09-006960 Agency For Persons With Disabilities vs. Jim Tin Group Homes, Owned And Operated By Miles Hines Status: Closed Recommended Order on Thursday, April 14, 2011.

Summary: Agency failed to demonstrate that Respondent inadequately supervised residents at group home; the investigative report was uncorroborated hearsay that could not form the basis of findings of fact against Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH )

DISABILITIES , )

)

Petitioner , )

)

vs. ) Case N o. 0 9 - 6960

)

JIM TIN GROUP HOMES, OWNED AND )

OPERATED BY MILES HINES , )

)

Respondent . )

)

RECOMMENDED ORDER

On November 19, 2010 , a formal administrative hearing in

this case was held in Gainesville , Florida, before Lawrence P.

Stevenson , Administrative Law Judge, Divisi on of Administrative

Hearings.

APPEARANCES

For Petitione r: Julie Waldman , Esquire

Jorge Maza, Qualified Representative

Agency for Persons with

D isabilities

1621 Northeast Waldo Road

Gainesville , Flor ida 32 609

For Respondent: Christina Nieto Seifert, Esquire

Avera & Smith, LLP

248 North Marion Avenue, Suite 102

Lake City, Florida 32055

STATEMENT OF THE ISSUE

The issue in the case is whether Respondent should be

subject to administrative penalties, including an administrative

fine not to exceed $1,000.00, for failure to comply with the

residential facility requirements of c hapter 393, Florida

Statutes, as alleged in the Administrative Complaint dated

November 12, 2009.

PRELIMINARY STATEMENT

On November 12, 2009, Petitioner, the Agency for Persons

with Disabilities (APD) filed a one - count Administrative

Complaint against Respondent, Jim Tin Group Homes, owned and

operated by Miles Hines. The Administrative Complaint alleged

that on or about January 14, 2009, an adult resident of the

group home operated by Respondent sexually abused another

resident, who was a minor at the time, and that an abuse

investigation was initiated by the Department of Children and

Families (DCF) and was subsequently closed with verified

indicators of inadequate supervision by Respondent. Based on

these allegations, Respondent was charged with vio lating Florida

Administrative Code Rule 65G - 2.012(4) and s ection 393.13(3)(a)

and (g), Florida Statutes, by failing to adequately supervise

residents and sufficiently protect them from harm, neglect, and

sexual abuse.

Respondent timely filed an Election of Rights whereby it

disputed the material facts alleged in the Administrative

Complaint and requested an evidentiary hearing. On December 21,

2009, APD forwarded Respondent's hearing request to the Division

of Administrative Hearings for the scheduling and conduct of a

formal hearing .

The hearing was initially scheduled for April 23, 2010.

Four continuances were granted before the hearing was held on

November 19, 2010.

At the hearing, APD presented the testimony of DCF child

protective investigator super visor Cheryl Hollingsworth, and of

APD Area 3 administrator Jim Smith. APD's Exhibit A, the

investigative report of a "Child Institutional Investigation"

conducted by DCF protective investigator Natalie Rella, was

admitted for the limited purpose of showi ng the fact that DCF

had "verified" Respondent's responsibility for abuse or neglect

as required by s ection 393.0673(1)(b).

Respondent presented th e testimony of Americo Rodrigues , a

behavior analyst with Choice Behavior Services, LLC. Respondent

offered no exhibits into evidence.

No transcript was filed at the Division of Administrative

Hearings.

During the course of the hearing, it was discovered that

Ms. Hollingsworth, DCF's supervisor of investigations at the

Alachua County level, had recommended that DCF's Tallahassee

headquarters revisit the circumstances of the case and change

the classification from "verified" to "not substantiated," based

on information she had learned subsequent to the investigation.

The parties agreed to continue the hearing pen ding APD's inquiry

into the status of Ms. Hollingsworth's recommendation. APD was

given until December 10, 2010, to ascertain the status of the

matter. The parties agreed that if the classification remained

"verified" after DCF's review, then the parties would file their

proposed recommended orders on January 31, 2011.

In a status report filed on December 10, 2010, counsel for

APD informed this tribunal that DCF had received

Ms. Hollingsworth's recommendation, re - opened and reviewed the

case, but declined to change the classification. The status

report requested that the parties be directed to file their

proposed recommended orders on January 31, 2011, as agreed at

the hearing. By order dated January 4, 2011, the undersigned

ordered the record closed and directed the parties to file their

proposed recommended orders on January 31, 2011.

On January 26, 2011, Respondent filed an U nopposed M otion

for E xtension of T ime to F ile P roposed R ecommended O rders, which

was granted by order dated January 27, 2011. In accordance with

that order, each party timely filed a P roposed R ecommended O rder

on February 10, 2011.

