18-004973FL Agency For Persons With Disabilities vs. Dale's Foster Home, Foster Home Owned And Operated By Krm Quality Care, Llc Status: Closed Recommended Order on Friday, August 30, 2019.

Summary: Agency failed to prove that foster home violated provisions governing background screenings, furnishing satisfactory financial ability, or making misstatements in its applications, such that revocation of license was improper.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES,

Petitioner,

vs. Case No. 18 - 4973FL

DALE'S FOSTER HOME, FOSTER HOME

OWNED AND OPERATED BY KRM

QUALITY CARE, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

Administrative Law Judge Andrew D. Manko of the Division of

Administrative Hearings (ÐDOAHÑ), pursuant to sections 120.569

and 120.57(1), Florida Statutes (2019), 1/ on November 27, 2018,

and March 20, 2019, by video teleconference between sites in

Tallahassee and Sarasota, Florida.

APPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanad e Way , Suite 380

Tallahassee, Florida 32399 - 0950

For Respondent: Marcia A. Taylor, Qualified Representative

Taylor Solutions Group, LLC

1221 Southwest 34 th Terrace

Cape Coral, Florid a 33914

S TATEMENT OF THE ISSUE

Whether RespondentÓs license as a group home should be

revoked for failing to comply with the requirements of

chapter 393, Florida Statutes, and Florida Administrative Code

C hapter 65G - 2 , as alleged in the Administrative Complaint

(ÐComplaintÑ).

PRELIMINARY STATEMENT

On July 25, 2018, the Agency for Persons with Disabilities

(ÐAPDÑ) filed a Complaint against DaleÓs Foster Home, which is

owned and operated by KRM Quality Care, LLC (referred to

individually as ÐDaleÓsÑ or ÐK RM,Ñ or collectively as ÐDaleÓsÑ),

and managed by its president, Dale Bogan. The Complaint alleged

violations of sections 393.0665 and 393.067, Florida Statutes,

and Florida Administrative Code Rules 65G - 2.007, 65G - 2.008, and

65G - 2.011, and sought to revo ke DaleÓs license.

On August 21, 2018, DaleÓs timely filed a response to the

Complaint, admitting to some of the factual allegations,

disputing the rest, and requesting a hearing.

On September 17, 2018, APD referred the Complaint to DOAH

to conduct a for mal administrative hearing under section 120.57.

The final hearing occurred over two days, beginning on

November 27, 2018, and concluding on March 20, 2019.

In its case - in - chief and rebuttal case, APD presented the

testimony of Nina Giordano, an APD hum an resources program

specialist, and Myra Leitold, APDÓs Suncoast Regional Office

residential program supervisor. PetitionerÓs Exhibits 1 through

20 were admitted into evidence. PetitionerÓs Exhibits 21 and 22

were not admitted into evidence, but were us ed to question

witnesses for impeachment purposes.

In its case - in - chief, DaleÓs presented the testimony of

Ms. Bogan and Jeffrey Smith, APDÓs Suncoast Regional Office

operations m anager. RespondentÓs Exhibits 1 through 3 were

admitted into evidence. 2/

A four - volume Transcript of the final hearing was initially

filed on July 10, 2019, but failed to comply with Florida Rule

of Appellate Procedure 9.200(b)(4) because it lacked pagination

and master indices listing the witnesses and exhibits. APD

filed the corrected Transcript on August 7, 2019 . The parties

timely filed their Proposed Recommended Orders (ÐPROsÑ) , which

were duly considered in preparing this Recommended Order.

FINDING S OF FACT

The Parties and Principal Allegations of the Complaint

1. APD is the state agency charged with licensing of

foster care facilities, pursuant to authority provided in

chapter 393 and chapter 65G - 2 and ensuring facility compliance

therewith.

2. KRM, operated as DaleÓs, is a licensed foster home

(#5442 - 3 - FA) in Wesley Ch apel, Florida, with a capacity of three

residents. DaleÓs obtained its license in 2012 and APD annually

renewed its license until 2018. Ms. Bogan, KRMÓs president,

manages the home and lives there with her husband, Celestine

Oliver, and their minor daugh ter. Their 21 - year - old daughter,

Justine Oliver, comes home from college over the summer. All

family members are background screened because they interact

with the foster children and, except for the minor daughter, all

have the required medical screenin gs because they also provide

care to the foster children. Ms. Bogan and Mr. Oliver own the

property where the home is located.

3. At all times relevant hereto, three minor children

resided in DaleÓs ÏÏ D.M., Z.M., and N.B. 3/ D.M. was a client of

APD, whic h contracted with DaleÓs to pay for his room and board

and other services provided by the home. 4/ N.B. was a client of

YMCA Sarasota. Z.M. was a client of Eckerd Connects Community

Alternatives (ÐEckerdÑ), though Ms. Bogan and her husband

adopted her in November 2018.

4. APD conducts monthly and annual license visits of

foster homes to ensure compliance with the law. During a

monthly visit, an inspector tours the home, observes staff with

the clients, audits one clientÓs file, and audits medications t o

ensure they are current and clients are receiving them. During

an annual visit, an inspector does a more thorough physical

walk - through and an in - depth audit of the files of all of the

staff and at least half of the clients.

5. On July 25, 2018, APD is sued a six - count Complaint

seeking to revoke DaleÓs license under section 393.0673 for the

following violations of statutes and rules:

I. Failing to timely notify APD about a

foreclosure action filed against Ms. Bogan,

as required by r ule 65G - 2.007(18)( a) and

(c);

II. Failing to have level two background

screening performed for two family members

from another country who stayed at the home

in and around January 2017, in viol ation of

section 393.0655(1)(d) ;

III. Willfully or intentionally misstating

its financial ability to operate the home in

the 2017 application despite the pending

foreclosure action, in violation of r ule

65G - 2.007(20)(a);

IV. Failing to have level two background

screening for a substitute caretaker who

stayed in the home with on e foster child

while Ms. Bogan was out of town in July

2017, as required by r ules 65G - 2.008(2) and

65G - 2.011(3), and making willful

misstatements about that issue to APD staff,

in violation of rule 65G - 2.007(20)(a);

V. Failing to furnish sufficient proo f of

it s financial ability to operate the

facility for at least 60 days in the 2018

application, as required by section

393.067(6), and willfully or intentionally

misstating its financial ability in that

application despite the bankruptcy petition,

in viol ation of rule 65G - 2.007(20)(a); and

VI. Willfully or intentionally misstating

in the 2018 application that Ms. Bogan was

not a Ðparty responsible for a licensed

facility receiving an administrative fine,Ñ

when she owned a facility that received two

prio r fines in 2008 and 2011, in violation

of rule 65G - 2.007(20)(a).

Foreclosure, Bankruptcy, & Financial Ability - Counts I, III, V

6. In 2010, Ms. Bogan hired an attorney to help her modify

the mortgage on the property. They were initially unsuccessful .

7. On June 25, 2013, the lender electronically filed a

notice of lis pendens to foreclose the mortgage on the property.

8. On January 3, 2018, a final judgment of foreclosure was

filed. The judgment scheduled a public sale for March 5, 2018.

9. On January 29, 2018, Ms. Bogan notified Ms. Giordano,

an APD inspector, about the foreclosure during a monthly visit.

This was the first time that Ms. Bogan had notified APD about

the pending foreclosure action.

10. On March 1, 2018, Ms. Bogan filed a petition for

personal bankruptcy in the U.S. Bankruptcy Court for the Middle

District of Florida based on the advice of foreclosure counsel.

She also filed a suggestion of bankruptcy in the pending

foreclosure action. As permitted, she applied to pay the $310

filing fee in the bankruptcy case in monthly installments.

