The Issue The issue is whether Petitioner properly imposed a fine of $50 against Respondent for failing to timely file an application for license renewal.
Findings Of Fact Petitioner is the state agency that is responsible for receiving and approving applications for childcare facility licenses and for monitoring, regulating, and if necessary, suspending or revoking childcare facility licenses for a violation of any provision of Sections 402.301 through 402.319, Florida Statutes, or the rules adopted thereunder. The following facts are undisputed by the parties: Respondent is licensed by Petitioner to operate a childcare facility at 4138 North West Street, Gainesville, Florida 32609. By letter dated May 1, 2010, Petitioner notified Respondent that its renewal application was due June 21, 2010. Respondent knew that June 21, 2010, was the deadline for timely submission of the renewal application. Respondent mailed her renewal application to Petitioner on June 21, 2010. The United States Post Office track and confirm notice shows that the application was accepted by mailing on June 21, 2010, at 4:05 p.m. Petitioner received Respondent's renewal application in Lake City, Florida, on June 28, 2010. Tami Hixon, Respondent's director/owner, testified that she telephoned Petitioner's office in Lake City, Florida, on June 21, 2010. According to Ms. Hixon, she spoke with Hannah Hall, Petitioner's Administrative Assistant. Ms. Hixon claims that Ms. Hall gave her permission to mail Respondent's renewal application instead of driving to Lake City, Florida, to file it by hand delivery on June 21, 2010. Ms. Hixson claims she had been sick with bronchitis and had not completed the renewal application until June 21, 2010. Ms. Hixson asserts that she relied on the conversation with Ms. Hall in mailing the renewal application to Petitioner on June 21, 2010. Ms. Hixson's testimony in this regard is not persuasive. Ms. Hall receives numerous telephone calls from childcare providers. She does not have an independent recollection of speaking with Ms. Hixson on June 21, 2010. Ms. Hall testified that she does not have authority to extend the time for filing renewal applications and would never have done so for any childcare provider, including Respondent. Ms. Hall's testimony in this regard is most persuasive. Sha'Leda Mirra is Petitioner's Child Care Licensing Supervisor. Ms. Mirra testified that the rule imposing a fine for late submission of renewal applications is strictly enforced on all providers. Only in extreme cases, such as a provider being in the hospital, has she ever waived the fine. According to Ms. Mirra, Ms. Hixson telephoned after receiving the Administrative Complaint. Ms. Hixson did not mention having bronchitis as a reason for the late filing during the telephone call. Receipt of renewal application 45 days before the license expiration date is necessary because licensing staff must check numerous documents for compliance. Additionally, childcare providers often must make corrections to their renewal applications. Receipt of renewal applications a few days before license expiration causes disruption to families when a facility must be temporarily closed because the renewal is not complete or cannot be processed. Respondent's untimely license renewal application was processed and the fee paid before Respondent's license expired. Petitioner's staff was able to complete the process, even though the application was missing a fire inspection certificate and despite Respondent's check being returned for insufficient funds. Ms. Mirra and another licensing supervisor are the only individuals who could have approved a late renewal application on June 21, 2010. Neither of them was in the office on that day. Petitioner's support staff, including Ms. Hall, has been well trained and knows not to tell anyone that it is acceptable to submit a late application.
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 imposing a $50.00 fine on Respondent. DONE AND ENTERED this 18th day of November, 2010, 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 18th day of November, 2010. COPIES FURNISHED: Lucy Goddard-Teel, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue Building J, No. 3 Gainesville, Florida 32601 Tami Hixon Alachua County Child Care Center 4138 Northwest 13th Street Gainesville, Florida 32609-1864 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 George Sheldon, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gerald B. Curington, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms to the Respondent. (Ex. 1 and Ex. 2) The Election of Rights form advised of the right to an administrative hearing. The Respondent returned the Election of Rights forms selecting “Option 3.” (Ex. 3 and Ex. 4) On October 17, 2011, the Administrative Law Judge entered an Order consolidating both cases (Ex. 5). On February 6, 2012, the Administrative Law Judge entered an Order granting the Agency’s Motion to Relinquish Jurisdiction and Closing Files. (Ex. 6). On April 2, 2012, Richard J. Saliba, the Informal Hearing Officer, entered an Order Relinquishing Jurisdiction and Closing File based on Briarwood’s decision that it was abandoning its request for a hearing (Ex. 7). Based upon the foregoing, it is ORDERED: 1. The findings of fact and conclusions of law set forth in the Administrative Complaints are adopted and incorporated by reference into this Final Order. 2. The assisted living facility license of Briarwood Manor is REVOKED. The Respondent shall pay the Agency $35,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Filed June 26, 2012 11:00 AM Division of Administrative Hearings Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this_A*e*-day of C Ste AL , 2012.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct cpey otis Final Order was served on the below-named persons by the method designated on this 7S “day of , 2012. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Lourdes A. Naranjo, Senior Attorney Cindy Dookeran Office of the General Counsel Administrator Agency for Health Care Administration Briarwood Manor (Electronic Mail) 5721-5631 N. W. 28" Street Lauderhill, Florida 33313 (U.S. Mail) Katrina Derico-Harris Arlene Mayo-Davis Medicaid Accounts Receivable Field Office Manager Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Errol H Powell Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Administrative Law Judge Division of Administration Hearings (Electronic Mail) Richard Saliba, Esq. Informal! Hearing Officer Agency for Health Care Administration (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2011005869 Return Receipt Requested: v. 7009 0080 0000 0586 1985 DDJJ LLC d/b/a BRIARWOOD MANOR, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”’), by and through the undersigned counsel, and files this administrative complaint against DDJJ LLC d/b/a Briarwood Manor (hereinafter “Briarwood Manor”), pursuant to Chapter 429, Part I, and Section 120.60, Florida Statutes (2010), and alleges: NATURE OF THE ACTION 1. This is an action to revoke the assisted living facility license of Respondent [License No.: 7478], pursuant to Section 408.815(1) (c) &(d), Florida Statutes, and Section 429.14(1) (e), Florida Statutes, and to impose an administrative fine of $14,500.00, pursuant to Sections 429.14 and 429.19, Florida Statutes (2010), for the protection of public health, EXHIBIT 1 safety and welfare. Section 429.14(1)(e), Florida Statutes, provides that the Agency may revoke an assisted living facility license if the facility is cited with three or more Class II deficiencies. The Agency has considered the factors outlined in Section 419.19(3), Florida Statutes, in imposing the penalty and in fixing the amount of the fine. JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2010), and Chapter 28-106, Florida Administrative Code (2010). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code (2010). PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Florida Statutes (2010), and Chapter 58A-5 Florida Administrative Code (2010). 5. Briarwood Manor operates a 34-bed assisted living facility located at 5621-5631 N. W. 28" Street, Lauderhill, Florida 33313. Briarwood Manor is licensed as an assisted living facility under license number 7478. Briarwood Manor was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. COUNT I BRIARWOOD MANOR FAILED TO KEEP RESIDENTS’ MEDICATIONS LOCKED IN THE REFRIGERATOR. RULE 58A-5.0185(6) (b)1, FLORIDA ADMINISTRATIVE CODE (MEDICATION STANDARDS) CLASS II VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Briarwood Manor was cited with five (5) Class II deficiencies as a result of an Operation Spot Check Appraisal visit that was conducted on May 20, 2011. 8. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on observation and interview, it was determined that the facility did not keep residents' #1 and #4's medications locked within the refrigerator in the kitchen to ensure residents did not ingest potentially harmful medications. The findings include the following. 9. In an observation on 5-20-11 at 9:30 AM in the main kitchen, inside a non-lockable refrigerator and not in a lockable container, there were 2 boxes containing Risperdal 5O0mcg suspension, each marked for intramuscular administration for residents #1 and resident #4. 10. During this observation, it was determined the area where this refrigerator was located could not be locked and it was accessible by the general facility population of residents without encumbrances. ll. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.0185(6)(b)1, Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $1,000.00 and gives rise to the revocation of the assisted living facility license. COUNT II BRIARWOOD MANOR FAILED TO MAINTAIN A SAFE AND SANITARY FOOD SERVICE AND KITCHEN AREA. RULE 58A-5.020(1) (b), FLORIDA ADMINISTRATIVE CODE (NUTRITION AND DIETARY STANDARDS) CLASS II VIOLATION 12. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 13. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on observations, it was determined the facility failed to maintain a safe and sanitary food service and kitchen area. The findings include the following. 14. Observations on 5/20/11 at approximately 9:15 AM revealed the following concerns in the kitchen area: a. The kitchen floor was dirty throughout, with a heavy layer of soil built up behind the three compartment sink area, equipment, and food storage area. b. The kitchen stovetop, cabinet under sink, food equipment shelving, potholders, utensil drawers, switch plates, walls and window sills were dirty. c. Cutting boards were blackened and deeply scored. d. Several kitchen refrigerators were missing thermometers. The microwave oven door was rust laden and the microwave was soiled in the interior. e. The deep chest freezer, which was full of frozen food, had a large build-up of ice, needed defrosting, and had no thermometer in the interior. f. The dirty window sill directly about the 3 compartment sink continued uncovered single serve plastic utensils, dirty scrub pads, brushes, measuring cups and a ladle. g. The kitchen back door was not vermin-proof as the door did not fit in the frame tightly. Live roaches were observed in the kitchen. h. There were paints and chemicals stored within the food storage room. i. Approximately 10 lbs. of ground beef was left in a sheet pan defrosting on a kitchen table. 