19-006010FL Agency For Persons With Disabilities vs. Rivero Group Home, Owned And Operated By Rivero Group Home No. 6, Inc. Status: Closed Recommended Order on Friday, April 17, 2020.

Summary: APD failed to prove by clear and convincing evidence that Rivero knowingly submitted a false fire inspection report. Recommend granting renewal license application.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A GENCY F OR P ERSONS W ITH

D ISABILITIES ,

Petitioner ,

vs. Case No. 19 - 6010FL

R IVERO G ROUP H OME , O WNED A ND

O PERATED B Y R IVERO G ROUP H OME

N O . 6, I NC . ,

Respondent .

/

R ECOMMENDED O RDER

A final hearing was held in this matter before Mary Li Creasy ,

Administrative Law Judge with the Division of Administrative Hearings

( Ñ DOAH Ò ), on January 15, 2020 , by video teleconference at sites located in

Lauderdale Lakes and Tallahassee, Florida.

A PPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

For Respondent: Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

1000 5th Street, Suite 223

Miami Beach, Florida 33139

Anthony Vitale, Esquire

Daniel Ferrante, Esquire

The Health Law Offices of Anthony C. Vitale, P.A.

2333 Br ickell Avenue, Suite A - 1

Miami, Florida 33129

S TATEMENT OF T HE I SSUE S

Whether Respondent's renewal facilities licensure application for a group

home contained a falsified fire inspection report, as alleged in the

Administrative Complaint; and , if so , what is the appropriate penalty?

P RELIMINARY S TATEMENT

In June 2019, Respondent, Rivero Group Home ( Ñ Rivero Ò ), submitted a

license renewal application to the Agency for Persons With Disabilities

( Ñ APD Ò ) . On October 18, 2019, APD issued an Administrative Complaint

seeking to revoke the license of Rivero for allegedly submitting false fire

safety inspection reports in connection with the renewal application. Rivero

timely filed a Petition for Administrative Hearing , which was forwarded to

the D OAH on N ovem ber 12, 2019.

The final hearing in this matter was held as scheduled on January 15,

2020, by video teleconference with locations in Lauderdale Lakes and

Tallahassee, Flor ida. APD presented the testimony of the following

individuals: Craig Braun ( Ñ Braun Ò ) ; David Zipoli ( Ñ Zipoli Ò ) ; Patricia White;

and Thomas Holcomb . APD's Exhibits 1 through 10, and 12 , were admi tted

into evidence. Rivero presented the testimony of its corporate officer,

Yitzakh Rivero. Rivero's Exhibits 3 through 6 were admitted into eviden ce .

The one - volume Transcript of the final hearing was filed on February 28,

2020. The parties timely filed proposed recommended orders , which were

taken into consideration in this Recommended Order. Unless otherwise

indicated, all statutory references ar e to be versions in effect at the time of

the alleged violations.

F INDINGS OF F ACT

1. APD is the state agency charged with regulating the licensing and

operation of foster care facilities, group home facilities, residential habitation

centers, and compre hensive transitional education programs pursuant to

sections 20.197 and 393.067, Florida Statutes .

2. Rivero is an applicant for renewed licensure of a group home facility in

Dania Beach, Florida . At all times material to the Administrative Complaint,

Yitz hak Rivero was a corporate officer of Rivero.

3. Mr. Rivero, was a psychiatrist in Cuba treating patients with mental

and intellectual disabilities before he moved to the United States and became

a citizen. He became a licensed mental health counselor, and for the past

ten years has operated group homes in an effort to serve disabled persons,

owning as many as seven group homes , employing 30 people at one time, and

currently owning and operating three licensed group homes.

4. On June 20, 2019, Sally Vazquez , then administrator for Rivero,

submitted a license renewal application on behalf of Rivero Ôs Dania Beach

group home to APD by hand delivering it to APD employee Patricia White ,

who was on the premises. On that same day, fire inspectors were also at the

D ania Beach property to conduct an inspection.

5. Prior to submitting the renewal application and supporting documents

to APD o n June 20, 2019, Ms. Vazquez prepared the application and compiled

or prepared the supporting documents in the renewal applicatio n . The

handwriting on pages 1 through 11 of the renewal application is that of

Ms. Vazquez. Ms. Vazquez is listed as backup manager supervisor for Rivero

on pa ge 7 of the renewal application .

