12-000102 Agency For Health Care Administration vs. Allan V. Comrie, D/B/A Premier Adult Care; Allan V. Comrie, D/B/A First Class Phase Ii And Allan V. Comrie, D/B/A First Class Adult Family Care And James Kasperowski Status: Closed Recommended Order on Wednesday, October 3, 2012.

Summary: Operation of unlicensed ALF constitutes a Class I violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0102

)

ALLAN V. COMRIE, d/b/a PREMIER )

ADULT CARE; ALLAN V. COMRIE, )

d/b/a FIRST CLASS PHASE II ; AND )

ALLAN V. COMRIE, d/b/a FIRST )

CLASS ADULT FAMI LY CARE AND )

JAMES KASPEROWSKI , )

)

Respondent s . )

)

RECOMMENDED ORDER

Pursuant to notice , this case was heard in Cocoa, Florida,

on June 19 through 20, 2012, before J. D. Parrish, an

Administrative Law Judge with the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Suzanne Suarez Hurley, Esquire

Thomas J. Walsh, II, Esquire

Agency for Health Care Administrat ion

The Sebring Building, Suite 330G

525 Mirror Lake Drive , North

St. Petersburg, Florida 33701

For Respondent: Geoffrey D. Smith, Esquire

Paul A. Dieguez, Esquire

Smit h and Associates

Suite 202

1499 South Harbor City Boulevard

Melbourne, Florida 32901

STATEMENT OF THE ISSUE

Whether Respondent, Allan V. Comrie d/b/a Premier Adult

Care; Allan V. Comrie d/b/a First Class Phase II; and Allan V.

Comrie d/b/a First Class Adult Family Care (Respondent or

Comrie) , committed the violations alleged by Petitioner, Agency

for Health Care Administration (AHCA or Petitioner), and , if so ,

what penalty should be imposed.

PRELIMINARY S TATEMENT

On December 1, 2011, AHCA filed an Administrative Complaint

against Respondent seeking to revoke RespondentÓs license to

operate an Adult Family Care Home (AFCH) in the State of

Florida. AHCA claimed numerous violations of the laws and

regulation s governing licensed facilities in Florida , and

maintained that revocation of RespondentÓs AFCH license is the

appropriate remedy for the conduct. In part, AHCA alleged that

Respondent had advertised and operated a facility without first

obtaining licensu re for that program, had misrepresented the

licensure status of the home, had failed to comply with rules

governing facilities, and had failed to cooperate with

authorities with regard to the facility. As to all alleged

violations, Respondent maintained h e was not required to hold a

license for the subject property as its operation was exempt as

a matter of law. Additionally, Respondent averred that any

incorrect advertising was merely a clerical error and not an

intentional misrepresentation of the lice nsure status of the

facility.

At the hearing , the parties presented testimony from

Shirley R. Nelson - Brown, Becky Mathisen, James Kasperowski,

Katherine Bachak, Vanessa Bulger, Serata Evans, Mark Welch,

Lorraine Henry, David Randall, Allan Comrie, Dale Smi th, Colleen

Monroe, Hans Travis, Ray Lucas, Mary Georges, Lynn Coffey, and

Adam Nehr. The parties submitted exhibit books that have been

received in evidence. The Transcript of the proceedings, filed

with DOAH on July 6, 2012, further identifies exhibits

referenced in the presentation of the matter.

The parties were granted leave until July 31, 2012, to file

their proposed orders. Both timely filed Proposed Recommended

Orders that have been considered in the preparation of this

Recommended O rder.

FINDI NG S OF FACT

The Parties

1. AHCA is the state agency charged with the

responsibility of licensing and regulating Assisted Living

Facilities (ALF) and Ad ult Family Care Homes pursuant to the

provisions of c hapter 429, Parts I and II, Florida Statutes

(2011) . All citations to statutes in this case refer to 2011

provisions.

2. At all times material to this case, Respondent held a

license to operate an AFCH in Titusville, Florida. That

license, number 6905448 , is for a facility located at 3717

Chiara Dr ive. RespondentÓs AFCH license permitted him to house

and provide meals for no more than five persons unrelated to

himself.

Titusville

3. Titusville is a city in Brevard County, Florida,

located in the northern area of the county , west of the Indian

River. R espondentÓs AFCH in Titusville has been in operation

since 2001.

4. In deciding to open the AFCH , Respondent sought to

address an unmet need for an upscale home environment where

residents c ould enjoy a better level of care than he had

witnessed in connec tion with his auntÓs care. Respondent

purchased the Titusville property and filled it with interesting

décor and activities to encourage residents .

5. Residents at the Titusville home have expressed

favorable reports regarding the food, environment, and level of

care received at the facility. Residents are routinely taken to

doctor appointments or other outings as part of the services

offered by Respondent.

6. In marketing the Titusville home , Respondent created an

internet website that identified the p roperty, the license

number, and other pertinent information.

7. In connection with the operation of the Titusville

home, other than the instant case, Respondent has not had a

major violation or complaint. By all accounts the Titusville

residents are ple ased with their care and with the attention

shown by Respondent in connection with their needs.