15. There was a bucket of dirty dishes on the table alongside the ground meat. Various clean cooking vessels were stored on a shelf underneath this table. 16. Note: A representative from the Department of Health was on the premises on 5/20/11 and issued an unsatisfactory food service inspection report to the facility. 17. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.020(1) (b), Florida Administrative Code, herein classified as a Class II violation, widespread, which warrants an assessed fine of $5,000.00 and gives rise to the revocation of the assisted living facility license. COUNT III BRIARWOOD MANOR FAILED TO MAINTAIN A RESIDENTIAL AREA WHICH PROMOTED A RESIDENTIAL, HOMELIKE, AND SAFE CARING ENVIRONMENT FOR RESIDENTS; FAILED TO PROVIDE A SAFE AND DECENT ENVIRONMENT WITH RESPECT TO PERSONAL DIGNITY AND PRIVACY; AND FAILED TO ENSURE THAT FURNITURE AND FURNISHINGS WERE CLEAN AND IN GOOD REPAIR SECTION 429.28(1) (a), FLORIDA STATUTES RULE 58A-5.023(3) (a)1. & 2., FLORIDA ADMINISTRATIVE CODE (PHYSICAL PLANT STANDARDS) CLASS II VIOLATION 18. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 19. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on observations and interviews, it was determined that the facility failed to maintain a residential area which promoted a residential, homelike, and safe care environment for the census of 27 residents, and failed to provide a safe an decent environment with respect to dignity and privacy as required by the Residents’ Bill of Rights. The facility also failed to ensure that furniture and furnishings were clean, functional, and in good repair. The findings include the following. 20. During the tour of the facility on 05/21/11 at 9:30 a.m. in the resident bathroom located in Building A adjacent to room 5, the bathroom door was observed to be open. There were residents observed in the vicinity. Inside the bathroom was a large hole in the tile wall where the sink used to be. There was a pipe coming out of the hole in the wall and a large bucket positioned under the pipe as the pipe was leaking water. The bucket was observed to be full of dirty water. The hole in the wall had jagged edges, was approximately two to three feet wide, about two feet high and at least a foot or more deep, exposing bare blackened dirt and debris. 21. The area also was moisture laden from the leaking pipe. There were broken tiles littering the area, exposed metal piping and water valves from the missing sink. The floor under the bucket was also missing several tiles (a square area of approximately two feet by two feet) and exposing the brown sub floor. The brown sub floor was noted to be blackened with biogrowth. The bathroom door was observed open with no barrier or signage to alert residents, staff and visitors to the hazard. 22. Adjacent to the bathroom in Building A by room 5 was a storage closet that was easily opened, and not locked. Inside the closet there were construction materials, a green garden hose, buckets, and 2 containers of pesticides. 23. The maintenance staff member was interviewed on 05/20/11 at 9:45 a.m. He said that he is in the process of working on the sink and confirmed that the bathroom door was open. In addition, he confirmed that there was no lock on the storage closet adjacent to the bathroom and said he would find a way to lock it. The facility has a Limited Mental Health license and the census on the day of the survey was 27. 24. During observations on 05/20/11 at 10:30 a.m. in the laundry room in Building B there was a ladder and construction materials observed stored behind the door. There was a silver air conditioning (a/c) duct running along the wall just below the ceiling that was noted to have a large hole, exposing the insulation. The edges were blackened. There was a large shelving unit with folded blankets and comforters stored right below the a/c duct and next to the ladder and construction materials. In addition, the a/c vent just above the clean linens was observed to be dirty, and blowing directly onto the folded linens. The laundry room floor was filthy. This was brought to the attention of the maintenance staff member. 25. During observations on 05/20/11 at approximately 10:45 a.m. in the resident bathroom in Building A on the North side of the building the tub was observed to have no faucet. Instead there was just a bare metal thin spout with a sharp metal end coming out of the tub. In addition, the tub was very dirty. This was brought to the attention of the maintenance staff member. 26. On 05/20/11 at approximately 10:00 a.m. in Building B the bathroom outside room 11 was observed to be very dirty with a dried brownish substance smeared in places on the floor. On 05/20/11 at 11:00 a.m., about an hour later, the substance was noted to still be there. 27. Observations of Room 3 and 4 at approximately 10:30 AM on 5/20/11 revealed the rooms were adjoined together through the closet opening of room 3. A torn plastic shower curtain was hung at the opening in room 3 and the resident's bed in room 3 was placed in front of the shower curtain blocking access between rooms 3 and 4. 28. Room 4 had no window to the outside and was occupied Observations of room 4 on 5/20/11 revealed the by resident #4. room was dark, dreary, dimly lit, musty, warm, and difficult to maneuver around in. There was no closet either in room 3 and 4. 29. A referral was made to the City of Lauderhill Code Enforcement officer, who was present during the survey. The Code Enforcement Unit issued the facility a "Notice of Violation" on 5/20/11 with numerous violations. 30. A referral was made to the Broward County Health Department. Their representative arrived at the facility during the survey and issued an unsatisfactory inspection report to the facility. 31. During the tour of the facility on 05/20/11 at 9:30 a.m. the following was observed with the maintenance staff 32. In Building A room 4, there was a lamp with no shade and the bare bulb was exposed. 33. In Building A's day room, the window curtains were observed to be soiled and not hanging properly as many of the curtain hooks were not attached to the rod and hanging loosely. In the bathroom on the North side of Building A the vanity cabinet was observed to be in disrepair as it was separating from the wall. 34. In Building B, the bathroom off the day room was observed to have window blinds that were in disrepair. The sink vanity was in disrepair as the veneer was peeling off and worn. The toilet tank lid had a large crack in the middle. The shower 10 curtain was torn and the floor was very dirty with black scuff marks and a large puddle of water. 35. In Building B, the bathroom adjacent to room 11 was very dirty including old feces on the floor. 36. A leather sofa in the common area in Building B had a large tear in the cushion. 37. The bathroom outside room 13 was observed to have a very dirty floor, a hole behind the toilet, and a rusty opened can of food was found stored inside the mirrored vanity door. 38. The administrator was interviewed on 05/20/11 at 11:30 a.m. and no additional information was provided. 39. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.023(3)(a)l. & 2., Florida Administrative Code, and Section 429.28(1) (a), Florida Statutes, herein classified as a Class II violation, widespread, which warrants an assessed fine of $5,000.00 and gives rise to the revocation of the assisted living facility license. 11 COUNT IV BRIARWOOD MANOR FAILED TO ENSURE THAT THE DOORS WERE FUNCTIONAL AND IN GOOD WORKING ORDER, AND THAT PEELING PAINT WAS REPAIRED OR REPLACED. RULE 58A-5.023(3) (a)3, FLORIDA ADMINISTRATIVE CODE (PHYSICAL PLANT STANDARDS) CLASS II VIOLATION 40. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 41. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on observations and interviews, it was determined that the facility failed to ensure that doors were functional and in good working order, and that peeling paint was repaired or replaced. The findings include the following. 42. During the tour of the facility on 05/20/11 at 9:30 a.m. the following was observed: a. In Building A room 4, observations revealed the room had a door to the outside of the facility. The door was observed to be ill fitting, so that a large gap was between the door and the door jamb. b. In Building B room 10, there was a door to the outside that had a large gap between the door and the door jamb, allowing the potential for insect infestations. 12 c. In Building B room 14, there was a door to the outside that did not fit the door jamb so that there was a large gap. d. In Building B, the bathroom by the large paint storage closet was labeled with a sign that said the bathroom was out of order due to the bathtub leaking. 43. During the tour of the facility on 05/20/11 at 09:30 a.m. in Building A room 4, there was peeling paint on the walls. In addition, throughout Building B the walls were observed to be patched and not painted over in several places throughout the building. The maintenance staff member was present and confirmed the findings. 44, The maintenance staff person was present during the observations on 05/20/11 and confirmed the findings. 45. Based on the foregoing facts, Briarwood Manor violated Rule 58A~5.023(3) (a)3, Florida Administrative Code, herein classified as a Class II violation, patterned, which warrants an assessed fine of $2,500.00 and gives rise to the revocation of the assisted living facility license. 13 COUNT V BRIARWOOD MANOR FAILED TO HAVE A SATISFACTORY HEALTH DEPARTMENT INSPECTION. RULE 58A-5.016(6), FLORIDA ADMINISTRATIVE CODE RULE 58A-5.0161(1), FLORIDA ADMINISTRATIVE CODE (PHYSICAL PLANT STANDARDS) CLASS II VIOLATION 46. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 47. An Operation Spot check appraisal visit was conducted on May 20, 2011. Based on record reviews and interviews, it was determined that the facility failed to have a satisfactory health department inspection. The findings include the following. 48. During observations of multiple physical plant issues at the facility, a referral was made to the Broward County on 05/20/11 at approximately 9:45 a.m. The Health Department representative arrived at the facility and was apprised of all of the findings of the survey team. At the conclusion of their visit the facility was issued an unsatisfactory Group Care and Food Service inspection on 05/20/11. 49. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.016(6), Florida Administrative Code, and Rule 58A- 5.0161(1), Florida Administrative Code herein classified as a Class II violation, which warrants an assessed fine of $1,000.00 14 and gives rise to the revocation of the assisted living facility license. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Briarwood Manor on Counts I through vi. 2. Revoke the assisted living facility license [License No.: 7478] of Briarwood Manor on Counts I through V for the violations cited above. 3. Assess an administrative fine of $14,500.00 against Briarwood Manor on Counts I through V for the violations cited above. 4. