19-001812FL Agency For Persons With Disabilities vs. Meadowview Progressive Care Corporation Group Home, Owned And Operated By Meadowview Progressive Care Corporation Status: Closed Recommended Order on Tuesday, November 26, 2019.

Summary: Petitioner failed to prove by clear and convicing evidence that verified report of maltreatment named licensee as perpetrator, that licensee lied on renewal application, or that licensee employed an unscreened person.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES ,

Petitioner,

vs. Case No. 19 - 1812FL

MEADOWVIEW PROGRESSIVE CARE

CORPORATION GROUP HOME , owned

and operated by MEADOWVIEW

PROGRESSIVE CARE CORPORATION,

Respondent .

_______________________________

RECOMMENDED ORDER

On August 16 , 2019 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Lauderdale

Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Trevor Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

For Respondent : G. Barrington Lewis, Esquire

Law Of fice of George B. Lewis

10061 53rd Way South, Suite 1004

Boynton Beach, Florida 33437

STATEMENT OF THE ISSUE S

The issue s are whether , pursuant to section 393.0673(1),

Florida Statutes (2018), Respondent, which holds a license to

operate a group home facility, was identified in a verified

report by the Department of Children and Families (DCF) as the

perpetrator of exploitation of a vulnerable adult , failed to

disclose on a renewal application a perpetrator of " the . . .

abuse, neglect, or exploitation of a vulnerable adult"

(Maltreatment), 1 and allowed a new employee to begin working at

the group home before complet ing all of the background screening

requirements; and, if so, what penalty shoul d be imposed against

Respondent's license .

PRELIMINARY STATEMENT

On March 1, 2019, Petitioner issued an Administrative

Complaint against "Meadowview Progressive Care Corporation Group

Home, owned and operated by Meadowview Progressive Care

Corporation , " which are , respectively, a group home and the

corporate licensee. Citing group home facility license number

11 - 258 - GH (License) , t he Administrative Complaint alleges that

Meadowview Progressive Care Corporation (Respondent) holds the

L icense to operate a group home located at 19740 Northwest 32nd

Avenue , Miami Gardens (Group Home) . The Administrative Complaint

alleges that Respondent's corporate officers are Etha Griffith ,

Kim Griffith , and Francis Griffith .

Count I alleges that Respondent was responsi ble for the care

of seven disabled adults . Count I alleges that DCF conducted a

protective investigation of allegations of financial exploitation

of these seven persons "cared for by Respondent and Etha

Griffith , Respondent's corporate officer." Count I alleges

that DCF issued a verified report of exploitation against

Etha Griffith for improperly us ing the funds of these seven

residents (Verified Report) . Count I concludes that Petitioner

may revoke a license if DCF verifies "that the licensee is

respons ible for the . . . abuse, neglect, or exploitation of a

vulnerable adult. " § 393.0673, Fla. Stat .

Count II alleges that , on November 12, 2018, Respondent's

corporate officer, Etha Griffi th , submitted to Petitioner a

license renewal application on behalf o f Respondent

(Application) . Count II alleges that Etha Griffith attested to

the truth of the answers supplied in response to questions asked

in Section V of the A pplication , which is marked, "Affidavit."

Count II alleges that Etha Griffith answered "no" to the question

in Section V, Item 2 that asks whether "you or ownership

controlling entity affiliated with this application" was "ever

identified as responsible for . . . the abuse, neglect, or

exploitation of a vulnerable adult?"

Count II alleges that DCF closed the above - described

protective investigation with a verified finding of exploitation

against "Respondent Etha Griffith ." Count II alleges , f irst,

that Etha Griffith's nondisclosure of a verified finding of

exploitation c onstituted a "willful or intentional misstatement

regarding the health, safety, welfare, abuse, neglect,

exploitation, abandonment, or location of a resident" and thus

constitutes a Class I violation, as provided in Florida

Administrative Code Rule 65G - 2.0 07(20)(a). Count II alleges,

second, that Etha Griffith's nondisclosure of a verified finding

of exploitation constituted a "falsely represented material fact"

in a license application, in violation of section 393.067. Count

II concludes that Petitioner may deny a renewal application if

"the licensee has "falsely represented or omitted a material

fact" in its application, as provided by section 393.0673.

Count III alleges that, on January 15, 2019, Huguette

Bastien Meliard was employed by Respondent and working at the

Group Home, despite the absence, in her personnel file, of

documentation of background checks of her local criminal record

and employment history. Count III alleges that these omissions

violated the requirement of a preemployment level 2 s creening,

pursuant to sections 393.0655(1) and 435.01, Florida Statutes, so

as to constitute a Class I violation , as provided by

Rule 65G - 2.008(2) . The Administrative Complaint concludes that

Petitioner may revoke Respondent's license or impose a lesser

p enalty.

By Petition for Formal Administrative Hearing filed

March 27, 2019, Respondent claimed that DCF never informed it or

Etha Griffi th of a finding of exploitation, Etha Griffi th

answered honestly the question asked in Section V, Item 2, and

Ms. Meliar d had not yet been hired by Respondent on January 15,

2019.

On August 14, 2019, the parties filed a Pre h earing

Stipulation. T he second sentence of the portion of the

stipulation entitled, "Stipulated Facts and Nature of the

Controversy," states that, on March 21, 2019, Petitioner filed

"administrative complaints" to revoke "licenses" of Respondent.

The first sentence identifies a group home facility license for a

group home located at 2331 West Lake Miramar Circle, Miramar

(Miramar Group Home). 2 However , there is only one administrative

complaint in this proceeding, and it proposes discipline only

against the L icense for the Group Home.