11. Ms. Bogan filed for bankruptcy to stop the foreclosure

sale, which was accomplished by filing the suggestion of

bankruptcy. In November 2018, the lender modified the mortgage,

Ms. Bogan dismissed the bankruptcy petition, and they have

remained in the home ever since.

12. In Count I, APD alleged that DaleÓs violated rule 65G -

2.007(18)(a) by failing to Ðprovide notification to the Regional

office within two business days of receipt of a foreclosure

notice.Ñ Id.

13. Ms. Bogan admitted that the notice of lis pendens was

ÐelectronicallyÑ filed on June 23, 2013, but testified that the

notice was not served on her at the time, that she was unaware

of it because her attorneys were han dling the case, and that, in

any event, she did not know of the requirement to notify APD.

Ms. Bogan did not immediately notify APD of the foreclosure

judgment because she remained unaware of that requirement.

14. According to Ms. Leitold, APDÓs reside ntial program

supervisor in the Suncoast Regional Office, Ms. Bogan violated

the rule by failing to notify APD within two days of either:

the date the notice of lis pendens was filed, June 25, 2013, or

the date the foreclosure judgment was entered, Januar y 2, 2018.

15. Although there is no dispute about the dates on which

the notice of lis pendens and foreclosure judgment were filed ,

the record is devoid of evidence as to when Ms. Bogan received

those foreclosure pleadings, which is the triggering date un der

rule 65G - 2.007(18)(a). 5/

16. In Counts III and V, APD alleged that Ms. Bogan

willfully or intentionally misrepresented her financial ability,

in violation of rule 65G - 2.007(20)(a), by attesting as follows:

I hereby state that I have sufficient

capit al, income or credit to staff, equip,

and operate this facility in accordance with

Rule 65G - 2 for sixty days without dependence

on client fees or payments from the State of

Florida.

17. In Count III, APD alleged that the foreclosure action

proved Ms. Bog an lied in the 2017 application. In Count V, APD

alleged that the bankruptcy action proved Ms. Bogan lied in the

2018 application.

18. Ms. Bogan testified definitively that she never

willfully or intentionally lied about her financial ability in

either application. She maintained that DaleÓs has always had

sufficient capital to operate the home. Indeed, it continued to

operate throughout 2017 and 2018 while the foreclosure and

bankruptcy cases were pending, apparently without receiving

several monthly room and board payments or Medicaid payments for

services it provided, as confirmed by Mr. Smith.

19. APD acknowledged its burden to prove that Ms. Bogan

willfully or intentionally lied in the applications. But it

elicited no testimony from Ms. Bogan as to DaleÓs or her

financial situation in 2017 and 2018, or whether they had access

to the financial sources listed in the application, i.e. ,

capital, other income, or credit. It never asked Ms. Bogan

about the underlying circumstances of the foreclosure, why she

filed for bankruptcy, what she understood about the cases, or

what she intended by signing the attestation. Such evidence is

key to proving willful or intentional misstatements, especially

given Ms. BoganÓs credible testimony to the contrary.

20. APD chose instead to rely on the mere existence of the

foreclosure and bankruptcy actions (and that Ms. Bogan asked to

pay the filing fee in installments) to prove that she lied.

21. However, the foreclosure and bankruptcy filings offer

no insight in to DaleÓs financial ability, which is the applicant

and licensed entity. Although Ms. Leitold said APD considers

the financial ability of both the entity and individual owners,

the application explicitly refers to proof of financial ability

Ðof the licens ee.Ñ The attestation is also signed by the owner

on behalf of the facility and notes APDÓs right to request more

financial documentation from the Ðapplicant.Ñ The statute is in

accord. See £ 393.067(6), Fla. Stat. (ÐThe applicant shall

furnish satisfact ory proof of financial ability . . . .Ñ).

22. Even as to Ms. BoganÓs financial ability, the

foreclosure and bankruptcy pleadings offer little detail, much

less credibly undermine her testimony that she did not lie.

This is particularly so given that the bankruptcy apparently was

just a strategy to modify her loan.

23. Ms. LeitoldÓs testimony suffers a similar fate. She

conceded this was the first foreclosure action against a foster

home she had experienced and that she lacked knowledge of the

foreclos ure process and the rules of bankruptcy. She only

reviewed the pleadings filed by APD in this case and had not

researched other documents. She did not know if Ms. Bogan had

in fact paid the filing fee in installments, though she based

her belief that Ms. Bogan lied on that request.

24. In Count V, APD also alleged that DaleÓs failed to

furnish satisfactory proof of financial ability in its 2018

application, in violation of section 393.067(6).

25. With a renewal application, APD typically does not ask

for proof beyond an annual budget. Indeed, APD renewed DaleÓs

license in 2017 based on the budget alone. Ms. Leitold

testified that APD knew about the foreclosure and bankruptcy

cases in 2018, which is why she requested more documentation.

26. But th e record is unclear as to what Ms. Leitold

requested from Ms. Bogan, how she requested it, or what proof

would have been deemed sufficient; there also was substantial

confusion that APDÓs counsel and witness had about whether this

issue was even part of th e Complaint. 6/ The confusion about this

allegation and how it was handled bear directly on the weight of

the evidence and APDÓs burden in this proceeding.

27. What appears to be clear is that Ms. Bogan initially

submitted a budget and attested to DaleÓ s financial ability on

March 20, 2018. Presumably based on a request by Ms. Leitold,

Ms. Bogan submitted a revised budget, a new attestation signed

on June 2, 2018, and a bank statement in her daughterÓs name,

payable on death to Ms. Bogan, with a balance of $10,050.

28. Ms. Bogan believed she had provided all of the

information requested by APD to establish sufficient financial

ability and never heard otherwise. Indeed, APD had granted the

initial license in 2012 with proof of capital of only $7,000.

29. Ms. Leitold received the statement, but she deemed it

insufficient because the account was Ms. OliverÓs, who was not

an officer of KRM, and it was only payable on death to

Ms. Bogan. Ms. Leitold made this decision without knowing

whether and to wha t extent Ms. Oliver may be involved in the

business. She believed proof of financial ability of corporate

officers was required, though she conceded the law did not so

specify. Ms. Leitold never explained what document or amount

would have been satisfact ory or cite a statute or rule

articulating those standards.

30. Nevertheless, Ms. Leitold did not contact Ms. Bogan to

inquire, obtain clarification, or request more documentation.

She did not believe she was obligated to do so for a second

time, even t hough the attestation Ms. Bogan signed on June 2,

2018 ÏÏ the form sent to APD with the bank statement ÏÏ expressed

APDÓs right to request and obtain additional documentation to

substantiate financial ability.

Background Screenings Î Counts II and IV

31. In C ount II, APD alleged that DaleÓs failed to conduct

level two background screening s for two of Ms. BoganÓs family

members who were from another country and resided in the home,

in violation of section 393.0655(1)(d).

32. During a monthly visit on or around February 20, 2017,

Ms. Bogan informed Ms. Giordano that her sister and niece were

visiting from out of the country. Ms. Bogan credibly explained

that they were visiting the U.S. for about three months, but

would not be staying with her the entire time. She explained

that they ultimately stayed with her for about a week, went to

Atlanta for a few weeks, came back for two days, and then went

to New York for the rest of their trip.

33. APD presented no evidence as to when the visitors

arrived or left, ho w old they were, or whether they were alone

with the children or had access to their living areas.

Ms. Giordano testified that Ms. Bogan said the visitors would be

staying for four months, but confirmed that she did not know

when they arrived or how long they stayed. She also was unsure

as to when she saw the visitors at the home or how many times,

though she did not believe it was more than once or twice.

34. Upon learning of the visitors, Ms. Giordano was unsure

if they needed to be screened, so she asked Ms. Leitold.