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 5. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2010). Specific options for administrative action are set out in the attached Election of Rights. All 15 requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, Florida 32308. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. IF YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THIS MATTER Komen @ koe an td Lourdes A. Naranjo, Esq. Fla. Bar No.: 997315 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 537? Street Suite 300 Miami, Florida 33166 305-718-5906 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. - Suite 500 Delray Beach, Florida 33484 (U.S. Mail) 16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Cindy Dookeran, Administrator, Briarwood Manor, 5621-5631 N. W. 28th Street, Lauderhill, Florida 33313 on a \ this2Z@ "day of , 2011. Dr lie, Glew orf Ourdes A. Naranjo, Esq. 17 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: DDJJ LLC d/b/a Briarwood Manor AHCA No.: 2011005869 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)____—sid dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) I hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: 0 Dates Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2011009335 Return Receipt Requested: v. 7009 0080 0000 0586 2180 DDJJ LLC d/b/a BRIARWOOD MANOR, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”’), by and through the undersigned counsel, and files this administrative complaint against DDJJ d/b/a Briarwood (hereinafter “Briarwood Manor”), pursuant to Chapter 429, Part I, and Section 120.60, Florida Statutes (2010), and alleges: NATURE OF THE ACTION 1. This is an action to revoke the assisted living facility license of Respondent [License No.: 7478], pursuant to Section 408.815(1) (c)&(d), Florida Statutes, and Section 429.14(1) (e), Florida Statutes, and to impose an administrative fine of $21,000.00 pursuant to Sections 429.14 and 429.19, Florida Statutes (2010), for the protection of public health, EXHIBIT 2 safety and welfare. Section 429.14(1)(e), Florida Statutes, provides that the Agency may revoke an assisted living facility license if the facility is cited with one or more Class I deficiencies. Section 408.815(1) (c)&(d), Florida Statutes, provides that the Agency may revoke a license for a violation of “this part, authorizing statues, or applicable rules” or “for a demonstrated pattern of deficient practice”. The Agency has considered the factors outlined in Section 419.19(3), Florida Statues, in imposing the penalty and fixing the amount of the fine. JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2010), and Chapter 28-106, Florida Administrative Code (2010). 3. Venue lies pursuant to Rule = 28-106.207, Florida Administrative Code (2010). PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Florida Statutes (2010), and Chapter 58A-5 Florida Administrative Code (2010). 5. Briarwood Manor operates a 34-bed assisted living facility located at 5621-5631 N. WwW. 28° Street, Lauderhill, Florida 33313. Briarwood Manor is licensed as an assisted living facility under license number 7478. Briarwood Manor was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. 6. On August 17, 2011, the Agency entered an Immediate Moratorium on Admissions (AHCA No.: 20110090890) on the basis that the Agency determined that the current practices and conditions at Briarwood Manor present a threat to the health, safety, or welfare of the residents of the facility; present an immediate serious danger to the public, health, safety, or welfare; and present an immediate or direct threat to the health, safety, or welfare of the Residents who reside at Briarwood Manor. COUNT I BRIARWOOD MANOR FAILED TO PROVIDE APPROPRIATE SUPERVISION FOR EACH RESIDENT INCLUDING GENERAL AWARENESS OF THE RESIDENT’S WHEREABOUTS, AND A WRITTEN RECORD AFTER A MAJOR INCIDENT. RULE 58A-5.0182(1), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE - SUPERVISION STANDARDS) CLASS I VIOLATION 7. AHCA re-alleges and incorporates paragraphs (1) through (6) as if fully set forth herein. 8. Briarwood Manor was cited with two (2) Class I deficiencies and one (1) Class II deficiency as a result of a survey conducted on August 11, 2011. On August 17, 2011, an Immediate Moratorium on Admissions was served on Briarwood Manor 9. A survey was conducted on August 11, 2011. Based on Based on interview and record review, it was determined that the facility failed to provide appropriate supervision for each resident including: General awareness of the resident's whereabouts and a written record, updated after a major incident for 1 of 3 sampled residents reviewed (Resident #1). The findings include the following: 10. Record review on 8/11/11 revealed Resident #1 was admitted to the facility on 1/22/09 with a diagnosis to include schizophrenia and renal cell cancer. A facility note on 7/20/11 documented the resident did not return to the facility until 2:00 AM. Note on 7/23/11 documented the resident did not return to the facility until 11:30 PM. On 7/28/11 the resident left the facility. A Resident Elopement Prevention Drill Form dated 7/29/11 at 7:00AM did not identify the employees who noticed the resident missing, the time she was last seen, employees who assisted in the search or a description of the resident. Further review of the record did not contain an incident report. 11. During an interview with the administrator on 8/11/11 at 10:45 AM, she stated the facility has not identified any residents who may be at risk for elopement. She also stated the residents are not required to sign in or out when they leave the property as it is all done verbally. The surveyor was unable to determine the last time Resident #1 was seen at the facility. 12. A review with the administrator of the facility staffing schedule identifies one staff member working the 11:00 PM-7:00 AM shift. Two days a week the staff member working the overnight shift works a 16 hour double shift. During the review the administrator stated this is the facility's permanent schedule. 13. A review with the administrator of the policy and procedure manual did not identify a policy regarding resident supervision. A review of the elopement policy revealed the facility will: "conduct elopement drills with all the staff twice a year to protect our residents from elopement." "Any elopement will be documented in the resident file along with a copy of the adverse incident report. “A review of the elopement drills did not identify a drill in 2011 and only one drill in 2010. 14. During an interview on 8/11/11 at 11:46 AM with several unsampled residents, they were asked if they had to notify anyone when they leave the facility's property. All the residents interviewed stated they did not need to notify anyone, and they just needed to be back by 11:00 PM. As of 8/11/11 at 3:00 PM Resident #1 has not been found. 15. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.0182(1), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $10,000.00. COUNT IT BRIARWOOD MANOR FAILED TO HAVE MEDICATIONS AVAILABLE TO ADMINISTER IN ACCORDANCE WITH HEALTH CARE PROVIDER’S ORDER OR PRESCRIPTION LABEL. RULE 58A-5.0185(4)&(5), FLORIDA ADMINISTRATIVE CODE (MEDICATION ADMINISTRATION STANDARDS) CLASS II VIOLATION 16. AHCA re-alleges and incorporates paragraphs (1) through (6) as if fully set forth herein. 17. A survey was conducted on August 11, 2011. Based on record review and interview, it was determined that the facility failed to have medications available to administer in accordance with a health care provider's order or prescription label, for 1 of 3 sampled residents reviewed (Resident #3). The findings include the following. 18. Resident #3 was admitted to the facility on 6/3/11 with a diagnosis to include Psychosis and COPD. An 1823 health assessment form completed by the physician on 6/14/11 identified the residents medications to include Simvastin 40 mg 1 tab daily and Risperidone 4 mg 1 tablet HS. A review of the medication observation record (MOR) did not list the medications. 19. During an interview on 8/11/11 at 2:30 PM with the med tech, it was confirmed the MOR did not include Simvastin 40 mg 1 tab daily or Risperidone 4 mg 1 tablet HS. She acknowledged the facility did not have the medications and stated they were probably discontinued. The facility was not able to provide evidence the physician discontinued any of the resident's medications. The facility must maintain a daily medication evaluation record (MOR) for each resident who receives assistance with self-administration of medication or medication administration. The MOR must include a chart recording each time the medication is taken, any missed dosages, refusals to take medication, or medication errors. The MOR must be immediately updated each time the medication is offered or administered. 20. Based on the foregoing facts, Briarwood Manor violated Rule 58A-5.0185(4)&(5}, Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $1,000.00. COUNT III BRIARWOOD MANOR FAILED TO ESTABLISH A RISK MANAGEMENT AND QUALITY ASSURANCE PROGRAM. SECTION 429.23, FLORIDA STATUTES RULE 58A-5.0241, FLORIDA ADMINISTRATIVE CODE (RISK MANAGEMENT AND QUALITY ASSURANCE STANDARDS) CLASS I VIOLATION 21. AHCA re-alleges and incorporates paragraphs (1) through (6) as if fully set forth herein. 22. A survey was conducted on August 11, 2011. Based on record review and interview, it was determined that the facility failed to establish a risk management and quality assurance program, the purpose of “which is to assess resident care practices, facility incident reports, and adverse incident reports, for 2 of 3 records reviewed (Resident #1 and #2). The findings include the following. 23. Record review on 8/11/11 revealed Resident #1 was admitted to the facility on 1/22/09 with a diagnosis to include schizophrenia and renal cell cancer. A facility note on 7/20/11 documented the resident did not return to the facility until 2:00 AM. Note on 7/23/11 documented the resident did not return to the facility until 11:30 PM. On 7/28/11 the resident left the facility. A Resident Elopement Prevention Drill Form dated 7/29/11 at 7:00 AM did not identify the employees who noticed the resident missing, the time she was last seen, employees who assisted in the search or a description of the resident. Further review of the record did not contain an incident report. 24. During an interview with the administrator on 8/11/11 at 10:45AM, she stated the facility has not identified any residents who may be at risk for elopement. She also stated she faxed an adverse incident report to the agency on 7/29/11 but could not provide confirmation. At 10:55 AM the AHCA complaint unit was contacted and confirmed the agency had not received the required notification regarding the elopement. 25. The surveyor was unable to determine the last time Resident #1 was seen at the facility. As of 8/11/11 at 3:00 PM Resident #1 has not been found. 