter. In April Mid-State Trust VIII sent a letter to Petitioner and his fiancée demanding that the mortgage payments and late charges be brought current so Petitioner and his fiancée could avoid the filing of a foreclosure action and the sale of their home. Due to their failure to cure their default, Mid-State Trust VIII filed a foreclosure action against Petitioner and his fiancée on June 4, 2002. A Final Judgment of Foreclosure on Default was entered by the circuit court on November 13, 2002. The Final Judgment scheduled the home to be sold at public auction on December 13, 2002. On December 12 Petitioner filed bankruptcy proceedings, which prevented the public sale of the home from taking place due to the automatic stay afforded by the bankruptcy laws. Petitioner's fiancée did not file bankruptcy proceedings. A payment plan was approved by the United States bankruptcy judge whereby Petitioner would make payments to the trustee in bankruptcy for the mortgage payments in arrears and would make payments to Mid-State Trust VIII for the current and future mortgage payments. Petitioner failed to comply with the payment plan ordered by the bankruptcy judge. In December 2003 Mid-State Trust filed in the bankruptcy court a motion for relief from the automatic stay and filed an amended motion for relief in January 2004. The amended motion alleged that Petitioner had failed to comply with the court-ordered payment plan, that Petitioner still had possession of the property, and that Petitioner had no equity in the home since the amount due Mid-State Trust for the mortgage, late charges, foreclosure costs and attorney's fees, and interest now exceeded the value of the property. Mid-State asked to be allowed to go forward with the sale of the home. On January 14, 2004, the United States bankruptcy judge dismissed Petitioner's bankruptcy proceeding. On February 26, 2004, the home, which was still occupied by Petitioner and his fiancée, was sold at public auction. Although Petitioner attempted to stop the sale again by filing a second bankruptcy petition, the sale occurred earlier in the day than the petition was filed. The bankruptcy judge dismissed Petitioner's second petition. Again, Petitioner's fiancée did not file for bankruptcy. On June 18 a certificate of title was issued to the purchaser. Petitioner still did not vacate the home which he and his fiancée no longer owned and on which he was making no mortgage payments and paying no rent. On June 28, 2004, an Order for Issuance of a Writ of Possession was entered by the circuit court. On June 30 a Writ of Possession was entered by the clerk of the circuit court commanding the sheriff to remove all persons from the property. On July 2 the sheriff served the writ. Still, Petitioner and his fiancée failed to vacate the home. On July 15 a representative of the purchaser arrived at the home and told Petitioner he had two hours to vacate or the sheriff would come and remove him and his possessions. Still, Petitioner did not vacate until he was removed by the sheriff. No employee or agent of Respondent or its affiliates ever told Petitioner or in any way indicated that his mortgage payments would not be accepted because he was black or because of his disability. Respondent has foreclosed against other similarly- situated persons who have failed to make their mortgage payments. Petitioner is unable to work as a truck driver due to his sleep apnea, diabetes, and hypertension.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent did not violate the Fair Housing Act and dismissing Petitioner's Petition for Relief filed in this cause. DONE AND ENTERED this 1st day of September, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Curtis Jefferson 1603 Elberta Drive Tallahassee, Florida 32304 William M. Furlow, III, Esquire Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301
The Issue Whether respondent should refund sales tax petitioners paid on account of their purchase of a manufactured home?