FINDINGS OF FACT

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

regulation of foster care facilities, group home facilities, and

residenti al habilitation pursuant to s ection 20.197 and c hapter

393, Florida Statutes (2009).

2. At all times relevant to this proceeding, Respondent

held one group home facility license issued by APD for a

residence at 12629 Southwest Archer Lane, Archer, Florida 32618.

The group home is owned and operated by Miles Hines.

3. C.H. is a child client of APD who has been diagnosed

with moderate mental retardation and bipolar disorder. C.H. has

a history of a ttention d eficit h yperactivity d isorder, post -

t raumatic st ress disorder, and depression.

4. At all times relevant to this proceeding, C.H. was a

resident at the Jim Tin Group Home.

5. M.K. is an adult client of APD who has been diagnosed

with, among other conditions, mental retardation.

6. At all times relevan t to this proceeding, M.K. was a

resident at the Jim Tin Group Home.

7. APD alleged that M.K. sexually abused C.H. at the Jim

Tin Group Home on or about January 14, 2009.

8. APD produced no direct evidence in support of the

allegation. APD relied solely on the written investigative

report of a "Child Institutional Investigation" conducted by DCF

protective investigator Natalie Rella between January 14 and

March 11, 2009. Ms. Rella's report was reviewed and approved by

her supervisor, Cheryl Hollingswort h.

9. Ms. Rella did not testify at the hearing. None of the

persons interviewed by Ms. Rella testified at the hearing.

10. Ms. Hollingsworth testified that she did not

personally participate in any of the interviews that formed the

basis of Ms. Rella's report, nor did she independently

investigate the abuse report that triggered the investigation.

11. Ms. Hollingsworth relied entirely on Ms. Rella's

report and Ms. Rella's conclusion that there were verified

findings of inadequate supervision by Mr. Hin es.

12. Ms. Rella's report stated that its findings were based

on an interview with M.K., an interview of C.H. conducted by the

Child Advocacy Center, and her review of prior reports.

13. No transcript or other account of the substance of the

interviews was entered into evidence.

14. The "narrative" portion of Ms. Rella's report stated

as follows:

[C.H.] is intellectual disabled [sic].

[C.H.] is high functioning but he has a lot

of problems. On the night of 01/14/09, a

resident tried to grab [C.H.'s] h and and put

it between his legs. The resident told

[C.H.] to suck his penis. [C.H.] did not

but he told the supervisor who said, "I did

not see it happen so there is nothing they

can do." [C.H.] has spoken with the staff

in the past about the resident's behavior.

In the past, the other resident has tried to

sexually aggress upon [C.H.] . The advances

happened for a while but they stopped. The

sexual advances have picked back up in the

last couple of weeks. [C.H.] is frightened

and scared of the res ident.

15. Ms. R ella's report contained a "prior reports" section

describing previous investigations involving the same residents.

One of these incidents involved a report by C.H. that he had

been raped by two men and that another man had sucked C.H.'s

penis while the child was at a DJJ facility. This claim was

determined to be not substantiated . There were cameras in the

room where the assaults were alleged to have occurred . The

cameras proved that the assaults never took place .

16. Americo Rodrigue s is a certified behavior analyst with

Choice Behavior Services, LLC in Gainesville. He has been

C.H.'s behavior analyst since 2008 and visits C.H. weekly at the

Jim Tin Group Home. Mr. Rodrigues testified that among C.H.'s

behavioral problems is a prope nsity for making false allegations

against other residents. C.H. is also very suggestible and

easily led to agree with what someone tells him. Mr. Rodrigues

stated that he is working with C.H. on these problems, but that

they have proven relatively intra ctable.

17. Mr. Rodrigues had no firsthand knowledge of the events

alleged to have occurred at Jim Tin Group Home on January 14,

2009. Mr. Rodrigues testified that his impressions of the group

home were that the accommodations and food seemed appropriate ,

and that facility staff appeared to be ensuring that the

residents ' activities of daily living were adequately

maintained.

18. During cross - examination, Ms. Hollingsworth conceded

that C.H. changed his story during the course of the

investigation . C.H. recanted his allegation and denied that he

and M.K. ever engaged sexually.

19. Ms. Hollingsworth testified that Ms. Rella had failed

to conduct a site visit of the group home , that she never

interviewed C.H.'s support coordinator or counselor, and that

s he never interviewed Mr. Hines. Ms. Rella spoke to no one who

had dealt with C.H. over an extended period of time or who could

provide perspective as to the child's historic patterns of

behavior.