Because Ms. Leitold had never dealt with a foreign visitor

before, she e - mailed an APD lawyer to inquire. In that e - mail,

Ms. Leitold confirmed that the home would accommodate the guests

and noted that the foster children lived on the first floor and

the guest rooms were on the second floor.

35. On February 21, 2017, the APD lawyer advised that the

visitors would need to have level two background screening

performed under section 393.0655(1)(d), as they were visiting

for four months and living at the home during their stay.

Ms. Leitold forwarded the response to Ms. Bogan and informed her

that she needed to conduct the level two screenings immediately.

36. Ms. Bogan attempted to obtain screenings for the

relatives, but could not bec ause they were not U.S. citizens.

She had name searches conducted by the Hillsborough County

SheriffÓs Office, which revealed no arrests for either visitor.

37. On March 23, 2017, Ms. Giordano conducted an annual

license inspection of DaleÓs and Ms. Boga n informed her that the

screens could not be obtained. There is no credible evidence

that the visitors were still there at that time, as Ms. Giordano

could not recall and, though Ms. Leitold believed they were, her

belief was not based on fact because she never visited the home

and had no independent knowledge. 7/

38. Because screens of the visitors could not be obtained,

APD required DaleÓs to sign a child safety plan to ensure that

the foster children were never left alone with them. The

evidence was un disputed that the visitors never stayed in the

home after the child safety plan was issued on March 28, 2017.

39. Despite APDÓs belief that DaleÓs had violated the law

by failing to obtain the screenings, it did not cite DaleÓs for

the violation at the time. Instead, it executed the safety

plan, allowed the children to stay in the home, and renewed

DaleÓs license in 2017 notwithstanding the purported violation.

40. In Count IV, APD alleged that DaleÓs violated

rule 65G - 2.008(2) by leaving a child with an unscreened person

while Ms. Bogan was out of town in July 2017.

41. In July 2017, Ms. Bogan traveled to Grenada. She

planned to take the YMCA child with her and arranged for the APD

child to stay with his parents. Ms. Bogan did not want to take

the 11 - year - old Eckerd child, who she and her husband have since

adopted, because she is severely mentally disabled.

42. Ms. Bogan did not, however, want to put the Eckerd

child in a respite home. Although Ms. BoganÓs 21 - year - old

daughter had the medic al screenings to serve as a caregiver,

Ms. Bogan did not want to place that responsibility solely on

her. Instead, Ms. Bogan asked her sister, Becky John, who was a

foster mom in Atlanta, to stay in the home with her daughters.

43. Before she arrived, Ms. John obtained her medication

administration assistance certification from APD, effective

March 2, 2017, and had sufficient background screening under

Georgia law. But, she could not obtain a level two background

screening for APD until she was present in Florida, so she

planned to obtain that screening upon arrival.

44. Ms. Bogan left first and took the YMCA child with her.

Her husband and two daughters remained in the home, all of whom

were background screened.

45. Ms. John arrived at the home la te at night on July 17,

2017. The next morning, Mr. Oliver departed for Grenada,

leaving the Eckerd child with his two daughters and Ms. John.

That same morning, however, an emergency required Ms. John to

travel back to Atlanta immediately. Ms. John had only been in

the house for about ten hours at that point.

46. Ms. Bogan credibly testified that she called an APD

respite home and asked it to keep the child for one day until

Ms. John returned from Atlanta, as she wanted the child to be

able to be in th eir home. Eckerd approved this plan. Ms. Bogan

informed Ms. Giordano and Ms. Leitold that Ms. John had been

screened in Georgia and had that documentation sent to APD.

47. Ms. John dropped the child off at the respite home on

her way back to Atlanta. She returned to Florida the next day

and got fingerprinted, but the home would not allow her to pick

up the child on instructions from APD. Several days later, on

July 21, 2017, the background screening was approved and APD

deemed Ms. John eligible.

48. Ms. Bogan decided to return home from Grenada early.

Upon her return, the respite home brought the Eckerd child back

to DaleÓs. The child had spent between 11 and 14 days there.

49. Ms. Giordano and Ms. Leitold offered conflicting

testimony, bu t neither of them visited or called the home.

Neither had personal knowledge of the details of Ms. JohnÓs

involvement or what transpired while Ms. Bogan was away. They

lacked consistent and definitive details about how they obtained

the out - of - state scre ening documents and who arranged for the

child to be moved to the respite home. They based much of their

testimony on what Ms. Bogan purportedly told them, which was in

stark contrast to her credible testimony to the contrary.

50. The witnesses also wa ivered at times while testifying.

For example, Ms. Giordano testified that Ms. Bogan called on

July 12, 2017, to say that her husband and family were with her

in Grenada, yet later testified that Ms. Bogan never mentioned

her daughters on that call. When asked whether she recommended

DaleÓs license be renewed with knowledge of this issue,

Ms. Giordano said she does not write a recommendation because

she has no say in that process. However, Ms. Giordano signed

the 2017 application checklist and attested, Ð I have reviewed

this application licensure package and, based upon the

information contained therein, recommend the issuance of a one

year license.Ñ Ms. Giordano also testified that having an

unscreened adult in the home is a violation even if Mr. Oliver

or his daughters were there, yet testified many times that

unscreened persons can be in the house for less than ten hours

per month as long as a screened caregiver is also there.

51. Based on the weight of the credible evidence, the

undersigned finds tha t Ms. John was in the house for less than

ten hours and was never alone in the house with the child, as

either Mr. Oliver or Ms. Oliver w as there at all times.

Prior Administrative Fines - Count VI

52. In Count VI, APD alleged that Ms. Bogan willfully o r

intentionally misstated in the 2018 application that neither

DaleÓs nor one of its controlling entities had ever been Ðthe

party responsible for a licensed facility receiving an

administrative fine,Ñ even though Ms. Bogan served as the

director of anothe r facility that had received administrative

fines. APD alleged a violation of rule 65G - 2.007(20)(a).

53. In 2005, Ms. Bogan and Mr. Oliver incorporated Welcome

Home Elite Kids, Inc. (ÐKidz, Inc.Ñ), serving as its officers.

That same year, Kidz, Inc., registered the fictitious name,

Creative World School Î New River (ÐCreative WorldÑ), which was

a franchise business owned by Ms. Bogan.

54. Creative World, initially licensed in 2005, was a

daycare with 29 employees and 172 children. Ms. Bogan was

ne ither trained nor licensed as a director. Instead, she hired

a director, Patricia Tiller, and an assistant director, who were

trained, licensed, and responsible for operations. Ms. Tiller

completed the schoolÓs license applications with the Department

of Children and Families (ÐDCFÑ).

55. In July 2017, Ms. Giordano reached out to DCF as to

whether Creative World had previously been disciplined. She did

this because Ms. Bogan mentioned owning a school in the past and

having an unfavorable view of inspe ctors, so Ms. Giordano

searched sunbiz.org for other entities owned by Ms. Bogan and

found Kidz, Inc. DCF ultimately forwarded a set of documents,

which included two administrative complaints against Creative

World that resulted in the imposition of fines totaling $225.

56. The first complaint, issued in 2008, named Ms. Tiller,

Director, Creative World, as respondent. The complaint sought

to impose $50 in fines for two staff training violations.

Ms. Bogan was neither named in nor served with the compl aint.

Creative World paid the fine on a check drafted on its petty

cash account, but the signature is not legible.

57. The second complaint, issued in 2010, named Kidz,

Inc., d/b/a Creative World , as respondent. The complaint

alleged that Ms. Tiller w as the director and sought to impose

$175 in fines for three violations. DCF served the complaint on

Ms. Tiller. Ms. Bogan was neither named in nor served with the

complaint. Creative World paid the fine on a check drafted on

its petty cash account, but the signature again is not legible.

