97-005693 Gwendolyn Whittingham vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, April 21, 1998.

Summary: Application for license to operate Assisted Living Facility properly denied where applicant shown to have been convicted of aggravated assault and application was incomplete.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GWENDOLYN WHITTINGHAM, )

)

Petitioner, )

)

vs. ) Case No. 97-5693

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

March 18, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: Gwendolyn Whittingham, pro se

15560 Northwest 26th Avenue

Miami, Florida 33054

For Respondent: Edward M. Lerner, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Petitioner's

application for a license to operate an Assisted Living Facility

should be approved.

PRELIMINARY STATEMENT

Petitioner, as the applicant for a license to operate an

Assisted Living Facility (ALF), was notified by Respondent on

October 16, 1997, that her application had been denied for the

following reasons:

Submission of a fraudulent statement on the

notarized application form. The application

form asks if you have been arrested for a

crime involving injury to persons. You wrote

a comment stating "no injury". The

background screening results from the Florida

Department of Law Enforcement revealed that

you have been arrested and convicted of

aggravated assault and were received in the

Florida Department of Corrections on 03/12/92

and discharged on 11/03/95. Submission of a

fraudulent statement on the notarized

application form is grounds for denial of

this application, section 400.414(2)(i), F.S.

An individual who is convicted of a crime

involving injury to persons is considered not

to be of suitable character to provide

continuing adequate care to residents,

section 400.414(2)(b), F.S.

Failure to provide a complete application

package. In a letter dated 09/16/97 you were

informed that the application package was

incomplete and that additional documentation

must be provided on or before 10/07/97 or the

application would be denied. You did not

provide the requested documentation. The

Agency is unable to verify that the applicant

can provide adequate care to residents

without a complete application package being

on file, section 400.411(1), F.S.

Petitioner responded to Respondent's letter of denial on

October 21, 1997, and disputed the grounds advanced by the Agency

for the denial of her application. Consequently, the matter was

referred to the Division of Administrative Hearings for the

assignment of an administrative law judge to conduct a formal

hearing pursuant to Sections 120.569, 120.57(1), and 120.60(3),

Florida Statutes.

At hearing, Petitioner testified on her own behalf, but

offered no further proof. Respondent called Mary Ippolito,

Jo Ann Linch, and Elizabeth Werner as witnesses, and the

Respondent's Exhibits 1 through 9 and 11 were received into

evidence. 1

The transcript of the hearing was filed April 6, 1998, and

the parties were accorded ten days from that date to submit

proposed recommended orders. Respondent elected to file such a

proposal, and it has been duly considered in the preparation of

this recommended order.

FINDINGS OF FACT

Petitioner's application and the Agency's denial

1. On or about September 5, 1997, Petitioner, Gwendolyn

Whittingham, submitted an application to Respondent, Agency for

Health Care Administration (Agency), for initial licensure of a

4-bed Assisted Living Facility (ALF) to be known as Gwen's

Heavenly Resort, and to be located at 15560 Northwest 26th

Avenue, Opa Locka, Florida. Respondent was named as the owner

and proposed administrator.

2. Pertinent to this case, item VIIA on the application,

entitled "Criminal Abuse History," required that Petitioner

answer yes or no to the following question by checking the

appropriate box:

Has any owner, administrator, partner, or

director ever been arrested for -- or

convicted of-- a crime involving injury to

persons, or involving financial or business

management (e.g. assault, battery,

embezzlement, or fraud)?

The question further provided:

If the answer . . . is "YES" attach a

separate letter of explanation stating the

charges, dates of arrest/conviction, and

disposition for each incident. Check will be

made for each applicant.

Petitioner did not check either the "YES" box or the "NO" box,

but wrote in the words "No Injury."

3. Also pertinent to this case, item VIII of the

application provided the following "application checklist" for an

initial licensure application:

_____ Are all sections on this application

completed?

_____ Is the application signed & notarized

below?

_____ Completed Attachment A - Statement of

Operations?

_____ Completed Attachment B - Statement of

Assets & Liabilities?

_____ Completed Attachment C - Zoning

Certificate?

_____ Have you attached Proof of Business

Liability Insurance?

_____ Have you submitted the correct fee?

The check list included the following cautionary statement:

Please note that your application may be

denied for failure to submit the

documentation required above.

4. Item IX of the application called for the signature of

the owner or administrator, and that the application be

notarized. The following affirmation was required:

The undersigned hereby swears (or affirms)

that the statements in this application, and

its attachments, are true and correct and

that to the best of my knowledge and belief

all persons in ownership or employment are of

good moral character, and that the ownership

possesses sufficient funds to operate this

facility in a satisfactory manner.