Findings Of Fact On September 12, 1984, petitioners made a $160 down payment on a 75 x 150 foot lot in High Ridge Estates in Bay bounty by a check drawn in favor of Ed Franklin. They wanted the lot in order to put a manufactured home on it. After acquiescing to a request by personnel of the Bay County building department that they pay $21.00 for a mobile home permit, the Baileys improved the property in anticipation of placing a manufactured home on it. They put in a septic tank and poured a concrete pad. On November 21, 1984, the Baileys signed a form "FHMA SALES CONTRACT" as buyers. Petitioners' Exhibit No. 2. Jack Lee signed as seller on behalf of "DD&L Joint Venture." Id. Petitioners gave Lee a down payment of $13,400; DD&L undertook to procure from Fleetwood Homes of Georgia, Inc., a manufactured home to be placed on the High Ridge Estates lot. The form contract, which purported to obligate the Baileys for $53,000, describes the lot, but makes no mention of the manufactured home. In December of 1984, the manufactured home arrived at High Ridge Estates, borne by temporary axles and wheels, which were unbolted after its arrival, and left with the truck that had brought it. Statewide of Florida, Inc., placed it on its new foundation. With an exterior of wood siding and an asphalt-shingled roof, the 25.7 by 54 foot structure met VA and FHA materials requirements for standard housing. Carpet was laid over plywood subflooring. Wall joists stand 24 inches apart. The Baileys added a carport, a driveway, three decks and a separate storage shed. On March 13, 1985, Mr. and Mrs. Bailey borrowed money from Peoples First Financial Savings and Loan Association of Panama City (Peoples) to pay the balances they owed for the lot and home. Of the loan proceeds, $6,100.00 went to "C. Ed Franklin and wife, Frances P. Franklin," Hearing Officer's Exhibit No. 1, to pay for the lot on which the manufactured home stood; and $23,328.80 went to "ITT Comm. Finance." Id. To secure repayment of its loan to the Baileys, Peoples took a mortgage from the Baileys encumbering the lot and the manufactured home affixed to it. Petitioners' Exhibit No. 1. Apparently the payment to "ITT Comm. Finance" retired indebtedness the Baileys incurred in acquiring their 1985 Fleetwood Chadwick 3523D. Mrs. Bailey executed a retail buyer's order for their manufactured home in December of 1986, although the form, which showed Best Home Center, Inc., as the "DEALER," was dated March 22, 1985. Hearing Officer's Exhibit No. 2. The form reflects a total price for the manufactured home of $29,045.87, the sum on which sales tax was computed at $1,452.53. The Baileys paid tax in this amount to Best Home Center, Inc., "upon the sales (sic) of tangible personal property." Hearing Officer's Exhibit No. 2. Best Home Center, Inc., forwarded the taxes they collected from the Baileys, along with other taxes collected in March of 1985, to the Florida Department of Revenue. Hearing Officer's Exhibit No. 2. At the time the Baileys purchased the manufactured home it had no license tag. It never had a license tag and, at the time they purchased it, had never been assessed as real property. Best Home Center, Inc., made a written assignment to the Baileys of its rights, if any, to recover the sales tax the Baileys paid.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioners' application for refund. DONE and ENTERED this 5th day of October, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II 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 5th day of October, 1987. APPENDIX The second sentence of respondent's proposed finding of fact No. 1 and respondent's proposed findings of fact Nos. 3, 4, 6, 8, 9 and 10 have been adopted, in substance, insofar as material. With respect to the first sentence of respondent's proposed finding of fact No. 1, it is not entirely clear who sold the Baileys the manufactured home. The documentation reflected a sale by Best Home Center, Inc., for $29,045. With respect to respondent's proposed finding of fact No. 2, Ed Franklin and his wife conveyed the lot. The down payment was $160 and a $6,100 balance was paid in March. With respect to respondent's proposed finding of fact No. 5, the Peoples Mortgage originated in March, with indebtedness secured by lot and home. With respect to respondent's proposed finding of fact No. 7, the Bay County Building Department required them to purchase a permit on September 20, 1984. COPIES FURNISHED: The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0305 Charles Stutts, Esquire General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0305 Mr. and Mrs. Bailey 22012 High Ridge Drive Lot 24 Panama City Beach, Florida 32407 D. Alan Burns, Esquire Assistant Attorney General Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050
The Issue Whether Respondent should be granted licenses to operate two residential group homes for developmentally disabled individuals.
