18-001136FL Agency For Persons With Disabilities vs. Aspiring Ambitions, Llc, Owned And Operated By Tanya Warren Status: Closed Recommended Order on Monday, August 20, 2018.

Summary: APD proved one of three charges. Inadequate supervision and inadequate staffing proven. Responsibility for verified abuse not proven. RO: $1,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES,

Petitioner,

vs. Case No. 18 - 1136FL

ASPIRING AMBITIONS, LLC, OWNED

AND OPERATED BY TANYA WARREN,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 9 , 2 018, Administrative Law Judge (ALJ) J. Lawrence

Johnston of the Division of Administrative Hearings (DOAH)

conducted a disputed - fact hearing in this case by video

teleconference at sites in Tampa and Tallahassee .

APPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

For Respondent: Tanya Lynn Warren , pro se

Aspiring Ambitions, LLC

3008 Spillers Avenue

Tampa, Florida 33619

STATEMENT OF THE ISSUE

Whether the Respondent Ós group home license issued by the

Agency for Persons with Disabilities (APD) should be revok ed or

otherwise disciplined on charges stated in an Administrative

Complaint, APD License 5604 - 6GA.

PRELIMINARY STATEMENT

On February 9, 2018 , APD filed a n Administrative Complaint

against the Respondent. The Administrative Complaint charged the

Responden t with : Count I, violations of section 393.13(3)(a)

and (g), Florida Statutes, 1/ and Florida Administrative Code Rules

65G - 2.009(1)(d) and (6)(a), 2 / when physical abuse of a resident by

staff of the RespondentÓs group home was not reported; Count II,

vio lations of section 393.0673(1)(b) and rule 65G - 2.009(1)(a)1.

for inadequate staffing, allowing physical abuse of a resident by

another resident, and not reporting the abuse within 24 hours, as

required; and Count III, violations of rules 65G - 2.007(2)(e)

a nd (8)(a) for failure to fix a window and for not maintaining

the indoor temperature of the RespondentÓs group home. The

Respondent admitted some allegations but denied others and asked

for a hearing. APD forwarded the matter to DOAH to be heard by

an A LJ.

At the final hearing , APD called four witnesses , and its

Exhibits 1 through 5 were received in evidence. The Respondent

testified and did not introdu ce any exhibits in evidence.

A Transcript of the final hearing was filed on July 3. The

parties fi led proposed recommended order s that have been

considered , except that f actual assertions in the RespondentÓs

filing that are not supported by the evidence in the record are

being disregarded.

FINDING S OF FACT

1. The Respondent, Aspiring Ambitions, LLC, i s owned and

operated by Tanya Warren. The Respondent holds APD license 5604 -

6GA to operate a group home for developmentally disabled

residents on Spillers Avenue in Tampa. The license was issued in

April 2017 and had no prior incidents of any kind until

September 2017.

2. Tanesha Clarke 3 / was listed on the RespondentÓs license

application as a Ðdirector,Ñ but the evidence was that Ms. Clarke

was not an owner or director, but rather an employee providing

direct care to residents and performing some addi tional duties

for the Respondent.

Count I

3. On September 12, 2017, Ms. Clarke and another employee

of the Respondent were on duty at the Spillers Avenue home.

Ms. Clarke became frustrated when H.B., a resident in the home,

urinated on the floor and cou ch. In her frustration, Ms. Clarke

struck and kicked H.B., who was defenseless due to his

disability. The other employee on duty did not immediately call

the abuse hotline or report the incident to Ms. Warren. The next

day, the incident was reported via the abuse hotline. The

identity of the reporter is confidential by statute. It was not

Ms. Warren, who still did not know about the incident. A

sheriffÓs office child protective investigator responded to the

group home to investigate on behalf of the D epartment of Child ren

and Families (DCF). It was quickly established that Ms. Clarke

had physically abused H.B., and she was arrested. Ms. Warren

could not be contacted immediately, and APD sent a licensing

specialist to the home to help take care of the residents in

Ms. ClarkeÓs absence until Ms. Warren arrived about 20 minutes

later.

4. Ms. Warren fully cooperated with the investigation. She

denied hav ing any reason to be concerned that Ms. Clarke would

abuse a resident. Two of the three other st aff interviewed, plus

a social worker who provided services to residents of the group

home, also denied ever seeing Ms. Clarke behave in an abusive

manner towards a resident and denied having any reason to be

concerned that Ms. Clarke would abuse a residen t.

