96-004099 Adult Family Care Home (Florence Akintola, D/B/A Adult Family Care Home) vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, February 21, 1997.

Summary: Applicant for Adult Family Care Home (AFCH) license of three residents who submitted inaccurate information in application should be licensed for three residents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADULT FAMILY CARE HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 96 -4099

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding on January

16, 1997, in DeLand, Florida, before Daniel Manry, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ms. Marvell Lawton, pro se

Post Office Box 4040

DeLand, Florida 32723

For Respondent: Michael O. Mathis, Senior Attorney

Agency for Health Care Administration

2727 Mahan Drive, Suite 200

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

The issue for determination is whether the application for

an initial license to operate an Adult Family Care Home ("AFCH")

should be denied because the applicant submitted fraudulent or

inaccurate information in the application.

PRELIMINARY STATEMENT

By letter dated July 11, 1996, Respondent denied

Petitioner's application for an initial license to operate an

AFCH. Petitioner timely requested a formal hearing.

At the formal hearing, Petitioner testified in her own

behalf, called no other witnesses, and submitted no exhibits for

admission in evidence. Respondent presented the testimony of

three witnesses and submitted eight exhibits. The identity of

the witnesses and exhibits and the rulings regarding each are set

forth in the transcript of the formal hearing filed with the

undersigned on January 27, 1997.

Respondent timely filed its proposed recommended order

("PRO") on February 11, 1997. Petitioner did not file a PRO.

FINDINGS OF FACT

1. Petitioner is owned by Ms. Marvell Lawton, R.N. (the

"applicant"). On June 3, 1996, the applicant applied for a

license to operate an AFCH at 550 East Division Street, Deland,

Florida (the "facility").

2. Respondent is the st ate agency responsible for licensing

AFCHs. Respondent requires several documents to be submitted

with the application including: a Florida Department of Health

and Rehabilitative Services ("HRS") Community Residential Homes

Sponsor Certification Form (the "HRS Form"); a statement by the

local zoning office that the facility is properly zoned (the

"zoning approval"); and a fire inspection report.

3. The applicant altered the HRS Form, the zoning approval,

and the fire inspection report to indicate that the facility was

approved for a maximum capacity of five residents. Respondent

initially denied the license application solely on the basis of

the fire inspection report. However, the basis of denial was

amended to include the HRS Form and the zoning approval pursuant

to an order entered by Judge Stephen F. Dean on October 16, 1996.

4. By letter dated July 11, 1996, Respondent notified the

applicant that her application was denied. The letter stated, in

relevant part, that the specific basis for denial was:

. . . Submission of fraudulent or inaccurate

information to the agency. The fire safety

inspection report submitted with the application

package was altered to indicate approval for five

residents when the fire marshal's office had only

approved three residents. The local fire

marshal's office has verified that the original

approval was for three residents because Ms.

Lawton did not want to install a manual alarm

system which is required for four or five

residents. Submission of fraudulent or inaccurate

information to the agency is grounds for denial of

the AFCH application, s. 400.619(11)(e),F.S.

5. On April 2, 1996, the applicant obtained a fire

inspection report from the City of Deland Fire Department (the

"Fire Department"). The fire inspection report limited the

maximum capacity of the facility to three residents because the

applicant did not have the manual alarm system required for four

or five residents and did not wish to install such a system.

6. The applicant altered the fire inspection report that

she submitted with her application. She changed the number "3"

to a "5" so that the fire inspection report appeared to approve

the facility for a maximum capacity of five residents.

7. As part of its review of the application, Respondent

attempted to verify the fire inspection report included in the

application by calling the Fire Department. When the Fire

Department did not verify that the maximum capacity was five

residents, Respondent obtained a copy of the original fire

inspection report from the Fire Department.

8. On March 22, 1996, the applicant obtained a zoning

approval from the City of DeLand stating that the maximum

capacity of the facility is three residents. The applicant added

the phrase "to 5" after the number "3" in the zoning approval so

that the zoning approval authorized a maximum capacity of "3 to

5" residents.

9. On June 3, 1996, the applicant submitted the HRS Form to

Respondent. The applicant amended the portion of the HRS Form

requiring a designation of capacity for facilities with six or

fewer residents as well as that for facilities with 7-14

residents. The latter category does not apply to Petitioner.

10. The applicant did not submit fraudulent information to

Respondent. The applicant did not intend to defraud Respondent.

She misunderstood the application process.

11. The facility has space for only three residents. It is

physically impossible to house more than three residents in the

facility.

12. The applicant would have gained nothing from an

authorized capacity of more than three residents. The

applicant's refusal to add the manual alarm system required for

four or five residents is consistent with the facility's limit of

three residents.