Findings Of Fact On October 22, 1999, the Department issued to Community Opportunities, Inc., a temporary license to operate Skyline ("Skyline" or "Skyline Group Home"), a residential group home for developmentally disabled clients in Pasco County, Florida, which is located in the Department's Suncoast Region. Four months later, in February 2000, the Department issued a standard license to Community Opportunities, Inc. From February 2000 through early August 2002, Skyline Group Home operated under that standard license. In May 2002, the Department investigated an abuse complaint concerning a 21-year-old male resident at the Skyline Group Home who was diagnosed as mentally retarded with Intermittent Explosive Disorder. His past history included incarceration for attempting to stab his father and, while at Skyline, 14 behavior incidents ranging from exposing himself to violent behavior towards staff and other residents at the group home. On or about May 3, 2000, this resident, while a passenger in a van for the group home, took the vehicle's keys from the seat where they were left by a staff person, started the van, ran over the staff person twice, and ran the van into a house and a telephone pole, before being stopped. Following the Department's investigation, the report was classified as verified for inadequate supervision, caretaker present. The investigation referred to in paragraph 2 also found that the Skyline Group Home was inadequately staffed, with employees working for weeks at a time with no days off. At the time of the investigation, the van driver, who was injured in the incident, described in paragraph 2 had not had a day off for almost two months prior to that incident. On August 4, 2000, the Department met with representatives of Community Opportunities, Inc., due to safety issues with the operation of the group home. Following this meeting, on or about August 11, 2000, Skyline's licensure status was changed from standard to conditional. At that time, the Department requested that the facility submit plans of corrective action. On August 28, 2000, the Department investigated an abuse complaint concerning a mentally retarded, female resident of the Skyline Group Home. This resident was found walking on a gravel road with no shoes and dressed only in a nightgown. It was estimated that it would have taken 8 to 10 minutes to walk to the location where the resident was found. This elopement from the group home occurred 3 times in a three-hour period. As a result of the investigation, it was also learned that Skyline Group Home staff members were dropping off residents at school before teachers arrived, thereby leaving the developmentally disabled clients unattended. In addition, the investigation revealed that staff at the Skyline Group Home could not be reached during the day when emergencies or problems with medications arose, staff members failed to document significant events as required, and faxed requests for medication from the school to the group home went unanswered. This report was classified as verified for inadequate supervision and medical neglect. The investigation found systemic problems associated with the group home. Although the Department gave Community Opportunities, Inc., time to correct the problems, the problems were never corrected. As a result of those failed attempts, the Department closed the Skyline Group Home on September 30, 2000. On September 21, 2000, the Department sent a letter to Ernie M. Beal, Jr., Executive Director of Community Opportunities, Inc., notifying him that the license for the Skyline Group Home would not be renewed. Community Opportunities, Inc., did not challenge the Department's proposed action and two months later, the Department issued a Final Order affirming the denial of Community Opportunities, Inc.'s, relicensure. The reasons for nonrenewal of Skyline's license included the facility's failure to maintain adequate staff at the group home; failure to take reasonable precautions to assure that the residents were not harming themselves or others; incidents involving injury to staff; inadequate corrective action plans to address deficiencies; and numerous violations of the licensure standards under Rule Chapter 65B-6, Florida Administrative Code. On or about September 12, 2002, the Department received