58. Ms. Bogan credibly explained that, if there was a

prior fine, Ms. Tiller may have mentioned it to her but she did

not recall anything specific. Ms. Tiller was the director, had

access to the checks, and ran the business. It, thus, makes

sense why DCF Ós documents referred to Ms. Tiller and not

Ms. Bogan. And, given that the fines were over eight years old

and totaled only $225, it is not surprising that Ms. Bogan did

not recall them in 2018 , even if she kn e w of them years before.

59. Ms. BoganÓs testimony was largely unrebutted. None of

APDÓs witnesses could credibly testify that Ms. Bogan knew about

the fines, much less willfully or intentionally lied about them.

They had no knowledge of her involvement in t he business. APD

never asked Ms. Bogan if she knew about the complaints or had

her review them to jog her memory. It never asked any witness,

including Ms. Giordano (who had testified to being familiar with

Ms. BoganÓs signature as it related to the 2017 and 2018

applications), if Ms. Bogan signed the checks. These answers

could have shed light on Ms. BoganÓs memory and veracity.

FINDINGS OF ULTIMATE FACT

60. It is well settled under Florida law that determining

whether alleged misconduct violates a sta tute or rule is a

question of ultimate fact to be decided by the trier - of - fact

based on the weight of the evidence. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 6 53 So. 2d

489, 491 (Fla. 1st DCA 1995). D etermining whether the alleged

misconduct violates the law is a factual, not legal, inquiry.

61. APD has the burden to prove its allegations against

DaleÓs by clear and convincing evidence. Dep Ó t of Banking &

Fin . v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996);

AvalonÓ s Assisted Living, LLC v. Ag . for Health Care Admin . , 80

So. 3d 347, 348 - 49 (Fla. 1st DCA 2011) (citing Ferris v.

Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987) ) . As the Florida

Supreme Cou rt has stated:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as

to the facts in issue. The evidence must be

of such a weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slo mowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

62. Count I - Based on the findings of fact above, APD

failed to prove by clear and convincing evidence that DaleÓs

violated rule 65G - 2.007(18) , by not Ðprovid[ing] notification to

the Regional o ffice within two business days of receipt of a

foreclosure notice involving the property.Ñ Though the notice

of lis pendens was electronically filed on June 25, 2013, and

the final foreclosure judgment was filed on January 3, 2018, APD

presented no credib le evidence as to when Ms. Bogan received the

Ðforeclosure notice,Ñ which is the critical date triggering the

obligation to notify APD under rule 65G - 2.007(18).

63. Count II - Based on the findings of fact above, APD

failed to prove by clear and convinc ing evidence that DaleÓs

violated section 393.0655(1)(d) , by not obtaining level two

background screenings for two family members. The weight of the

credible evidence established that the family members visited

the home for no more than two weeks and, thu s, were not

Ðresiding with a direct services provider,Ñ as required to prove

a violation of section 393.0655(1)(d).

64. Count III - Based on the findings of fact above, APD

failed to prove by clear and convincing evidence that DaleÓs

violated rule 65G - 2 .007(20)(a). The weight of the credible

evidence did not prove that Ms. Bogan lied about DaleÓs or her

financial ability in the 2017 application or did so willfully or

intentionally, much less that such a lie concerned Ðthe health,

safety, welfare, abuse, neglect, exploitation, abandonment or

location of a residentÑ as required by rule 65G - 2.007(20)(a).

65. Count IV - Based on the findings of fact above, APD

failed to prove by clear and convincing evidence that DaleÓs

violated rule 65G - 2.008(2). Apart from the fact that APD failed

to cite what provision of section 393.0655 or chapter 435 was

violated, the weight of the credible evidence established that

Ms. John visited the home for less than ten hours and was never

alone in the house with the child wit hout a screened caregiver.

66. Count V - Based on the findings of fact above, APD

failed to prove by clear and convincing evidence that DaleÓs

violated rule 65G - 2.007(20)(a). The weight of the credible

evidence does not prove that Ms. Bogan lied about DaleÓs or her

financial ability in the 2018 application or did so willfully or

intentionally, much less that such a lie concerned Ðthe health,

safety, welfare, abuse, neglect, exploitation, abandonment or

location of a resident,Ñ as required by rule 65G - 2 .007(20)(a).

67. Count V - Based on the findings of fact above, APD

also failed to prove by clear and convincing evidence that

DaleÓs violated section 393.067(6) , by not furnishing

satisfactory proof of financial ability in its 2018 application.

APDÓs confusion as to this issue and the conflicting testimony

as to whether and to what extent more document s w ere requested

from Ms. Bogan make it impossible to find the evidence clear and

convincing. APD also failed to present credible evidence as to

the lev el of proof that it would have deemed satisfactory or

cite a statute or rule where such standards are articulated.

68. Count VI - Based on the findings of fact above, APD

failed to prove by clear and convincing evidence that DaleÓs

violated rule 65G - 2.007 (20)(a) , by swearing that she had not

been Ðthe party responsible for a licensed facility receiving an

administrative fineÑ in the 2018 application. The weight of the

credible evidence did not prove that Ms. Bogan even knew about

the prior fines or lied a bout them in the 2018 application, much

less that such a lie concerned Ðthe health, safety, welfare,

abuse, neglect, exploitation, abandonment or location of a

resident,Ñ as required by rule 65G - 2.007(20)(a).

CONCLUSIONS OF LAW

69 . DOAH has jurisdiction o ver the parties and the subject

matter of this case pursuant to sections 120.569 and 120.57(1) .

7 0 . ÐWhere a statute imposes sanctions and penalties in

the nature of denial or revocation of a license to practice for

violating its proscriptions, such a sta tute Òmust be strictly

construed and no conduct is to be regarded as included within it

that is not reasonably proscribed by it.ÓÑ McCloskey v. DepÓt

of Fin. Servs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013) (citing

Lester v. Dep Ó t of Prof Ó l & Occ . Regs. , 3 48 So. 2d 923, 925

(Fla. 1st DCA 1977)); accord Elmariah v. DepÓt of Prof Ól Reg. ,

574 So. 2d 164, 165 (Fla. 1st DCA 1990) (holding that a statute

imposing Ðsanctions or penaltiesÑ is Ðpenal in nature and must

be strictly construed, with any ambiguity inter preted in favor

of the licenseeÑ); see also Djokic v. Dep Ó t of Bus. & Prof Ó l

Reg. , 875 So. 2d 693, 695 (Fla. 4th DCA 2004) (same).

Count I

7 1 . APD alleged that DaleÓs committed a Class II violation

by failing to notify it within two business days of rece ipt of

the foreclosure notice, as required by rule 65G - 2.007(18)(a). 8/

7 2 . Under rule 65G - 2.007(18)(a), Ð[l]icensees must provide

notification to the Regional office within two business days of

receipt of a foreclosure notice involving the property at wh ich

the license is maintained.Ñ The failure to do so Ðshall

constitute a Class II violation.Ñ Id. at 65G - 2.007(18)(c).

7 3 . Based on the findings of fact and ultimate fact above,

APD failed to prove by clear and convincing evidence that DaleÓs

did not t imely notify it within two business days of receipt of

the notice of lis pendens or the foreclosure judgment. Although

there is no dispute as to the dates on which the notice of lis

pendens and foreclosure judgment were filed, the record contains

no admis sible evidence as to the date Ms. Bogan received the

Ðforeclosure notice,Ñ which is the critical date triggering the

obligation to notify APD as clearly expressed in the rule. Id.

Harsh as that result may seem, APDÓs burden in this licensure

case is to p rove a violation based on a strict construction of

the language of the rule. Elmariah , 574 So. 2d at 165.

