00-001953 Department Of Children And Family Services vs. Barbara Johnson, D/B/A Johnson Group Home
 Status: Closed
Recommended Order on Monday, August 21, 2000.


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Summary: Group home license should not be renewed where facility did not meet basic sanitary standards and where the temperature of the house was too hot.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF CHILDREN AND )

13FAMILY SERVICES, )

16)

17Petitioner, )

19)

20vs. ) Case No. 00-1953

25)

26BARBARA JOHNSON, d/b/a JOHNSON )

31GROUP HOME, )

34)

35Respondent, )

37___________________________________)

38RECOMMENDED ORDER

40Pursuant to notice, a final hearing was held in this case

51on July 26, 2000, at Fort Pierce, Florida, before Claude B.

62Arrington, a duly-designated Administrative Law Judge of the

70Division of Administrative Hearings.

74APPEARANCES

75For Petitioner: Laurel Hopper, Esquire

80Department of Children and

84Family Services

86337 North 4th Street, Suite A

92Fort Pierce, Florida 34950

96For Respondent: Curtis Randolph, Sr., Esquire

102850 South 21st Street

106Fort Pierce, Florida 34950

110STATEMENT OF THE ISSUE

114Whether Petitioner should grant or deny Respondent's

121application for the renewal of her license to operate a group

132home.

133PRELIMINARY STATEMENT

135Respondent, the owner and operator of a group home, timely

145applied for the renewal of her license, which was set to expire

157on March 31, 2000. On March 30, 2000, employees of Petitioner

168made two separate inspections of the licensed premises. As a

178result of those inspections, Petitioner closed Respondent's

185group home, removed the clients from the home, and notified

195Respondent that her license would not be renewed. On March 31,

2062000, Petitioner advised Respondent in writing why it had taken

216that action and why it proposed to deny the renewal of her

228license. Respondent timely challenged the proposed denial of

236the renewal of her license, the matter was referred to the

247Division of Administrative Hearings, and this proceeding

254followed.

255At the final hearing, Petitioner presented the testimony of

264Nancy Combs, Robin Aleszczyk, Stephen Stoltz, and Nancy Ann

273Cerney. Petitioner offered four exhibits, three of which were

282accepted into evidence. Respondent testified on her own behalf

291and presented the additional testimony of Linda Dodd, Robert

300Rouege, Jr., and Tara Anderson. Respondent offered no exhibits.

309No transcript of the proceedings was filed. Each party

318filed a Proposed Recommended Order, which has been duly-

327considered by the undersigned in the preparation of this

336Recommended Order.

338FINDINGS OF FACT

3411. Petitioner is the licensing and regulatory agency of

350the State of Florida charged with the responsibility to license

360group homes pursuant to Chapter 393, Florida Statutes, and

369Chapter 65B-6, Florida Administrative Code.

3742. Respondent was licensed annually by Petitioner (or its

383predecessor agency) to operate a group home for each of the

39418 years preceding March 31, 2000, the date on which

404Respondent's most recent license was set to expire. Respondent

413timely applied for the renewal of her group home license. As

424part of the renewal process, Respondent had to pass inspections

434by the Indian River County Health Department, the Fire Marshall,

444and Petitioner. On March 29, 2000, Respondent's facility passed

453an inspection from the Fire Marshall and the Health Department.

4631/

4643. Robin Aleszczyk, a human services program analyst

472employed by Petitioner, was assigned the job of inspecting the

482facility on behalf of Petitioner. On March 29, 2000,

491Ms. Aleszczyk verified the location of the premises in

500preparation of an inspection of the premises to determine

509whether the premises continued to meet licensing criteria.

517Although Ms. Aleszczyk had been to the premises before, she did

528not recognize the premises due to its dilapidated appearance.

537She drove by the premises three times before satisfying herself

547that it was the subject premises. On March 29, 2000, Ms.

558Aleszczyk observed garbage in the front of the house, an old car

570parked on the lawn, paint peeling off the house, and the front

582screen door hanging down.

5864. At approximately 7:45 a.m. on March 30, 2000,

595Ms. Aleszczyk inspected the interior of the premises.

603Respondent was not present when Ms. Aleszczyk conducted her

612inspection on March 30, 2000, because she had been summoned to

623the hospital where Rodney was hospitalized.

6295. Ms. Aleszczyk conducted her inspection and promptly

637reported her findings to her supervisor, Stephen Stoltz, the

646Program Supervisor for Developmental Services for Petitioner's

653District 15.

6556. Thereafter, beginning at approximately 10:00 a.m. on

663March 30, 2000, Mr. Stoltz and Nancy Ann Cerney, a human

674services program analyst employed by Petitioner, conducted a

682second inspection of the premises. Respondent returned to the

691subject premises before Mr. Stoltz and Ms. Cerney arrived for

701their inspection and was present during the second inspection.