5. The staff member who was on duty with Ms. Clarke on

September 12, 2017, stated that she had seen similar behavior by

Ms. Clarke previously but did not report it to Ms. Warren or to

anyone else.

6. The investigation verified the abuse by Ms. Cla rke, and

APD licensing explained to Ms. Warren that her license would be

in jeopardy if Ms. Clarke continued to work at the group home.

Ms. Warren understood and fired Ms. Clarke. Ms. Warren also

provided additional in - service training to the rest of her staff

on the RespondentÓs zero tolerance for abuse and on what to do

and how to report incidents of abuse against residents of the

facility. No further follow - up by the child protective team was

deemed necessary.

Count II

7. On November 24, 2017, whic h was the Friday after

Thanksgiving, a resident of the Spillers Avenue group home bit

another resident, A.S., on the shoulder. The bite was fairly

severe and resulted in a red bite mark.

8. On that evening, there were five residents and only one

direct care employee at the home. A second employee who was

scheduled to work that evening called in sick and arrangements

were not made to replace the sick employee for the evening.

9. Because of their disabilities, the RespondentÓs

residents that evening w ere considered in moderate need of

supervision, and two direct care employees were required to be on

duty to meet staffing requirements.

10. The RespondentÓs employee on duty that evening not ic ed

the bite mark while bathing A.S. and made a record of it in the

homeÓs log. She did not call the abuse hotline or report the

incident to Ms. Warren.

11. The employee, who had been working for the Respondent

for a few months, had not been trained on the policy of zero

tolerance for abuse, including what to do and how to report in

the event of an incident causing injury to a resident.

12. On the following Monday, A.S. went to school, where the

bite mark was noticed, and A.S. was seen and treated by a

physician. The physician reported the abuse, and a DCF

in vestigation was opened. At first, it was not clear how or when

the bite was inflicted. Ms. Warren was contacted and fully

cooperated. She discovered the bite incident entry in the homeÓs

log, and the investigation was converted to an investigation of

th e Respondent.

13. The DCF investigation was closed as substantiated for

inadequate supervision by the Respondent (i.e., Ms. Warren) for

two reasons: first, inadequate staffing; and, second, inadequate

training of staff on what to do and how to report i n the event of

an incident causing injury to a resident. No findings were made

against the employee on duty at the time of the bite incident

because she had not been trained adequately, which was the

responsibility of the Respondent (i.e., Ms. Warren).

14. In response to the incident, Ms. Warren expressed her

intention to ensure proper staffing and to train staff on the

policy of zero tolerance of abuse, including what to do and how

to report in the event of an incident causing injury to a

resident.

1 5. On follow - up by APD on December 27, 2017, it was

determined that staffing was correct, the required zero tolerance

training had been delivered, and there were Ðno other concerns at

this time.Ñ

Count III

16. In December 2017, APD conducted an annual licensing

survey of the RespondentÓs group home. It was determined that

there was a broken window in one of the bedrooms. The Respondent

had the window fixed before the follow - up inspection in

January 2018. Shortly before (perhaps the night before or

mo rning of) the re - inspection, a resident broke the window again,

punching it completely out this time. When the inspector

arrived, the bedroom was cold (well below 68 degrees Fahrenheit),

as the temperature had gone down into the 30s overnight.

Ms. Warre n promptly had the window fixed again. The Respondent

did all that could reasonably be expected under the

circumstances.

CONCLUSIONS OF LAW

17 . Because APD seeks to impose license discipline, it has

the burden to prove the allegations in the Administrati ve

Complaint by clear and convincing evidence. See DepÓt of Banking

& Fin. v. Osborne Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). This Ðentails

both a qualitative and quantitative standard. The eviden ce must

be credible; the memories of the witnesses must be clear and

without confusion; and the sum total of the evidence must be of

sufficient weight to convince the trier of fact without

hesitancy.Ñ In re Davey , 645 So. 2d 398, 404 (Fla. 1994). See

als o Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). ÐAlthough this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence that

is ambiguous.Ñ Westingho use Elec. Corp. v. Shuler Bros ., Inc. ,

590 So. 2d 986, 988 (Fla. 1st DCA 1991).

18 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor of the one against whom the penalty would be

imposed.Ñ Munch v. DepÓt of ProfÓl Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 199 2); see Camejo v. DepÓt of

Bus. & ProfÓl Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training CommÓn , 458 So. 2d 887,

8 88 (Fla. 5th DCA 1984) (Ð[W]here a statute provides for

revocation of a license the grounds must be st rictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.Ñ

(ci ting State v. Pattishall , 126 So. 147 (Fla. 1930)).