7 4 . The undersigned rejects APDÓs argument that DaleÓs

admitted to this violation. In her response to the Complaint,

Ms. Bogan admitted to the al leged dates on which the pleadings

were filed and the date on which she notified APD, and argued

that any violation of rule 65G - 2.007(18) was an unintentional

oversight on her part. APDÓs counsel questioned her about this

response, but she was confused an d Ðguess[ed]Ñ about whether she

was admitting to the violations in this count ÏÏ as opposed to the

factual allegations. Based on a review of the record and the

weight of the credible evidence, the undersigned finds that

Ms. Bogan did not admit to the ultima te violation.

7 5 . Even had APD sufficiently proved a Class II violation,

revocation of DaleÓs license ÏÏ the only relief sought by APD in

its Complaint ÏÏ would be improper. Section 393.0673 authorizes

APD to revoke a license for failing to comply with cha pter 393

or its own rules, but APD adopted a rule limiting such authority

for Class II violations. Fla. Admin. Code R. 65G - 2.0041(4).

Although APD may revoke a license for a Class I violation or

where four or more Class II violations occur in one year, i t is

constrained to impose only a fine of $500 per day for a single

Class II violation. Id. Because APD failed to prove any other

violation as detailed below, revocation for a single Class II

violation is precluded by its rules. See Decarion v. Martinez ,

537 So. 2d 1083, 1084 (Fla. 1st DCA 1989) (ÐUnder section

120.68(12)(b), if an agency's action is inconsistent with its

rules, an appellate court must remand the case to the agency.Ñ).

7 6 . Revocation is also not supported by the factors APD is

require d to consider when imposing a sanction. Fla. Admin. Code

R. 65G - 2.0041(2). The failure to timely notify APD about the

foreclosure action did not result in any harm to the children or

otherwise involve abuse, neglect, exploitation, or abandonment.

Ms. Bo gan credibly explained that she had lawyers handling the

matter, which was an attempt to modify a bad mortgage. Despite

not knowing about the notification requirement, Ms. Bogan

nevertheless volunteered the information to Ms. Giordano during

a monthly vis it and ultimately succeeded in modifying the loan

and avoiding foreclosure. The undersigned finds that these

factors do not support revocation, even if that were a

permissible sanction based on a single Class II violation.

Count II

7 7 . APD alleged that DaleÓs failed to obtain level two

background screening for two family members who resided in the

home in July 2017, in violation of section 393.0611(1)(d).

78 . Pursuant to section 393.0655(1)(d):

(1) Minimum standards. Ï The agency shall

require le vel 2 employment screening

pursuant to chapter 435 for direct service

providers who are unrelated to their

clients, including support coordinators, and

managers and supervisors of residential

facilities or comprehensive transitional

education programs lice nsed under this

chapter and any other person, including

volunteers, who provide care or services,

who have access to a clientÓs living areas,

or who have access to a clientÓs funds or

personal property. Background screening

shall include employment histor y checks as

provided in s. 435.03(1) and local criminal

records checks through local law enforcement

agencies.

* * *

(d) Persons 12 years of age or older,

including family members, residing with a

direct services provider who provides

services t o clients in his or her own place

of residence are subject to background

screening; however, such persons who are 12

to 18 years of age shall be screened for

delinquency records only.

Thus, although homes must conduct level two screening s for

persons resi ding with a direct services provider, there is no

such requirement for those merely visiting . Id.

79 . Section 393.0655(1)(d) does not define Ðresiding,Ñ but

it has been defined as Ðto dwell permanently or continuously

[or] occupy a place as oneÓs legal domicile.Ñ Merriam - Webster

Dictionary, available at https://www.merriam - webster.com/

dictionary/reside (last visited Aug. 27, 2019). Residence is

defined as Ð[t]he act or fact of living in a given place for

some time.Ñ BlackÓs Law Dictionary at 1310 (7 th ed. 1999).

8 0 . Based on the findings of fact and ultimate fact above,

APD failed to prove by clear and convincing evidence that DaleÓs

violated this provision. The weight of the credible evidence

established that the two relatives visited the home f or one to

two weeks and, thus, were never ÐresidingÑ there. APD also

failed to present evidence of the visitorsÓ ages, even though

the statute requires no screening for persons under 12 and only

a search of delinquency records for those between 12 and 18.

Id. Without such evidence, APD cannot prove DaleÓs violated the

strict language of the statute. Elmariah , 574 So. 2d at 165.

8 1 . It also cannot be ignored that APDÓs inspectors were

unsure at the time if the visitors needed to be screened and had

to c onfer with an agency lawyer. That the statutory requirement

was unclear to APDÓs employees at the time buttresses the need

to strictly construe this provision against APD. McCloskey ,

115 So. 3d at 444; Elmariah , 574 So. 2d at 164. And, by the

time APD finally determined what the statute required, the issue

had been corrected as the visitors were gone.

8 2 . The undersigned rejects APDÓs argument that DaleÓs

admitted to this violation. APDÓs counsel questioned Ms. Bogan

about whether her request for a on e - time pardon in the response

to the Complaint was Ðan admission to Count II,Ñ to which she

said, Ðyes.Ñ However, the undersigned finds that the weight of

the credible evidence established that Ms. Bogan did not intend

to admit to this violation, particul arly where she maintained

throughout that she did not violate the statute because her

relatives were only visitors who were not residing in the home.

Count III

8 3 . APD alleged that Ms. Bogan made willful or intentional

misstatements about her financial ability in violation of rule

65G - 2.007(20)(a), by signing the following attestation in the

2017 application despite the existence of a foreclosure action

pending against her property:

I hereby state that I have sufficient

capital, income or credit to st aff, equip,

and operate this facility in accordance with

Rule 65G - 2 for sixty days without dependence

on client fees or payments from the State of

Florida.

8 4 . Pursuant to rule 65G - 2.007(20)(a):

A licensee or applicant shall not make

willful or intention al misstatements, orally

or in writing, to intentionally mislead

Agency staff, the Department of Children and

Families, or law enforcement in the

performance of their duties.

(a) Willful or intentional misstatements,

regarding the health, safety, welfare ,

abuse, neglect, exploitation, abandonment or

location of a resident shall be considered a

Class I violation.

8 5 . The terms ÐwillfullyÑ and ÐintentionallyÑ are not

defined in chapter 65G - 2. However, willful is defined as

Ð[v]oluntary and intentional, b ut not necessarily malicious.Ñ

BlackÓs Law Dictionary at 1593. Intentional is defined as

Ð[d]one with the aim of carrying out the act.Ñ Id. at 814.

8 6 . Based on the findings of fact and ultimate fact above,

APD failed to prove by clear and convincing e vidence that

Ms. Bogan willfully or intentionally misstated that DaleÓs had

sufficient capital, income, or credit to operate the home for

60 days without outside payments. APD presented no credible

evidence as to DaleÓs financial circumstances in 2017, h ow the

fact that a foreclosure action against Ms. BoganÓs property (not

owned by DaleÓs) meant the entity did not have sufficient

resources to operate the home, or that she intended to lie (and

did, in fact, lie) about DaleÓs ability to do so.

8 7 . Alth ough APD focused on Ms. BoganÓs financial ability

in the Complaint and at the hearing, the financial ability to

which Ms. Bogan attested was that of DaleÓs, the applicant and

licensee. Although the attestation in the application is

drafted in the first pe rson, Ms. Bogan signed on behalf of

DaleÓs. The application elsewhere requires proof of financial

ability Ðof the licenseeÑ and notes APDÓs right to request more

financial documentation from the Ðapplicant.Ñ Requiring proof

of financial ability of the Ða pplicantÑ is also consistent with

the statute. § 393.067(6), Fla. Stat.

88 . Even if Ms. Bogan had been attesting to her own

financial ability, the findings of fact and ultimate fact above

confirm that APD failed to meet its burden. As articulated in

pa ragraph 8 6 above , APD failed to present credible evidence

proving that Ms. Bogan lacked the requisite financial ability or

intentionally or willfully lied about it in the application.

