10-000496 Agency For Health Care Administration vs. Robin Audiffred, D/B/A St. Francis Place, A/K/A Family Ties Aclf, Inc. Status: Closed Recommended Order on Friday, May 6, 2011.

Summary: The Agency proved that Respondent operated an assisted living facility without a license, but failed to prove its entitlement to a $115,000 fine sought in the Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, AGENCY FOR )

HEALTH CARE ADMINISTRATION , )

)

Petitioner , )

)

vs. )

) Case No. 10 - 0496

ROBIN AUDIFREDD, d/b/a )

ST. FRANCIS PLACE, a/k/a )

FAMILY TIES A C LF, INC., )

)

Respondent . )

)

RECOMMENDED ORDER

A n administrative hearing was conducted in this case on

April 13 and 14, 2010 , in Pensacola , Florida, before

James H. Peterson, III, Administrative Law Judge with the

Division of Adm inistrative Hearings.

APPEARANCES

For Petitioner: Shaddrick Haston, Esquire

2727 Mahan Drive, Building 3

M ail S tation 3

Tallahassee, Florida 32308 - 5403

For Respondent: Mark L. Smith, Esquire

Law Office of Mark Lee S mith

224 East Garden Street, Suite 3

Pensacola, Florida 32303

STATEMENT OF THE ISSUE S

W hether Respondent Robin Audifred d d/b/a St. Francis Place

a/k/a Family Ties (Respondent) operated an assisted living

facility without a required licen se and, i f so, what is the

appropriate penalty.

PRELIMINARY STATEMENT

On December 17, 2009, the Agency for Health Care

Administration (Agency) issued an amended 1 / A dministrative

C omplaint (Complaint) against Respondent alleging that

Respondent was operatin g an assisted living facility ( ALF )

without a required license from the Agency and seeking

administrative fines totaling $115,000 . Respondent timely

requested an administrative hearing under c hapter 120, Florida

Statutes (2009) . O n February 1, 2010, the Agency referred the

case to the Division of Administrative Hearings (DOAH).

At the administrative hearing held on April 13 and 14,

2010, the Agency presented the testimony of Norma Endress , who

is a registered nurse employed by the Agency; Katherine Cone ,

who investigated Respondent's facility on behalf of the Florida

Attorney General's Office on March 25, 2009 ; and Respondent.

The Agency offered 17 exhibits which were received into evidence

as Exhibits P - 1 through P - 17 .

Respondent presented the testimon y of two of her employees,

Michelle Thompson and Kathleen Wentworth , and testified on her

own behalf . Respondent offered five E xhibits, which were

received into evidence as R - 1 through R - 5. The parties also

jointly introduced two E xhibits received into e vidence as Joint

Exhibits Jt - 1 and Jt - 2 .

Following the evidentiary portion of the final hearing on

April 14, 2010 , the parties were given 30 days from the filing

of the transcript within which to file their respective proposed

recommended orders. The four - volume Transcript of these

proceedings was filed May 13, 2010. The parties timely filed

th eir respective P roposed R ecommended O rder s on Monday, June 14,

2010. Thereafter, on July 8, 2010, p rior to the rendition of a

recomme nded order, Respondent filed a S uggestion of B ankruptcy

informing that Respondent had filed for protection under c hapter

13 of the United States Bankruptcy Code.

In response to the undersigned's Order dated July 20, 2010,

the parties advised that a recommended order should not be

ren dered in this case until the automatic stay imposed by the

Bankruptcy Code was no longer in effect. Thereafter, the

parties reported on a monthly basis that the automatic stay was

still in effect, through February 2011. On March 17, 2011,

Respondent's co unsel filed a Notice of Removal of Stay

indicating that the automatic stay was removed, effective

March 16, 2011. Thereafter, in response to a subsequent Order

Requiring Status Report , on March 22 and March 29, 2011,

respectively, Respondent and the Agenc y i nformed that a

recommended order could now be entered in this case.