6. After Ms. Vazquez prepared the renewal application and compil ed the

supporting documents, Mr. Rivero, as the group home owner, did a brief

review of the appli cation and supporting documents before he signed it.

B efore he signed it, Mr. Rivero identified nothing unusual in the application

packet .

7. When Mr. Rivero s igned the attestation on the renewal application,

which read, Ñ Under penalty of perjury È all information contained in and

submitted with application is true and accurate to the best of my knowledge, Ò

he believed that the information in the application and s upporting documents

was true and corre ct.

8. Unbeknownst to Mr. Rivero, the renewal application contained a

document purporting to be a fire inspection report dated May 1, 2019, that

was falsified . Mr. Rivero did not know the fire inspection was false when he

reviewed the renewal application and signed i t on June 7, 2019, or when

Ms. Vazquez submitted it to APD on behalf of Rivero on June 20, 2019.

9. In fact, the only email or communication Mr. Rivero received about the

Dania Beach group home in regard to fire safety was a June 20, 2019, email

sent by Fire Inspector Braun at 12:49 p.m. , stating it was Ñ From: Broward

SheriffÔs Office Fire Rescue , Ò identified by the subject, Ñ Inspection Report, Ò

which contained an attachment related to the Dania Beach home fr om

Ñ Broward Sheriff Ô s Office Fire Rescue Ò bearing the agencyÔs logo that stated:

Ñ An annual fire inspection of your occupancy revealed no violations at the

time of this inspection. Than k you for your commitment to maintaining a fire

safe occupancy. Ò

10. O n August 21, 2019, when asked in an email from APD representative

Kimberly Carty to provide the fire inspection report for Rivero , Mr . Rivero

forwarded the email he had received from the Broward SheriffÔs Office Fire

Rescue indicating no violations, the onl y fire inspection report for this home

he had ever received, and the only fire inspection report regarding this

property of which he was aware.

11. On August 23, 2019, Ms. Carty sent Mr. Rivero a fire inspection report

showing violations noted from the Jun e 20, 2019 , fire safety inspectio n of the

Dania Beach group home.

12. The report notes six , of what fire safety inspector Craig Braun

described as less serious, non Ñ critical - life Ò violations . Rivero w as given

30 days to correct the violations . 1 The day af ter he was sent the full fire

inspection report for the Rivero Dania Beach group home, Mr. Rivero

corrected the Ñ easily corrected, Ò relatively minor violations in approximately

three hours.

13. Mr. Rivero then contacted the fire department to re - inspect th e

facility. When no fire inspector came to re - inspect for over a month, on

September 30, 2019, Mr. Rivero sent an email to Mr. Zipoli, the fire inspector

who had signed the inspection report showing the minor violations.

Nevertheless, the fire department h as never re - inspected the facility .

14. Fire P revention O fficers Braun and Zipoli testified unequivocally and

without contradiction that the document Mr. Rivero forwarded to APDÔs

Kimberly Carty on August 23, 2019 (the document indicating, Ñ An annual fire

inspection of your occupancy revealed no violations at th e time of this

inspection Ò ) , was a genuine and authentic document. Further, O fficer Braun

indicated that on June 20, 2019, he was O fficer ZipoliÔs supervisor, and that

on that date O fficer Braun and Zipoli Ñ went together to inspect the Rivero

Group Home. Ò Ñ [U]sually È just [one] fire safety inspector goes, Ò and it was

Ñ not the norm Ò for two fire safety inspectors to go together.

15. In this unusual situation, F ire S afety I nspector Zipoli wrote the repor t

of the June 20, 2019, inspection, and F ire S afety I nspector Braun Ñ wrote a

report, Ò a separate report, indicating that he Ñ assisted him [Zipoli] on another

1 These violations included:

(a) f ront and rear door of the group home (two doors) had a key lock instead of a Ñsimple

thumb turn or something that does not require special knowledgeÒ ;

(b) a fire alarm needed to be updated with its annual f ire inspection from a private

contractor ;

(c) a fire extinguisher needed to be mounted on its mounting on the wall instead of placed on

the ground beneath the mounting ;

(d) t he fire extinguisher needed to have its annual certification updated for 2019 ;

(e) t he smoke detector located in the kitchen needed to be moved to a different location .

form. Ò It was this other form that O fficer Braun completed -- this fire safety

Ñ Inspection Assist Ò f or -- that was emailed to Mr. Rivero on June 20, 2019. It

was this form that stated, Ñ [a] n annual fire inspection of your occupancy

revealed no violations at the time of this inspection. Ò

16. O fficer s Braun and Zipoli confirmed that the Broward SheriffÔs

ele ctronic streamline sys tem Ñ had a Ó glitch , Ô Ò Ñ a default problem at that time, Ò

the period including June 20, 2019, that caused the Ñ template of an assist Ò (

i.e., an Inspection Assist form ) to generate the statement indicating, Ñ [a] n

annual fire inspection of your occupancy revealed no violations at the time of

this inspection, Ò and the system gave fire safety inspectors no option or

ability to remove this statement.