20. Ms. Hollingsworth testified that, based on what she

kn ew now, her recommendation would be to find that the

allegations made by C.H. were "not substantiated." In fact, she

had made a request to DCF headquarters in Tallahassee to change

the conclusion in Ms. Rella's report.

21. Jim Smith, APD's Area 3 adminis trator, testified that

APD filed its complaint against Respondent in complete reliance

on DCF's finding of a verified incident of inadequate

supervision. APD does not conduct its own investigations and

does not review DCF's reports for accuracy. H ad DCF found that

the allegations against Respondent were "not substantiated," APD

would not have filed the Administrative Complaint that initiated

this proceeding.

22. The DCF investigative report is a hearsay document.

It was admitted into evidence for the li mited purpose of

supplementing Ms. Hollingsworth's testimony that DCF had in fact

"verified" the abuse complaint. APD argued that the report

should be admitted for all purposes under the business records

exception set forth in s ection 90.803(6), Florida S tatutes.

T his argument is unavailing because C.H., the main source of

information for the report, showed a lack of trustworthiness.

23. APD ha s not demonstrate d by clear and convincing

evidence that Respondent failed to adequately supervise

residents and sufficiently protect them from harm, neglect, and

sexual abuse.

CONCLUSIONS OF LAW

24 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (20 10 ) .

25 . License revocation and discipline proceedings are

penal in nature. The burden of proof on APD in this proceeding

was to demonstrate the truthfulness of the allegations in the

Administrative Complaint by clear and convincing evidence.

Dep Ó t of Bank ing & Fin . v. Osborne Stern & Co . , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987) ;

C oke v. Dep Ó t of Child . & Fam . Servs . , 704 So. 2d 726 (Fla. 5th

DCA 1998) .

26. The "clear and convincing" standard requires:

[T]hat the evid ence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such wei ght that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

27. No direct witnesses testi fied as to the events of

January 14, 2009. Even the investigator who prepared the DCF

report did not testify at the hearing.

28. APD argues that the DCF report should be admitted for

all purposes pursuant to the business records exception in

s ection 90.8 03(6). However, paragraph (a) of the cited

provision states that business records qualify for the exception

"unless the sources of information or other circumstances show

lack of trustworthiness." See Sunshine Chevrolet Oldsmobile v.

Unemplmt App . Comm Ó n , 910 So. 2d 948 , 950 (Fla. 2d DCA 2005) .

The evidence p resented at the hearing established that C.H. was

the chief source of information for the DCF report, and that

C.H. was not a trustworthy source as regards allegations of

sexual misconduct.

29. APD advances an alternative argument for imposing a

fine on Respondent despite the lack of evidence. APD states

that it is not an investigatory agency, and lacks either the

authority or the resources to independently investigate

allegations of abuse or neglec t. APD relies on DCF to

investigate abuse or neglect allegations in group homes for

persons with developmental disabilities. Once DCF has verified

findings of abuse or neglect against an APD group home licensee,

APD has a " ministerial duty " to impose a f ine on that licensee

pursuant to s ection 393.0673(1). Under this theory, o nce DCF

presented APD with a "verified" report against Jim Tin Group

Homes, APD had no choice but to impose a fine.

30. Section 393.0673(1), provides as follows, in relevant

part:

(1) The agency may revoke or suspend a

license or impose an administrative fine,

not to exceed $1,000 per violation per day,

if:

* * *

(b) The Department of Children and Family

Services has verified that the licensee is

responsible for the abuse, neglec t, or

abandonment of a child or the abuse,

neglect, or exploitation of a vulnerable

adult.

31. The quoted portion of the statute makes clear that APD

may impose an administrative fine after DCF has verified that

the licensee is responsible for the alle ged violations. The

statute does not require APD to impose a fine as a "ministerial

duty." The statute certainly does not require APD to ignore

evidence produced at a de novo hearing that the "verified"

finding of inadequate supervision was based on a de ficient

investigation subsequently disavowed by the DCF supervisor who

initially approved it.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a f inal o rder dismissing the Administrative

Complaint .

DONE AND ENTERED this 14th day of April , 2011 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative 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 14th day of April , 2011 .

COPIES FURNISHED :

Jul ie Waldman, Esquire

Agency for Person with Disabilities

1621 Northeast Waldo Road

Gainesville, Florida 32609

M. Todd Hingson, Esquire

Avera & Smith, LLP

248 North Marion Avenue, Suite 102

Lake City, Florida 32055

Christina N ieto Seifert, Esquire

Avera & Smith, LLP

248 North Marion Avenue Suite 102

Lake City, Florida 32055

Percy W. Mallison, Jr., Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

Michael Palecki, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

Bryan Vaughan, Acting Exec utive Dir ector

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

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.