The Proposed Recommended Orders filed by the parties on

June 14, 2010, have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. Respondent is the sole owner of S t. Francis Place . She

has never done business as "Family Ties, ACLF, Inc." At all

pertinent times, Respondent held a license from the Florida

Department of Business and Professional Regulation to operate

St. F r ancis Place as a boarding home .

2. Responde nt's license to operate St. Francis Place as a

boarding house allows up to 16 residents. Respondent provides

non - transient housing for her residents.

3. During pertinent times, there were approximately 13

residents housed at St. Francis Place. Some r e sidents of

St. Francis Place have conditions such as alcoholism, dementia,

schizophrenia, manic depression, memory loss, and head trauma.

Most of the residents of St. Francis Place were placed by other

agencies, such as the United States Veterans Administ ration

(VA) .

4. In addition to housing residents for pay , a t the time

of the hearing, Respondent was providing housing to three former

homeless residents free of charge.

5. Accord ing to the Complaint, Respondent was opera ting

St. Francis Place in a manne r that required a license from the

Agency as an ALF because she was providing "personal services" 2 /

to one or more residents who were not related to Respondent .

6. A license from the Agency is not required for

facilities that provide " personal services " t o no more than two

non - relative residents who do not receive optional state

supplementation, if the owner or renter of the facility resides

at the facility. See Conclusions of Law 65, infra .

7. According to Respondent, she did not need to be

licensed as an ALF because she resided at St. Francis Place and

only provided "personal services" to one non - relative resident,

who was not receiving optional state supplementation .

8. There is no evidence that any resident of St. Francis

Place was receiving optional state supplementation during the

pertinent time period .

9. Respondent owns the building located at 1030 Jo Jo

Road, Pensacola, Florida, from which she operates St. Francis

Place.

10. Respondent also owns a home at 425 Belle Chase Way,

Pensacola, Florid a .

11. According to Respondent, she " resides " at both 1030 Jo

Jo Road and at 425 Belle Chase Way, in Pensacola, Florida.

Respondent testified that she ac tually spends more time at

1030 Jo Jo Road, where St. Francis Place is located.

12. Petitioner 's emp loyees provided testimonial evidence

to the effect that Respondent spends a great deal of tim e at

St. Francis Place. The ir testimony supports a finding that

Respondent spends three or four nights a week at St. Francis

Place.

13. Despite the evidence show ing that Respondent spends a

lot of her time at St. Francis Place, it is found that

Respondent's residence is 425 Belle Chase Way, Pensacola,

Florida, rather than 1030 Jo Jo Road, based upon the following

findings which are supported by clear and convincin g evidence:

a. Respondent cl aims homestead exemption at

425 Belle Chase Way.

b. Respondent receives her phone bill at

425 Belle Chase Way address.

c. In 2009, Respondent 's address was listed as

425 Belle Chase Way on the title listing

Respondent as a co - owner of her mother's motor

vehicle .

d. Respondent had no regular room at St. Francis

Place. Rather, she either slept on a couch near

the main entrance or on a couch in a back room.

Although Respondent would also occasionally sleep

in a room set asi de for residents when there was a

vacancy , Respondent had no regular room at

St. Francis Place to sleep or keep her clothes.

e. In February of 2009, Respondent's attorney in

Respondent's divorce proceeding s listed

Respondent's address as 425 Belle Chase Way .

f. Prior to February 2010, the Florida Department

of Motor Vehicles and Public Safety (DMV) listed

Respondent's address as 425 Belle Chase Way.

g. On February 13, 2010, the DMV issued

Respondent a duplicate driver's license indicating

that her add ress was 425 Belle Chase Way.

h. By the time of the final hearing, the address

listed on Respondent's Florida driver's license

had been changed to 1030 Jo Jo Road. The change

of address from 425 Belle Chase Way to 1030 Jo Jo

Road was made on April 8, 20 10, just five days

prior to the final hearing.

i. Despite the recent change, Respondent

testified that she did not know what address was

listed on her driver's license. That testimony

was not credible. Neither was Respondent's

testimony that she "res ide d " at St. Francis Place.