7107. Ms. Aleszczyk, Mr. Stoltz, Ms. Cerney, Respondent, and

719Ms. Dodd (Respondent's employee) testified as to the condition

728of the facility on March 30, 2000. The observations by Mr.

739Stoltz and Ms. Cerney were similar to those made by Ms.

750Aleszczyk. 2/ Respondent and Ms. Dodd disputed the condition

759of the facility as described by the people who inspected the

770facility for Petitioner. In addition, Mr. Stoltz and Ms. Cerney

780testified as to certain statements made to them by Respondent,

790which Respondent denied making. The most credible testimony 3/

799established the following pertaining to the condition of the

808facility:

809a. The home was uncomfortably warm;

815b. No central air conditioning was

821operating;

822c. There was a strong odor of urine and

831old garbage throughout the premises;

836d. An unidentified male was lying on a

844bed in one bedroom with a strong odor of

853urine;

854e. Clothes were piled up to the height of

863the door and newspapers were piled up the

871wall to the right of the bed on which the

881man was lying;

884f. Clothes in one client's closet were

891dirty and smelled of body odor;

897g. The blanket on the bed of one client

906was musty smelling;

909h. Dirt could be seen on the sheets of

918that client's bed;

921i. One of the back bedrooms did not meet

930spacing requirements in that it was too

937small for the bunk bed and the twin bed that

947were in the bedroom;

951j. During Ms. Alsezczky's inspection, a

957bathroom door was locked and had to be pried

966open with a fork; 4/

971k. The flooring throughout the house was

978dirty and the linoleum was chipped in

985places;

986l. Baseboards were scuffed and dirty;

992m. The kitchen floor was dirty with lines

1000of dirt being visible;

1004n. The kitchen counter was greasy;

1010o. The oven was greasy and soiled with

1018cooked food;

1020p. Empty medicine bottles were on the

1027kitchen floor; and

1030q. Medicine containers were kept in an

1037unlocked container.

10398. Respondent apologized to Mr. Stoltz and Ms. Cerney for

1049the unsanitary condition of the premises and asked for another

1059chance to clean the premises.

10649. At the times pertinent to this proceeding two adult

1074male clients and two adult female clients resided in

1083Respondent's group home.

108610. Approximately two weeks prior to these inspections,

1094one of Respondent's clients, Rodney, had been hospitalized.

1102Respondent did not report the hospitalization as required by

1111Petitioner's policies. Instead, Respondent informed Tara

1117Anderson, a developmental services support coordinator employed

1124by Petitioner, of Rodney's hospitalization. Ms. Anderson should

1132have told Respondent to file a written incident report, but she

1143did not do so. Ms. Anderson told Respondent to contact Robert

1154Rouege, an independent contractor who provided supporting

1161services to Petitioner and its licensees, to determine whether

1170he could arrange supporting services for Rodney while he was

1180hospitalized. Respondent followed Ms. Anderson's instructions

1186as to what she should do. Respondent knew, or should have

1197known, from her training that she was required to promptly

1207report Rodney's hospitalization to Petitioner's district office.

121411. On March 30, 2000, one of the female residents of the

1226facility was disoriented and was unkempt with long, dirty

1235fingernails and dirty hair. This resident was in a room where

1246the floor was dirty. The resident appeared to be very pale and

1258unhealthy. Another client appeared to be very thin and

1267undernourished. 5/

1269CONCLUSIONS OF LAW

127212. The Division of Administrative Hearings has

1279jurisdiction of the parties to and the subject of this

1289proceeding. Section 120.57(1), Florida Statutes.

129413. Petitioner has the burden of proving by clear and

1304convincing evidence the allegations against Respondent. See

1311Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

1322Co. v. Department of Agriculture and Consumer Services , 550

1331So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

1343645 So. 2d 398 (Fla. 1994).

134914. Rule 65B-6.010, Florida Administrative Code, provides

1356for certain standards for group homes pertinent to this

1365proceeding. Rule 65B-6.010(4), Florida Administrative Code,

1371provides for the following services to be provided by a group

1382home:

1383(4) Services to Be Provided. Group home

1390facility services shall include, but not be

1397limited to, provision of adequate living

1403accommodations, proper and adequate dietary

1408supervision, appropriate physical care,

1412support, guidance, supervision and

1416assistance with training required to assure

1422each individual the opportunity for personal

1428growth and development. Specific services

1433to be provided shall be defined by the needs

1442of the clients to be served. Consideration

1449shall be given to age, sex, developmental

1456level and specific needs.

146015. Rule 65B-6.010(7)(b)10, Florida Administrative Code,

1466provides as follows:

146910. All doors with locks must be readily

1477opened from the inside.

