04-002472 Tinsley Murphy Bradley vs. Department Of Veterans Affairs Status: Closed Recommended Order on Monday, September 20, 2004.

Summary: Petitioner has been a resident of Florida for more than one year. He meets the residency requirement of Section 296.36(1), Florida Statutes. Recommend approval of his application for admission.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TINSLEY MURPHY BRADLEY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2472

)

DEPARTMENT OF VETERANS' )

AFFAIRS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursu ant to notice, a formal hearing was held in this case

on August 30, 2004, in Port St. Joe, Florida, before the

Division of Administrative Hearings by its designated

Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Lynn O’Gra dy, pro se

315 Nautilus Drive

Port St. Joe, Florida 32456

For Respondent: James W. Sloan, Esquire

General Counsel

Department of Veterans’ Affairs

4040 Esplanade Way, Suite 180

Tallahassee, Florida 32399 - 7016

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of

Veterans’ Affairs properly denied Petitioner’s application for

admission to a veterans’ hospital.

PRELIMINARY STATEMENT

On June 29, 2004, Respondent, Department of Veterans’

Affairs ("th e Department" or "Veterans' Affairs"), issued a

letter to Petitioner, Tinsley Murphy Bradley, notifying him that

his application for admission to a Veterans’ hospital had been

denied. The denial of admission was based solely upon the

Department’s determin ation that Petitioner had not been a

Florida resident for one year prior to the date of his

application.

Petitioner challenged the Department's intended action and

requested an administrative hearing. The Department forwarded

the case to the Division o f Administrative Hearings on or about

July 16, 2004. A formal hearing was scheduled for August 30,

2004.

At the commencement of the hearing, Ms. Lynn O’Grady,

Petitioner’s daughter, was authorized to appear on behalf of

Petitioner.

At hearing, Petit ioner did not present any evidence.

Respondent presented the testimony Lynn O’ Grady and Lyndette

Aguirre. No exhibits were admitted into evidence by either

party.

A Transcript of the hearing was filed on September 8, 2004.

Petitioner did not file any post - hearing written submission. On

September 10, 2004, Respondent filed a post - hearing submission

declining to file a proposed recommended order.

FINDINGS OF FACT

1. Approximately five months prior to the final hearing

Petitioner’s daughter, Mrs. Lyn n O’Grady, applied for admission

to the Clifford Chester Sims nursing home in Springfield,

Florida, on behalf of her father, Tinsley Murphy Bradley. The

Springfield facility is a nursing home operated by the

Department.

2. On June 29, 2004, the Departmen t notified Petitioner

that his application had been denied because he had not been a

Florida resident for one year prior to the date of his

application.

3. Petitioner is an honorably discharged veteran. There

is no dispute that other than the question of residency,

Petitioner otherwise meets admission requirements for a

Veterans' Affairs facility.

4. According to Mrs. O’Grady, Petitioner has resided with

Mrs. O’Grady or her sister in Florida for approximately two and

one - half years. Mrs. O’Grady’s tes timony in this regard is

deemed to be credible and is accepted.

5. Accordingly, Petitioner meets the one - year residency

requirement and is entitled to admission in a Veterans’ Affairs’

facility.

CONCLUSIONS OF LAW

6. The Division of Administrative Hea rings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. 1/

7. The Department of Veterans’ Affairs is the state agency

responsible for the operation of the state's veterans’ nursing

homes. § § 296.32 and 296.34, Fla. Stat.

8. Petitioner seeks admission to a veterans’ nursing home.

As Petitioner is the party asserting the affirmative of an

issue, Petitioner has the burden of proof. Department of

Transportation v. J.W.C. Company , 396 So. 2 d 778 (Fla. 1st DCA

1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

9. Florida law imposes several requirements of eligibility

for admittance to a veterans’ nursing home. Among those is the

requi rement that the person seeking admission be a resident of

Florida for one year immediately preceding the date of

application. § 296.36(1)(b), Fla. Stat.

10. The Department does not dispute Petitioner’s other

eligibility requirements. Accordingly, since Petitioner has

been a resident of Florida more than one year prior to his

application for admission into a veterans’ nursing home, he

meets the eligibility requirement set forth in Section

296.36(1)(b), Florida Statutes.

RECOMMENDATION

Based upon the Fin dings of Fact and Conclusions of Law,

it is

RECOMMENDED:

That the Department of Veterans' Affairs enter a final

order granting Petitioner's application for admission into a

veterans’ nursing home.

DONE AND ENTERED this 20th day of September, 2004, i n

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of September, 2004.

ENDNOTES

1/ All citations are to the Florida Statutes (2003), unless

otherwise indicated.

COPIES F URNISHED :

Lynn O’ Grady

315 Nautilus Drive

Port St. Joe, Florida 32456

James W. Sloan, Esquire

General Counsel

Department of Veterans’ Affairs

4040 Esplanade Way, Suite 180

Tallahassee, Florida 32301

Jennifer Carroll, Executive Director

Department of Veterans Affairs

Koger Center

Douglas Building, Suite 100

2540 Executive Center Circle, West

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.