licensure applications for two developmentally group homes, Skyline Group Home in Dade City, Florida, and Harvill Group Home located in Lithia, Florida, both of which were located in the Department's Suncoast Region. The applications were submitted by Your Friends & Neighbors of Florida, Inc., and signed by Pamela Beal, Chief Executive Officer ("CEO"). Ernest Beal, Jr., Chief Operating Officer, was listed on both of the applications as the person who would operate and supervise the facilities. Your Friends & Neighbors of Florida, Inc. is a non- profit corporation. Ernest M. Beal, Jr., is its president and Pamela Beal is its vice-president, secretary, treasurer, and CEO. The Board of Directors of Your Friends & Neighbors of Florida, Inc., is comprised of Pamela Beal and Ernest Beal, Jr., and Felicity Lennox, who was also on the Board of Directors of Communities Opportunities, Inc. Ernest M. Beal, Jr., is the president and CEO of PEJUS, Inc., which on January 1, 2000, purchased the assets of Community Opportunities, Inc. PEJUS, Inc., then conveyed its interest in the former Community Opportunities, Inc. to Your Friends & Neighbors, Inc. Qualification documents for Your Friends & Neighbors of Florida, Inc., were filed with the Secretary of State on or about January 29, 2001, and the corporation was authorized to transact business in Florida on that date. Petitioner's, Your Friends & Neighbors of Florida, Inc.'s, corporate office is at the same address as Community Opportunities, Inc., located at 1515 Magnavox Way, Fort Wayne, Indiana. Moreover, when calling Your Friends & Neighbors of Florida, Inc.'s phone number, one is greeted by a recorded message which states the names Your Friends & Neighbors, Inc., Community Opportunities. Inc., and PEJUS, Inc. Your Friends & Neighbors, Inc., is an Indiana corporation founded in 1985 by Ethyl Beal and Pamela Beal. Community Opportunities, Inc., is an Indiana corporation owned by Ernest Beal, Jr., which owned the Skyline Group Home in September 2000, when the license for Skyline was not renewed. The two applications for licensure submitted by Your Friends & Neighbors of Florida, Inc., on September 12, 2002, were almost identical to the application for the Skyline Group Home submitted by Community Opportunities, Inc., in July 1999. There were no significant differences in the 1999 application and the 2002 applications. In fact, the services to be provided, the program description, and the staffing pattern were almost identical. Notwithstanding these similarities, the applications submitted in 2002, proposed to serve clients with developmental disabilities more severe than those served at Skyline Group Home pursuant to the 1999 application. By letter dated October 2, 2002, the Department notified Pamela Beal, CEO of Your Friends & Neighbors of Florida, Inc., that the licensure applications had been denied. The notice cited all the reasons the Department did not renew Skyline's license in September 2000. Those reasons included the incident involving the vehicle resulting in injury to staff; neglect of the residents; failure to correct problems through corrective action plans; insufficient staffing ratio; lack of reasonable precautions to ensure residents' safety; failure to ensure timely medical treatment to residents; and failure to properly report injuries. Despite the violations cited in the notice of denial, at the final hearing, the Department clarified that its concern with the subject applications was not with the direct care staff, but with the fact that the proposed model would not meet the needs of the clients with developmental disabilities that Petitioner wanted to serve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a Final Order confirming the decision not to issue Petitioner's group home licenses for Skyline and Harvill. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2003. COPIES FURNISHED: Pamela J. Beal 1515 Magnavox Way Fort Wayne, Indiana 46804 Ernie Beal, President Your Friends & Neighbors of Florida, Inc. 4505 Club House Drive Marietta, Georgia 30066 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should be subject to administrative penalties, up to and including revocation of its group home license, for non-compliance with the residential facility requirements of Chapter 393, Florida Statutes (2007).