19 . The grounds proven in support of APDÓs assertio n that

the RespondentÓs license should be disciplined must be those

specificall y alleged in the Administrative Complaint . See e.g. ,

Trevisani v. DepÓt of Health, 908 So. 2d 1108 (Fla. 1st DCA

2005); Cottrill v. DepÓt of Ins. , 685 So. 2d 1371 (Fla. 1st DCA

1996); Kinney v. DepÓt of State , 501 So. 2d 129 (Fla. 5th DCA

1987); Hunter v. DepÓt of ProfÓl Reg. , 458 So. 2d 842 (Fla. 2d

DCA 1984). Due process pr ohibits APD from taking disciplinary

action against a licensee based on matters not specifically

alleged in the charging instruments, unless those matters have

been tried by consent. See Shore Vill. Prop. OwnersÓ AssÓn, Inc.

v. DepÓt of Envtl. Prot. , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); Delk v. DepÓt of ProfÓl Reg. , 595 So. 2d 966, 967 (Fla.

5th DCA 1992).

20. Section 393.0673(1) states that APD Ð may revoke or

suspend a license or impose an administrative fine, not to exceed

$1,000 per violation per d ay , if . . . (a) [t]he licensee

has: . . . [f]ailed to comply with the applicable requirements

of this chapter or rules applicable to the licensee; or (b) [t]he

Department of Children and Families has verified that the

licensee is responsible for the ab use, neglect, or abandonment of

a child or the abuse, neglect, or exploitation of a vulnerable

adult. Ñ

Count I

21. As to section 393.0673(1)(b), APD did not prove by

clear and convincing evidence that the Respondent was responsible

for the abuse of H.B. , as alleged in Count I. See Bridlewood

Group Home v. Ag. for Pers . with Disab . , 136 So. 3d 652 (Fla. 2d

DCA 2013)(reversing Final Order of revocation and dismissing

charges).

22. Count I also charges violations of section 393.13(3)(a)

and (g ) and rule s 65G - 2.009(1)(d) and (6)(a).

23. Section 393.13(3)(a) states that persons with

developmental disabilities have Ða right to dignity, privacy, and

humane care, including the right to be free from abuse, including

sexual abuse, neglect, and exploitation. Ñ Section 393.13(3)(g)

states they have Ð a right to be free from harm, including

unnecessary physical, chemical, or mechanical restraint,

isolation, excessive medication, abuse, or neglect. Ñ APD did not

prove by clear and convincing evidence that the Resp ondent was

responsible for violating these statutes, as alleged in Count I.

See Bridlewood , 136 So. 3d at 656.

24. Rule 65G - 2.009(1) states that licensed residential

homes for persons with developmental disabilities shall, at a

minimum, Ð ensure the hea lth and safety of the residents and shall

also address the provision of appropriate physical care and

supervision. Ñ Specifically, paragraph (d) states that these

homes Ðshall adhere to and protect resident rights and freedomsÑ

as provided in section 393.1 3; that violations of section

393.13(3)(a) relating to humane care, abuse, sexual abuse,

neglect, or exploitation, and all violations of section

393.13(3)(a), are Class I violations; and that all other

violation of section 393.13(3)(a) are Class III violat ions. APD

did not prove by clear and convincing evidence that the

Respondent was responsible for violating these rules, as alleged

in Count I. See Bridlewood , 136 So. 3d at 656.

25. Rule 65G - 2.009(6)(a), addressing ÐResident

Supervision,Ñ states that that licensed residential homes for

persons with developmental disabilities

must provide the level of supervision

necessary to ensure that residents are

protected from harm and that a safe and

healthy living environment is created and

maintained. Direct service providers must be

given specific information and strategies to

provide such an environment for all of

residents of the facility. To the maximum

extent possible, however, the facility shall

respect the rights of residents to privacy

and self - determ ination.

Violations of rule 65G - 2.009(6)(a) are Class I violations. APD

did not prove by clear and convincing evidence that the

Respondent was responsible for violating this rule, as alleged in

Count I. See Bridlewood , 136 So. 3d at 656.

Count II

26. As to section 393.0673(1)(b), APD proved by clear and

convincing evidence that the Respondent was sufficiently

responsible for the physical abuse of A.S. by another resident,

as alleged in Count II, so as to be in violation of this statute.

See Bridlewoo d , 136 So. 3d at 656. Specifically, the Respondent

did not adequately train its employee and did not adequately

staff the facility on November 24, 2017.