T he first sentence also mis states that the two licenses are

held by "Meadowview Progressive Care Corpor ation Group Home and

Meadowview Progressive Care Corporation 2 Owned and operated by

[Respondent]." Regarding the license for the Miramar Group Home,

Petitioner offered into evidence applications that indicate that

the license e is " Meadowview Progressive Care, Inc. , " not

Respondent.

The administrative law judge hereby strikes these sentences

from the Prehearing Stipulation. 3

At the hearing, Petitioner and Respondent each called two

witness es . The only exhibits admitted were pages 28 through 39

of Petitioner Composite Exhibit 2, 4 which are the Application and

the Certificate of License that the Application sought to renew,

and Respondent Composite Exhibit H , which are emails between

Kim Griffith and the DCF protective investigator who prepared the

V erified Report .

The court reporter filed the transcript on October 17 , 2019.

The parties filed their proposed recommended orders by

October 25, 2019.

FINDING S OF FACT

1. At all material times, as authorized by the License,

Respondent , a Florida not - for - profit corporation, has provided

services to intellectually disabled persons residing at the Group

Home . At all material times, Respondent's directors have been

Etha Griffith , her daughter Kim Griffith , and Francis Griffith .

The record does not disclose if Respondent has any members.

Etha Griffith , who is 79 years old, serves as an officer and the

onsite manager of the group home , for which K im Griffith and

Francis Griffith serve as the backup manager s or supervisor s of

the G roup H ome.

2 . Petitioner presented no admissible evidence in support

of Count I . Pr ominent among the excluded evidence is the

Verified Report , as to which Petitioner failed to demonstrate its

relevance, as explained in the Conclusions of Law, or its

authenticity, given that it is unsigned and bears other indicia

of an investigation that, although closed, was never completed . 5

3 . In support of Count II, Petitioner introduced the

Application , 6 which was filed on November 12, 2018 .

Etha Griffith 7 completed the Application by providing the

information requested on Petitioner's application form , which

serves a natural person or legal entity who or that is an

applicant or license e seeking the issuance or renewal of a group

home facility license (Appl ication Form). Etha Griffith signed

the Application as Respondent's designated representative , and

her signature was notarized on November 8, 201 8 .

4 . T he Application states the answer, "no," to the question

posed in Section V, Item 2 : "Have you or ownership controlling

entity affiliated with this application ever been identif i ed as

responsible for the abuse, neglect, or abandonment of a child or

the abuse, neglect, or exploitation of a vulnerable adult?" For

several reasons, Petition er failed to prove by clear and

convincing evidence the material facts in support of Count II.

5. First, "no" was correct because the question refers to a

determination, not a llegation, of Maltreatment. The Application

Form does not define "identified , " whose common meaning is not

"alleged," but " established , " 8 such as after a completed

investigation . As explained in endnote 5, the evidence fails to

establish that DCF determined that Etha Griffith is the

perpetrator of Maltreatment.

6. Second , e ven if there had been a determination of

Maltreatment in the Verified Report by November 12, 2018, "no"

was not a willful or intentional misstatement or a false

statement because neither Etha Griffith nor any other agent of

Respondent knew about the Verified R eport or DCF's determination

of Maltreatment -- and not for a lack of inquiry. Aware that an

investigation had taken place during the summer of 2018, in

October 2018, Kim Griffith contacted the DCF protective

investigator who had conduct ed the investigation and asked for

any findings . T he investigator returned to her, not the Verified

Report, but a Notice of Conclusion, stating only that the

investigation was " complete " and " closed ," and DCF had

recommended no addit io nal services. Etha Griffith ha s never

received a copy of the Verified Report. No agent of Respondent

knew anything about the Verified Report until preparing for the

hearing in this case. On these facts, Etha Griffith and

Respondent's other agents had no reason to think, as of

November 12, 2018, that DCF had determined that Etha Griffith had

pe rpetrated Maltreatment.

7. Third, e ven if , by November 12, 2018, Etha Griffith were

aware that DCF had determined that she had perpetrated

Maltreatment, the failure to disclose this fact or the Verified

Report was not materia l. An audit of the Group Home by

Petitioner led to DCF's protective investigation , and the

findings of the protective investigation , such as they were, 9

implied that any misappropriation involved substantial ly smaller

sums than those specified in the audit. 10 Knowledge of the audit

findings would thus include knowledge of the protective

investigation findings.

8. F ourth , as discussed in the Conclusions of Law, "no" is

correct because, in the q uestion posed in Sect io n V, Item 2 ,

"you" refers to the applicant or licensee, and "ownership

controlling entity affiliated with this application" does not

effectively refer to Etha Griffith .

9. The Application Form does not define these terms. Items

1, 3, a nd 4 also contain questions posed to "you." The questions

in Items 1 and 3 alternatively address a "controlling entity

affiliated with this application," so, except for dropping

"ownership," the questions in Items 1 and 3 are directed to the

same addressee as is the question in Item 2. The question in

Item 4 is directed only to "you . " All four of these items frame

questions seeking potentially important information about past

license discipline and adverse action involving the Medicaid and

Medica re programs. 11

10. Judging from her testimony at the hearing , Etha

Griffith possess es modest language skills. Given the level of

analysis required to determine the meaning of "you" and

"ownership controlled entity affiliated with this application,"

Etha Griffith could not possibly have understood that the

question in Section V, Item 2 addressed her.

11. The two key issues in Count III are whether Ms. Meliard

was an employee or a covered volunteer, as defined in the

Conclusions of Law, and, if so, whether she had completed her

local screening.