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habilitation centers. Respondent holds a group home facility license. The group home is located in Lake City, Florida. Ms. Amanda Houston is the operator of the group home. Ms. Houston is responsible in that capacity for compliance with statutes and rules relating to residential facilities. At all times material here, A.D. was a vulnerable 17-year-old female who resided at the group home. A.D. is mentally retarded and has significant behavior issues. Ms. Nigeria Taiwan Wills was a trusted employee of the group home for four or five years. On October 8, 2008, Ms. Wills was responsible for the supervision and care of the group home's disabled residents. On October 8, 2008, Ms. Wills began her shift at 2:00 p.m. and worked until 8:00 p.m. During at least part of that time, Ms. Wills was the only staff member present in the home. On October 8, 2007, while under the supervision of Ms. Wills, A.D. suffered significant injury to her buttock area. The next morning, Ms. Houston arrived at the group home around 6:30 a.m. Ms. Houston woke A.D. who dressed herself. Ms. Houston gave A.D. her medications. Ms. Houston did not notice any difference in A.D.'s demeanor. A.D. seemed normal in every way. The group home had four residents. Three of the clients, including A.D., rode a bus to school. On October 9, 2009, the bus arrived to pick up the clients at 8:10 a.m. It left the facility at 8:20 a.m. Ms. Houston was not aware of A.D.'s injury before the bus picked her up. On October 9, 2008, Ms. Wills visited the group home around 11:00 a.m. to pick up a piece of paper that she had left there the night before. While at the group home, Ms. Wills casually mentioned to Ms. Houston that she had an incident with A.D. the night before, that it was no big deal, and that she would tell Ms. Houston about it when she returned to work her shift that evening. Ms. Wills then left the group home. Ms. Wills did not have a home phone. All supervisory employees of the group home are trained to keep notes during every shift to record chronologically all events occurring at the group home. If an injury of any kind occurs, an employee is supposed to immediately fill out an incident report and call Ms. Houston. Ms. Houston knew that Ms. Wills had not filled out an incident report the night before. Ms. Houston read Ms. Wills' notes from the night before and, finding no reference to an incident with A.D., mistakenly assumed that whatever had happened truly was no big deal. This was not an unreasonable conclusion given Ms. Wills' long-term employment with no complaints and A.D.'s history of stealing and other behavior problems. In the mean time, Ms. Lanitra Sapp, a child protective investigator for the Department of Children and Family Services, received a call from A.D.'s school. Ms. Sapp subsequently visited the school, interviewed A.D., and observed bruising to her buttocks and upper thigh. Ms. Sapp concluded that the bruising was consistent with physical abuse. Ms. Sapp then took A.D. to her office. When A.D. did not get off the bus after school, Ms. Houston called the school, A.D.'s mother, and A.D.'s waiver support coordinator. Ms. Houston was unable to locate A.D. until she received a call from Ms. Sapp, asking Ms. Houston to go to Ms. Sapp's office. At Ms. Sapp's office, Ms. Houston and her husband, Adam Houston, first learned about A.D.'s injury. Mr. and Mrs. Houston were shocked at the degree of A.D.'s injury as reflected in photographs. After a short meeting, A.D. voluntarily rode with the Houstons to the group home. Ms. Sapp followed in her car. When the Houstons and Ms. Sapp arrived at the group home, the police were already there. Ms. Wills was also there. Ms. Houston left A.D. in the car with Mr. Houston before going into the group home. Ms. Wills talked to the police and Ms. Sapp in separate interviews. At some point, Ms. Wills told the police that she had spoken to Ms. Houston about the incident that morning. Ms. Houston admitted to the police and Ms. Sapp that Ms. Wills had made a reference to an incident that morning. Ms. Wills never admitted that she spanked A.D. with a belt. Ms. Houston placed Ms. Wills on administrative leave just before the police handcuffed her and took her to jail. Immediately thereafter, Ms. Houston prepared and sent an official incident report to Petitioner and A.D.'s waiver support coordinator. A.D. wanted to remain at the group home. Her mother and waiver support coordinator agreed. A.D. remained in that environment until March 2008, when Respondent lost its status as a Medicaid waiver provider. Ms. Houston never let Ms. Wills return to the group home. Instead, Ms. Houston paid Ms. Wills for one week of earned wages and one week of vacation time. This was the final pay check for Ms. Wills. Within days, Ms. Houston took A.D. to see her pediatrician for a medical evaluation. A week or so later, Ms. Sapp took A.D. for an evaluation by the Department of Children and Family Services child protection team. The Department of Children and Family Services subsequently issued a report containing verified findings of failure to protect against Mr. and Ms. Houston and maltreatment/physical injury against Ms. Wills.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent's license is not subject to discipline for failure to protect. DONE AND ENTERED this 29th day of October, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 29th day of October, 2008. COPIES FURNISHED: Julie Waldman, Esquire Agency for Persons with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 Lloyd E. Peterson, Jr., Esquire 905 Southwest Baya Drive Lake City, Florida 32025 John Newton, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 James DeBeaugrine, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
The Issue The issue in the case is whether Respondent should be subject to administrative penalties, including an administrative fine not to exceed $1,000.00, for failure to comply with the residential facility requirements of chapter 393, Florida Statutes, as alleged in the Administrative Complaint dated November 12, 2009.