26. Resident #2 was admitted to the facility on 11/16/93 with a diagnosis to include Diabetes, COPD, and Neuropathy. A note dated 3/27/11 documents the resident was dizzy and fell. The resident was transferred to the hospital and returned to the facility on 3/30/11. During an interview on 8/8/11 at 1:45 PM with the administrator and med tech, it was revealed the med tech stated 911 was contacted and the resident was transported by ambulance to the local hospital. She could not remember what happened to the resident and did not complete an incident report. 27. Based on the foregoing facts, Briarwood Manor violated Section 429.23, Florida Statutes, and Rule 58A-5.0241, Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $10,000.00. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Briarwood Manor on Counts I through IIl. 2. Revoke the assisted living facility license [License No.: 7478] of Briarwood Manor for the citations cited in counts I through III. 3. Assess an administrative fine of $21,000.00 against Briarwood Manor on Counts I through III for the violations cited above. 4. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 5. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2010). Specific options for administrative action are set out in the attached Election of Rights. All 10 requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS ~= 4#3, Tallahassee, Florida 32308. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. IF YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THIS MATTER vo Ve vile, blwraus.) Lourdes A. Naranjo, Esq. Fla. Bar No.: 997315 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53°? Street Suite 300 Miami, Florida 33166 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. - Suite 500 Delray Beach, Florida 33484 (U.S. Mail) 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Cindy Dookeran, Administrator, Briarwood Manor, 5621-5631 N. W. 28° Street, Lauderhill, Florida 33313 on this [7 aay of ih. , 2011. Lourdes A. Naranjo, Esq. 12 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: DDJJ LLC d/b/a Briarwood Manor AHCA No.: 2011009335 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) _ I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued.that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) I hereby certify that ] am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC 000 p.1 Jan170106:28p STATE OF FLORIDA ; to. AGENCY FOR HEALTH CARE ADMINISTRATION Fr | 1 rE D RE: DDJJ LLC d/bfa Briarwood Manor AHCA No.: 2011005869 _ AGE eva, ERK ; 20H AUG Te ECTION OF RIGHTS BPI) This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice jof Entent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Cd maplaint. pour Election of Rights must be returned by mgit or by fax within 22 days of the dav you receive the attached Notice of Intent to Impose a Lite /Fes. Notice of Intent to Impose a Late Fin Administrative Complat Hf your Election of Rights with your selected optjon is not received by AHCA within twenty- one (21) days from the date you received this noticd of proposed action by AHCA, you will have given up your right to contest the Agency's proposed < and a fial order will be issued. (Please use this form unless you, your attomey or yo feprescntative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Fk rida Administrative Code.) PLEASE RETURN YOUR CTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration j Attention: Agency Clerk ; 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT Q GF THESE 3 OPTIONS OPTION ONE (1). I admit to the allegatipns of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and | waive my right to object and to have a hearing, | understand that by}giving up my right to a hearing, a final order will be issued that adopts the proposed agency actionjand imposes the penalty, fine or action. OPTION TWO (2) L adunit to the allegati$ns of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent td Impose a Late Fine, or Administrative Complaint, but J wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Flocida Statutes) where I may submit testimony and written evidence to the Agoncy to show that -the proposed admuinistrative action is too severe or that the fine should be reduced. ; OPTION THREE (3)_X 1 dispute the allegatiqas of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent td Impose a Late Fine, or Administrative Complaint, and 1 request a formal hearing (pursupnt to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by thd Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (4), by itself, is NOT sufficient te obtain a forma! hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Se¢tion 120.57(1), Florida Statutes. It must be + 1 srg CeLbt Le ezine EXHIBIT 3 000 p2 Jan 1704 06:28» received by the Agency Clerk at the address above Within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to tbe requirements of Rule 28- 106.2015, Florida Administrative Code, which requifes that it contain: 1. Your name, address, and telephone number, ang the name, address, and telephone number of your representative or Lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4, A statement of all disputed issues of material fapt. If there are none, you soust state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: ALF (ALF? nursing hoche? medical equipment? Other type?) Licensee Name: BATARWoAD MANOR | License number: Contact person: SNE DookFA AN ‘DUN Name Title Address; °°71 maw? 2aty S71 name pL 33313 Street and number City Zip Code Telephone No. 784-135: #179 Pax No, 44 -486-30}) |Email(optional) [hereby certify that I am duly authorized to submit tliis Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licengee referred to above. Sign od: Cu ws, Date: “At ‘ PrintName:_ Cand) —_Dot/tep.An/ Title:_Abran Late fee/fine/AC 6rd Bebb bE BZ ine 99/22/2011 3:26PM FAX 905919 PHARHCO {21000170008 - Ye \. . STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: DDIJ LLC d/b/a Briarwood Manor AHCA No.: 2011009436 ae wa) ty _ ELECTION OF RIGHTS 2 By, ee Co ceeeecee ee OP, This form is attached to a proposed action ‘by the “Agency for Health Care Administration en, ‘The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint, vecelve ve attached Notice of inte ‘ent ty Impose 2 Late 2 Fee, Notice of ‘Tatent ‘0 Impose a Late Fine or Adminisirative Complaint, jf tf If your Election of Rights with your selected option Is not received od By AHCA within twenty. _ one ys trom the date you received this notice of propos lion Dy , you will have given up your right to contest the Agency's proposed action and a final order will be issued. - (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for ilealth Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 ° Tallahassee, Florida 32308, Phone: 850-412-3630 Fax: 850-921-0158, PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONF (i) T admit to the allegations of factsjand law contained in the Notice of Intent to Ympose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing, T understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the nally, fine or action. OPTION TWO (2) _ lL admit to the allegations of facts contained i in the Notice of Intent to, Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an Informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)_ 46 J dispute the allegations of fact contained in the Notice of Intent to. Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaini, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. : Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain » formal hearing. You also must file a written petition in order to obtain a formal hearing bofore the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be EXHIBIT 4 VOefeVll S.cOrM FAA suOMIET PHARMUU (g0902/0008 received by the Agency Clerk at the address above within 21 days of your recoipt of this proposed + administrative action, The request for formal hearing must conform to the roquirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: L. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if arty. : - ; Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees, a Ligense type: ALE (ALF? nursing home? medical equipment? Other type?) ? Contact person: cxeupy DoockErans ADAENE SRA TDR. . Name - Title Address S62! NW gerd Sr Lauber aril AL 333) Street and number : City Zip Code Telephone No, 98V - 735" Pax No. 8Y~ ¥95_ Rmail(optional) FPF BEY) : I hereby certify that [ am duly authorized to submit this Notice of Election of Rights to the Agency for Health Cure Administration on behalf of the licensee referred to above. Signed: Grip). Date; ahs) : i Print Name:_G2N0 nokeRan rite Abu, Late fee/fine/AC STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS AGENCY FOR HEALTH CARE ) ADMINISTRATION, ) ) Petitioner, ) ) vs. ) Case Nos. 11-4432 ) 11-5103 DDJJ, LLC d/b/a BRIARWOOD ) MANOR, ) ) Respondent. ) ) ORDER OF CONSOLIDATION These cases having come before the undersigned on the Agreed Motion to Consolidate, filed October 14 and 17, 2011, and the undersigned having reviewed the records in these cases, it is, therefore, ORDERED that: 1. DOAH Case Nos. 11-4432 and 11-5103 are consolidated pursuant to Florida Administrative Code Rule 28-106.108. 2. The style of this cause is amended as reflected above. DONE AND ORDERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida. Erol A Verb ERROL H. POWELL 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 EXHIBIT 5_ Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2011. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 8333 NW 53rd Street, Suite 300 Miami, Florida 33166 Cindy Dookeran Briarwood Manor 5631 Northwest 28th Street Lauderhill, Florida 33313 Cindy Dookeran DDJJ, LLC d/b/a Briarwood Manor 5621 Northwest 28th Street Lauderhill, Florida 33313 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS AGENCY FOR HEALTH CARE ) ADMINISTRATION, ) ) Petitioner, ) ) vs. ) Case Nos. 11-4432 ) 11-5103 DDJJ, LLC d/b/a BRIARWOOD ) MANOR, ) ) Respondent. ) ) ORDER CLOSING FILES AND RELINQUISHING JURISDICTION These causes having come before the undersigned on Petitioner's Motion to Relinquish Jurisdiction, filed January 25, 2012, to which Respondent did not file a response, having been provided an opportunity to do so, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for February 27 and 28, 2012, is canceled. 2. The files of the Division of Administrative Hearings are closed. Jurisdiction is relinquished to the agency. EXHIBIT G_ DONE AND ORDERED this 6th day of February, 2012, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Euol A Veurll ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2012. Agency for Health Care Administration 8333 NW 53rd Street, Suite 300 Miami, Florida 33166 Cindy Dookeran Briarwood Manor 5631 Northwest 28th Street Lauderhill, Florida 33313 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA NO.: 2011009335:2011005869 CASE NO.: 12-106PH vs. DDJJ LLC d/b/a BRIARWOOD MANOR, Respondent. / ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause came before the undersigned upon receipt from the Respondent informing of the withdrawal of the request for a hearing. Based upon this notice from the Respondent informing that the facility is closed the Respondent specifically informs that the Respondent no longer requests a hearing. A copy of this writing from the Respondent is attached hereto as Exhibit ‘A’ and by reference made a part hereof. The undersigned being fully advised, it is, therefore, ORDERED that: 1. This informal hearing file is closed and jurisdiction is relinquished to the Agency for Health Care Administration for entry of final order. DONE AND ORDERED at Tallahassee, Leon County, Florida, this and day of April, 2012. Agency for Health Care Administration Rickard. Joseph. ‘Sahiba Richard Joseph Saliba Informa! Hearing Officer EXHIBIT 7_ Copies furnished to: Lourdes Naranjo, Esquire Agency for Health Care Administration (Electronic Mail) Ms. Cindy Dookeran DDJJ LLC d/b/a BRIARWOOD MANOR 5621 NW 28" Street Lauderdale Hill Fl 33313 rwood Manor Phone: 954-735-8989 Fax: 954-485-3641 Reference to case #: 12-106PH. AHCA Nos. 20110056869 & 2011009335. Formerly DOAH Nos. 41-4432 & 11-5103. ATTN: Mr. Saliba rm you that Briarwood Manor was officially closed and is as of 3/21/12. Briarwood Manor is no longer interested in This letter is to inf no longer in operatio defending this case. Thank you a dobg Cindy Dookeran