12. Ms. Meliard did not testify, nor did Petitioner direct

any questions to Kim Griffith as to Count III. Petitioner's

investigator testified that, upon his unannounced arrival at the

Group Home at 2:05 p.m . on January 1, 2019 , he found Ms. Meliard

"seated in a chair by the front window," presumably in a common

area of the house, such as a living room. , p. 6 3 .

Ms. Meliard was alone in the Group Home, as the residents

typically return ed from their day p rograms around 3:00 p.m.

Tr. , p . 6 3 . On the investigato r's arrival, Ms. Meliard called

Etha Griffith , who arrived at the Group Home very shortly after

the call., p. 6 4 . On her arrival, Etha Griffith told the

investigator th at she was "trying to giv e [Ms. Meliard] a job ."

Tr., p. 6 4 . The testimony recited in this paragraph is credited.

13. Petitioner's witnesses were in conflict as to the

screening that Ms. Meliard had cleared. Petitioner's operations

management consultant testified that Ms. Meliard had not cleared

level 1 or 2 screening., p. 44. Petitioner's investigator

testified t o the same effect, but immediately corrected himself

by saying that she had cleared Level 2 screening, but not local

screening., pp. 65 - 66. Petitioner is unable to produce

documentary evidence of screenings because this material is

confidential, even in hearings of this type, according to

Petitioner's counsel., p. 46.

14. When asked if Ms. Meliard had cleared her level 2

screening, Etha Griffith testified, "That is the one we got,

yeah." Tr., p. 95. No one asked Etha Griffith directly if

Ms. Me liard had not yet passed h er local screening. In a

clear - and - convincing case, no finding is possible based on the

negative implication inherent in Etha Griffith 's statement. Her

modest communication skills and laconic communication style

betray a lack of mental acuity, so no inference is possible by

Etha Griffin ' s use of the definite article, "the."

15. A personnel file , which may be opened for a candidate

for employment, typically contains e vidence of a local scr eening,

which comprises an inquir y to the relevant local law enforcement

agency and a response from the agency . Tr., p. 83. Proof of a

failure to obtain a local screening thus depends on a negative --

the absence of documentation in the personnel file. Unable to

recall clearly whether he had seen evidence of a level 2

screening, Petitioner's investigator testified that he recalled

not seeing evidence in Ms. Meliard's personnel file of clearing

the local screening., p. 83.

16. The testimony on the issues of employment and local

screening is too vague and uncertain to support findings by clear

and convincing evidence that, on January 10, 2019, Ms. Meliard

was employed by Respondent and had not passed her local

screening . The investigator presented himself as exceptionally

capable and articulate, but nothing in the record suggests that

he investigated with an y diligence the employment or local

screening issues involving Ms. Meliard.

CONCLUSIONS OF LAW

1 7 . DOAH has jurisdiction. § § 120.569 and 120.57(1), Fla.

Stat.

18 . Petitioner must prove the material allegations to

discipline Respondent's license by clear and convincing evidence.

§ 120.5 7(1)(j) . ÐClear and convincing evidenceÑ is evidence that

is " precise, explicit, lacking in confusion, and of such weight

that it produces a firm belief or conviction, without hesitation,

about the matter in issue. " Fla. Std. Jury Inst. (Civ.) 405.4.

19. In stead of state programs for the treatment of persons

with developmental disabilities , the legislature has opted for

"community - based programs and services . . ., private businesses,

not - for - profit corporations, units of local government, and other

organizations capable of providing needed services to clients in

a cost - efficient manner. " § 393.062.

20 . S ection 393.0673(1) and (2) sets forth identical

grounds for Petitioner , respectively, to discipline or deny a

group home facility license. 12 S ection 393.0673(1) predicates

discipline on the following :

(a) The licensee has:

1. Falsely represented or omitted a

material fact in its license application

. . .;

2. Had prior action taken against it by

the Medicaid or Medicare program; or

3. Failed to comply with the applicable

requirements of this chapter or rules

appli cable to the licensee; or

(b) [DCF] has verified that the licensee is

responsible for the abuse, neglect, or

abandonment of a child or the abuse,

neglect, or exploitation of a vulnerable

adult . 13

21 . Rule 65G - 2.002(20) provides:

Willful or intentional misstatements. A

licensee or applicant shall not make willful

or intentional 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) W illful or intentional misstatements

regarding the health, safety, welfare,

abuse, neglect, exploitation, abandonment or

location of a resident shall be considered a

Class I violation.

(b) All other willful misstatements shall

be considered Class II violat ions.

22. Petitioner has not explain ed its reasoning in Counts I

and II in the Administrative Complaint, at hearing, or in its

p ro posed recommended order. A s to Count I, Petitioner has not

explained why the Verified Report naming Etha Griffith a s a

perpetrator of Maltreatment may operate as a verified report

naming Respondent a s a perpetrator of Maltreatment. As to Count

II, Petitioner has not explained how Etha Griffith is addressed

by a question in Section V, Item 2 of the Application Form

direct ed to "you" or "ownership controlling entity affiliated

with this application" and, if this question had addressed her ,

the materiality of the Application's failure to disclose that

Etha Griffith was named as a perpetrator of Maltreatment.

23. Counts I and II illustrate different relationships that

may arise between a corporation and its agents, such as

directors, officers, and employees. 14 In Count I, the corporate

licensee resists the imposition of liability for the acts and

omissions of its agent . I n Count II , the corporate licensee,

which is unable to perform its corporate functions except through

a natural person, necessarily affirm s its agent 's preparing and

filing of the Application 15 a nd defend s the accuracy of the

agent's answer to th e question in Section V, Item 2 of the

Application.