Findings Of Fact APD is the state agency charged with the licensing and regulation of foster care facilities, group home facilities, and residential habilitation pursuant to section 20.197 and chapter 393, Florida Statutes (2009). At all times relevant to this proceeding, Respondent held one group home facility license issued by APD for a residence at 12629 Southwest Archer Lane, Archer, Florida 32618. The group home is owned and operated by Miles Hines. C.H. is a child client of APD who has been diagnosed with moderate mental retardation and bipolar disorder. C.H. has a history of attention deficit hyperactivity disorder, post- traumatic stress disorder, and depression. At all times relevant to this proceeding, C.H. was a resident at the Jim Tin Group Home. M.K. is an adult client of APD who has been diagnosed with, among other conditions, mental retardation. At all times relevant to this proceeding, M.K. was a resident at the Jim Tin Group Home. APD alleged that M.K. sexually abused C.H. at the Jim Tin Group Home on or about January 14, 2009. APD produced no direct evidence in support of the allegation. APD relied solely on the written investigative report of a "Child Institutional Investigation" conducted by DCF protective investigator Natalie Rella between January 14 and March 11, 2009. Ms. Rella's report was reviewed and approved by her supervisor, Cheryl Hollingsworth. Ms. Rella did not testify at the hearing. None of the persons interviewed by Ms. Rella testified at the hearing. Ms. Hollingsworth testified that she did not personally participate in any of the interviews that formed the basis of Ms. Rella's report, nor did she independently investigate the abuse report that triggered the investigation. Ms. Hollingsworth relied entirely on Ms. Rella's report and Ms. Rella's conclusion that there were verified findings of inadequate supervision by Mr. Hines. Ms. Rella's report stated that its findings were based on an interview with M.K., an interview of C.H. conducted by the Child Advocacy Center, and her review of prior reports. No transcript or other account of the substance of the interviews was entered into evidence. The "narrative" portion of Ms. Rella's report stated as follows: [C.H.] is intellectual disabled [sic]. [C.H.] is high functioning but he has a lot of problems. On the night of 01/14/09, a resident tried to grab [C.H.'s] hand and put it between his legs. The resident told [C.H.] to suck his penis. [C.H.] did not but he told the supervisor who said, "I did not see it happen so there is nothing they can do." [C.H.] has spoken with the staff in the past about the resident's behavior. In the past, the other resident has tried to sexually aggress upon [C.H.]. The advances happened for a while but they stopped. The sexual advances have picked back up in the last couple of weeks. [C.H.] is frightened and scared of the resident. Ms. Rella's report contained a "prior reports" section describing previous investigations involving the same residents. One of these incidents involved a report by C.H. that he had been raped by two men and that another man had sucked C.H.'s penis while the child was at a DJJ facility. This claim was determined to be not substantiated. There were cameras in the room where the assaults were alleged to have occurred. The cameras proved that the assaults never took place. Americo Rodrigues is a certified behavior analyst with Choice Behavior Services, LLC in Gainesville. He has been C.H.'s behavior analyst since 2008 and visits C.H. weekly at the Jim Tin Group Home. Mr. Rodrigues testified that among C.H.'s behavioral problems is a propensity for making false allegations against other residents. C.H. is also very suggestible and easily led to agree with what someone tells him. Mr. Rodrigues stated that he is working with C.H. on these problems, but that they have proven relatively intractable. Mr. Rodrigues had no firsthand knowledge of the events alleged to have occurred at Jim Tin Group Home on January 14, 2009. Mr. Rodrigues testified that his impressions of the group home were that the accommodations and food seemed appropriate, and that facility staff appeared to be ensuring that the residents' activities of daily living were adequately maintained. During cross-examination, Ms. Hollingsworth conceded that C.H. changed his story during the course of the investigation. C.H. recanted his allegation and denied that he and M.K. ever engaged sexually. Ms. Hollingsworth testified that Ms. Rella had failed to conduct a site visit of the group home, that she never interviewed C.H.'s support coordinator or counselor, and that she never interviewed Mr. Hines. Ms. Rella spoke to no one who had dealt with C.H. over an extended period of time or who could provide perspective as to the child's historic patterns of behavior. Ms. Hollingsworth testified that, based on what she knew now, her recommendation would be to find that the allegations made by C.H. were "not substantiated." In fact, she had made a request to DCF headquarters in Tallahassee to change the conclusion in Ms. Rella's report. Jim Smith, APD's Area 3 administrator, testified that APD filed its complaint against Respondent in complete reliance on DCF's finding of a verified incident of inadequate supervision. APD does not conduct its own investigations and does not review DCF's reports for accuracy. Had DCF found that the allegations against Respondent were "not substantiated," APD would not have filed the Administrative Complaint that initiated this proceeding. The DCF investigative report is a hearsay document. It was admitted into evidence for the limited purpose of supplementing Ms. Hollingsworth's testimony that DCF had in fact "verified" the abuse complaint. APD argued that the report should be admitted for all purposes under the business records exception set forth in section 90.803(6), Florida Statutes. This argument is unavailing because C.H., the main source of information for the report, showed a lack of trustworthiness. APD has not demonstrated by clear and convincing evidence that Respondent failed to adequately supervise residents and sufficiently protect them from harm, neglect, and sexual abuse.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2011. COPIES FURNISHED: Julie Waldman, Esquire Agency for Person with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 M. Todd Hingson, Esquire Avera & Smith, LLP 248 North Marion Avenue, Suite 102 Lake City, Florida 32055 Christina Nieto Seifert, Esquire Avera & Smith, LLP 248 North Marion Avenue Suite 102 Lake City, Florida 32055 Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Michael Palecki, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Bryan Vaughan, Acting Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
The Issue Whether Respondents Adams Group Home, Inc., and Joyce Adams' ("Respondents") group home licensure renewal applications should be denied.