Conclusions Having reviewed the Administrative Complaints (Ex.1), and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. Filed June 11, 2013 8:42 AM Division of Administlative Hearings 2. The Agency issued the attached Administrative Complaints and Election of Rights forms to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent’s assisted living facility license number 8345 for the operation of Apple House I is RELINQUISHED and deemed cancelled effective June 20, 2013.. The Respondent and Mary Ann B. Vinarta, Individually, or as one holding an ownership interest in any applicant, shall not seek initial licensure nor operate any facility licensed by the Agency, other than the currently licensed Apple House II facility, for a period of 5 years from the date of this Final Order. 3. An administrative fine and survey fee totaling $9,000.00, payable in Agency Case Numbers 2012007505, 2012009335, and 2013003691', and an administrative fine of $9,250.00 payable to Agency Case Numbers 2012005203, 2012007816, 2012009374, and 2012012761, is imposed. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 180 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 4. An additional administrative fine of $18,250.00 is imposed against the Respondent in Agency Case Numbers 2012005203, 2012007816, 2012009374, and 2012012761, but is STAYED for purposes of collection as long a Respondent does not seek any new type of licensure from the Agency. In the event Respondent or Mary Ann B. Vinarta, Individually or as one holding an ownership interest in another entity, seeks licensure from the Agency after the period set forth above, the Respondent or Mary Ann B. Vinarta, Individually, or as one holding an ownership interest in another entity, will pay the sum of $18,250.00 as a condition precedent to consideration of any such application for licensure. ORDERED at Tallahassee, Florida, on this [2 day of Heine > 2013. Elizabeth Dudtk, Secretary Agency ealth Care Administration 1 The settlement agreement contains a scrivener’s error on page 4 in listing the case number as 2013009691. 2
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_capy of this Final Order was served on the below-named persons by the method designated on this _4 “day of Jee , 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas J. Walsh II, Senior Attorney Facilities Intake Unit Office of the General Counsel (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Shaddrick Haston, Unit Manager Revenue Management Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Kriste Mennella, Field Office Manager Medicaid Accounts Receivable Area 3 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley John F. Gilroy, Esquire Medicaid Contract Management 1695 Metropolitan Circle Agency for Health Care Administration Tallahassee, Florida 32308 (Electronic Mail) (U.S. Mail) F. Scott Boyd Administrative Law Judge Division of Administrative Hearings (Electronic Mai!) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issues presented here concern two administrative complaint letters filed by Petitioner against Respondent. Both complaint letters are dated March 26, 1982. The initial charges contain allegations concerning records keeping by Respondent related to patients and staff, and employee training, per Chapter 10A, Florida Administrative Code, and Chapter 400, Florida Statutes. The second prosecution letter alleges that one of the owners of the Respondent corporation acted as legal guardian for a resident in Respondent's facility, contrary to Chapter 400, Florida Statutes. EXHIBITS AND WITNESSES Petitioner presented two witnesses, Orey William Crippen, II, Adult Congregate Living Facility Licensing Office, State of Florida, Department of Health and Rehabilitative Services, District IV, and Charles H. Carter, Supervisor of Licensure and Certification, State of Florida, Department of Health and Rehabilitative Services, District IV. Petitioner offered ten exhibits which were admitted. Respondent presented Lynn Costner, co-owner of Lynn's Care Center, Inc. Respondent's four exhibits were admitted.
Findings Of Fact At all times pertinent to this case, Lynn and Ronny Costner were the owners of Lynn's Care Center, Inc., Respondent. In the relevant time sequence, that corporation operated through its co-owners. The business of Lynn's involved Adult Congregate Living Facilities, Phase II, by license issued by Petitioner in accordance with Chapter 400, Part II, Florida Statutes. One of the facilities was located at 1562 Garden Avenue, Holly Hill, Florida. The second facility was located at 1529 Ridge Avenue, Holly Hill, Florida. On January 25, 1982, the Garden Avenue facility was inspected by Orey William Crippen, II, a facility inspector for Petitioner. The purpose of the inspection was to monitor Respondent's compliance with regulatory provisions set forth in Chapter 10A, Florida Administrative Code, which was enacted to effectuate the purposes of Chapter 400, Florida Statutes. Crippen's inspection revealed that required documentation to demonstrate that facility residents Schofield and Thomaszewski had been examined by a physician or nurse practitioner to certify acceptability of their health status to reside in the center was not available in the facility at the time of the inspection. The information that was necessary would have had to demonstrate medical examination of the residents within thirty days of admission to the facility. Schofield had been admitted into the facility on November 30, 1981, and Thomaszewski had been admitted to the facility on November 6, 1981. In Schofield's case, there was no date of X-ray or examination shown in his file. Required medical information on the patient Thomaszewski was not available at the facility. Crippen also spoke with the co-owner Lynn Costner on January 25, 1982, to ascertain the whereabouts of the aforementioned medical information for the patients Schofield and Thomaszewski. This inquiry took place in the central office of Respondent at 73 West Granada Avenue, Ormond Beach, Florida. Although Schofield and Thomaszewski had been admitted to the hospital with medical examination information, this information was not available at the central office on the inspection date. Effective March 31, 1981, the necessary medical information was replaced by employees of the Respondent and the Schofield and Thomaszewski files were complete on the subject of the necessary documentation of health status. This replacement entailed the updating of material related to Thomaszewski, in that the medical examination information that accompanied him at the time of his admission to the facility was not current. While at the facility on January 25, 1982, Crippen was unable to find requisite information to establish that two persons working in the facility on the inspection day were free from communicable diseases. Nor was he provided necessary documentation demonstrating a negative tuberculosis test, via chest X- ray or physician statement certifying no tuberculosis, or information dealing with these employees related to communicable diseases detectable by skin tests. The employees were Judy Russell and Rick Costner, son of the owners of the facility. Again, Crippen's conversation with Lynn Costner in her Ormond Beach office on the date of inspection did not lead to the production of the necessary information to demonstrate that Judy Russell and Rick Costner were free from communicable diseases. Judy Russell and Rick Costner were no longer employed by Respondent on March 31, 1982. The facility did not have an employee on duty at the time of the January 25, 1982, inspection who was certified in an approved course in first- aid, which would include cardiopulmonary resuscitation, training in bleeding and seizure control or training in antidotes for poisons. By March 31, 1982, certain employees of Respondent had achieved first-aid training. Crippen's January 25, 1982, inspection did not uncover an employment application for Judy Russell or Rick Costner, either at the Garden Avenue facility or Respondent's office in Ormond Beach, Florida. Finally, Crippen's January 25, 1982, inspection did not reveal a signed contract between the residents Bateman and Thomaszewski and the facility at Garden Avenue. Bateman had been admitted to the facility on November 26, 1981. Those contracts were not made available by Lynn Costner when Crippen spoke to her in the Respondent's Ormond Beach office on the date of the inspection. The patients had entered the facility with contracts. Mrs. Bateman's contract had been signed by her nephew and Thomaszewski's contract had been signed by a relative. The missing contract problem was subsequently rectified, effective March 31, 1982, through efforts of employees of Respondent. On January 29, 1982, Charles H. Carter, Licensure and Certification Supervisor for District IV, wrote to Lynn and Ronny Costner, owners of Lynn's Care Center, and attached a deficiency statement document to that correspondence. A copy of the letter and deficiency statement may be found as Petitioner's Exhibit No. 1, admitted into evidence. The purpose of the letter and statement was to allow Respondent to offer corrections by written indication of steps to be taken to resolve problems discovered in the course of Crippen's inspection and the deficiency document contained a column for offering written corrections. It afforded the Respondent through February 15, 1982, to satisfy the problem related to employment applications for Judy Russell and Rick Costner. Respondent was allowed, until March 1, 1982, to correct all other violations alluded to in these findings, with the exception of the first-aid certification. On the subject of first-aid certification, Respondent was given through March 31, 1982, to verify certification. All corrections which were made related to allegations spoken to in the administrative complaint and reported in these facts date from March 31, 1982, and notification of those corrections in writing was received by Petitioner on April 5, 1982. The statement of corrections was reported on the deficiencies and corrections form mailed on January 29, 1982. Corrections were not verified by Petitioner. See Respondent's Exhibit No. 4. The corrections were made subsequent to an exit conference on January 25, 1982, held