24. Count I rel ies on a false equivalence between

Respondent and Etha Griffith . Paragraph 8 alleges that DCF found

Etha Griffith to be a perpetrator of Maltreatment, and Paragraph

9 alleges that Petitioner may discipline a license if a licensee

is found responsible for Maltreatment . Even if both allegations

were true, Count I fails for the lack of a bridge between them .

Compare Amer. States Ins. Co. v. Kelley , 446 So. 2d 1085, 1086

(Fla. 4th DCA 1984) (a corporation is an entity separate and

distinct fro m the people that constitute it ).

25. Count I imputes to Respondent the putative

determination of wrongdoing by Etha Griffith , b ut t he power to

impute vicarious liabili ty lies with the courts, 16 not agenc ies . 17

Typically associated with the common law, such as tort law,

indirect liability will not be imposed by a court when the

liability is a matter of statute , if the statute does not impose

vicarious liability. Diaz de la Portilla v. Fla. Elections

Comm'n , 857 So. 2d 913, 917 - 18 (Fla. 3d DCA 2003) (candidate not

liable for violations of campaign treasurer when relevant

statutes do not impute liability to candidate ).

26. C hapter 415 does not prohibit DCF from determin ing that

a corporation perpetrated Maltreatment , 18 but DCF did not do so . 19

Petitioner's attempt in Count I to treat Respondent as

vicariously liable for the Maltreatment is particularly

problematic because c hapter 415 no longer provides a hearing on a

verified report of Maltreatment 20 and imposes no evidentiary

standard whatsoever on DCF's determination that a person has

perpetrated Maltreatment . 21 Although , as this case demonstrates,

s ection 393.0673(1)(b) provide s a hearing when the discipline is

based on a verified report against the licensee, the language of

the statute provides no opportunity to relitigate the

Maltreatment determination by DCF, but limits the licensee to

collateral defenses, such as whether the licensee is the

perpetrator in a verified report of Maltreatment or whether the

verified report is authentic and meets the applicable statutory

requirements.

27. Count I fails, not because Petitioner is unable to

discipline a group home facility licensee for the wrongful acts

and omissions of its agents, 22 but because , without any statutory

support, Petitioner has treated Respondent as the perpetrator of

Maltreatment in a verified report that name s Etha Griffith as the

perpetrator .

28. By contr ast, s tating a claim for which relief may be

granted, Count II fails due to the absence of evidence that the

negative answer to the question in Section V, Item 2 constituted

a false statement or omission of a material fact or a willful or

intentional misstatement intentionally to mislead Petitioner.

29. Petitioner has adopted the Application Form as a rule.

Rule 65G - 2.002(2). Count II requires the interpretation of

several provisions of the Application Form. The construction of

a rule is a question of law , 23 as is the construction of a

contract. 24

30. As explained above, 25 the Verified Report is neither

relevant nor authentic, so Petitioner has failed to prove the

threshold element that DCF has "verified" or determined that Etha

Griffith perpetrated Maltreatment , as required by section

393.0673(1)(b). S ect io n 393.0673(1)(b) requires a determination,

not an allegation , so t his construction of the question ensures

that Item 2 works in tandem with the statute. Consistent with

this interpretation , Petitioner elsewhere has referred to an

allegation of Maltreatment by modifying "perpetrator ." R ule

65G - 2.008(5) ( a person who "has been identified as an alleged

perpetrator " ).

31. The requirement s of a false representation or false

omission of a material fact in section 393.0673(1)(a)1. and a

willful or intentional misstatement intentionally to mislead

Petitioner in rule 65G - 2.007(20)(a) demand proof that Etha

Griffith knew that the answer to Section V , Item 2 was false when

she filed the Application. 26 However, a s explained in the

Findings of Fact, the negative answer was not false due to the

deficiencies of the Verified Report and , even if the Verified

Report had determined that Etha Griffith were a perpetrator of

Maltreatment, none of Respondent's agents, including Etha

Griffith , had knowledge of the report's existence.

32. Additionally, t he nondisclosure of the Verified Report

was not be material. The "findings" of the Verified Report were

circumscribed by Petitioner's audit findings. Petitioner is

housed within DCF , § 20.197 , and its employees administering

chapter 393 have access to all otherwise - confidential DCF records

involving protective investigations , except for the name of the

repo rter. § 415.107(3)(a). If DCF has "reason to believe" that

Maltreatment has been perpetrated on a resident of a group home

facility, it is required to provide a copy of its investigative

report to Petitioner. Compare Steinberg v. Bay Terrace Apt.

Hotel , 375 So. 2d 1089, 1092 (Fla. 3d DCA 1979) (person to whom

false representation is made not entitled to relief if it might

have learned the truth by ordinary care and attention).

33. Lastl y, Petitioner failed to prove a false statement or

omission or willf ul or intentional misstatement because

Petitioner failed to prove by clear and convincing evidence tha t

"you" or "ownership controlling entity affiliated with this

application" addresses Etha Griffith .

34. " Y ou" means the applicant , who or which is the obvious

focus of the Application Form . If "you" means the natural person

completing the Application Form -- e.g., the applicant if a sole

proprietor or a designated representative if a corporation -- the

question in Item 4 would sometimes address the applican t and

sometimes address the designated represent -- itself, an illogical

situation. Worse, Item 4 would elicit from a corporate applicant

useless 27 information about the designated representative at the

expense of eliciting important information about the a pplicant.

If "you" means only the designated representative, then Item 4 is

directed to no one when the applicant is a natural person. If

"you" serves double duty, addressing the applicant when it is a

natural person and the designated representative whe n the

app licant is a legal entity, then the Application Form would need

explicitly to inform users of this complicated, contingent

arrangement.