Findings Of Fact Parties and Background APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential centers, pursuant to sections 20.197 and 393.067, Florida Statutes. Under section 393.063(19), a group home facility means a residential facility "which provides a family living environment including supervision and care necessary to meet the physical, emotional, and social needs of its residents." The capacity of such a facility must be at least four but not more than 15 residents. Respondents are licensees of two group home facilities, known as Adams Group Home #1, located at 2400 Oleander Drive, Miramar, Florida 33023, and Adams Group Home #2, located at 7131 Southwest 16th Street, Pembroke Pines, Florida 33023. Respondents' group homes provide a family living environment within a residential, single-family structure with a combined total of not more than 12 adult residents with developmental disabilities. Joyce Adams is Adams Group Homes' corporate officer. Ms. Adams has been licensed through APD to provide group home services for 18 years. Group homes licensed by APD are required to apply for a renewal license every year. The renewal process involves a review of the applications to make sure they are accurate and complete and an observation by a licensing specialist at the facilities to ensure the facilities are in compliance with the applicable statutes and administrative rules. Every year prior to 2018, including 2014 through 2017, Respondents' group home licensure renewal applications for Adams Group Home #1 and Adams Group Home #2 were approved by APD. No evidence was presented at hearing demonstrating that Respondents have ever been the subject of any corrective action plan or proposed disciplinary agency action in the form of an administrative fine, suspension or revocation of a license, or moratorium on admissions, prior to APD's March 13, 2018, denial letter. The March 13, 2018, Denial Letter Against this backdrop, on December 20, 2017, Respondents submitted applications to APD for renewal of the licenses of Adams Group Home #1 and Adams Group Home #2, which were set to expire in March 2018. By letter dated March 13, 2018, APD notified Respondents of the denial of their group home licensure renewal applications. APD's grounds for the denial of the license applications are set forth in the denial letter in four counts. In Counts I and II, APD alleges the Department of Children and Families ("DCF") commenced investigations which resulted in DCF's verified findings of abuse, neglect or exploitation against Ms. Adams in February 2014 and December 2015, respectively. APD further alleges that based on section 393.0673(2), it "may" deny an application for licensure based solely on DCF's verified findings. In Count III, APD alleges Respondents used video cameras in the common areas in 2016 and 2017 without written consents for the common areas in violation of Florida Administrative Code Rule 65G-2.009(7), which constitutes a Class II violation. In "Count IIII," APD alleges that after Hurricane Irma struck south Florida on September 10, 2017, Respondents had "no power at the group home," Respondents utilized a "makeshift grill" less than ten feet from the structure, and failed to care for its residents. APD specifically alleges that on September 19, 2017, a resident of Adams Group Home #2 "was taken to the emergency room at Memorial Regional Hospital for confusion and fever." APD further alleges that Respondents' conduct described in "Count IIII" constitutes Class I violations, and that the conduct violates rule 65G-2.009(1)(d) with regard to the minimum standards of facilities to ensure the health and safety of the residents and address the provision of appropriate physical care and supervision; adhering to and protecting resident rights and freedoms in accordance with the Bill of Rights of Persons with Developmental Disabilities, as provided in section 393.13; and section 393.13(3)(a) and (g), relating to humane care, abuse, neglect, or exploitation. Count I The parties stipulated that on December 29, 2013, DCF commenced an investigation of Respondents' group homes, and that on February 25, 2014, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, APD provided no witnesses with first-hand knowledge of the specific facts involved in the violation. Instead, APD presented unsigned DCF investigative reports and a DCF supervisor's testimony regarding the general investigative process. At hearing, Ms. Adams explained the facts and circumstances surrounding the violation. Ms. Adams testified the incident involved M.K., a 41-year-old female resident of Respondents' group home since 2006, who is developmentally disabled. According to Ms. Adams, on Sunday, December 29, 2013, M.K. was taken by personal car to the emergency room at Memorial Hospital, Pembroke Pines, where she was admitted. Ms. Adams testified that M.K. had been coughing for a few days, and she had consulted with a nurse practitioner about M.K.'s condition on Thursday, December 26, 2013. However, M.K.'s condition had not improved by Sunday, she looked weak, and Ms. Adams did not want to wait until Monday for M.K. to be seen by a doctor. M.K. was transported to the hospital on Sunday, December 29, 2013, by a facility employee. Emergency (911) had been called for M.K. on approximately eight occasions prior to December 29, 2013. Ms. Adams persuasively and credibly testified she would not have hesitated to call 911 for M.K. if she felt it was necessary. On Monday, December 30, 2013, the next business day, Ms. Adams provided an incident report to APD. Ms. Adams also immediately notified M.K.'s waiver support coordinator. M.K. returned to Respondents' group home after her release from the hospital where she has continued to reside since then. Count II The parties stipulated that on November 4, 2015, DCF commenced an investigation of Respondents' group homes, and that on December 12, 2015, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, Ashley Cole, regional program supervisor for the southeast region of APD, testified about the facts and circumstances surrounding the violation. The violation involved the use of residents' funds to request a new support coordinator.1/ Specifically, in November 2015, Ms. Cole conducted a review of client files at one of Respondents' group homes, including a review of financial ledgers, and saw disbursements of money from three residents to an attorney, totaling $1,300.00. When asked about this by Ms. Cole, Ms. Adams explained that the funds were used to pay