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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-1953

)

BARBARA JOHNSON, d/b/a JOHNSON )

GROUP HOME, )

)

Respondent, )

___________________________________)

RECOMMENDED ORDER

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

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

Arrington, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laurel Hopper, Esquire

Department of Children and

Family Services

337 North 4th Street, Suite A

Fort Pierce, Florida 34950

For Respondent: Curtis Randolph, Sr., Esquire

850 South 21st Street

Fort Pierce, Florida 34950

STATEMENT OF THE ISSUE

Whether Petitioner should grant or deny Respondent's

application for the renewal of her license to operate a group

home.

PRELIMINARY STATEMENT

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

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

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

made two separate inspections of the licensed premises. As a

result of those inspections, Petitioner closed Respondent's

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

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

2000, Petitioner advised Respondent in writing why it had taken

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

license. Respondent timely challenged the proposed denial of

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

Division of Administrative Hearings, and this proceeding

followed.

At the final hearing, Petitioner presented the testimony of

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

Cerney. Petitioner offered four exhibits, three of which were

accepted into evidence. Respondent testified on her own behalf

and presented the additional testimony of Linda Dodd, Robert

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

No transcript of the proceedings was filed. Each party

filed a Proposed Recommended Order, which has been duly-

considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is the licensing and regulatory agency of

the State of Florida charged with the responsibility to license

group homes pursuant to Chapter 393, Florida Statutes, and

Chapter 65B-6, Florida Administrative Code.

2. Respondent was licensed annually by Petitioner (or its

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

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

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

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

part of the renewal process, Respondent had to pass inspections

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

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

an inspection from the Fire Marshall and the Health Department.

1/

3. Robin Aleszczyk, a human services program analyst

employed by Petitioner, was assigned the job of inspecting the

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

Ms. Aleszczyk verified the location of the premises in

preparation of an inspection of the premises to determine

whether the premises continued to meet licensing criteria.

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

not recognize the premises due to its dilapidated appearance.

She drove by the premises three times before satisfying herself

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

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

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

screen door hanging down.

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

Ms. Aleszczyk inspected the interior of the premises.

Respondent was not present when Ms. Aleszczyk conducted her

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

the hospital where Rodney was hospitalized.

5. Ms. Aleszczyk conducted her inspection and promptly

reported her findings to her supervisor, Stephen Stoltz, the

Program Supervisor for Developmental Services for Petitioner's

District 15.

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

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

services program analyst employed by Petitioner, conducted a

second inspection of the premises. Respondent returned to the

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

their inspection and was present during the second inspection.

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

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

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

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

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

of the facility as described by the people who inspected the

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

testified as to certain statements made to them by Respondent,

which Respondent denied making. The most credible testimony 3/

established the following pertaining to the condition of the

facility:

a. The home was uncomfortably warm;

b. No central air conditioning was

operating;

c. There was a strong odor of urine and

old garbage throughout the premises;

d. An unidentified male was lying on a

bed in one bedroom with a strong odor of

urine;

e. Clothes were piled up to the height of

the door and newspapers were piled up the

wall to the right of the bed on which the

man was lying;

f. Clothes in one client's closet were

dirty and smelled of body odor;

g. The blanket on the bed of one client

was musty smelling;

h. Dirt could be seen on the sheets of

that client's bed;

i. One of the back bedrooms did not meet

spacing requirements in that it was too

small for the bunk bed and the twin bed that

were in the bedroom;

j. During Ms. Alsezczky's inspection, a

bathroom door was locked and had to be pried

open with a fork; 4/

k. The flooring throughout the house was

dirty and the linoleum was chipped in

places;

l. Baseboards were scuffed and dirty;

m. The kitchen floor was dirty with lines

of dirt being visible;

n. The kitchen counter was greasy;

o. The oven was greasy and soiled with

cooked food;

p. Empty medicine bottles were on the

kitchen floor; and

q. Medicine containers were kept in an

unlocked container.

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

the unsanitary condition of the premises and asked for another

chance to clean the premises.

9. At the times pertinent to this proceeding two adult

male clients and two adult female clients resided in

Respondent's group home.