35. "O wnership controlling entity affiliated with this

application" yields its meaning more grudgingly . The core of

this phrase seems to be "ownership controlling entity ," 28 which

likely describe s an entity that controls the applicant .

"Ownership" suggests that the means of control is by way of

equity, not , say, management or debt. Thus, as used in Section

V, Item 2, thi s phrase seems to apply only to an applicant that

is a legal entity , as a natural person cannot be owned . For a

legal entity with owners, the obvious question is when does a

natural person or legal entity own enough to control the

applicant? F or a legal entity without owners, such as

Respon dent, this phrase thus would be inoperative.

36. But "ownership controlling entity" may mean more.

Although unmentioned in the Application Form, "controll ing

entity" is defined in rule 65G - 2.001(8)(a) and (b) as "the

applicant or licensee" or a " person or entity that serves as an

officer of, is on the board of directors of, or has a 5 - percent

or greater ownership interest in the applicant or licensee " ("5%

owner").

37. Ignoring the troublesome modifier, "ownership," 29 which

would restrict the scope of the rule in Section V, Item 2 to a

5% owner, there are one factual and two legal impediments to

applying the rule in this case so as to capture Etha Griffith as

an officer or director.

38. First , Etha Griffith lacks the language and cognitive

skills to understand that th is phrase refers to her , even if it

did . 30 Pupo - Diaz v. State , 966 So. 2d 1010, (Fla. 2d DCA 2007)

(failure to prove by preponderance of evidence that applicant

falsely failed to reveal a driver license suspension due to

applicant's "lack of understanding of the wording of the

questions"). And Petitioner bears the responsibility for this

failure to communicate. At the risk of stating the obvious, the

legislature has directed that agenc ies draft rules, which would

includ e the Application Form, in "readable language" that avoids

the use of "obscure words and unnecessarily long or complicated

constructions" or "unnecessary . . . specialized language that is

understood only by members of pa rticular . . . professions."

§ 120.54(2)(b).

39. Second, the information sought in Section V, Item 2 as

to an officer, director, or 5% owner would not be relevant.

Petitioner is not authorized to deny or discipline a group home

facility license on the ground that an officer , director , or 5%

owner has been determined to be a perpetrator of Maltreatment. 31

40. Third, as suggested in the preceding paragraph ,

Petitioner lacks the authority to direct the question contained

in Section V, Item 2 to a n office r, director, or 5% owner. In

doing so, Petitioner is not "implement [ing] or interpret [ing] the

specific powers and duties granted by [any] enabling statute," 32

as required by the flush left language of sect io n 120.52(8). 33

41. The language of rule 65G - 2.001(8)(a) and (b) 34 is found

in section 408.803(7)(a) and (b) , which defines a "controlling

interest" for licensing programs administered by the Agency for

Health Care Administration (AHCA) . 35 In contrast to section

393.0673 (l) and (2) , which applies only to a "licensee" or an

"applicant," s ection 408.815(1) authorizes discipline or denial

for acts or omissions by a "controlling interest . " 36 The contrast

between the scope of these two regulatory regimes is underscored

by the overlapping grounds for discipline or denial that are

available to AHCA, including a false representation or omission

of a material fact from an application, a violation of applicable

law, and current exclusion from the Medicaid or Medicare program,

although not a det ermination that the applicant is a perpetrator

of Maltreatment.

42. Plainly, the legislature has restricted the regulatory

reach of Petitioner in chapter 393, relative to AHCA in chapter

408, part II -- a choice that Section V, Item 2 unlawfully

overrides with its alternative addressee. T he refore, the

reference to " ownership controlling entity affiliated with this

application " in Section V, Item 2 of the Application Form is an

invalid rule on which neither the administrative law judge nor

Petitioner may b ase agency action under section 120.57(1)(e)1.

43. Count III fails for a lack of clear and convincing

evidence. Section 393.0655(1) requires a level 2 employment

screening for "direct service providers," who are persons over 18

years of age with " direct face - to - face contact with a client

while providing services to the client or . . . access to a

clientÓs living areas or to a clientÓs funds or personal

property. " § 393.063(13). Section 393.0655(1) adds:

" Background screening shall include emplo yment history checks as

provided in s. 435.03(1) and local criminal records checks

through local law enforcement agencies. " S ection 393.0655(1)(a)

states: " A volunteer who assists on an intermittent basis for

less than 10 hours per month does not have t o 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. "

44. Petitioner has failed to prove that Ms. Meliard was a

direct service provider as an employee of R espondent. The only

affirmative evidence is that she was in the process of applying

to become an employee. Petitioner never asked Kim Griffith about

Ms. Meliard's employment status and never produced evidence of

payments from Respondent to her. On these facts, an inference of

employment might be possible in a preponderance case, but not in

a clear - and - convincing case.

45. Petitioner has failed to prove Ms. Meliard was a direct

service provider as an unpaid volunteer . The evidence fails to

establish that Ms. Meliard was ever in contact with residents or

had access to their rooms without being in direct view of a

screened person. The evidence places Ms. Meliard alone in the

front room of the Group Home for a few minutes , but not alo ne

with residents or alone with access to a resident's living area. 37

46. Petitioner has failed to prove by clear and convincing

evidence that Ms. Meliard did not undergo local screening. The

testimony as to screening wa s im precise, im plicit, confused , and

not of such weight that it has produced a firm belief or

conviction, without hesitation, that Ms. Meliard in fact had not

passed her local screening.

47. The administrative law judge reserves jurisdiction to

award a reasonable attorney 's fee against Petitioner , pursuant to

section 57.105(5). After the issuance of the final order, the

administrative law judge will issue a notice of hearing to

address Petitioner's liability under section 57.105 and, if

established, the amount of fees.