5. Apart from not responding directly to item VIIA, the

application submitted by Petitioner (Respondent's Exhibit 7) was

not signed and notarized; did not include a "Statement of

Operations"; did not include a "Statement of Assets &

Liabilities"; did not include a "Zoning Certificate" verified by

the local government authority; and did not include "Proof of

Business Liability Insurance." Moreover, Petitioner did not sign

the application form for the "Florida Protective Services System

Background Check" she submitted, and the fee she submitted

($138.00) was, as discussed infra , not adequate.

6. By letter of September 16, 1997, the Agency advised

Petitioner that it had received her application and the fee she

had tendered. The letter further advised Petitioner that:

The application submitted was found to be

incomplete. The information or documentation

requested below must be received back in this

office by 10/07/97 or your application will

be denied.

APPLICATION

The application form you submitted has not

been in use by this Agency in over six years.

This form is not acceptable. A current

application form is enclosed. Please

complete the current application form and

have it notarized.

FEE

The fee submitted is incorrect because you

submitted an outdated application package.

The correct fee cannot be determined until

you submit a current application form. The

current application fee is $253 plus $33 for

each private pay bed. If a bed is to be

designated for a recipient of OSS services,

there is no per bed fee. Please refigure the

fee due and submit the remaining balance due.

INSURANCE

You must submit proof of current business

liability insurance coverage for the

operation of the Assisted Living Facility. A

copy of a certificate of insurance form or a

copy of the policy declarations page that

includes the facility name, street address,

type of facility, type of insurance issued,

and the beginning and ending effective dates

of coverage. Binders are not acceptable.

(Please do not send the entire policy.)

Since you are unsure of the effective date of

the license, you may submit proof that

insurance coverage will begin at a future

date. However, no license will be issued

until proof of insurance has been provided.

FIRE SAFETY

Please contact the local fire marshal's

office that has jurisdiction over the

physical location of the facility. A

satisfactory fire safety inspection must be

completed before you can be licensed. Please

submit a copy of the inspection report as

proof the inspection has been completed. The

report submitted must indicate that any cited

deficiencies have been corrected or that you

are approved for ALF licensure.

SANITATION INSPECTION REPORT

Please submit a copy of the sanitation

inspection report completed by your county

public health unit environmental services

office. The report submitted must indicate

that the inspection report was satisfactory

(any cited deficiencies have been corrected).

ZONING

You must contact the Department of Children

and Family Services, Community Residential

Home Coordinator, Ellison Shapiro, (305) 377-

7511, to obtain Form 1786 if the ALF will be

in a single family or multiple family zoned

area. The white copy of this form should be

sent to the agency.

Verification of zoning approval must be

provided from the city or county zoning

office having jurisdiction where the facility

is located. (This would be the zoning

office, not Ellison Shapiro's office.)

Zoning authorities must complete the Assisted

Living Facility Form 3180-1007, or provide a

letter on their letterhead stationery showing

the name and address of the facility and that

it is approved for use as an ALF. If the

local zoning office will not complete the

form, please submit proof that the zoning

office has had the opportunity to approve or

deny your request. (A dated, signed,

handwritten note from the zoning authority

and a business card stapled to the form would

be acceptable.)

HIV TRAINING

Please complete and submit the enclosed HIV

Education Confirmation form. This form is

used to verify that all employees have been

trained or will be trained in the required

HIV education material.

ASSETS AND LIABILITIES STATEMENT

Please complete the enclosed assets and

liabilities statement or provide a current

balance sheet. Directions are on the reverse

side of the form. You may desire to seek the

assistance of a bookkeeper or an accountant

in completing this form. The Agency must be

able to verify that you have the financial

ability to operate an ALF before your

application can be approved. The form must

be consistent with the application and the

statement of operation form.

STATEMENT OF OPERATION

Please complete the enclosed statement of

operation form. Directions are on the

reverse side of the form. This form is a

projection of anticipated expenses for the

first year of operation. Directions for

completing the form are on the reverse side

of the form. Please consider seeking

professional help, such as a bookkeeper or an

accountant in completing the form. The

information on this form must be consistent

with the application submitted and the assets

and liabilities statement.

WARRANTY DEED/LEASE AGREEMENT

You must provide proof that the applicant has

the legal right to occupy the premises.

Please submit a copy of the recorded warranty

deed or a lease agreement in the applicant's

name. If the corporation does not own the

property, a lease agreement should be

submitted between the property owner and the

corporation.

FLOOR PLAN

Submit a floor plan of the facility

indicating those rooms and areas that are to

be licensed as part of the ALF. Each room

should be labeled indicating the use of the

room (example: bedroom, living room,

bathroom, kitchen). The plan should be drawn

on 8 1/2" X 11" paper. A simple hand drawn

plan is acceptable. Architectural drawings

are too large to fit into the Agency's files

and should not be submitted to meet this

requirement.