14. The phone number and address for St. Francis Place is

listed in the Pensacola area 2009 AT&T Real Yellow Pages (Yellow

Pages) under the h eading "Assisted Living ." At the final

hearing, Respond ent explained that she never authorized the

listing and has contacted Yellow Pages and asked them to remove

the listing . Respondent's testimony in that regard is

undisputed , and it is found that Respondent did not authorize

St. Francis Place to be listed in the Yellow Pages under the

heading "Assisted Living."

15. On March 25, 2009, a site visit of St. Francis Place

was conducted by the Medicaid Fraud Unit of the Florida Attorney

General's Office. The next day, on March 26, 2009, the Agency

for Health Care Administration conducted a sur vey of St. Francis

Place.

16. The undisputed testimony clearly showed that , when the

site visit and survey were conducted , there was one resident,

identified as " G. T ., " who was totally contracted and required

assistance with daily living such as ba thing, dressing, feeding ,

and taking medications. Respondent admits, and it is found,

that Respondent and her employees provided "personal services"

to G. T. within the meaning of applicable ALF licensing laws.

17. G. T. is a resident who has had multipl e sclerosis for

many years . Respondent has known G. T. for over 16 years.

18. G. T. had been a resident of St. Francis Place since

it first opened its doors approximately six years prior to the

date of the final hearing.

19. The Agency was aware that G. T. was a resident of

St. Francis Place and was receiving personal services prior to

the March 2009 , site visit and survey . There is no indication,

however, that the Agency took any action prior to March 2009 , to

alert Respondent that she was considered to be operating an ALF

without a license.

20. Katherine Cone and Norma Endress were members of the

teams who conducted the site visit and survey of Respondent's

St. Francis Place facility on March 25 and March 26, 20 09 ,

respectively .

21. During her vi sit on March 25, 2009, Ms. Cone believed

that resident G. T. was not receiving proper care and arranged

for her transport to a local hospital. G. T. was treated and

released back to St. Francis Place. According to Ms. Endress,

who saw G. T. the very next day, she observed no demonstrated

harm to any resident at St. Francis Place. The evidence is

insufficient to conclude that G. T. was harmed while a residing

at St. Francis Place. 3 /

22. After the site visit and survey , both Ms. Cone and

Ms. Endress belie ved that , in addition to the personal services

provided to G. T. , there was evidence that staff at St. Francis

Place was providing personal services in the form of assistance

in administering medications or filling pill organizers for

other residents . The evidence presented at the final hearing ,

however, was insufficient to show, clearly and convincingly,

that personal services were rendered to other residents. The

insufficient evidence included:

a. Photographs and the surveyors'

recollections of pill re minder or pill

organizer boxes that looked as though they

were full of medications;

b. Photographs and the surveyors'

recollections of medication containers

stored in a centrally located medication

cart with wheels;

c. Photographs and Ms. Cone's recol lection

of documents in folders above the medication

cart containing information related to

transportation and outside services for

residents such as pharmacies and

transportation companies.

d. Ms. Cone's testimony that one of

Respondent's employees, Kat hleen Wentworth ,

told her at the time of the site visit that

she maintained pill organizers with

medications for several residents, and that

Ms. Wentworth had signed a statement to the

effect that staff at St. Francis Place

administered medications to resi dents.

e. Ms. Endress ' testimony that one of the

residents told her that staff at St. Francis

Place had filled his pill reminder box.

23. The evidence was insufficient because it was not

further supported . Respondent and her testifying employees

expl ained , and other evidence indicated, that the medication

cart remained unlocked and was accessible so that r esidents

could retrieve their own medications. T here was no testimony

from a St. Francis Place resident, employee or Respondent, or

anyone else wit h actual knowledge, indicating that either

Respondent or her employees ever assisted any resident other

than G. T. , with their medications.