RECO MMENDATION

It is

RECOMMENDED that the Agency for Persons with Disabilities

enter a final order finding Respondent not guilty of all counts

set forth in the Administrative Complaint .

DONE AND ENTERED this 2 6 th day of November , 2019 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of November , 2019 .

ENDNOTES

1 / When the context requires, "Maltreatment" will also refer to

the abuse, neglect, or abandonment of a child.

2/ The Miramar Group Home was formerly located in Pembroke Pines.

3/ A stipulation contrary to the law is not binding on the trial

judge. See, e.g. , Troup v. Bird , 53 So. 2d 717, 721 (Fla. 1951).

Any attempt to broaden the scope of this proceeding to include a

second license invites confusion, especially when it is attempted

by a prehearing stipulation, rather than a motion to amend an

administrative complaint.

Any attempt to add a second respondent to the case is unlawful.

Nothing in this record indicates that Petitioner has ever advised

the licensee of the Miramar Group Home of proposed agency action

against its license, so as to confer jurisdiction under s ection

120.569(1). Parties may not confer jurisdiction by stipulation,

Int'l Studio Apt. Ass'n v. Sun Holiday Resorts , 375 So. 2d 335

(Fla. 4th DCA 1979); waiver, Lee v. Div. of Fla. Land Sales &

Condo , 474 So. 2d 282, 284 (Fla. 5th DCA 1985); pleading, H adley

v. Hadley , 140 So. 2d 326, 327 (Fla. 3d DCA 1962), action of

counsel lacking suitable authority, U.S. Bank, N.A. v. Rios , 166

So. 3d 202, 209 (Fla. 2d DCA 2015); or, one may assume,

inadvertence by Respondent's counsel, especially when nothing in

the record suggests that he also represents the licensee of the

Miramar Group Home.

Suggesting that Petitioner may have realized its error in the

Prehearing Stipulation, at hearing, Petitioner did not offer into

evidence Petitioner Exhibit 1, which is a c omposite exhibit

consisting of two applications for licenses for the Miramar Group

Home, and did not pursue any line of evidence of which this

exhibit might have been a part. See Tr., p. 38.

4/ In its proposed recommended order, Petitioner noted that it

was "allowed only one exhibit in evidence." Petitioner's

proposed recommended order, p. 2. Actually, only part of one of

Petitioner's exhibits was admitted; the excluded part of this

exhibit was an earlier renewal application filed by Respondent.

T he grounds for the exclusion of the Verified Report are

detailed in the next endnote.

The administrative law judge also excluded eight additional

exhibits offered by Petitioner containing over 150 pages of

financial information in support of a charge of financial

exploitation. The Administrative Complaint includes no such

charge. The charge stated in Count I is based on the Verified

Report, not the underlying financial exploitation that is the

subject of the Verified Report. Petitioner never requested leave

to amend the Administrative Complaint, nor could Respondent have

been prepared to try this more - detailed claim, if the new

allegations had been added to the case at the hearing.

The remaining exhibits of Petitioner not admitted into evidence

pert ain to the Miramar Group Home, which is discussed in the

preceding endnote.

5/ The Verified Report is inadmissible on two grounds: relevance

and authenticity. The Verified Report is irrelevant because it

names Etha Griffith as the perpetrator of the Ma ltreatment to

support Count I, which seeks to impose discipline against

Respondent as the named perpetrator of Maltreatment.

The Verified Report is not authentic because it fails to meet

three statutory criteria for a verified report. Alternatively,

th e Verified Report is not relevant because this failure and

other circumstances described below preclude assigning any weight

to the Verified Report in determining whether DCF has verified

that Etha Griffith is the perpetrator of Maltreatment. § 90.401

("[ r]elevant evidence is evidence tending to prove or disprove a

material fact"). To differentiate between the grounds for

irrelevance set forth in this and the preceding paragraphs, the

recommended order refers to the ground s referenced in this

paragraph as a lack of authenticity.

As for the statutory criteria, for each report of Maltreatment,

section 415.104(3) (g) and (h) requires DCF to "[d]etermine the

immediate and long - term risk to each vulnerable adult through

utilization of standardized risk assess ment instruments" and

" [ d ] etermine the [necessary] protective, treatment, and

ameliorative services . . . and cause the delivery of those

services." Section 415.104(4) requires DCF, within 60 days of

receipt of the report of Maltreatment, to complete the

investigation and notify, among others, the caregiver "of any

recommendations of services to be provided to ameliorate the

causes or effects of [Maltreatment]."

There is no indication that DCF's protective investigation

complied with any of these requir ements, which are obviously

crucial to protect the well - being of vulnerable adults who have

been subjected to Maltreatment. The Verified Report recounts

allegations from an audit conducted by Petitioner that Etha

Griffith stole thousands of dollars from r esidents, including

about $5000 per month in reimbursements to which she was not

entitled. Yet, the Verified Report lacks detailed findings about

any theft, concluding only that "there is evidence to support the

allegations" and that the residents "are be ing charged for

services that the provider is supposed to provide such as soap,

toiletries, shampoo, food, and transportation to doctor's

appointments . " Although the protective investigation does not

seem to have found ongoing theft of $5000 per month , it finds

some evidence of theft, but inexplicably fails to recommend

intervention services or judicial action. This omission

constitutes a failure to satisfy the crucial statutory

requiremen ts set forth above , but also constitutes a factual

circumstance sug gestive of an incomplete investigation.

Another circumstance suggestive of an incomplete investigation

is that the Verified Report is unsigned by the protective

investigator and protective investigator supervisor , even though

the Application Form prov ides lines for their signatures. The

affidavit of the DCF records custodian attests that DCF's files

contain an unsigned report. Nor does the custodian's affidavit

assert that Etha Griffith is listed in a verified report as a

perpetrator of Maltreatment.