148116. Rule 65B-6.010(8)(c)8, Florida Administrative Code,

1487provides, in pertinent part, as follows:

14938. . . . Bed linens shall be replaced

1502with clean linens at least once each week,

1510or more frequently as required.

151517. Rule 65B-6.010(8)(f)2, Florida Administrative Code,

1521provides as follows:

15242. Laundry services must be provided for

1531those residents without ability to obtain

1537these services for themselves.

154118. Rule 65B-6.010(8)(i), Florida Administrative Code,

1547provides as follows:

1550( i) Each facility shall have equipment

1557and supplies to:

15601. Keep the building in a clean, safe and

1569orderly condition.

15712. Control odors by appropriate

1576sanitation practices, effective cleaning

1580procedures and proper use of ventilation.

158619. Rule 65B-6.010(8)(j), Florida Administrative Code,

1592provides, in pertinent part, as follows:

1598(j) Temperature and humidity shall be

1604maintained within a normal comfort range for

1611the climate. . . .

161620. Rule 65B-6.010(8)(l)1 and 2, Florida Administrative

1623Code, provides, in pertinent part, as follows:

1630(l) Maintenance.

16321. The facility shall maintain the

1638interior and exterior of the building in a

1646clean, safe, presentable and repaired

1651condition.

16522. The grounds and all buildings on the

1660grounds shall be maintained in a safe,

1667sanitary and presentable condition.

167121. Rule 65B-6.010(14)(e), Florida Administrative Code,

1677provides, in pertinent part, as follows:

1683(e) Medications shall be kept in a locked

1691enclosure.

169222. Rule 65B-6.010(23)(c), Florida Administrative Code,

1698provides, in pertinent part, as follows:

1704(c) Serious illness, accident, injury,

1709death, assault, and missing clients should

1715be handled as an emergency. The staff

1722should meet the immediate needs of the

1729client and then report the incident by

1736telephone to the district office as

1742instructed by the social worker serving the

1749facility. . . .

175323. Rule 65B-6.010(7)(b)10, Florida Administrative Code,

1759requires that all doors with locks must be readily opened from

1770the inside. While Petitioner established that a bathroom door

1779was locked and had to be pried open with a fork, there was no

1793evidence as to whether that door could be readily opened from

1804inside the bathroom. Consequently, it is concluded that

1812Petitioner failed to establish the alleged violation of

1820Rule 65B-6.010(7)(b)10, Florida Administrative Code.

182524. Respondent's failure to timely report to the district

1834office that Rodney had been hospitalized is properly viewed as a

1845serious violation of Petitioner's rules. While Respondent

1852established that she promptly notified Ms. Anderson of Rodney's

1861hospitalization and followed Ms. Anderson's instructions, those

1868actions do not excuse Respondent's failure to report the

1877incident to the district office as required by Rule 65B-

18876.010(23)(c), Florida Administrative Code. 6/

189225. Petitioner established that Respondent had medication

1899in an unlocked container in violation of Rule 65B-6.010(14)(e),

1908Florida Administrative Code. That violation justifies the

1915denial of Respondent's application for renewal of her group home

1925license.

192626. Petitioner established that Respondent's group home

1933failed to meet basic sanitation standards set forth in Rule 65B-

19446.010(8)(1), Florida Administrative Code, and failed to maintain

1952the premises at an appropriate temperature as required by

1961Rule 65B-6.010(8)(j), Florida Administrative Code. Those

1967failures justify the denial of Respondent's application for

1975renewal of her group home license.

1981RECOMMENDATION

1982Based on the foregoing Findings of Fact and Conclusions of

1992Law, it is RECOMMENDED that Petitioner enter a final order

2002denying Respondent's application for the renewal of her group

2011home license.

2013DONE AND ENTERED this 21st day of August, 2000, in

2023Tallahassee, Leon County, Florida.

2027___________________________________

2028CLAUDE B. ARRINGTON

2031Administrative Law Judge

2034Division of Administrative He arings

2039The DeSoto Building

20421230 Apalachee Parkway

2045Tallahassee, Florida 32399-3060

2048(850) 488-9675 SUNCOM 278-9675

2052Fax Filing (850) 921-6847

2056www.doah.state.fl.us

2057Filed with the Clerk of the

2063Division of Administrative Hearings

2067this 21st day of August, 2000.

2073ENDNOTES

20741/ The Health Department noted that Respondent would have to

2084re-screen the front door, clean the ceiling fans, and install a

2095thermometer in the refrigerator.

20992/ Between the time Ms. Aleszczyk left the facility and

2109Mr. Stoltz and Ms. Cerney arrived, someone had raised the windows

2120and had begun to clean the facility. As a consequence, the

2131facility was not as hot as described by Ms. Aleszczyk and the

2143smell of urine was not as strong during the second inspection.