between Crippen and Lynn Costner in Respondent's Ormond Beach Office in which Costner was made aware of the related problems. With the exception of the matter related to first-aid, the written notification of corrections was not timely. By the letter of transmittal of the statement of deficiencies, Carter had advised Respondent that the failure to submit the plan of corrections within the time specified would lead to a finding of noncompliance by Respondent and the possibility of administrative fine. On March 5, 1982, not having heard from Respondent on the topic of the March 1, 1982, deadline for certain corrections, Carter again wrote the Costners, as owners of Lynn's Care Center at Garden Avenue, requesting that the response by statement of corrections be made no later than March 18, 1982. See Petitioner's Exhibit No. 2, which is a copy of the Carter correspondence. There being no reply to the March 5, 1982 correspondence, an administrative complaint letter was forwarded to Respondent, in the person of the Costners, Lynn's Care Center, at 1562 Garden Avenue, Holly Hill, Florida. This item was sent certified mail, return receipt requested. It set forth violations related to the deficiencies which have been discussed in this Recommended Order. The complaint was received by an employee of Respondent on April 2, 1982. See Petitioner's Exhibit No. 3 Respondent disputed the factual allegations in the complaint and a Subsection 120.57(1), Florida Statutes, hearing was conducted to resolve the dispute. On March 26, 1982, a second administrative complaint letter was served on the Costners reference a resident in their facility at 1529 Ridge Avenue, Holly Hill, Florida. That complaint was received on April 2, 1982, as shown by the certified mail return receipt request form. The administrative complaint and certified mail return receipt docket may be found as Petitioner's Exhibit No. 10, admitted into evidence, a copy of the complaint and receipt item. The complaint letter charged that Ronny Costner had acted as the legal guardian of Margaret Wells, a resident in the Ridge Avenue facility, and in doing so violated Chapter 400, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. On January 19, 1982, letters of guardianship of the property of Margaret Wells had been presented to Ronny Costner, through action in the Circuit Court in and for Volusia County, Florida. See Petitioner's Exhibit No. 4, a copy of the order issuing letters of guardianship. On March 8, 1982, Charles Carter wrote to inquire of Ronny Costner on the subject of whether Costner was indeed the legal guardian of the property and suggested the impropriety of such guardianship. See Petitioner's Exhibit No. 9, which is a copy of the Carter correspondence. Resident Wells had been admitted to the Ridge Avenue facility upon referral by Dr. John Hall, D.O. At the time of admission, the Costners were unable to find family to serve as Wells' guardian. Wells was suffering from Organic Brain Syndrome. Following examination by two physicians and with the assistance of Patty Butcka, an Adult Caseworker with Petitioner, and her husband, serving as legal counsel, petition was made leading to the guardianship appointment of Ronny Costner for the benefit of Wells. During the time that he served as legal guardian he received no compensation. The guardianship of Wells was in view of the fact that no close relatives resided in the area where Wells was living. At the guardianship hearing no family member appeared or objected to the appointment of Costner as guardian. Following receipt of the March 8, 1982, letter from Carter, Costner employed counsel and petitioned the court to remove him as guardian for Margaret Wells, in view of the provision of Chapter 400, Florida Statutes, which would not allow Costner to act as guardian of a resident in his Adult Congregate Living Facility. An order was entered removing Costner as Wells' guardian and Ronny Costner no longer served in that capacity at the time of the final hearing in this cause.
The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s (FHFC) determinations regarding the applications responding to Request for Applications 2019-116 SAIL Financing of Affordable Multifamily Housing Development to Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits (the RFA), were clearly erroneous, contrary to competition, arbitrary, or capricious; and whether the award to Respondent Christian Manor Restoration, LLC (Christian Manor), is contrary to governing statutes, rules, or the solicitation specifications of the RFA.
Findings Of Fact Petitioner Parkwood is an applicant responding to the RFA. The Parkwood application, assigned number 2020-422BS, was deemed eligible but was not selected for funding under the terms of the RFA. Respondent Christian Manor is an applicant responding to the RFA. The Christian Manor application, assigned number 2020-405BS, was deemed eligible and was selected for funding under the terms of the RFA. FHFC is a public corporation created pursuant to section 420.504, Florida Statutes. The purpose of FHFC is to promote public welfare by administering the governmental function of financing affordable housing in Florida. FHFC is tasked with allocating a portion of the certain Disaster Recovery funding allocated by the U.S. Department of Housing and Urban Development pursuant to the State of Florida Action Plan for Disaster Recovery. Waterview was an applicant responding to the RFA. The Waterview application, assigned number 2020-424BSN, was deemed eligible but was not selected for funding under the terms of the RFA. FHFC is authorized to allocate housing credits and other funding by means of requests for proposals or other competitive solicitation. See § 420.507(48), Fla. Stat.; Fla. Admin. Code Ch. 67-60 (governing the competitive solicitation process). FHFC allocates its competitive funding pursuant to the bid protest provisions of section 120.57(3). Funding is made available through a competitive application process commenced by the issuance of a Request for Applications (RA). An RA is equivalent to a “request for proposal” as indicated in Florida Administrative Code Rule 67-60.009(4). The RFA was issued on November 6, 2019. It was modified several times, and the final RFA was issued on December 20, 2019. The application deadline was December 30, 2019. Sixty-five applications were submitted in response to the RFA. A Review Committee was appointed to review the applications and make recommendations to FHFC’s Board of Directors (the Board). The Review Committee found 57 applications eligible, seven applications ineligible, and one application withdrew from the selection process. Through the ranking and selection process outlined in the RFA, 13 applications were preliminarily recommended for funding, including Christian Manor. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 6, 2020, the Board met and considered the recommendations of the Review Committee for the RFA. At 9:35 a.m. that same day, all RFA applicants received notice that the Board determined whether applications were eligible or ineligible for funding consideration and that certain eligible applicants were preliminarily selected for funding, subject to satisfactory completion of the credit underwriting process. Such notice was provided by the posting of two spreadsheets on the FHFC website, www.floridahousing.org: (1) listing the Board-approved scoring results for the RFA, and (2) identifying the applications which FHFC proposed to fund. There is no dispute that Petitioner and Christian Manor received this notice. In the March 6, 2020, posting, FHFC announced its intention to award funding to 13 applications including Christian Manor. No challenges were made to the terms of the RFA. RANKING AND SELECTION PROCESS Through the RFA, FHFC seeks to award an estimated total of $71,360,000 in SAIL Financing, as well as tax-exempt bonds, to assist in financing the development of affordable rental housing for tenants who are either low-income or extremely low-income. The available SAIL financing was to be divided so that a certain amount was targeted both geographically, between Large, Medium, and Small Counties, and demographically, between applicants proposing housing for families and those proposing housing for the elderly. Applicants who are awarded tax-exempt bond financing are also entitled to an award of non-competitive federal low-income housing tax credits. FHFC made approximately $5,611,650 in National Housing Trust Fund (NHTF) funding available to applicants committing to build either new construction or rehabilitation of family or elderly housing for “Persons with Special Needs.” Applications in this RFA are scored in two categories for a possible total of ten points. Five points each can be awarded for Submission of Pre- Approved Principal Disclosure Form and Local Government Contributions. Because so many applicants achieve a perfect score of ten, the RFA establishes a series of tiebreakers referred to as a “sorting order,” designed to rank order applications for funding selection. The RFA set the following sorting order, after listing applications from highest score to lowest score: By eligibility for Proximity Funding Preference; then By eligibility for the Per Unit Construction Funding Preference; then By Leveraging Level number 1 through 5; then By eligibility for the Florida Job Creation Preference; then By randomly assigned lottery number. The RFA also established a series of funding goals. Those goals were: One New Construction Application in a Large County serving Elderly residents. Three New Construction Applications in a Large County serving Family residents, with a preference that at least two of such Applications being from “Self-Sourced” Applicants. One New Construction Application in a Medium County serving Elderly residents. Two New Construction Applications in a Medium County, with a preference that at least one such Application being from a self-sourced Applicant. The RFA designated each county in Florida as either Large, Medium, or Small. The RFA also allowed an applicant to designate itself as “Self- Sourced,” which requires applicants proposing new construction family projects to provide a portion of their development funding themselves, in an amount of at least half of its SAIL Request Amount (or $1 million, whichever is greater). The RFA provided that eligible applicants be assigned a Leveraging Level 1 through 5, with 1 being the best score, based on the total Corporation SAIL Funding amount relative to all other eligible applicants’ total Corporation SAIL Funding amount. The Leveraging Level is a comparative tool to rank applicants based on how much SAIL funding each applicant has requested per affordable housing unit (Set-Aside Unit) it proposes to construct. Calculation of the Leveraging Level includes adjusting the total amount of SAIL funds requested by an applicant based on a variety of factors, including development type, development location, construction method to be employed, and whether a Public Housing Authority is part of the applicant, then dividing that adjusted amount by the applicant’s proposed number of Set-Aside Units. For example, the SAIL Request per