On the other hand, the vague assurance that "there is evidence

to support the allegations" is not necessarily an indicator of an

incomplete investigation. A verified report is not required to

meet any standard of proof. See endnote 21.

Pursu ant to section 415.104(4), a protective investigation must

be completed within 60 days. Less than one week before the

deadline in effect for the investigation of Etha Griffith, DCF

closed its investigation, but , for the reasons set forth in this

endnote, the protective investigator had not completed her work.

References in this recommended order to the Verified Report

therefore do not imply that it constitutes a verified report

under section 415.104 .

6/ Because Respondent already held the License, the Application

was a renewal application, but the same form is used as an

initial and renewal application. For this reason, the

recommended order uses "application" and "renewal application"

interchangeably.

7/ Kim Griffith initialed two representations that are irrelevant

to the present case.

8/ The first definition of "indicate" in the Merriam - Webster

online dictionary is "to establish the identity of." No

definition approximates "allege." https://www .merriam -

webster.com/dictionary/identify

9/ See endnote 5.

10/ See endnote 5, fourth paragraph.

11/ As an affirmative response to Item 2 would justify license

discipline under section 393.0673(1)(b) or a denial of a license

application under 393.0673(2)(b), discipline or denial could be

based on an affirmative response to Item 3, which asks about

adverse action in the Medicare o r/and Medicaid program.

§ 393.0673(1)(a)2. and (2)(a)2.

12/ For this reason, the recommended order uses "applica nt" and

"licensee" interchangeably.

13/ Similar provisions apply to an applicant. § 393.0673(2).

14/ Not - for - profit corporations may have members, but not

shareholders or owners. §§ 617.0601 and 617.01401(16). Because

it is unclear whether Responden t has any members or, if so,

whether Etha Griffith is a member of Respondent, this recommended

order does not address the relationship between Respondent and a

member, although it would not be materially different from the

relationship between Respondent a nd an agent.

15/ See, e.g. , Jacksonville Am. Pub. Co. v. Jacksonville Paper

Co. , 197 So. 672, 679 (Fla. 1940).

16/ See, e.g. , Weiss v. Jacobsen , 62 So. 2d 904 (Fla. 1953).

17/ The inverse process is holding a shareholder or director

liable for the acts and omissions of the corporation -- i.e.,

piercing the corporate veil. This, too, is judge - made law. See,

e.g. , American States Ins. Co. v. Kelley ¸ 446 So. 2d 1085 (Fla.

4th DCA 1 984). Absent statutory authorization, agencies lack the

authority to pierce the corporate veil. Roberts' Fish Farm v.

Spencer , 153 So. 2d 718, 720 (Fla. 1963).

18/ Section 415.104 authorizes DCF to investigate a report of

Maltreatment by a "caregiver." Section 415.102(5) defines a

"caregiver" as a "person" responsible for the care of a

vulnerable adult. Although "person" is not defined in chapter

415, section 1.01(3) defines "persons" to include "individuals,

children, [and] corporations."

19/ If DCF lacks this authority, then the imputation of vicarious

liability would be equally unwarranted.

20/ The Florida Senate, Committee on Children, Families, and

Elder Affairs, "Review of State Child Abuse Registries," Issue

Brief 2011 - 205 (October 2010),

https://www.flsenate.gov/UserContent/Session/2011/Publications/In

terimReports/pdf/2011 - 205cf.pdf (Issue Brief).

The Issue Brief notes that, when repealing the provision in

chapter 415 for an administrative hearing on the proposed

verified report, the le gislature also repealed other statutes

that imposed adverse employment consequences upon a person who

was listed as a perpetrator of Maltreatment in a verified report.

The Issue Brief lists cases in other jurisdictions rejecting as

unconstitutional simila r programs that: 1) do not provide for a

hearing and 2) generate adverse employment consequences.

Obviously, section 393.0673(1)(b) and (2)(b) imposes adverse

effects on a group home facility license or an application to

obtain such a license. It is an open question whether a person

is entitled to an administrative hearing under chapter 120 or a

judicial hearing under the case law when the determination that

he is a perpetrator of Maltreatment supports the loss of a group

home facility license or the denial of an application for such a

license. Compare Herold v. Univ. of S. Fla. , 806 So. 2d 638

(Fla. 2d DCA 2002); Sickon v. Sch. Bd. , 719 So. 2d 350 (Fla. 1st

DCA 1998) (dictum).

21/ The evidentiary standard for reports of Maltreatment was

formerly pr ovided in the statute that provided a hearing for an

alleged perpetrator to seek to expunge a confirmed report or

amend a confirmed report to indicated. See § 415.1075(1)(d)

(1999). There is no longer any provision in chapter 415 imposing

on DCF a specif ic evidentiary standard in determining whether a

person has perpetrated Maltreatment. It is an open question

whether a statute may impose discipline against a license based

on an agency's determination of Maltreatment without meeting a

minimal evidentiary standard.

22/ Section 393.0673(5) authorizes Petitioner to issue an

immediate suspension or revocation order when "any condition in

the facility presents a threat to the health, safety, or welfare

of the residents." Here, the focus is on the condition,

regardless of wh o or what caused the condition to arise,

although, if the problem were documented by a verified report of

Maltreatment, Petitioner would have to prove the facts underlying

the verified report.

Section 393.0673(1)(a)3. authorizes discipline for failing to

comply with the provisions of chapter 393 or rules applicable to

a group home facility license. Rule 65G - 2.012(1)(b) requires the

"designated facility operator" -- here, Etha Griffith -- to "be a

person of responsible character and integrity."