89 . Nevertheless, even had APD sufficiently proved a

willful or intent ional lie, it failed to present any evidence

that such a lie concerned Ðthe health, safety, welfare, abuse,

neglect, exploitation, abandonment or location of a resident,Ñ

as required by rule 65G - 2.007(20)(a). APD cited that

subdivision in the Complaint an d must prove this violation based

on the strict language thereof. McCloskey , 115 So. 3d at 444;

Elmariah , 574 So. 2d at 165; Delk , 595 So. 2d at 967.

Count IV

9 0 . APD alleged that DaleÓs committed a Class I violation

when it failed to ensure that a subst itute caregiver was

background screened, as required by rule 65G - 2.008(2). 9/

9 1 . Rule 65G - 2.008(2) states that Ð[t]he licensee must

comply with the screening requirements established in Section

393.0655, F.S. and Chapter 435, F.S. A violation of this

s ubsection shall constitute a Class I violation.Ñ

9 2 . Section 393.0655(1) requires level two background

screening for persons who provide services, have access to a

clientÓs living areas, or have access to a clientÓs funds or

personal property. ÐA volu nteer who assists on an intermittent

basis for less than 10 hours per month does not have to be

screened if a person who meets the screening requirement of this

section is always present and has the volunteer within his or

her line of sight.Ñ Id. at § 393 .0655(1)(a).

9 3 . However, APD did not allege in the Complaint what

minimum standard of section 393.0655 or chapter 435 was not

followed, even though that is required before a violation of

rule 65G - 2.008(2) can be found. This failure is fatal to the

alleg ed violation of rule 65G - 2.008(2).

9 4 . Regardless, based on the findings of fact and ultimate

fact above, APD failed to prove by clear and convincing evidence

that DaleÓs violated rule 65G - 2.008(2) or section 393.0655. The

weight of the credible eviden ce showed that Ms. John visited the

home for less than ten hours and was never alone in the house

with the child without at least one properly screened caregiver

present ÏÏ Mr. Oliver, the first few hours, and Ms. Oliver, the

remaining few hours. Even APDÓs inspector agreed that a visitor

(which is how APDÓs witnesses characterized Ms. John) need not

be screened if they stay in the house for less than ten hours

per month and are never left alone with the children in the

house without a properly screened work er.

Count V

9 5 . APD alleged that Ms. Bogan made willful or intentional

misstatements in violation of rule 65G - 2.007(20)(a), by

attesting to her financial ability in the 2018 application

despite the existence of a pending bankruptcy action and

requestin g to pay the filing fee in installments.

9 6 . Based on the findings of fact and ultimate fact above,

APD failed to prove by clear and convincing evidence that

Ms. Bogan willfully or intentionally misstated DaleÓs financial

ability. APD presented no evid ence as to DaleÓs finances in

2018, how the fact that Ms. Bogan filed for personal bankruptcy

had any bearing on whether DaleÓs had sufficient resources to

operate the home, or that she intended to lie (and did, in fact,

lie) about DaleÓs ability to do so. As noted above, the

financial ability to which Ms. Bogan attested was that of

DaleÓs, not herself. £ 393.067(6), Fla. Stat.

9 7 . Even had Ms. Bogan been attesting to her own financial

ability, APD failed to meet its burden based on the findings of

fact and ultimate fact above. As articulated in paragraph 9 6

above , APD failed to present credible evidence establishing that

Ms. Bogan lacked the requisite financial ability or willfully or

intentionally lied about it in the application. This is

especially s o where Ms. Bogan employed the bankruptcy proceeding

as a tool to stop the foreclosure sale , successfully negotiated

a modified mortgage, and operated DaleÓs throughout 2018 without

full payment for room and board and other services provided.

98 . Moreov er , even had APD proved that Ms. Bogan willfully

or intentionally lied about her financial ability in the 2018

application, it failed to present any evidence that such a

misstatement concerned Ðthe health, safety, welfare, abuse,

neglect, exploitation, aba ndonment or location of a resident.Ñ

Fla. Admin. Code R. 65G - 2.007(20)(a). Again, APD cited that

subdivision in its Complaint and is obligated to prove that

violation based on the strict language thereof. Elmariah , 574

So. 2d at 164; Delk , 595 So. 2d at 967.

99 . APD also alleged that DaleÓs failed to furnish

sufficient proof of its financial ability with its 2018

application, in violation of section 393.067(6).

10 0 . Pursuant to section 393.067(6), an Ðapplicant shall

furnish satisfactory proof of finan cial ability to operate and

conduct the facility or program in accordance with the

requirements of this chapter and adopted rules.Ñ

10 1 . Based on the findings of fact and ultimate fact

above, APD failed to prove by clear and convincing evidence that

DaleÓ s violated section 393.067(6). APDÓs confusion as to this

issue, along with the conflicting testimony as to whether and to

what extent more documentation was requested from Ms. Bogan,

make it impossible to find the evidence clear or convincing.

10 2 . Th e statute also does not define Ðsatisfactory proof

of financial abilityÑ or express what form or level of proof

would be deemed Ðsatisfactory.Ñ Although the application

requires sufficient capital to operate without outside payment

for 60 days, APD failed to identify and the undersigned could

not find any statutory provisions or rules setting forth a

standard for how APD evaluates this requirement ÏÏ not only as to

the type and amount of resources, but also the level of proof.

That alone undermines APDÓs abi lity to prove the violation given

the undersignedÓs duty to strictly construe the provision in

favor of DaleÓs. McCloskey , 115 So. 3d at 444 ; Elmariah ,

574 So. 2d at 164. And, given the lack of a definitive standard

that puts regulated entities on notic e, it was unfair and

arbitrary for APD not to ask for clarification or more

documentation once it deemed the bank statement insufficient.

See Breesmen v. Dep Ót of Prof Ól Reg . , 567 So. 2d 469, 471 (Fla.

1st DCA 1990 ) (Ð Basic due process requires that a prof essional

or business license not be suspended or revoked without adequate

notice to the licensee of the standard of conduct to which he or

she must adhere. Ñ).

10 3 . Moreover, APD failed to prove that Ms. BoganÓs proof

was unsatisfactory. The budget alone should have been enough

(as in years past), given that the foreclosure and bankruptcy

were not indicative of a lack of financial ability as the

findings above reflect. The bank statement with $10,000 also

should have been enough, given that Ms. BoganÓs in itial

application in 2012 was approved with just $7,500 of capital.

And, regardless, the evidence showed that Ms. Bogan operated

DaleÓs throughout 2018 ÏÏ even without full payment for room and

board and Medicaid reimbursement ÏÏ which proves she had the

abil ity to do so despite the foreclosure and bankruptcy cases.

Count VI

10 4 . APD alleged that Ms. Bogan willfully or intentionally

misstated in the 2018 application that neither DaleÓs nor one of

its controlling entities had ever been Ðthe party responsible

for a licensed facility receiving an administrative fine,Ñ even

though another facility of which Ms. Bogan served as the

director had received a $50 administrative fine in 2008 and a

$175 administrative fine in 2011. APD alleged a violation of

rule 65G - 2 .007(20)(a).

10 5 . Based on the findings of fact and ultimate fact

above, APD failed to prove by clear and convincing evidence that

Ms. Bogan willfully or intentionally lied about the prior fines

at Creative World. The weight of the credible evidence sh owed

that Ms. Bogan, though the franchise owner and a controlling

entity, did not recall the two fines and, thus, did not lie

about them on the application. Ms. BoganÓs failure to recall

the fines is not surprising either, as Ms. Tiller was the

schoolÓs d irector and operator who was served with and named in

the complaints, and the two fines , totaling o nly $225 , were paid

over eight years before.