13. The applicant assumed that Respondent's minimum license

category is for a license of 1-5 residents. The applicant

altered the HRS Form, the zoning approval, and the fire

inspection report under the mistaken belief that the capacity

designation in each document should conform to the maximum

capacity in Respondent's license category. In the HRS Form, the

applicant even altered the licensed capacity for facilities with

7-14 residents.

14. The applicant mistakenly submitted inaccurate

information to Respondent within the meaning of Section

400.619(11)(e), Florida Statutes. 1 The maximum licensed capacity

of the facility must be consistent with fire safety requirements

for the welfare of the residents. The licensed capacity of the

facility must also conform to applicable zoning laws.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto. The parties were duly noticed for the formal

hearing.

16. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of the evidence that the applicant did

not submit inaccurate information with the license application.

Young v. State, Department of Community Affairs , 567 So.2d 2

(Fla. 3d DCA 1990); Florida Department of Transportation v.

J.W.C. Company, Inc. , 396 So.2d 778 (Fla. 1st DCA 1981); Balino

v. Department of Health and Rehabilitative Services , 348 So.02d

349 (Fla. 1st DCA 1977).

17. Petitioner did not satisfy its burden of proof. The

HRS Form, zoning approval, and fire inspection report submitted

with the application were inaccurate. They incorrectly indicated

that the facility had been approved for a maximum capacity of

five residents.

18. Section 400.619(11)(e) provides, in relevant part, that

Respondent may deny a license for submitting inaccurate

information to Respondent. Section 400.619(13) authorizes

Respondent to adopt rules to implement Section 400.619(11)(e).

19. Section 400.621(1) requires Respondent to promulgate .

rules that establish minimum standards and licensure procedures

for adult family-care homes.

20. Section 400.621(2) further provides:

Minimum firesafety standards shall be established

and enforced by the State Fire Marshal in

cooperation with the department [the Department of

Elderly Affairs] and the agency [the Agency For

Health Care Administration]. Such standards must

be included in the rules adopted by the department

after consultation with the State Fire Marshal and

the agency.

21. Fire safety standards are prescribed in Florida

Administrative Code Rule 58A-14.0091. 2 The introductory

paragraph in Rule 58A-14.0091 states:

Fire safety protec tion shall be governed by

minimum fire safety standards established by the

department in conjunction with the State Fire

Marshal. The standards are included in Chapter 21

and sections 1.3, 7.1, 7.2, and 7.3 of Chapter 31

of the National Fire Protection Association (NFPA

101), Life Safety Code, 1994 edition, which is

adopted herein and incorporated by reference, as

modified by this rule.

Rule 58A-14.0091(7) requires an AFCH to have:

. . . manu al activated continuously sounding pull

stations. Any home without 110-volt AC electrical

service shall have the pull stations installed by

a licensed electrician.

22. Petitioner does not dispute the applicability of the

foregoing statutes and rules. Nor does Petitioner dispute their

interpretation by the Fire Department.

23. Section 400.619(11)(e) states that Respondent may deny

a license application when inaccurate information is submitted.

The statute does not require denial.

24. The purpose of a administrative hearing is to formulate

final agency action. The purpose is not to review agency action

taken previously. McDonald v. Department of Banking and Finance ,

346 So.2d 569 (Fla. 1st DCA 1977).

25. In formulating final agency action, the undersigned may

consider evidence of relevant facts that exist at the time of the

administrative hearing. Id . The facts show that the welfare and

safety of the residents in the facility will be protected if the

licensed capacity of the facility is limited to three residents.

The facility complies with fire safety codes and zoning

requirements for three residents.

26. The applicant testified at the administrative hearing

that no more than three adults can reside in the facility. Her

testimony was credible and persuasive and consistent with her

refusal to add a fire alarm system required for more than three

residents. Respondent offered no contrary evidence.

27. The changes made to the HRS Form do not increase the

capacity of the facility. The facility can house no more than

three residents.

28. Respondent has ample authority to inspect the facility

to assure that its actual capacity does not exceed its licensed

capacity. Such inspections by Respondent constitute a routine

part of Respondent's responsibilities.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a Final Order and therein

GRANT a license to operate an AFCH for three residents.

RECOMMENDE D this 21st day of February, 1997, in Tallahassee,

Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 -3060

(904) 488 -9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of February, 1997.

ENDNOTES

1 / All chapter and section references are to Florida Statutes

(1995) unless otherwise stated.

2/ All references to rules are to rules promulgated in the

Florida Administrative Code in effect as of the date of this

Recommended Order.

COPIES FURNISHED:

Douglas Cook, Director

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Jerome Hoffman, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Michael O. Mathis, Senior Attorney

Agency for Health Care Administration

2727 Mahan Drive, Suite 200

Tallahassee, Florida 32308-5403

Ms. Marvell Lawton, pro se

Post Office Box 4040

DeLand, Florida 32723

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

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.