BACKGROUND SCREENING

Florida Abuse Hotline Information System

Background Form AHCA 3110-0003 must be

completed by each ALF owner with 10 percent

or more interest, the administrator, general

partner, each limited partner, and corporate

officers (president, vice-president,

secretary, and treasurer). The fee for

background screening is included in the

license fee. Please complete and sign the

form.

7. Petitioner did not respond to the Agency's letter of

September 16, 1997. Consequently, by letter of October 16, 1997,

the Agency advised Petitioner as follows:

Your application for an initial license to

operate the above Assisted Living Facility

(ALF) is denied. It has been determined by

the Agency for Health Care Administration

that your application does not meet nor

comply with the standards as an ALF pursuant

to section 400.414, Florida Statutes (F.S.),

and Chapter 58A-5, Florida Administrative

Code (F.A.C.).

The specific basis for this determination

is:

Submission of a fraudulent statement on

the notarized application form. The

application form asks if you have been

arrested for a crime involving injury to

persons. You wrote a comment stating "no

injury". The background screening results

from the Florida Department of Law

Enforcement revealed that you have been

arrested and convicted of aggravated

assault and were received in the Florida

Department of Corrections on 03/12/92 and

discharged on 11/03/95. Submission of a

fraudulent statement on the notarized

application form is grounds for denial of

this application, section 400.414(2)(i),

F.S.

An individual who is convicted of a crime

involving injury to persons is considered

not to be of suitable character to provide

continuing adequate care to residents,

section 400.414(2)(b), F.S.

Failure to provide a complete application

package. In a letter dated 09/16/97 you

were informed that the application package

was incomplete and that additional

documentation must be provided on or before

10/07/97 or the application would be

denied. You did not provide the requested

documentation. The Agency is unable to

verify that the applicant can provide

adequate care to residents without a

complete application package being on file,

section 400.411(1), F.S.

The letter further advised Petitioner of her right to request a

formal administrative hearing to challenge the Agency's decision

to deny her application.

8. By letter of October 21, 1997, Petitioner responded to

the Agency's letter of denial, and requested a formal hearing.

With regard to the Agency's charge that she had submitted a

fraudulent statement by stating "No Injury" in response to

item VIIA, Petitioner stated her response was accurate because "I

stated that I was convicted [and] wrote in the words 'no

injuries' because it was worded as if with injury only." In

response to the claim that her "conviction of a crime involving

injury to others" rendered her of unsuitable character to qualify

for licensure, Petitioner apparently disputed the Agency's

contention that the crime involved injury to others, or that she

was otherwise disqualified. She did not, however, dispute her

conviction of a crime, which resulted in a sentence of

imprisonment for a term of three years. Finally, with regard to

the Agency's claim that she had failed to submit a complete

application package, Petitioner responded, "I have no idea nor

was I told of any documents missing out of package - please

provide copy of document request and whatever documents are

needed."

Petitioner's criminal conviction

9. Pertinent to Petitioner's conviction of a criminal

offense, the proof demonstrates that on or about September 17,

1990, an Information was filed in the Circuit Court, Dade County,

Florida, under Case No. 90-34662, which charged that Petitioner

did, on August 27, 1990:

. . . unlawfully and feloniously commit an

aggravated assault upon OFFICER GARCIA, a Law

Enforcement Officer during the course of or

in the scope of said victim's duty and/or

engaged in the lawful performance of his or

her duty, by intentionally threatening by

word or act to do violence to said victim,

coupled with an apparent ability to do so, by

point a SHOTGUN at said victim and threatened

to kill him with a DEADLY WEAPON, to wit: A

SHOTGUN, in violation of 784.021 and 784.07

and 775.0823 and 775.087 Florida Statutes.

Based on the facts alleged, the Information charged Petitioner

with three counts or violations of law, as follows:

I. AGGRAVATED ASSAULT ON A LAW ENFORCEMENT

OFFICER 784.021 & 784.07 & 775.0823 Fel.

II. IMPROPER EXHIBITION OF A DANGEROUS

WEAPON

III. RESISTING OFFICER WITHOUT VIOLENCE TO

HIS PERSON

10. On or about February 27, 1992, Petitioner was tried and

found guilty of Count I, Aggravated Assault on a Law Enforcement

Officer with a Deadly Weapon (a shotgun), a second degree felony

proscribed by Sections 784.021, 784.07, 775.0823, and 775.087,

Florida Statutes. As a result, Petitioner was sentenced to a

term of three years and committed to the custody of the

Department of Corrections until her discharge on November 3,

1995, upon expiration of her sentence.