27. Count II also charges a violation of rule 65G -

2.009(1)(a)1. As stated above, rule 65G - 2.009(1) requires that

licensed residential homes for persons with developmental

disabilities shall, at a minimum, Ð ensure the health and safety

of the residents and shall also address the provision of

appropriate physical care and supervision. Ñ Specifically,

par agraph (a)1. states that these homes shall Ð[f]a cilitate the

implementation of client support plans, behavior plans, and any

other directions from medical or health care professionals as

applicable .Ñ While no violation of paragraph 1. was proven, APD

prov ed by clear and convincing evidence that the Respondent

violated section (1) of the rule by not adequately training its

employee and not adequately staffing the facility on November 24,

2017.

Count II I

28. Count III alleges violations of rule 65G - 2.007( 8)(a)

for failing to maintain indoor temperature between 68 and 80

degrees and rule 65G - 2.009(1) for failure to meet minimum

standards by ensuring the health and safety of residents and

providing appropriate physical care and supervision.

29. APDÓs pr oposed recommended order omits findings and

conclusions under Count III, and it is presumed that those

charges have been withdrawn. If not withdrawn, they were not

proven by clear and convincing evidence. See Bridlewood , 136

So. 3d at 656.

Appropriate Penalty

30. Believing it proved Counts I and II, APD contends that

the appropriate penalty is revocation of the RespondentÓs

license. In contending that revocation is Ðjustified,Ñ APD fails

to address the penalty guidelines in r ule 65G - 2. 0 041, which it

a pparently promulgated in response to the case of Agency for

Pers ons with Disabilities v. Help is on the Way, Inc . , Case No.

11 - 1620 (Fla. DOAH Feb. 3, 2012; Fla. APD Apr. 16, 2012) . The

rule is complicated, convoluted, and not easy to implement. It

clear ly does not require automatic revocation.

31. Rule 65G - 2. 0 041(1), entitled Ð DETERMINATION OF

DISCIPLINARY ACTION INVOLVING ABUSE, NEGLECT, OR EXPLOITATION,Ñ

states:

In determining whether to pursue disciplinary

action in response to verified findings by

the Department of Children and Families of

abuse, neglect, or exploitation involving the

licensee or direct service providers

rendering services on behalf of the licensee,

the Agency will consider the licensee's

corrective action plan and other actions

ta ken to safeguard the health, safety, and

welfare of residents upon discovery of the

violation. Considerations shall include the

following:

(a) Whether the licensee properly trained

and screened, in compliance with

Section 393.0655, F.S., the staff mem ber(s)

responsible for the violation;

(b) Whether, upon discovery, the licensee

immediately reported any allegations or

suspicions of abuse, neglect, or exploitation

to both the Florida Abuse Hotline as well as

the Agency;

(c) Whether the licensee ful ly cooperated

with all investigations of the violation;

(d) Whether the licensee took immediate and

appropriate actions necessary to safeguard

the health, safety and welfare of residents

duri ng and after any investigations[;]

(e) W hether the occurrence is a repeat

violation a nd the nature of such

violation[; and]

(f) T he specific facts and circumstances

before, during, and after the violation.

32. Rule 65G - 2.0 0 41(2), entitled Ð FACTORS CONSIDERED WHEN

DETERMINING SANCTIONS TO BE IMPOSED FOR A VIOLA TION ,Ñ states:

The Agency shall consider the following

factors when determinin g the sanctions for a

violation :

(a) The gravity of the violation, including

whether the incident involved the abuse,

neglect, exploitation, abandonment, death, or

serious phys ical or mental injury of a

resident, whether death or serious physical

or mental injury could have resulted from the

violation, and whether the violation has

resulted in permanent or irrevocable

injuries, damage to property, or l oss of

property or client f unds,

(b) The actions already taken or being taken

by the licensee to correct the violations, or

the lack of remedial action,

(c) The types, dates, and frequency of

previous violations and whether the violation

is a repeat violation,

(d) The number of residents served by the

facility and the number of residents affected

or put at risk by the violation,

(e) Whether the licensee willfully committed

the violation, was aware of the violation,

was willfully ignorant of the violation, or

attempted to con ceal the violation,

(f) T he licensee's cooperation with

investigating authorities, including the

Agency, the Department of Children and

Families, or law enforcement,

(g) T he length of time the violation has

existed within the home without being

address ed, and

(h ) T he extent to which the licensee was

aware of the violation.