24. As far as Ms. Cone's h earsay recollection of what

Ms. Wentworth told her, Ms. Wentworth testified at the hearin g

that the conversation did not occur.

25. In addition, while Ms. Cone re membered a written

statement signed by Ms. Wentworth, no such document was entered

into evidence.

26. Finally, photographs and Ms. Cone's recollection of

folders with documents abou t services available from other

vendors, such as pharmacies or transportation providers, d id not

show that Respondent was providing personal services to her

residents.

27. According to Ms. Endress, prior to leaving St. Francis

Place after the site visit o n March 26, 2009, she informed

Respondent that Respondent was operating without the requisite

ALF license, and that Respondent would be hearing from the

Agency within 10 days.

28. In contrast, Respondent testified that one of the

Agency's employees, Ms. K lug, told her that she could "care for

two people without an ALF license," and that Ms. Endress had

given her similar assurances.

29. Consistent with Ms. Endress's recollection, the Agency

sent a letter to Respondent dated March 27, 2009, which informed

R espondent that the Agency "considers you to be operating as an

Assisted Living Facility (ALF) without being licensed."

Considering that letter, togeth er with the recollection of

Ms. Endress, and the comparative credibility of the witnesses

testifying on t his point, it is found that, while one or more

Agency employees informed Respondent that there was an exception

to the AFL license requirements, Ms. Endress informed Respondent

on March 26, 2009, that Respondent needed an ALF license, and

that Respondent w ould be h earing from the Agency within ten

days.

30. The Agency's letter mailed to Respondent on March 27,

2009, stated in its entirety:

Dear Ms. Audiffred,

You are hereby notified that the Agency

for Health Care Administration considers you

to be op erating as an Assisted Living

Facility (ALF) without being licensed.

Based on Section 429.14(1)(m), Florida

Statutes (Fla. Stat.), it is unlawful to

own, operate, or maintain an assisted living

facility without obtaining a license under

Chapter 429, Part I, F.S.

Section 429.02(6), Fla. Stat., defines

an ALF as "any building or buildings,

section or distinct part of a building,

private home, boarding home, home for the

aged, or other residential facility, whether

operated for profit or not, which unde rtakes

through its ownership or management to

provide housing, meals, and one or more

personal services for a period exceeding 24

hours to one or more adults who are not

relatives of the owner or administrator."

The statute provides an exemption from

lice nsure for not more than 2 adults who do

not receive optional state supplementation

(OSS) when the person who provides the

housing, meals and personal services owns or

rents the home and resides therein. This

exception can be found in Section

420.04(2)(d), Fla. Stat.

Based on evidence of unlicensed

activity, the Agency intends to proceed with

all available legal action, including

bringing injunctive proceedings against you

in a court of competent jurisdiction, to

insure that you immediately cease and desis t

from offering these services. Further,

Section 429.19(7), Fla. Stat., provides that

"any unlicensed facility that continues to

operate after agency notification is subject

to a $1,000 fine per day". [sic]

If you believe you are not operating as

an ALF in violation of law as described, you

may submit in writing any information which

would demonstrate that to the Agency within

24 hours of receipt of this notice. Any

information you wish to have considered by

the Agency must be actually received within

2 4 hours of your receipt of this Notice of

Violation. If you have any questions, you

may reach me at 850 - 922 - 8822.

31. The letter was signed by Barbara Alford, R.N., B.S.N.,

Field Office Manager, and was copied to Alberta Granger,

Assisted Living Unit Ma nager, and to the Regional Attorney.

32. The fines set forth in the Complaint are premised upon

penalties accruing at the rate of $1,000 per day from the day

after the Agency's March 27, 2009, letter to Respondent , through

July 21, 2009, when the Agency f ound that G. T. was still

residing at Respondent's facility.

33. According to paragraph 13 of the Complaint, "pursuant

to § 408.812, Fla. Stat. (2009), the Agency notified the

Respondent by certified mail that the facility was in violation

of Florida Law on March 27, 2009."

