06-004139 Kenneth A. Donaldson vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, April 16, 2007.

Summary: Petitioner, the operator of a family-care home, resided in the home, so Respondent could not refuse to renew his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH A. DONALDSON, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4139

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Tampa, Florida, on February 2, 2007.

APPEARANCES

For Petitioner: Kenneth A. Donaldson, pro se

7128 North 50 th Street

Tampa, Florida 33617

For Respondent: Gerald L. Pickett

Agency for Health Care Administration

Sebring Building, 330K

525 Mirror Lake Drive

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue is whether Respondent is entitled to the renewal

of his license to operate an adult family - care home.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated September 21, 2006,

Res pondent informed Petitioner that it had denied his

application for renewal of his license to operate an adult

family - care home. The cited reason is that Petitioner did not

reside in the home.

Petitioner timely requested a hearing.

At the hearing, Petiti oner called two witnesses and offered

into evidence four exhibits. Respondent called two witnesses

and offered into evidence nine exhibits. All exhibits were

admitted.

The court reporter filed the Transcript on February 28,

2007. Respondent filed a pro posed recommended order on

March 12, 2007.

FINDINGS OF FACT

1. At all material times, Petitioner has operated an adult

family - care home at 7128 North 50th Street in Tampa. Petitioner

owns this home with his cousin.

2. In anticipation of the expiration of his license on

September 29, 2006, Petitioner filed with Respondent an

application for renewal on May 23, 2006. Renewal applications

prompt annual survey inspections, so, after the receipt of

Petitioner's renewal application, one of Respondent's surveyors

vis ited the home and performed an annual survey inspection. She

noted items that required a follow - up inspection, so, on

August 3, 2006, one of Respondent's surveyors returned for the

follow - up inspection.

3. Respondent's surveyor was met at the door by Sheri lle

Guider, who stated that she was the caregiver. The surveyor

asked to see Petitioner, but she told her that Petitioner did

not live at the house, although she showed the surveyor the

locked room that belonged to Petitioner. When asked to produce

certa in routine documents, the caregiver replied that she did

not have access to such documents, as they were in the locked

room of Petitioner and the caregiver did not have a key.

4. Petitioner appeared a short time after the surveyor's

arrival and produced the r equested documents. There is some

dispute as to whether he offered to show his room to the

inspector, but his testimony is unrebutted that he kept a room,

with clothes and toiletries, for his exclusive use at the home.

He claimed that he resided at the h ome, although he admitted

that did not spend every night there.

5. Subsequent investigation revealed that Petitioner and

his wife, from whom he has been separated for two years, claim a

different residence within Hillsborough County as their

homestead propert y. Also, Petitioner's driver license currently

bears the address of the home, but, at the time of the incident,

bore the address of his homestead property. The same appears to

be true of the certificate of title to his motor vehicle.

6. Petitioner testified that he originally planned to

operate the home as his fulltime job, but was unable to generate

enough money doing so. He has since found employment as a

certified nursing assistant and often works the 11:00 p.m. to

7:00 a.m. shift.

7. Four or five months prior to the follow - up inspection,

Petitioner had hired Ms. Guider to serve as a caregiver at the

home. In return for her services as a caregiver, Petitioner

rented a room in the home to her at reduced rent. Petitioner

allowed her boyfriend also to move into a room, but required a

background screening on him, as well as on Ms. Guider. After

several delays, the boyfriend completed his form, and, after

submitting it, Petitioner learned that the boyfriend had a

criminal record.

8. Petitioner demanded that th e boyfriend move out.

Eventually, Petitioner had to summon law enforcement officers to

eject the man. This episode preceded the follow - up inspection.

9. Ms. Guider's hearsay statement to Respondent's surveyor

appears to be the strongest evidence on which Respondent is

relying in this case. However, for the reason noted above,

Ms. Guider was unhappy with Petitioner. Even before her

boyfriend had been ejected from the home, Ms. Guider had

approached Petitioner's two residents with a plan for her to

start h er own adult family - care home and for them to move into

it. Ms. Guider's short period of employment with Petitioner

terminated one day when, without notice, she asked a friend of

Petitioner to drive her to the airport so she could fly home to

Chicago. Sh e did and never returned. For all these reasons,

Ms. Guider does not appear to be a reliable source of

information as to Petitioner's place of residence.

10. Petitioner testified that he resides at the home. A

friend of 20 years, who also operates an adult family - care home,

testified that she visits Petitioner's home regularly and knows

that he resides there.

11. Petitioner's claiming of homestead exemption at

another address is less evidence of his primary residence and

more evidence of his carelessness or fra ud in maintaining

current information with the Hillsborough County property

appraiser's office. The old addresses shown on the driver

license and certificate of title are of little importance in

determining Petitioner's residence, given the other evidence

establishing the home as his residence and his subsequent

updating of the addresses in these official records.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (20 06).

13. Section 429.67(2), Florida Statutes, requires that the

operator of an adult family - care home "reside" in the home.

14. It is not clear which party bears the burden of proof.

Respondent claims that the burden of proof rests with

Petitioner. Case law s uggests that an agency cannot avoid

revoking a license by declining to renew a license. See , e.g. ,

Dubin v. Department of Business Regulation , 262 So. 2d 273 (Fla.

1st DCA 1972). However, Respondent cites Section 429.63(4),

Florida Statutes, which provid es that adult family - care home

licensure is "a public trust and a privilege, and not an

entitlement" and requires that "the finder of fact or trier of

law at any administrative proceeding or circuit court action

initiated by the department to enforce this part" be "guide[d]"

by this principle. Section 492.63(4) raises a question as to

the applicability of the case law.

15. However, imposing the burden of proof on Petitioner

does not alter the outcome in this case, so this order shall

assume that Petitioner be ars the burden of proof.

16. Petitioner has proved that he resided in the adult

family - care home that he operates at 7128 North 50th Street in

Tampa. He is thus entitled to renewal of the license that

Respondent declined to renew.

RECOMMENDATION

It is

RE COMMENDED that the Agency for Health Care Administration

enter a final order granting Petitioner's application to renew

his adult family - care home license.

DONE AND ENTERED this 16th day of April, 2007, 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 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of April, 2007.

COPIES FURNISHED:

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Craig H. Smith, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Dr. Andrew C. Agwunobi, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Kenneth A. Donaldson

7128 North 50th Street

Tampa, Florida 33617

Gerald L. Pickett

Agency for Health Care Administration

525 Mirror Lake Drive

Sebring Building, 330K

St. Petersburg, Florida 33701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended ord er. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.