17. When APDÔs Kimberly Carty requested that Mr. Rivero send the

most recent fire inspection report for the Rivero Dania Beach group home,

Mr. Rivero forwarded to Ms. Carty the document he received on June 20,

2019, from Broward SheriffÔs Office Fire Rescue without altering or changing

the document in any way .

18. The first time Mr. Rivero was no tified that the fire inspection report

submitted with the renewal application at issue here was false was when he

received the A dministrative C omplaint in this case on October 23, 2019.

19. In addition to the June 20, 2019, document Mr. Rivero received fro m

Broward SheriffÔs Office Fire Rescue that indicated Ñ no violations, Ò and the

fire inspection report indicating six violations that was sent to Mr. Rivero by

APD on August 23, 2019, this case involves a document dated May 1, 2019,

purporting to be a Browa rd SheriffÔs Office Fire Rescue fire inspection that

was fabricated ( Ñ the false fire inspection report Ò ).

20. T he false fire inspection report was submitted to APD by Ms. Vazquez

during APDÔs June 20, 2019, inspection of the Rivero Ôs Dania Beach group

home . At the time she submitted the application with the false fire inspection

report, Ms. Vazquez had worked for Rivero for at least six years, and for at

least two years as an administrator for between four and seven group homes.

21. At the time she submitte d the application at issue in this case to APD,

Ms. Vazquez had prepared more than 20 APD renewal applications for

Mr. RiveroÔs group homes . In short, Ms. Vazquez was a Ñ trusted employee, Ò

who m Mr. Riv ero relied on to accurately prepare applications and th e

documents submitted with the applications, and to handle the inspections

conducted by APD.

22. After Mr. Rivero learned, by receiving the Administrative Complaint

in this case on October 23, 2019, that a n altered or falsified document had

been submitted as a fir e inspection report with RiveroÔs Dania Beach group

homeÔs annual renewal application to APD , he conducted an investigation to

determine how it had happened. When Mr. Rivero determined Ms. Vazquez

was to blame for the false fire inspection report b eing submitted with the

application, he fired her.

23. The evidence presented indicates Ms. Vazquez created and submitted

the falsified fire inspection report in violation of her job duties and

professional obligations, and without the knowledge or con sent of Mr. Rivero

or Rivero .

C ONCLUSIONS OF L AW

24 . The Division of Administrative Hearings has jurisdiction over the

subject matter of, and parties to this proceeding. §§ 120.569, 120.57(1), Fla.

Stat. (2019).

25. APD alleges in the Administrative Complaint that R ivero violated

s ection 393.0673(1)(a)(1 . ) by Ñ falsely represent[ing] or omit[ t ing] a material

fact in its license application, Ò and seeks license revocation. APD alleges

Rivero violated the statute when: (1) on June 20, 2019, Ms. Vazquez

submitted a falsified fire inspection report as a part of R iveroÔs renewal

application for its Dania Beach group home; and (2) on August 21, 2019, Mr.

Rivero forwarded the fire inspection report stating Ñ no violations Ò that he had

received from Broward SheriffÔs Fire Rescue on June 20, 2019 , to APD

employee Ms. Carty.

26. Because license revocation is penal in nature, APD bears the burden of

proving the allegations in its A dministrative Complaint by clear and

convincing evidence. Dep't of Banking & Fin. v. Osborne Ste rn & Co. , 670 So.

2d 932, 933 - 34 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 29 2 (Fla. 1987).