34. The Agency's March 27, 2009, letter, however, does not

refer to section 408.812, contains a number of wrong citations

to the law, and is equivocal on the issue of whether the Agency

was actually requiring Respondent to cease and de sist.

35. T he law in effect in March 2009 when the letter was

written was the 2008 version of Florida Statutes , not the 2009

version referenced in the Complaint . 4 /

36. The first paragraph of the March 27, 2009, letter

refers to section 429.14(1)(m), Flor ida Statutes, for the

proposition that "it is unlawful to own, operate, or maintain an

assisted living facility without obtaining a license. . . ."

There is , however, no section 429.14 (1)(m) in either the 2008 or

2009 version of section 429.14.

37. The n ext statutory reference in the letter is in the

second paragraph which refers to section 429.02(6) for the

definition of ALF. Both the 2008 and 2009 versions of sect ion

429.02(6), however, define "chemical restraint," not ALF.

38. Although, further down in the second paragraph, the

letter correctly refers to section 429.04(2)(d), for the

excepti on where no license is required; the third paragraph of

the letter erroneously refers to section 429.19(7) for the quote

"any unlicensed facility that continues to operate after agency

notification is subject to a $1,000 fine per day . " That

language does not appear in either the 2008 or 2009 version of

section 429.19, and has not appeared in chapter 429 since 2006.

In fact, instead of providing for a $1,000 per da y fine, section

429.19(7), Florida Statutes (2008), in effect on the date of the

letter , provide s :

In addition to any administrative fines

imposed, the agency may assess a survey fee,

equal to the lesser of one half of the

facility's biennial license and b ed fee or

$500, to cover the cost of conducting

initial complaint investigations that result

in the finding of a violation that was the

subject of the complaint or monitoring

visits conducted under s. 429.28(3)(c) to

verify the correction of the violations .

39. A provision for the imposition of a $1,000 per day

fine from the date of notice does not appear in either the 2008

or 2009 versions of chapter 429 . Rather, the authority to

impose a $1,000 per day fine for operating an ALF without a

license which was in effect in March 2009 , when the letter was

written is found in section 408.812(4), Florida Statutes (2008),

which provides that "[a]ny person or entity that fails to cease

operation after agency notification may be fined $1,000 for each

day of noncom pliance."

40. Although the Complaint, served approximately 9 months

after the letter, refers to section 408.812, the letter does not

even mention chapter 408. In addition, the actual language of

section 408.812(4) differs from the quote in the letter fro m an

old version of section 429.19(7) that was no longer in effect .

41. Aside from being inaccurate on the law, the letter

does not explain why the Agency "considers" Respondent to be

operating an ALF without a license, or what aspects of

Respondent's ope rations required her to need a license beyond

her license to operate a boarding house.

42. Even though the letter fails to describe which aspects

of Respondent's operations violate the law, and does not set

forth the referenced "evidence of unlicensed a ctivity," the

letter advises Respondent that she may submit information to the

Agency within 24 hours to demonstrate that she is "not operating

an ALF in violation of law as described."

43. Additionally, although suggesting that the Agency

intends to proc eed with legal action to insure that Respondent

"cease[s] and desist[s] from offering these services," the

letter does not identify which services or tell Respondent to

stop operations.

44. I n addition to giving Respondent time to provide the

Agency with information that she is not in violation of the law ,

the letter advises Respondent of the exception to the

requirement of a license for not more than 2 adults "when the

person who provides the housing, meals and personal services

owns or rents the home and resides therein."

45. While it has been found that Respondent did not

actually reside at St. Francis Place, it is further found that

Respondent believe d that she could care for two patients without

an ALF license as mentioned in the letter.

46. Responde nt received the Agency's March 27, 2009,

letter on or about April 1, 2009.

47. Within 24 hours after receiving the letter, Respondent

sent the Agency a n undated written response addressed "To Whom

it May Concern . "

48. Respondent's written response ment ioned that she had

discussed with Ms. Endress , the one resident that they "give

care to" and that Ms. Endress had advised, "Well legally you can

take care of two people without a license."