33. Rule 65G - 2. 0 041(3), entitled Ð ADDITIONAL CONSIDERATIONS

FOR CLASS I VIOLATIONS, REPEATED VIOLATIONS OR FOR VIOLATIO NS

THAT HAVE NOT BEEN CORRECTED,Ñ states:

(a) Subject to th e provisions of subsection

65G - 2.0041(1), F.A.C., in response to a

Class I violation, the Agency may either file

an Administrative Complaint against the

licensee or deny the licensee's application

for renewal of licensure .

(b) A second Class I violatio n, occurring

within 12 months from the date in which a

Final Order was entered for an Administrative

Complaint pertaining to that same violation,

shall result i n the imposition of a fine of

$ 1000 per day per violation, revocation,

denial or suspension of t he license, or the

imposition of a moratorium on new resident

admissions .

(c) The intentional misrepresentation, by a

licensee or by the supervisory staff of a

licensee, of the remedial actions taken to

correct a Class I violation shall constitute

a Clas s I violation. The intentional

misrepresentation, by a licensee or by the

supervisory staff of a licensee, of the

remedial actions taken to correct a Class II

violation shall constitute a Class II

violation. The intentional

misrepresentation, by a licens ee or by the

supervisory staff of a licensee, of the

remedial actions taken to correct a Class III

violation shall constitute a Class III

violation.

(d) Failure to complete corrective action

within the designated timeframes may result

in revocation or no n - renewal of the

facility's license.

34. Rule 65G - 2.0 0 41(4), entitled ÐSANCTIONS,Ñ states:

F ines shall be imposed, pursuant to a final

order of the Agency, according to the

following three - tiered classification system

for the violation of facility sta ndards as

provided by law or administrative rule. Each

day a violation occurs or continues to occur

constitutes a separate violation and is

subject to a separate and additional

sanction. Violations shall be classified

according to the following criteria:

(a) Class I statutory or rule violations are

violations that cause or pose an immediate

threat of death or serious harm to the

health, safety or welfare of a resident and

which require immediate correction.

1. Class I violations include all instances

where the Department of Children and Families

has verified that the licensee is responsible

for abuse, neglect, or abandonment of a child

or abuse, neglect or exploitation of a

vulnerable adult. For purposes of this

subparagraph, a licensee is responsible for

the action or inaction of a covered person

resulting in abuse, neglect, exploitation or

abandonment when the facts and circumstances

show that the covered person's action, or

failure to act, was at the direction of the

licensee, or with the knowledge of the

licensee, or under circumstances where a

reasonable person in the licensees' position

should have known that the covered person's

action, or failure to act, would result in

abuse, neglect, abandonment or exploitation

of a resident.

2. Class I viol ations may be penalized by a

moratorium on admissions, by the suspension,

denial or revocation of the license, by the

nonrenewal of lic ensure, or by a fine of up

to $ 1,000 dollars per day per violation.

Administrative sanctions may be levied

notwithstandi ng remedial actions taken by the

licensee after a Class I violation has

occurred.

3. All Class I violations must be abated or

corrected immediately after any covered

person acting on behalf of the licensee

becomes aware of the violation other than the

co vered person who caused or committed the

violation.

(No Class II or III violations were proven in this case.)

35. As indicated, implementing the penalty guideline rule

is not easy. However, taking all the pertinent factors into

consideration, revocation seems too harsh in this case. A more

appropriate penalty would be a $1,000 fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that APD enter a final order dismissing

Counts I and III, finding the Respon dent guilty under Count II,

and fining the Respondent $1,000.

DONE AND ENTERED this 20 th day of August , 2018 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrativ e 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 20 th day of August, 2018 .

ENDNOTE S

1/ Unless otherwise indicated, all statutory references are to

the 2017 version of the Florida Statutes, which is the version in

effect at the time of the alleged violations.

2/ Unless otherwise indicated, a ll rule citations are to the

rules that were in effect in late 2017, which are the rules that

were in effect at the time of the alleged violations .

3/ It appears that the correct spelling of this individualÓs name

is Tanesha Clarke. In the Transcript and several other places in

the evidence, a di fferent spelling is used.

COPIES FURNISHED:

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

T anya L ynn W arren

Aspiring Ambitions, LLC

3008 Spillers Avenue

Tampa, Flor ida 33619

(eServed)

Gypsy Bailey, Agency Clerk

Agency for Persons with Disabilities

Suite 335E

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

Suite 380

4030 Espl anade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

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.