Set-Aside Unit is reduced by ten percent for applicants proposing a Mid-Rise Four-Story building, while applicants proposing Garden Apartments or Townhouses do not receive this adjustment, and applicants proposing Five-Story or Six-story Mid-Rises or High-Rises get a greater reduction. Applicants whose adjusted SAIL Request per Set-Aside Unit is among the lowest ten percent of all calculated SAIL Request amounts per Set-Aside Unit in this RFA are assigned Leveraging Level 1; the next 20 percent are Leveraging Level 2; the next 20 percent are Leveraging Level 3; the next 20 percent are Leveraging Level 4; and the highest 30 percent are Leveraging Level 5. The RFA employed a “funding test,” requiring that the full amount of an applicant’s SAIL request be available for award when that applicant is under consideration for funding; partial funding awards are not permitted. Sufficient SAIL funding must be available in both the county size group (Large, Medium, or Small), and the demographic category (elderly or family) for an applicant to be selected. Within the county size group, the RFA contains a pour-over provision for any unallocated Small County funding to be divided between the Medium and Large County funding availability; and any unallocated Medium County funding would be made available to Large County applicants. Further, in order to promote geographic distribution of funding awards, the RFA included a County Award Tally mechanism. If an applicant was selected in a particular county, a second applicant would not generally be selected from that same county if there was any eligible applicant available (even with a lower total application score) from any other county, from which an applicant had not already been selected for funding. The RFA set forth a very specific funding selection order, taking into consideration two specific counties (Miami-Dade and Broward), county size groups, development category (new construction or rehabilitation), demographic group (elderly or family), and self-sourced status. CHRISTIAN MANOR’S APPLICATION One of the criteria in the RFA for scoring and ranking applications involves proximity to certain services. The RFA provides in relevant part: e. Proximity The Application may earn proximity points based on the distance between the Development Location Point [(DLP)] and the Bus or Rail Transit Service (if Private Transportation is not selected at question 5.e.(2)(a) of Exhibit A) and the Community Services stated in Exhibit A. Proximity points are awarded according to the Transit and Community Service Scoring Charts outlined in Item 2 of Exhibit C. Proximity points will not be applied towards the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference, as outlined in the chart below. Requirements and Funding Preference Qualifications All Large County Applications must achieve a minimum number of Transit Service Points and achieve a minimum number of total proximity points to be eligible for funding ... All Applications that achieve a higher number of total proximity points may also qualify for the Proximity Funding Preference as outlined below. Community Services (Maximum 4 Points for each service, up to 3 services) Applicants may provide the location information and distances for three of the following four Community Services on which to base the Application’s Community Services Score. The Community Service Scoring Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C. Location of coordinates for Community Services Coordinates must represent a point that is on the doorway threshold of an exterior entrance that provides direct public access to the building where the service is located. * * * Eligible Community Services Grocery Store - This service is defined in Exhibit B and may be selected by all Applicants. Public School - This service is defined in Exhibit B and may be selected only if the Applicant selected the Family Demographic Commitment. Medical Facility - This service is defined in Exhibit B and may be selected by all Applicants. Pharmacy - This service is defined in Exhibit B and may be selected by all Applicants. Scoring Proximity to Services (Transit and Community) (b) Bus and Rail Transit Services and Community Services Applicants that wish to receive proximity points for Transit Services other than Private Transportation or points for any community service must provide latitude and longitude coordinates for that service, stated in decimal degrees, rounded to at least the sixth decimal place, and the distance between the [DLP] and the coordinates for the service. The distances between the DLP and the latitude and longitude coordinates for each service will be the basis for awarding proximity points. Failure to provide the distance for any service will result in zero points for that service. The Transit and Community Service Scoring Charts reflecting the methodology for calculating the points awarded based on the distances are in Exhibit C. (emphasis added). Applicants from a Large County, including Palm Beach County (where Christian Manor is located), must receive at least 10.5 Proximity Points (including at least 2.0 Transit Service points) to be eligible for consideration for funding, and at least 12.5 Proximity Points to receive the Proximity Funding Preference. In its Application, Christian Manor selected three public bus stops for its Transit Services, at claimed distances of .04 miles, .03 miles, and .51 miles from its proposed DLP. It was awarded 5 points for Transit Services. The validity of Christian Manor’s claimed Transit Services is not disputed. For its Community Services, Christian Manor identified the following services: Grocery Store - Aldi Food Market, 2481 Okeechobee Blvd., West Palm Beach, Florida 33409, at a distance of 0.73 miles Medical Facility - MD Now Urgent Care, 2007 Palm Beach Lakes Blvd., West Palm Beach, Florida 33409, at a distance of 0.82 miles Pharmacy - Target (CVS Pharmacy), 1760 Palm Beach Lakes Blvd., West Palm Beach, Florida 33401, at a distance of 0.70 miles. The Aldi Food Market meets the definition of a Grocery Store in the RFA. The MD Now Urgent Care meets the definition of a Medical Facility in the RFA. Christian Manor identified each service by latitude and longitude coordinates and by distance. These coordinates, however, did not accurately reflect the doorway threshold of either the Aldi Food Market or the MD Now Urgent Care Center. The latitude and longitude coordinates provided for the Grocery Store were erroneous. The listed coordinates identify a point over 0.9 miles away from the doorway threshold of the Aldi Food Market. The latitude and longitude coordinates provided for the Medical Facility identify a point over 0.8 miles away from the doorway threshold of the MD Now Urgent Care Center. The actual distance between the Aldi Food Market and the DLP is .73 miles. The actual distance between the street address of the MD Now Urgent Care Center and the DLP is .82 miles. Based on these identified services, Christian Manor was awarded 3 points for the Grocery Store, 3 points for the Pharmacy, and 2.5 points for the Medical Facility. The points awarded for the Pharmacy are not disputed. Parkwood argues that Christian Manor should be awarded no proximity points for its identified Grocery Store or Medical Facility. Parkwood does not argue that the Aldi Food Market is not a Grocery Store as defined by the RFA, nor does it argue that the MD Now Urgent Care is not a Medical Facility as defined by the RFA. Parkwood does not question the identified addresses for the Community Services or contest that the distances between the identified Aldi Food Market and the MD Now Urgent Care and the DLP are .73 miles and .82 miles respectively. Rather, Parkwood’s argument is narrowly focused on the fact the erroneous longitude and latitude coordinates for the grocery and medical services are not at the doorway threshold. Parkwood would have FHFC ignore the actual addresses and distances because of the error in coordinates. Respondents argue the mistake in coordinates was a minor irregularity. The RFA specifically gives FHFC the right to waive minor irregularities. Rule 67-60.008 provides the criteria that FHFC is to consider when evaluating whether an error should be waived as a minor irregularity. Minor irregularities are those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Ms. Button testified that an evaluating FHFC Review Committee member does not use the latitude or longitude coordinates to confirm the accuracy of the distances provided. Rather, the inclusion of the requirement for such coordinates dates back to when measurements were done by surveyors, who would certify the distances on a special form. FHFC no longer requires the surveyor certification form. FHFC now requires an applicant to self-designate the community services and proximity requirements. FHFC considers the actual distances as the most relevant factors when evaluating points awarded for proximity from the DLP to a selected Community Service. Ms. Button also testified that listing the incorrect latitude and longitude coordinates could, in this particular case, be waived as a minor irregularity. She explained that because the proximity points are based on the distance between the DLP and the identified services, and because the distances claimed in Christian Manor’s application were correct, the proximity points awarded were also correct. Ms. Button opined that Christian Manor did not garner a competitive advantage from the coordinate errors in the application. The coordinates did not create any uncertainty in the application as to what Community Services were identified or how far they were from the DLP. Petitioner pointed to no evidence of any such advantage. Ms. Button also testified that the error in coordinates did not result in any harm to the public or to FHFC. Again, Petitioner provided no evidence of such harm. Rather, Petitioner relies on a different application in a different RA, where the scorer for FHFC had determined that an applicant should be found ineligible because that applicant had failed to list the proper coordinates for one of its listed Community Services. That applicant, however, never challenged FHFC’s finding, and therefore never presented evidence or argument contesting this finding of ineligibility. It is unclear whether the applicant in the other case was found ineligible for other reasons as well, where that applicant was ranked, and whether there were other circumstances that would have affected the scoring and ranking in that particular RA. Ms. Button testified that if the error in coordinates had been challenged, FHFC would then have examined the particular circumstances of the situation to determine whether or not the error should have been waived as a minor irregularity. There is no dispute that the Christian Manor application contained a similar error, and that if Christian Manor had not been able to demonstrate that the claimed distances to the grocery store and medical facility were accurate, that error would have resulted in the application being found ineligible. But there is insufficient evidence to determine whether Petitioner is comparing “apples to apples” when relying on this