49. Respondent's written response fur ther reported that a

represen tative from the VA had suggested to several of

R espondent's residents that they should move out .

50. Respondent's written response also advised that a

number of visits and surveys of St. Francis Place had been

conducted in March 2009, by various agencies, including the VA,

the Medicaid Fraud Unit from the Florida Attorney General's

Office , the Florida Department of Children and Families, and the

Agency.

51. The last paragraph of Respondent's written response

state s :

St. Francis Place is a liscenced [ sic]

non - transient rooming house and the

arrangements provided by our business is

stated below. The renters residing at St.

Francis Place are responsible for their own

medications, laundry, and living quarters.

As a non - transient rooming house and being

in operation for the past six years, we have

always encouraged our renters to maintain

their own independence. Six of the thirteen

renters have their own Florida drivers

liscence [sic]. Several of the renters

attend school or maintain employment.

Severa l renters perform odd jobs for pay at

St. Francis Place, such as yard work,

sweeping porches, or taking out trash etc.

Monthly Rent includes:

1. three meals a day

2. accessible laundry room

3. transportation upon request

4. utilities

5. garbage serv ice

6. use of telephone

7. cable.

52. On July 21, 2009, surveyors from the Agency once again

visited St. Francis Place and observed that G. T. was still

residing there and receiving personal services.

53. Sometime after July 21, 2009, the Florida Dep artment

of Children and Families moved G. T. from St. Francis Place to a

facility known as the "Villas" in an Alzheimer's lock - down unit.

54. The Agency never sought an injunction to force

Respondent to cease operating St. Francis Place.

55. There is no evidence that the Agency suggested to

Respondent corrective measures or actions that she could take to

comply with the law.

CONCLUSIONS OF LAW

56. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

pr oceeding. See §§ 120.569, 120.57(1 ), Florida Statutes (20 10 ) .

57. The Agency is designated as the state agency

responsible for licensure of ALFs and enforcement of all

applicable federal regulations, state statutes, and rule s

governing ALFs pursuant to t he c hapter 429, p art I, Florida

Statutes , and Florida Administrative Code Rule 58A - 5 .

58. Petitioner, as t he party asserting the affirmative in

this proceeding, has the burden of proof. See , e.g. , Balino v.

Dep Ó t of Health & Rehabilitative S er v s . , 348 So . 2d 349 (Fla.

1st DCA 1977). Because the Petitioner is seeking to prove

violations of a statute and impose administrative fines or other

penalties , it has the burden to prove the allegations in the

complaint by clear and convincing evidence. Ferris v.

T urlington , 510 So. 2d 292 (Fla. 1987).

59. Clear and convincing evidence:

requires that evidence 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 witne sses must be lacking confusion as

to the facts in issue. The evidence must be

of such weight 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

60. Section 429.02(5), Florida Statu t es, defines an ALF

as:

any building or buildings, section or

distinct part of a building, private home,

bo arding home, home for the aged, or other

residential facility, whether operated for

profit or not, which undertakes through its

ownership or management to provide housing,

meals, and one or more personal services for

a period exceeding 24 hours to one or m ore

adults who are not relatives of the owner or

administrator.

61. " 'P ersonal services ' means direct physical assistance

with or supervision of the activities of daily living and the

self - administration of medication and other similar services

which the department may define by rule. Ò Personal services Ó

shall not be construed to mean the provision of medical,

nursing, dental, or mental health services. " § 429.02(16), Fla.

Stat.

62. Assistance with the self - administration of medication

includes Ðtaking the medication, in its previously dispensed,

properly labeled container, from where it is stored, and

bringing it to the resident . . . ; in the presence of the

resident, reading the label, opening the container, removing a

prescribed amount of medication from the container, and closing

the container . . . ; [ and ] placing an oral dosage in the

resident's hand or placing the dosage in another container and

helping the resident by lifting the container to his or her

mouth.Ñ § 429.256(3)( a ) - (c) , Fla. Stat.