10 6 . Moreover, the statement in the application referred

to Ðthe party responsible for a licensed facility rec eiving an

administrative fine.Ñ Contrary to APDÓs contention, this

suggests to the undersigned that the question related to the

actual person in charge of facility operations, whose conduct

caused the facility to receive the fine. Yet, here, the

evidence is undisputed that Ms. Bogan was not the director, she

was not involved in the operations, and it was not her conduct

that caused Creative World to be fined. APD also never

questioned Ms. Bogan about her understanding of the question,

which is critical t o proving that she willfully or intentionally

lied in answering it.

10 7 . Even had APD proved that Ms. Bogan willfully or

intentionally lied, it failed to present any evidence that such

a misstatement concerned Ðthe health, safety, welfare, abuse,

neglect , exploitation, abandonment or location of a resident.Ñ

Fla. Admin. Code R. 65G - 2.007(20)(a). Again, APD cited that

subdivision in the Complaint and is obligated to prove that

violation based on the strict language thereof. Elmariah ,

574 So. 2d at 164; Delk , 595 So. 2d at 967.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities issu e a final order dismissing the Administrative

C omplaint against DaleÓs Foster Home .

DONE AND ENTERED this 30 th day of August , 2019 , in

Tallahassee, Leon County, Florida.

S

ANDREW D. MANKO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 30 th day of August , 2019 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (201 9 )

b ec ause there have been no material changes to the substantive

laws and rules charged from the versions in effect when the acts

occurred . T he current versions are cited for ease of reference.

2/ RespondentÓs Exhibit 2 contains pleadings filed in Case

No. 8:18 - bk - 01586 - MGW, a chapter 13 bankruptcy case filed by

Ms. Bogan as debtor in the U.S. Bankruptcy Court for the Middle

District of Florida. APD moved for official recognition of the

record in that case and the undersigned granted that request at

the fin al hearing.

3/ To maintain the confidentiality of these minor children, the

undersigned refers to them by initials only.

4/ Prior to the first hearing date, DaleÓs filed a motion to

reinstate payment under its Medicaid waiver agreement with APD.

The motion noted that APD cancelled DaleÓs contract, that DaleÓs

had been providing services to the APD client without

reimbursement, and that payment should be reinstated during the

pendency of the proceedings because APD had allowed its client

to remain in the facility. In attached correspondence, APDÓs

counsel informed DaleÓs that the contractual issue was separate

from the licensing issue pending at DOAH.

At the beginning of the hearing, this motion was addressed.

Counsel for APD acknowledged that the agency contracted with

facilities to pay them under Medicaid for services provided and

that the contracts allowed either party to terminate with

notice. Counsel maintained that the undersigned lacked

jurisdiction to rule on or hear evidence about cont ract issues

like this based on Diaz v. Agency for Health Care

Administration , 65 So. 3d 78 (Fla. 3d DCA 2011). The

undersigned asked whether this license revocation proceeding is

what caused the contract to be cancelled and counsel for APD

said, ÐI donÓt know that for a fact.Ñ But the undersigned

acknowledged that the case pending before him related solely to

the Complaint and the allegations therein. DaleÓs qualified

representative argued that, even if jurisdiction was lacking,

the issue was critical be cause APD has continued to license

DaleÓs during the pendency of the case, left its client in the

home where DaleÓs is providing the services, and cut off payment

for those services as a punishment. The undersigned informed

the parties that he would take the issue under advisement and

would address it in his recommended order, but that DaleÓs would

be permitted to present evidence on that issue.

DaleÓs questioned Ms. Leitold, APDÓs witness, about the

Medicaid waiver issue. Counsel for APD repeatedl y objected to

this line of questioning as irrelevant and beyond the

jurisdictional scope of the proceedings. DaleÓs contended that

such evidence was relevant to refute Counts I, III, and V,

because it showed DaleÓs financial ability to operate the

facilit y even without Medicaid reimbursement. The undersigned

overruled the objections based on his prior pronouncement.

On December 7, 2018, the undersigned held a teleconference

to discuss the continuation of the final hearing, at which

DaleÓs again raised the Medicaid waiver issue because it was

still not receiving reimbursement for services provided.

Counsel for APD maintained that APD did not have authority over

the Medicaid payments and had little to nothing to do with it,

as it was a contractual issue between DaleÓs and the Agency for

Health Care Administration (ÐAHCAÑ). He agreed, however, that

AHCAÓs contract with DaleÓs was likely cancelled as a result of

this license revocation proceeding.

The undersigned agreed with APDÓs argument tha t he lacked

jurisdiction to order reinstatement of the payment, as it was

beyond the scope of the Complaint and apparently related to an

agency that was not a party to the case. But , the undersigned

stressed his concern over the issue and encouraged the p arties

to resolve it to protect the welfare of the child, as that was

APDÓs primary reason for seeking to revoke DaleÓs license.

After the teleconference, both parties moved to disqualify

the otherÓs counsel/representative. APD moved to disqualify

DaleÓs qualified representative on grounds that she violated

Florida Administrative Code Rule 28 - 106.107(3)(f) by

communicating with Mr. Smith about the Medicaid waiver issue.

The undersigned denied that motion in a detailed order on

December 19, 2018, o n grounds that: (1) the communication was

permissible under rule 28 - 106.107(3)(f), which only precluded

communications about matters within the scope of the proceeding,

particularly where APD had consistently maintained that this

issue was irrelevant and that the undersigned lacked

jurisdiction to resolve it ÏÏ a point the undersigned definitively

agreed with at the teleconference held on December 7, 2018; and,

regardless, (2) Rule Regulating the Florida Bar 4 - 4.2 and the

comments thereto made clear that com munications between lawyers

and government officials are permissible even about a matter at

issue in a controversy.

Notwithstanding that ruling, APDÓs counsel apparently

continued to refuse to allow Mr. Smith to speak with DaleÓs

qualified repres entative or Ms. Bogan about the Medicaid issue.

As such, DaleÓs moved to disqualify APDÓs counsel for violating

rule 28 - 106.107 and breaching his duty of candor to the

tribunal. DaleÓs also filed a motion seeking clarification as

to how it can reinstate the payments when APD is refusing to

discuss the issue with them. Because the Medicaid waiver issue

is beyond the scope of the proceedings, the undersigned now

denies DaleÓs pending motions to reinstate the Medicaid waiver

payments and the motion for clar ification relating thereto.

On December 21, 2018, a teleconference was held on the

motion to disqualify APDÓs counsel . APDÓs counsel maintained

that the agencyÓs position was that its employees are not

permitted to communicate directly with lawye rs or qualified

representatives about any issues when there is pending

l itigation, notwithstanding the B ar rules. When the undersigned

asked why he would preclude such communications even after the

undersigned had just issued an order expressly concluding that

such discussions should be permitted, APDÓs counsel maintained

that the order solely denied a motion to disqualify and that the

reasoning did not preclude him from continuing to forbid the

communications. The undersigned expressed his concern about

whether APDÓs counsel breached his duty of candor to the

tribunal and whether he had violated at the least the spirit of

the prior order, but reserved ruling on the issue until he had a

chance to review the transcript. The undersigned also permitted

DaleÓ s to present the testimony of Mr. Smith at the continuation

of the final hearing on any issues relevant to the Complaint or

the pending motion to disqualify.

The continuation of the hearing occurred on March 20, 2019.

Mr. Smith testified that he u ltimately spoke to Ms. Bogan and

exchanged e - mails with her about room and board payments and

briefly about how she could re - apply for the Medicaid waiver

contract. Mr. Smith confirmed he would be permitted to speak to

Ms. Bogan or her representative abou t that issue.