21543/ In resolving the conflicting testimony, the undersigned is

2163mindful of Respondent's testimony at the final hearing that the

2173inspectors came before she could do her routine cleaning, that

2183clothes were piled up because she was in the process of buying

2195new furniture, that the blanket was not musty smelling, the

2205sheet was not dirty, and that none of the clothes were dirty or

2218smelled of body odor.

22224/ Ms. Aleszczyk did not attempt to open the bathroom door from

2234inside the bathroom.

22375/ Petitioner has not, in this proceeding, alleged that

2246Petitioner neglected or otherwise abused the residents in her

2255care. The evidence as to the appearance of the residents served

2266to corroborate Petitioner's position that Respondent failed to

2274provide her clients with a sanitary, healthy environment.

22826/ Assuming that Petitioner adopts the recommendation that

2290follows and assuming that Respondent applies for licensure in

2299the future, Respondent's reporting to Ms. Anderson and following

2308her instructions should be considered as mitigating Respondent's

2316violation of Rule 65B-6.010(23)(c), Florida Administrative Code.

2323COPIES FURNISHED:

2325Laurel Hopper, Esquire

2328Department of Children and

2332Family Services

2334337 North 4th Street, Suite A

2340Fort Pierce, Florida 34950

2344Curtis Randolph, Sr., Esquire

2348850 South 21st Street

2352Fort Pierce, Florida 34950

2356Virginia A. Daire, Agency Clerk

2361Department of Children and

2365Family Services

2367Building 2, Room 204B

23711317 Winewood Boulevard

2374Tallahassee, Florida 32399-0700

2377Josie Tomayo, General Counsel

2381Department of Children and

2385Family Services

2387Building 2, Room 204

23911317 Winewood Boulevard

2394Tallahassee, Florida 32399-0700

2397NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2403All parties have the right to submit written exceptions within

241315 days from the date of this Recommended Order. Any exceptions

2424to this Recommended Order should be filed with the agency that

2435will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/12/2000
Proceedings: Final Order Adopting Recommended Order, Denying Renewal of License to Provide Residential Services for Persons with Developmental Disabilities, and Rejecting Conclusion of Law Regarding Burden of Proof in Licensure Renewal Cases filed.
PDF:
Date: 12/08/2000
Proceedings: Agency Final Order
PDF:
Date: 08/21/2000
Proceedings: Recommended Order
PDF:
Date: 08/21/2000
Proceedings: Recommended Order issued (hearing held July 26, 2000) CASE CLOSED.
PDF:
Date: 08/09/2000
Proceedings: Proposed Recommended Order (C. Randolph) filed.
PDF:
Date: 08/07/2000
Proceedings: Proposed Recommended Order (L. Hopper) filed.
Date: 07/26/2000
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 06/29/2000
Proceedings: Pre-Hearing Stipulation (Joint) (filed via facsimile)
PDF:
Date: 06/27/2000
Proceedings: Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for July 26, 2000; 9:00 a.m.; Fort Pierce, FL)
PDF:
Date: 06/22/2000
Proceedings: (Petitioner) Motion for Continuance of Hearing Date, or in the Alternative Motion to Allow Use of Witness Deposition at Hearing in Lieu of Her Testimony (filed via facsimile).
PDF:
Date: 06/21/2000
Proceedings: Amended Notice of Hearing sent out. (hearing set for July 13, 2000; 9:00 a.m.; Fort Pierce, FL, amended as to location)
PDF:
Date: 05/26/2000
Proceedings: Order of Pre-hearing Instructions sent out.
PDF:
Date: 05/26/2000
Proceedings: Notice of Hearing sent out. (hearing set for July 13, 2000; 9:00 a.m.; Fort Pierce, FL)
PDF:
Date: 05/25/2000
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 05/17/2000
Proceedings: Initial Order issued.
PDF:
Date: 05/10/2000
Proceedings: Letter to Barbara Johnson from S. Stoltz filed.
PDF:
Date: 05/10/2000
Proceedings: Letter to Barbara Johnson from Steven Stoltz filed.
PDF:
Date: 05/10/2000
Proceedings: Request for Hearing filed.
PDF:
Date: 05/10/2000
Proceedings: Amended Request for Hearing filed.
Date: 05/10/2000
Proceedings: Agency Action filed.
PDF:
Date: 05/10/2000
Proceedings: Notice filed.
PDF:
Date: 05/10/2000
Proceedings: Notice of Department`s Intention to Dismiss Petitioner`s` Request for Hearing unless Additional Information is Filed by Petitioners Within 21 Days filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
05/10/2000
Date Assignment:
05/17/2000
Last Docket Entry:
12/12/2000
Location:
Fort Pierce, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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