63 . The clear and convincing evidence demonstrated, and

Respondent admits, that Respondent and her employees provided

"personal services" to G. T. within the meaning of applicable

ALF licensing laws. See Finding of Fact 1 6 , supra .

64. Under Florida law, A LFs are required to be licensed by

the Agency unless spec ifically exempted . § 429.04, Fla. Stat.

65. In this case, Respondent argue s that she qualifie s for

the exemption from licensure found in section 429.04(d), which

provides:

Any person who provides h ousing, meals, and

one or more personal services on a 24 - hour

basis in the person's own home to not more

than two adults who do not receive optimal

state supplement ation. The person who

provides the housing, meals, and personal

services must own or rent t he home and

reside therein.

66. A t the final hearing , Respondent asserted that she

qualifies for the exemption because she resides at St. Francis

Place located at 1030 Jo Jo Road, Pensacola, Florida, and only

provides personal care for one resident who d oes not receive

optimal state supplementation

67. In fact, during the final hearing, Respondent asserted

that she had more than one residence.

68. Chapter 429 does not define the term "reside" as used

in the above - quoted exemption found in section 428 .04(d).

Florida case law, however, provides guidance . As noted in

Walker v. Harris , 398 So. 2d 955, 957 - 58 (Fla. 4th DCA 1981) :

In Herron v. Passailaigue , 92 Fla. 818, 110

So. [**8] 539 , 543 (1926) , the court

stated:

The rule is well settled that the

terms "residence," "residing," or

equivalent terms, when used in

statutes, or actions, or suits

relating to taxation, right of

suffrage, divorce, limitations of

a c tions, and the like, are used in

the sense of "legal residence";

that is to say, the place of

domicile or permanent abode, as

di s tinguished from temporary

residence.

A person may have several temporary local

res i dences, but can have only one legal

residence. A legal residence, or domicile,

is the place where a person has fixed an

abode with the present intention of making

it their permanent home. Minick v. Minick ,

111 Fla. 469, 149 So. 483 (1933) . In

B loomfield v. City of St. Peter s burg Beach ,

82 So.2d 364 (Fla. 1955) , a case strikingly

similar to the one at bar, the court held:

[ W ] here a goo d faith intention is

coupled with an actual removal

evidenced by positive overt acts,

then the change of residence is

accomplished and becomes

effective. This is so because

legal res i dence consists of the

concurrence of both fact and

intention. The bona fides of the

intention is a highly significant

factor. Id. at 368 .

69. As noted in the Findings of Fact, above, it is found

that Respondent did not reside at St. Francis Place. Further,

considering the concept of legal residence in the case law

quoted above, it is further concluded that Respondent did not

"reside" at St. Francis place within the meaning of section

429.04(d), and does not qualify for the exemption from licensure

found in that section.

70. Respondent did not assert or prove entitlement to any

other exemption from the licensure requirements for ALF found in

chapter 429. Therefore, it is found that Respondent should have

been license d as an ALF when she and her staff provide d personal

services to resident G. T. while she was residing at St. Francis

Place.

71. It is further found, however, that the Agency failed

to demonstrate by clear and convincing evidence that it is

entitled to impose an administrative fine in the amount of

$115,000 against Respond ent because the Agency's notice to

Re spondent was defective.

72. The Complaint asserts a fine under section 408.812(4),

Florida Statutes, which provides: "Any person or entity that

fails to cease operation after agency notification may be fined

$1,000 each day of noncompliance."

73. Sectio n 408.812(4) does not specify the requirements

of "agency notification" that triggers the $1,000 per day fine.

The Agency, in its Proposed Recommended Order, however, states,

"[p]ursuant to section 408.812, the Agency was required to give

the facility not ice to cease and desist . . . ." While the

Agency argues that such notice was provided, it is found that

the notice was lacking because the Agency letter did not

unequivocally state that Respondent should cease and desist , nor

did it explain which aspects of Respondent's operations violated

the law . See Findings of Fact 4 1 - 4 3 , supra .