After review of the entire record in the case, including

the transcript and the relevant pleadings, the undersigned

concludes that disqualification of APDÓs counsel is not

justified under these facts. Importantly, however, APDÓs

counse l is cautioned that his conduct ÏÏ particularly after the

undersigned ruled that such communications were permissible ÏÏ

treaded close to the ethical line and that similar conduct in

the future could result in disqualification, referral to the

Bar, or other sa nctions deemed appropriate based on the

circumstances.

5/ APD failed to ask Ms. Bogan questions about when she was

served with the lis pendens or when she actually received it.

It also failed to introduce evidence of proof of service or

receipt. Indeed , the lis pendens notes the electronic filing

and recording dates, but does not include a certificate of

service. APD also withdrew its motion for official recognition

of the foreclosure case as moot, as the purpose of the motion

was to obtain admission o f three foreclosure pleadings ÏÏ the

notice of lis pendens, the foreclosure judgment, and the

suggestion of bankruptcy ÏÏ and those pleadings had already been

admitted in evidence. As noted in endnote 2, the undersigned

granted APDÓs renewed motion for offici al recognition, but only

as to the bankruptcy case. Thus, the entire record in the

foreclosure case was not in evidence. A s such, the undersigned

did not consider Ms. BoganÓs purported response to the lis

pendens, attached as Exhibit A to APDÓs PRO, whic h was neither

introduced by APD nor admitted in evidence at the hearing.

6/ The following summarizes the confusion that APDÓs counsel and

its witness had about this issue. APD filed two exhibits in the

record relating to the 2018 application. Petitione rÓs Exhibit 2

contains portions of the 2018 application, including a budget

projecting $50,000 in revenue and an attestation as to financial

ability signed by Ms. Bogan on March 20, 2018. PetitionerÓs

Exhibit 17 contains three pages, including a budget pr ojecting

$120,000 in revenue, an attestation signed by Ms. Bogan on

June 2, 2018, and a copy of a bank statement for Justine Oliver,

p ayable on d eath to Ms. Bogan, with a balance of $10,050.

Ms. Leitold testified initially that the 2018 application

lacked sufficient proof of financial ability and that Ms. Bogan

never produced bank statements. She Ðbelieve[d]Ñ she asked

DaleÓs to provide those documents. However, when DaleÓs asked

her about a bank statement that Ms. Bogan had submitted, which

Ms. L eitold agreed she had received, APD objected and argued

that this testimony was irrelevant because the count was solely

based on the alleged misstatements about financial ability in

the 2018 application. Unbeknownst to the undersigned at that

time, this w as incorrect as APD had also alleged that DaleÓs

failed to furnish satisfactory proof.

Ms. Bogan thereafter testified that she submitted a bank

statement with the 2018 application , showing a balance of about

$10,000 , and that APD never informed her that it was

insufficient. At that point, the undersigned identified the

additional allegation in the Complaint and a discussion ensued.

Ms. Leitold testified ÏÏ contrary to what she said earlier that

day ÏÏ that Ms. Bogan had in fact submitted a bank statem ent.

Then, moments later, Ms. Leitold said she had been confused.

She now believed that the statement Ms. Bogan submitted was to

support an application for a new facility and that she e - mailed

Ms. Bogan to inform her that the statement was insufficient,

though no such e - mail was offered or admitted in evidence .

Ms. Leitold based this belief on the fact that PetitionerÓs

Exhibit 2 comprised DaleÓs complete 2018 application and, given

that the statement was omitted from that exhibit, it must not

have been submitted to support the 2018 application.

On the second day of the hearing, Ms. Leitold now believed

she had requested financial documentation from Ms. Bogan to

support the 2018 application, though she could not recall how

she requested it or what exactly she requested. But, she

believed Ms. Bogan submitted the statement in response to that

request. Ms. Leitold also testified that PetitionerÓs Exhibit 2

was not the complete application, contrary to what she said

earlier.

The undersigned d oes not intend to besmirch APDÓs counsel

or its witness with these details. However, the fact that there

was substantial confusion must be considered in evaluating the

weight of the evidence and whether APD met its burden.

7/ APDÓs testimony on this is sue was not as credible as that of

Ms. Bogan. For one, neither witness had actual knowledge about

the visitors, when they came, or how long they stayed. Further,

both witnesses offered conflicting testimony as to the

background screening requirements. M s. Giordano testified that

anyone staying at a home for more than ten hours per month was

required to be background screened. However, the only provision

in section 393.0655 that discusses a minimum hour requirement is

subsection (1)(a) and that provision only applies to volunteers,

which undisputedly does not apply here. Ms. Giordano also

testified that she told Ms. Bogan every time she saw a visitor

in the home about the ten - hour rule, including when she

encountered the two relatives. Yet, at the same time, she

admitted being unsure about the requirements for the relatives

on the day she encountered them, so she asked Ms. Leitold.

Ms. Leitold testified that visitors from outside the

country should not be staying in the licensed home if a level

t wo background screening cannot be done, relying on sections

435.03 and 435.04, Florida Statutes. Yet, she admitted that

those provisions do not explicitly refer to visitors. In truth,

both sections require background screenings for employees, not

visitor s like the relatives at issue here.

8/ The undersigned rejects APDÓs belated attempt to argue in its

PRO that DaleÓs committed a Class II violation under rule 65G -

2.007(18)(b), as it failed to allege a violation of that

subdivision in its Complaint. See Delk v. DepÓt of ProfÓ l Reg. ,

595 So. 2d 966, 967 (Fla. 5th DCA 1992) (holding that due

process means that Ðthe proof at trial or hearing be that

conduct charged in the accusatorial documentÑ). Regardless,

subdivision (b) concerns receipt of a ÐNotice of EvictionÑ and

the record is devoid of evidence that such a notice was served

on Ms. Bogan, which is not surprising since the property was

never sold at auction.

9/ In its Complaint, APD also alleged that DaleÓs violated:

(1) rule 65G - 2.011(3), by faili ng to have at least one back - up

direct care staff with level two background screening staying

with the child; and (2) rule 65G - 2.007(20)(a), by making willful

or intentional misstatements to APD staff about the screening

performed on the substitute care giv er . APD abandoned those

alleged violations by omitting any reference or proposed

findings about them in its PRO.

Even if they had been preserved, APD failed to meet its

burden as to each violation. As to rule 65G - 2.011(3), that

provision requires facilities with live - in caregivers to have at

Ðat least one back - up direct care staff, who has undergone a

successful background screening in accordance with Section

393.0655, F.S. and Chapter 435, F.S., that would be willing and

able to render services t o residents in the event that neither

of the live - in caregivers are able to do so.Ñ However, based on

the findings of fact and ultimate fact above, APD failed to

prove by clear and convincing evidence that DaleÓs violated this

rule. The weight of the cre dible evidence established that

Ms. BoganÓs 21 - year - old daughter, who was in the home the entire

time that Ms. John was there, had all of the requisite

background and medical screenings to act as the substitute

caregiver. Indeed, Ms. Giordano conceded th at Ms. Oliver may

have had sufficient screening, though she did not recall.

As to rule 65G - 2.007(20)(a), APD failed to prove by clear

and convincing evidence that Ms. Bogan made willful or

intentional misstatements to APD staff about the screenin g

performed on the substitute care giver . The weight of the

credible evidence does not establish that Ms. Bogan lied to APD

staff about the background issue, much less that she did so

intentionally or willfully, as required by the rule. Id.

COPIES FURNIS HED:

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Marcia A. Taylor

Taylor Solutions Group, LLC

1221 Southwest 34 th Terrace

Cape Coral, Florida 33914

(eServed)

Dale Bogan

Dale's Foster Home

5214 Windingbrook Trail

Wesley Chapel, Florida 33544

Danielle Thompson, Senior Attorney/Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 309

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Dit schler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara P almer, Director

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0 950

(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.