Rule 65G - 2 .012(2)(d)3. and (3) designates as a Class III

violation noncompliance by a provider -- Respondent -- or a

provider's employee -- e.g., Etha Griffith -- with the prohibition

against "[b]orrowing or otherwise using a residentÓs personal

funds for any purpose other than the residentÓs benefit."

But Petitioner's options are limited in terms of reliance on a

verified report of Maltreatment. The background screening

discussed elsewhere in this recommended order does not screen for

DCF's determination that a person i s a perpetrator of

Maltreatment, §§ 393.0655(1) and 435.04, so a verified report of

Maltreatment would not preclude a perpetrator's passing such a

screening. The reason for this omission likely is the

unavailability of a hearing on a proposed verified rep ort, as

mentioned in the Issue Brief discussed in endnote 20.

23/ See, e.g. , Collier Cnty. Bd. Of Cnty. Comm'rs v. Fish &

Wildlife Conservation Comm'n , 993 So. 2d 69 (Fla. 2d DCA 2008).

24/ See, e.g. , Chhabra v. Morales , 906 So. 2d 1261, 1262 (Fla.

4th DCA 2005) (however, provisions "rationally susceptible to

more than one construction" present a question of fact); Comm.

Capital Res. v. Giovannetti , 955 So. 2d 1151, 1153 (Fla. 3d DCA

2007) (however, an ambiguity in wording presents a question of

fact). In general, intrinsic evidence, which is drawn from a

contract itself, is always available to aid in the construction

of the contract, B.F. Goodrich Co. v. Brooks , 113 So. 2d 593, 596

(Fla. 2d DCA 1959) (citation omitted), but extrinsic or parole

evidence is available only if the ambiguity is latent, as a

patent ambiguity would require the court to rewrite the contract

for the parties. See, e.g. , Nationstar Mortg. Co. v. Levine , 216

So. 3d 711, 715 (Fla. 4th DCA 2017) (extrinsic evidence may not

explain a contractual provision whose ambiguity is patent, which

means that "'the use of defective, obscure, or insensible

language'" is evident on the face of the document) (citation

omitted).

25/ See endnote 5 for a discussion of authenticity, as used with

regard to the Verified Report.

26/ Compare Martin Co. v. Carpenter , 132 So. 2d 400, 406 (Fla.

1961) (false statement by employee regarding workers'

compensation); Johnson v. Davis , 480 So. 2d 625, 627 (Fla. 1985)

(fraudulent representation or concealment by seller).

27/ It is unclear whether there is any limitation upon whom a

corporate applicant may designate as a representative, so the

force of a question as to Maltreatment directed to a desi gnated

representative easily could be evaded. The introductory

instructions in the Application Form require only that the

designated representative indicate her "role in the operation of

the facility (licensee, supervisor, manager, board member,

etc.)." Even if the parenthetical impliedly restricts the choice

of a designated representative to a person with managerial

responsibilities, the most problem - plagued licensee should be

able to hire as a manager a natural person who is not a verified

perpetrator o f Maltreatment to complete the Application Form and,

if the licensee chooses, terminate the employment of the person

on the next day.

28/ "Affiliated with this application" raises its own issues, but

not in this case, as Etha Griffith is clearly affili ated with the

Application.

29/ Petitioner has implicitly joined in this rhetorical device

regarding the modifier, "ownership" in Section V, Item 2.

Petitioner's proposed recommended order recites the question, but

omits "ownership," without ellipses, so that, as amended, the

question asks, "Have you or controlling entity . . .."

Petitioner's proposed recommended order, p. 4. If an inadvertent

lapse in recitation, it happened twice. See Prehearing

Stipulation, Petitioner's Stateme nt. Prehearing Stipul ation,

p. 5.

30/ It is unclear whether even Petitioner's counsel and witnesses

thought that this phrase to Etha Griffith. If they did, they

never said so.

31/ See last paragraph of endnote 22 .

32/ Section 120.52(8) flush left language continues: "No agency

shall have authority to adopt a rule only because it is

reasonably related to the purpose of the enabling legislation

. . .."

33/ The rule claims that it implements sections 393.067 and

393.13. Section 393.13 is The Bill of Rights for Persons with

Developmental Disabilities, which includes no substantive

criteria for denying or disciplining a group home facility

license. Section 393.067(1) authorizes Petitioner to adopt an

application addressing, among other things, provider

qualifications, b ut provides Petitioner with no authority to

extend this grant of authority to a controlling entity.

34/ Rule 65G - 2.001(8)(c) and (d) is identical to section

408.803(7)(c) and (d), but these provisions are irrelevant to the

present case.

35/ These provisions of chapter 408, part II apply to 26 programs

administered by the Agency for Health Care Administration, but

obviously not to the group home facility program administered by

Petitioner under chapter 393.

36/ The use of "controlling intere st" relieves the agency,

statutes, and rules from specifying among the applicant, officer,

director, and 5% owner. Petitioner's importation of this omnibus

reference into the Application Form creates additional confusion

due to the overlapping references to the applicant or licensee as

"you" and a "controlling entity."

37/ In a clear - and - convincing case, the evidence would need to

show that Ms. Meliard had access to the residents' bedrooms, such

as if they were unlocked.

COPIES FURNISHED:

Trevor S. S uter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

G. Barrington Lewis, Esquire

Law Office of George B. Lewis

10061 53rd Way South, Suite 1004

Boynton Beach, Florida 33437

(eServed)

Danielle Thompson

Senior Attorney/Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 309

Tallahassee, Florida 32399 - 0950

(eServed)

Francis Carbone, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Wa y, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

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.