74. Moreover, t he Agency's March 27, 2009, letter to

Respondent asserts a fine under a statutory provision in chapter

429 that was no longer in effect, whereas the Complai nt asserts

a fine under chapter 408. See Findings of Fact 3 3 - 4 0 , supra .

In contrast to section 408.812 asserted in the Complaint, t he

provisions of section 429.19 , under which the Agency provided

notice , requires the Agency to "make a reasonable attempt to

discuss each violation and recommended corrective action with

the owner or administrator of the facility, prior to written

notification." § 429.19(8), Fla. Stat. There is no evidence

that Respondent was afforded an opportunity for corrective

action.

7 5. Although the Agency's March 27, 2009, letter was not

the actual charging document, the Complaint is dependent upon

that letter to trigger the $1,000 a day fine sought in this

case . See Finding of Fact 3 2 , supra . To allow the Agency to

collect a fine under a law other than the law for which it

provided notice would offend the basic principles of due

process . Cf . Delk v. Dep't of Prof'l Reg . , 595 So. 2d 966, 967

( Fla. 5th DCA 1992)("This is basic due process of law and means

that not only must the proo f at trial or hearing be that conduct

charged in the accusatorial document, but also that the conduct

proved must legally fall within the statute or rule c laimed to

have been violated.").

76. Further, while under section 408.812(2), t he Florida

Legislatur e has stated that unlicensed activity constitutes harm

that materially affects the health, safety, and welfare of

clients, the evidence was insufficient to clearly show that

G. T. was harmed by Respondent's unlicensed activity.

77. Finally, G. T. is no lo nger residing at St. Francis

Place, and there is no evidence that Respondent is presently in

violation of the ALF licensing statutes.

78. I t is concluded that the Agency demonstrated by clear

and convincing evidence that Respondent provided personal

servi ces to G. T. without the requisite ALF license. It is

further found that the Agency proved that Respondent's actions

in providing those personal services constituted unlicensed

activity prohibited by section 408.812 . It is also concluded,

as a matter of law , that Respondent did not receive proper

notice for the accrual of the $1,000 per day fine sought under

section 408.812(4), and that the imposition of an administrative

fine under the specific facts and circumstances of this case

would not be appropriat e.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

issue a final order finding that Respondent Robin Audifred d

d/b/a St. Francis Place 5 / operated an assisted living facility

without a license in violation of section 408.812, but imposing

no administrative fine or penalty.

DONE AND ENTERED this 6th day of May , 20 11 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETE RSON, III

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 Admini strative Hearings

t his 6th day of May, 2011 .

ENDNOTE S

1 / The original complaint was only filed against Family Ties

ACLF, Inc., and was subsequently amended to add Robin Audiffred,

d/b/a St. Francis Place as a party aft er Respondent filed a

motion to dismiss asserting, "Robin Audiffred, owner of a

business known as St. Francis Place, is in no way affiliated

with Family Ties ACLF, Inc., and has never done business as

Family Ties ACLF, Inc."

2 / "Personal services" is def ined in section 429.02(16), Florida

Statutes. See quot e and discussion of that section under

Conclusions of Law.

3 / Photographs taken of G. T. on March 25, 2009, suggest that

she had been neglected. The testimony of Ms. Endress and others

who cared for G. T., as well as the fact that G. T. was released

back to St. Francis Place, suggests otherwise.

4 / Unless otherwise indicated, the undersigned's references to

the Florida Statutes are to the 2008 version.

5 / The final order should not name "Family T ies" or "Family Ties

A C LF, Inc." See Finding of Fact 1, supra .

COPIES FURNISHED :

Shaddrick A. Haston, Esquire

Agency for Health Care Administration

Fort Knox Building 3

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Mark Lee Smith, Esqui re

224 East Garden Street, Suite 3

Pensacola, Florida 32501

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administrat ion

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

N OTICE 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.