10. Approximately two weeks prior to these inspections,

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

Respondent did not report the hospitalization as required by

Petitioner's policies. Instead, Respondent informed Tara

Anderson, a developmental services support coordinator employed

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

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

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

Rouege, an independent contractor who provided supporting

services to Petitioner and its licensees, to determine whether

he could arrange supporting services for Rodney while he was

hospitalized. Respondent followed Ms. Anderson's instructions

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

known, from her training that she was required to promptly

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

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

facility was disoriented and was unkempt with long, dirty

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

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

unhealthy. Another client appeared to be very thin and

undernourished. 5/

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

13. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

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

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

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

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

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

for certain standards for group homes pertinent to this

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

provides for the following services to be provided by a group

home:

(4) Services to Be Provided. Group home

facility services shall include, but not be

limited to, provision of adequate living

accommodations, proper and adequate dietary

supervision, appropriate physical care,

support, guidance, supervision and

assistance with training required to assure

each individual the opportunity for personal

growth and development. Specific services

to be provided shall be defined by the needs

of the clients to be served. Consideration

shall be given to age, sex, developmental

level and specific needs.

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

provides as follows:

10. All doors with locks must be readily

opened from the inside.

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

provides, in pertinent part, as follows:

8. . . . Bed linens shall be replaced

with clean linens at least once each week,

or more frequently as required.

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

provides as follows:

2. Laundry services must be provided for

those residents without ability to obtain

these services for themselves.

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

provides as follows:

( i) Each facility shall have equipment

and supplies to:

1. Keep the building in a clean, safe and

orderly condition.

2. Control odors by appropriate

sanitation practices, effective cleaning

procedures and proper use of ventilation.

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

provides, in pertinent part, as follows:

(j) Temperature and humidity shall be

maintained within a normal comfort range for

the climate. . . .

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

Code, provides, in pertinent part, as follows:

(l) Maintenance.

1. The facility shall maintain the

interior and exterior of the building in a

clean, safe, presentable and repaired

condition.

2. The grounds and all buildings on the

grounds shall be maintained in a safe,

sanitary and presentable condition.

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

provides, in pertinent part, as follows:

(e) Medications shall be kept in a locked

enclosure.

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

provides, in pertinent part, as follows:

(c) Serious illness, accident, injury,

death, assault, and missing clients should

be handled as an emergency. The staff

should meet the immediate needs of the

client and then report the incident by

telephone to the district office as

instructed by the social worker serving the

facility. . . .

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

requires that all doors with locks must be readily opened from

the inside. While Petitioner established that a bathroom door

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

evidence as to whether that door could be readily opened from

inside the bathroom. Consequently, it is concluded that

Petitioner failed to establish the alleged violation of

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

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

office that Rodney had been hospitalized is properly viewed as a

serious violation of Petitioner's rules. While Respondent

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

hospitalization and followed Ms. Anderson's instructions, those

actions do not excuse Respondent's failure to report the

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

6.010(23)(c), Florida Administrative Code. 6/

25. Petitioner established that Respondent had medication

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

Florida Administrative Code. That violation justifies the

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

license.

26. Petitioner established that Respondent's group home

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

6.010(8)(1), Florida Administrative Code, and failed to maintain

the premises at an appropriate temperature as required by

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

failures justify the denial of Respondent's application for

renewal of her group home license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

denying Respondent's application for the renewal of her group

home license.

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

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative He arings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2000.

ENDNOTES

1/ The Health Department noted that Respondent would have to

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

thermometer in the refrigerator.

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

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

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

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

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

3/ In resolving the conflicting testimony, the undersigned is

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

inspectors came before she could do her routine cleaning, that

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

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

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

smelled of body odor.

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

inside the bathroom.

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

Petitioner neglected or otherwise abused the residents in her

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

to corroborate Petitioner's position that Respondent failed to

provide her clients with a sanitary, healthy environment.

6/ Assuming that Petitioner adopts the recommendation that

follows and assuming that Respondent applies for licensure in

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

her instructions should be considered as mitigating Respondent's

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

COPIES FURNISHED:

Laurel Hopper, Esquire

Department of Children and

Family Services

337 North 4th Street, Suite A

Fort Pierce, Florida 34950

Curtis Randolph, Sr., Esquire

850 South 21st Street

Fort Pierce, Florida 34950

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.