other situation. Any reference to this other applicant in the other RA is unreliable and unconvincing. Regardless, in this case, the undersigned examined the circumstances of Christian Manor’s application and finds based on the preponderance of the evidence (made up of the stipulated facts and Ms. Button’s unrefuted testimony) any inaccuracies in the longitude and latitude coordinates provided by Christian Manor constitute a minor irregularity that may be waived by FHFC. Based on the facts established, the award to Christian Manor is reasonable and neither erroneous, arbitrary, nor capricious. WATERVIEW’S APPLICATION One of the requirements of the RFA is that applicants demonstrate certain Ability to Proceed elements. One of those elements is as follows: Appropriate Zoning. Demonstrate that as of the Application Deadline the entire proposed Development site is appropriately zoned and consistent with local land use regulations regarding density and intended use or that the proposed Development site is legally non-conforming by providing, as Attachment 9 to Exhibit A, the applicable properly completed and executed verification form: The Florida Housing Finance Corporation Local Government Verification that Development is Consistent with Zoning and Land Use Regulations form (Form Rev. 08-18) [(Zoning Form)]. As part of its application, Waterview submitted a Zoning Form executed by Elisabeth Dang, a City Public Official. The Zoning Form states, among other requirements: The undersigned service provider confirms that, as of the date that this form was signed, the above referenced Development’s proposed number of units, density, and intended use are consistent with current land use regulations and zoning designation or, if the Development consists of rehabilitation, the intended use is allowed as a legally non-conforming use. To the best of my knowledge, there are no hearings or approvals required to obtain the appropriate zoning classification. Assuming compliance with the applicable land use regulations, there are no known conditions that would preclude construction or rehabilitation of the referenced Development on the proposed site. Once it receives the Zoning Form, FHFC does not require that an applicant demonstrate in its application that it will be capable of constructing the proposed development, nor does FHFC attempt to independently verify that an applicant will be capable of constructing the proposed development during the application process. FHFC does not require an applicant to submit engineering drawings or final site plans during the application process, nor does the RFA contain any restrictions or requirements concerning the height of any proposed buildings. All of the details and verifications concerning the actual construction of the proposed project are evaluated during the credit underwriting process. Based partially on its identification of Development Type in its application to FHFC as “Mid-rise 4 stories,” Waterview’s adjusted SAIL request per affordable unit resulted in it being assigned Leveraging Level 4. If it had instead identified a Development Type of “Garden Apartments,” it would have received Leveraging Level 5. Petitioner argues that Waterview will be unable to construct the four- story mid-rise building identified in its application while also meeting a 40- foot height limitation in the local zoning code. As explained above, for the same reasons the undersigned sustained the objections to Petitioner’s exhibits relating to zoning issues and feasibility of constructing the proposed development, the undersigned finds at this stage (eligibility, scoring, and ranking), FHFC was not required to independently verify that the proposed development would comply with all building and zoning regulations.4 The evidence established that Waterview submitted the required Zoning Form executed by a person with authority from the City to execute such a form. There was no evidence presented that Waterview’s Zoning Form was improperly completed, or that it was obtained through fraud or illegality. Moreover, there was no convincing evidence that the Zoning Form was improperly completed. FHFC did not make an independent determination as to whether a proposed project would comply with all local zoning requirements, but instead relied on the representation of the local official who executed the Zoning Form. Petitioner also argues Waterview should be deemed ineligible because it presented different information to the City than it presented to FHFC in its application. Specifically, Petitioner challenges use of the term “garden apartment” by Waterview in materials it submitted to the City, but not submitted to FHFC; and the impact of Waterview’s proposed development on wetlands. The undersigned rejects these arguments for multiple reasons. 4 Had Waterview been awarded funds, but its proposed development could not be built due to zoning restrictions, that would be addressed during the credit underwriting process. First, Petitioner alleges that the presentation of additional information to the City somehow conflicts with the Applicant Certification and Acknowledgement Form that applicants are required to sign which provides in relevant part: “In eliciting information from third parties required by and/or included in this Application, the Applicant has provided such parties information that accurately describes the Development as proposed in this Application.” Ms. Button, however, testified that providing more information to the local government than is presented to FHFC would not in itself conflict with this statement in this form. Second, Mr. Savino’s deposition testimony established he had a number of communications with the City regarding the proposed project and submitted numerous documents for the City to review. Mr. Savino testified he used the term “garden apartments” when discussing the project with the City to refer to apartment complexes, not to the FHFC definition of “garden apartments” as being three stories or less. There is no evidence rebutting Mr. Savino’s version of events, nor is there any indication what the City understood the term to mean. Third, Petitioner argues that Waterview’s proposed project might have impacted wetlands on the property, contrary to relevant regulations. However, Mr. Savino testified that Waterview could build the project without impacting wetlands. Waterview also included among the documents submitted to the City a Revised Preliminary Site Plan which indicated that the Waterview development would not impact wetlands. Regardless, even if it had been shown that the Waterview project would impact wetlands, this would only impact its ability to receive NHTF funds; it would not have any impact on whether FHFC deems an applicant eligible for funding under this RFA. Ms. Button testified that each applicant is required to check a box on the application indicating whether it is seeking this special funding, but none are required to take it. This special funding is not considered by FHFC when evaluating an applicant’s funding sources during the application review process, and FHFC does not even evaluate an applicant’s eligibility for the NHTF during the scoring process. Even if Petitioner could prove Waterview would not be able to qualify for the special funding, there would be no impact on the scoring of its application. Ultimately, Petitioner presented no evidence that the City had somehow been misled into signing the Zoning Form required by the RFA, or that it had not understood that the proposed project involved a four-story building. The fact that the Ms. Dang did sign the Zoning Form indicates that she believed the City had all the information it needed to do so. Based on the preponderance of the evidence, Waterview’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Waterview Preserve, LLC, and Christian Manor Restoration, LLC, eligible for funding; (2) awarding the RFA funding to Christian Manor Restoration, LLC; and (3) dismissing the formal written protest of BDG Parkwood Lofts, LP. DONE AND ENTERED this 19th day of June, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 19th day of June, 2020. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields Suite 500 215 South Monroe Street Tallahassee, Florida 32302 (eServed) Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Christopher Dale McGuire, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed)
The Issue Whether the Agency's denial of Petitioner's request for exemption for employment as a Certified Nursing Assistant in an Assisted Living Facility pursuant to Section 435.07, Florida Statutes, was proper.
Findings Of Fact The Agency for Health Care Administration is responsible for conducting background screenings for employees of health care facilities licensed under Chapter 400, Florida Statutes. At all times material to this case, Petitioner, Nikita Johnson, a licensed certified nursing assistant, was employed by an assisted living facility in Pinellas County, Florida, providing personal services to the residents therein. On or before October 23, 2000, and after a level I background screening by the Assisted Living Facility (AFL) licensing unit, Petitioner requested a hearing on her exemption for employment application. On October 23, 2000, the ALF licensing unit conducted a telephonic hearing on Petitioner's request for an exemption for employment. ALF licensing unit denied Petitioner's request for exemption. The Agency proved that on December 23, 1998, Petitioner was arrested on the felony charge of sexual assault: a sexual offense against a child, and lewd lascivious acts in the presence of a child under the age of 16 years. The felony charges were reduced to misdemeanor charges. Petitioner entered a plea of guilty to each of the two counts of battery, was convicted, and sentenced to one-year probation, plus payment of a fine and court cost. Petitioner completed the terms and conditions of her probation on or about April 4, 2001. The Agency proved that on February 19, 2000, Petitioner was arrested on the misdemeanor charge of disorderly conduct, and on April 4, 2000, entered a plea of nolo contendere to which adjudication was withheld and a fine imposed. Petitioner has committed disqualifying offenses as defined by Chapter 435, Florida Statutes. Additionally, Petitioner is ineligible for exemption based on a failure to demonstrate any rehabilitative efforts and an appreciation of the seriousness of the criminal charges. Petitioner has not met her burden of clear and convincing evidence that she should not be disqualified from employment as required by Section 435.07(3), Florida Statutes. By mail at the last known address, Petitioner was notified of the time, date, and place of the final hearing and chose not to appear.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order denying Petitioner's request for exemption for employment, pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 1st day of May 2001, in Tallahassee, Leon, County, Florida. FRED L. BUCKINE 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 May, 2001. COPIES FURNISHED: Nikita Johnson 121 North Mercury Avenue Clearwater, Florida 33765 Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