27. Clear and convincing evidence requires that:

[T]he evidence must be found to be credible; the

facts to which the witnesses testify must be

distinctly remem bered; 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 th e mind of the trier of fact a firm

belief or conviction, without hesitancy, as to the

truth of the allegatio ns sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz v. Walker ,

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

28. I n a proceeding to revoke a license, Ñ the licensing body cannot rely

solely on wrongdoing or negligence committed by an employee of the licensee;

instead, the licensing body must prove that the licensee was at fault somehow

for the employee's conduct, due to the licensee's own negligence, intentional

wrongdoing, or lack of due diligence. Ò Bridlewood Grp. Hom e v. Ag. for Pers.

with Disab. , 136 So. 3d 652 (Fla. 2nd DCA 2013) , citing Ag. for Pers. with

Disab. v. Help is on the Way, Inc. , Case No. 11 - 1620 (Fla. DOAH Feb. 3, 2012;

Fla. APD Apr. 16, 2012); Ganter v. Dep't of Ins., 620 So. 2d 202, 203 (Fla. 1st

DCA 1993).

29. In Pic N' Save Central Florida v. Department of Business and

Professional Regulation, Division of Alcoholic Beverages and Tobacco , 601 So.

2d 245, 250 (Fla. 1st DCA 1992), the court, when analyzing liability under

the theory of respondeat superi or and revoking a party's right to conduct

business, held Ñ that one's license to engage in an occupation is not to be taken

away except for misconduct personal to the licensee. Ñ Only when the

employees act in a Ó persistent and practiced manner , Ô so as to j ustify being

described as Ó flagrant ,Ô is Ó the factual inference that the violations were either

fostered, condoned, or negligently overlooked by the licensee ÔÒ justified. Id.

So. 2d at 253 - 54.

30. As a matter of law, Ms. V asquez' s one submission of a falsi fied fire

inspection report cannot be construed as Ñ consistent or practiced. Ò Nor can it

be construed as Ñ flagrant Ò behavior by Rivero. Mr. Rivero had no reason to

doubt Ms. Vazquez Ô s fidelity to R iveroÔs expectations that all applications

would be complet ed accurately, completely, and honestly .

31. APD also failed to establish by clear and convincing evidence that

Rivero violated section 393.0673(1)(a)(1 . ) on the basis of the August 21, 2019,

email forwarded to Ms. Ca rty with the attached fire inspection r eport stating

Ñ no violations Ò that he had received from Broward SheriffÔs Fire Rescue on

June 20, 2019 .

32. Beyond failing to introduce any evidenc e what so ever that the

August 21, 2019 , email from Mr. Rivero contained anything false or that

Respondent Ñ fal sely represented or omitted a material fact Ò in this

communication, APD also failed to establish the August 21, 2019 , email

from Mr. Rivero was Ñ in [or a part of] its license application. Ò See

§ 393.0673(1)(a)(1 . ) , Fla. Stat. (allowin g license discipline w hen a licensee

Ñ f alsely represented or omitted a material fact in its license application . Ò ) .

33. Here, Mr. RiveroÔs August 21, 2019, email to Ms. Carty was in

response to an email of the same day from Ms. Carty to Mr. Rivero, reading:

Ñ Good afternoon Mr. Rivero. While doing my monthly check of Inspections, I

recently noticed that the Fire Inspection for Rivero GH #6 has expired on

7/17/19 È . Please send us a copy of the current and updated Fire

Inspections È as soon as possible. Thank you and have a great day ! Ò By its

own terms, Ms. CartyÔs request for RiveroÔs Ñ current and updated Fire

Inspection Ò was not a part of, or in reference to, a license application or

license renewal application, but instead related to Ms. CartyÔs Ñ monthly

check of inspections. Ò

34. APD failed to meet its burden of demonstrating by clear and

convincing evidence that Rivero Ñ falsely represented or omitted a material

fact in its license application. Ò

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Agency f or Persons With Disabi lities enter a final

order dismiss ing the Administrative Complaint filed against Respondent .

D ONE A ND E NTERED this 17th day of April , 2020 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administ rative 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 17th day of April , 2020 .

C OPIES F URNISHED :

Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

1000 5th Street , Suite 223

Miami Beach, Florida 33139

(eServed)

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Anthony Vitale, Esquire

The Health Law Offices of Anthony C. Vitale, P.A.

2333 Brickell Avenue , Suite A - 1

Miami, Florida 33129

(eServed)

Daniel Ferrante, Esquire

Health Law Offices Of Anthony C. Vita le , P.A.

2333 Brickell Avenue , Suite A - 1

Miami, Florida 33129

(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 Way, Suite 3 80

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 i n this

case.