an attorney to write letters on behalf of the three residents requesting new support coordinators. The funds were used to benefit the three residents and the letters were written by Respondents' attorney on behalf of the three residents. At hearing, Ms. Cole testified that it is typical for an APD client or the client's guardian to request a new support coordinator, not the group home owner, and that it is not required that a request for a new support coordinator be in writing. Although it may not be typical for the group home owner to request a new support coordinator in writing on behalf of the residents, it is not prohibited by law. None of the three residents had guardians or family members to assist in the handling of their affairs. Ms. Adams testified that she had attempted to obtain assistance from the current support coordinator to act on the residents' behalf, but to no avail. Two of the residents still resided at Respondents' group home as of the beginning of 2018; the other resident died about a year after the incident for reasons unrelated to the written requests for a new support coordinator. Count III Delmarva Foundation, n/k/a Qlarant, has contracted with the State of Florida to evaluate the performance of group home providers such as those operated by Respondents. On May 31, 2016, Delmarva Foundation Quality Assurance Reviewer Martina Pocaterra performed an unannounced observation visit at one of Respondents' group homes. Ms. Pocaterra observed video cameras in the common areas of the group home. The next morning, Respondents provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas of the group home. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. On October 3, 2017, Delmarva Foundation Quality Assurance Reviewer Michelle Ceville performed a provider discovery review at one of Respondents' group homes. On this occasion, Ms. Ceville observed video cameras in the common areas of the group home. Respondents again provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. The clear and convincing evidence adduced at hearing demonstrates that Respondents violated rule 65G-2.009(7)(a) and (b) by failing to obtain written consent of residents for the use of video monitoring equipment in the common areas. "Count IIII" On September 10, 2017, Hurricane Irma struck Florida. After the hurricane, APD contacted group homes to ensure that the homes had electricity, lights, and air conditioning, and that the homes were safe. On September 15, 2017, Adams Group Home, Inc., informed APD that Adams Group Home #2 had electricity and running water, and that Adams Group Home #2 residents had not been evacuated. On September 19, 2017, Kimberly Robinson, an APD human services program analyst, conducted a wellness check at one of Respondents' group homes. It is unclear from Ms. Robinson's testimony which group home she actually visited. However, Ms. Robinson observed that the home had air conditioning, and that "everything in the home was fine." On September 19, 2017, Pembroke Pines Assistant Fire Marshal Shawn Hallich visited Adams Group Home #2 and conducted an inspection. He testified that he "did a walk around real quick," and that on the enclosed outdoor patio on the back porch of the home, he noticed "a pot on two blocks with two pieces of wood and an open flame with charcoal, and something . . . being cooked on it." According to Mr. Hallich, the cooking device was located on the back patio "approximately, probably 10 feet from the sliding glass door, maybe a little bit less than that." Mr. Hallich did not use any device to measure the distance of the cooking device from the structure of the home. Mr. Hallich testified that the cooking device was a safety hazard because there was an open flame and there was nothing to prevent the cooking device from being tipped over or falling over on its own. During his inspection, Mr. Hallich also observed that there was no air conditioning inside the home. There was some electricity inside the home, but not enough voltage necessary for the air conditioning system to operate. However, there were fans located and operating in every room of the home, and the windows were open. Mr. Hallich testified it was hot, but he did not use any device to measure the temperature inside the home. Mr. Hallich also acknowledged that if the fans were on inside the home, the circulation would have made it feel cooler inside the home. On September 19, 2017, Mr. Hallich issued a Notice of Violation, stating the nature of the violation as: "No air conditioning and unsafe cooking practices being conducted." Mr. Hallich recommended the following action be taken: (1) "Must relocate all residence [sic] until all power has been restored[; (2)] All cooking must be conducted at least 10 feet away from the structure using a commercial cooking appliance." As to the violation found by Mr. Hallich with respect to the outside cooking device, Ms. Adams asked Mr. Hallich whether she could use it outside, and he told her that "it had to be 10 feet away from the structure for cooking." In issuing the Notice of Violation with respect to the cooking device, Mr. Hallich specifically relied on section 10.10.6.1 of the Florida Fire Prevention Code which provides as follows: For other than one- and two-family dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any Balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. Mr. Hallich's reliance on section 10.10.6.1 of the Florida Fire Prevention Code is misplaced because Adams Group Home #2 is a single-family dwelling. As a single- family dwelling, Respondents' group home is exempt from section 10.10.6.1. In any event, APD failed to present clear and convincing evidence that the cooking device was located within ten feet of the single-family dwelling. In addition, APD failed to present clear and convincing evidence that any residents of the group home were taken to the hospital or were not properly cared for by Respondents because of the lack of air conditioning. In sum, APD failed to present clear and convincing evidence at hearing to demonstrate a violation of rule 65G- 2.009(1)(d) and section 393.13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disability enter a final order granting Respondents' applications for licensure renewal.3/ DONE AND ENTERED this 22nd day of August, 2018, 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 22nd day of August, 2018.
The Issue The issue presented is whether subsections (1) and (4) of Rule 7D-32.002, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