Further findings regarding Petitioner's failure

to file a complete application

11. At hearing, Petitioner did not dispute her application

was incomplete or that the Agency, by letter of September 16,

1997, had requested additional information and documentation.

Rather, in an apparent effort to avoid the consequences of an

incomplete application, Petitioner averred she did not receive

the Agency's letter of September 16, 1997.

12. If true, Petitioner's plea does not excuse her failure

to file a complete application or foreclose the Agency from

relying on the incompleteness of the application as a basis for

denial. Rather, what is dispositive is that, within 30 days of

its receipt of the application, the Agency provided Petitioner

with written notice by mail, at her address of record, of the

errors or omissions in her application. The timely notice to

Petitioner, which was not returned by the United States Postal

Service, and not the actual receipt of the letter by Petitioner,

preserves the Agency's right to deny the application as

incomplete. Subsections 120.60(1) and (3), Florida Statutes.

Notably, notwithstanding the de novo nature of these proceedings,

Petitioner had not, as of the date of hearing, corrected the

omissions in her application.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Sections 120.569, 120.57(1), and 120.60,

Florida Statutes.

14. Pertinent to this case, Section 400.14(2), Florida

Statutes, provides that the Agency may deny an application for

licensure on the following grounds:

(b) The determination by the agency that

the facility owner or administrator is not of

suitable character or competency, or that the

owner lacks the financial ability, to provide

continuing adequate care to residents,

pursuant to the information obtained through

s. 400.411, s. 400.417, or s. 400.434.

* * *

(i) A fraudulent statement on an

application for a license or any other

documents required by the agency that is

signed and notarized.

15. Here, the Agency predicates its denial under subsection

400.14(2)(b) on the incompleteness of Petitioner's application,

as well as Petitioner's conviction of aggravated assault, as

proscribed by Section 784.021, Florida Statutes. First, with

regard to the incompleteness of the application, the Agency has

demonstrated that Petitioner's application failed to provide the

information required by Section 400.411, Florida Statutes, and

Rule 58A-5.014, Florida Administrative Code; that it provided

Petitioner with timely notice of the omissions; that Petitioner

failed to correct the deficiencies; and, that absent such

information, the Agency could not reasonably verify the

applicant's ability to provide adequate care to residents.

Second, with regard to Petitioner's conviction of aggravated

assault, the Agency has demonstrated that, pursuant to Section

435.03(2)(g), Florida Statutes, Petitioner is disqualified from

the licensure she seeks. 2

16. Finally, the Agency contends Petitioner's application

should be denied under subsection 400.14(2)(i) because, in

response to the question "[Have you] . . . ever been arrested

for -- or convicted of -- a crime involving injury to

persons . . . ?" Petitioner responded "No injury." According to

the Agency, such response was fraudulent.

17. Here, it cannot be reasonably concluded that

Petitioner's response was false or misleading, or that she

knowingly and intentionally sought to deceive the Agency. 3 As

importantly, since the application was not "signed and

notarized," no violation of subsection 400.14(2)(i) could be

shown under any circumstances. 4

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered which denies

Petitioner's application for a license to operate an Assisted

Living Facility.

DONE AND ENTERED this 21st day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of April, 1998.

ENDNOTES

1/ Petitioner's objection to Respondent's Exhibit 10 was

sustained, and it was not received in evidence.

2/ Petitioner may, however, apply for an exemption from

disqualification under Section 435.07, Florida Statutes.

3/ To establish that an applicant committed a violation of

subsection 400.14(2)(i), the Agency must show not only that the

applicant provided false or misleading information on her

application, but that she did so knowingly and intentionally.

Gentry v. Department of Professional and Occupational Regulations ,

293 So. 2d 95, 97 (Fla. 1st DCA 1974) (statutory provision

prohibiting physician from "[m]aking misleading, deceptive and

untrue representations in the practice of medicine" held not to

apply to "representations which are honestly made but happen to be

untrue"; "[t]o constitute a violation, . . . the legislature

intended that the misleading, deceptive and untrue representations

must be made willfully (intentionally)"). Accord, Munch v.

Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

DCA 1992), and Walker v. Department of Business and Professional

Regulation , 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998).

4/ In determining whether Petitioner violated the provisions of

subsection 400.14(2)(i), as alleged, one "must bear in mind that

it is, in effect, a penal statute. . . . This being true, the

statute must be strictly construed and no conduct is to be

regarded as included within it that is not reasonably proscribed

by it." Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

COPIES FURNISHED:

Gwendolyn Whittingham, pro se

15560 Northwest 26th Avenue

Miami, Florida 33054

Edward M. Lerner, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Paul J. Martin, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308-5403

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.