Merritt Island

8. At some point in time , Respondent decided to expand his

business operation to include a more demanding level of care for

residents. Under st ate law , this level, ALF, requires licensure

so that residents requiring more assistance with their daily

living activities can be cared for in a home environment

governed by rules and regulations the state has established.

9. As the first step in secur ing ALF licensure , Respondent

purchased a home in Merritt Island, Florida , located at

2740 South Courtney Parkway. The home featured many of the same

amenities and upscale accommodations provided by the Titusville

home . Undoubtedly , Respondent sought to provide services to a

market seeking high - end accommodation and care. This property

has been referred to in the record as Premier Adult Care. The

name suggests RespondentÓs intention: first - class care. All of

the names identified in the style were used by Respondent in

some form of ad, business card, or internet site.

10. After acquiring the Merritt Island home , Respondent

took initial steps to secure licensing. Accordingly,

inspections and upgrades to the home were completed to assure

compliance with regulations. Before licensure, however, an

advertisement for the Merritt Island home was placed on

RespondentÓs website. Additionally, Respondent provided

information to the social worker at Cape Canaveral Hospital to

become listed as a potential placem ent facility. The

advertisement on Respondent website utilized RespondentÓs

Titusville license number and implied the Merritt Island home

was also licensed.

11. At no time material to this matter was the Merritt

Island home licensed as either an AFCH or an ALF. Respondent

claims the reference to the Titusville license was a clerical

error and an unintentional mistake. This claim is as not

persuasive or credible in light of the totality of the evidence

presented.

Operation

12. By June 2011, when Respond ent had not secured

licensing for the Merritt Island home, he enlisted the

assistance of James Kasperowski to serve as manager or

administrator for the Merritt Island facility. Mr. Kasperowski

met Respondent in Titusville. Mr. Kasperowski did companion

c are for a home health care agency and regularly met with a

resident at RespondentÓs Titusville AFCH. Because he was at the

property frequently , Mr. Kasperowski had the opportunity to

interact with Respondent.

13. Respondent solicited Mr. KasperowskiÓs as sistance in

operating the Merritt Island home. Although skeptical at first,

Mr. Kasperowski agreed to consider the proposition. Initially ,

Mr. Kasperowski believed the Merritt Island home would be

modeled after the Titusville property and that he would b e

RespondentÓs employee to manage the home. The Merritt Island

home was south and east of the Titusville AFCHavel time

between the homes could easily take 40 minutes.

14. At all times material to this case, Mr. Kasperowski

maintained a residence in a condominium in Brevard County,

Florida. Mr. Kasperowski did not consider RespondentÓs Merritt

Island home to be his personal residence.

15. A fter being persuaded by Respondent to take on the

Merritt Island project, Mr. Kasperowski met with a fragile la dy

who was to be the facilityÓs first resident.

16. This first resident, A.P. , was scheduled to be

released from the Cape Canaveral Hospital , and needed a

placement where she could be cared for as she was unable to

attend to her daily living activities. These activities are

defined by Florida Statutes as Ðpersonal services.Ñ See §

429.02(16), Fla. Stat. T he July release from the hospital was

the latest in a long line of medical issues that plagued A.P.

From January 2011 until April 2011 , A.P. had resid ed in a

nursing home recovering from brain surgery. Against doctorÓs

orders , A.P. left the nursing home to return to her condominium.

17. As she had in the past, A.P. fell in her home and

broke both of her shoulders. In late June 2011 or early July

2011 , the time of her scheduled release, A.P. was unable to

dress, feed, bathe, or medicate herself. The subsequent healing

in her shoulders did allow her the use of her arms and she was

able to ambulate with a walker. But at all times material to

the allega tions of this matter, A.P. was restricted to a bed or

wheelchair and was completely dependent on others to meet all of

her needs.

18. Respondent communicated with A.P. Ós caregivers and

represented to them that she could be placed in his facility at

Merrit t Island. Respondent gave the caregivers the impression

that the facility was appropriately licensed and well able to

meet A.P. Ós needs.

19. When the time came for her release from the hospital,

Respondent picked A.P. up and took her to the Merritt Isl and

home. Once there , Mr. Kasperowski was left in charge of A.P. Ós

care. The placement of A.P. at the Merritt Island home occurred

in early July 2011.

20. Mr. Kasperowski agreed to take care of A.P. for

$350.00 per week to be paid by Respondent . Mr. Ka sperowski

agreed that additional persons placed at the home would increase

his compensation. In contrast, A.P.Ós caregivers paid

Respondent $4 , 500.00 per month to care for A.P.

21. Respondent trained Mr. Kasperowski to prepare food and

to care for the re sidents placed in the Merritt Island home ,

based upon the Titusville home experience. Residents were to

receive quality food prepared in the home. Mr. Kasperowski was

to eat the same food as residents and to care for residents as

he had been trained.

22. Respondent required that Mr. Kasperowski obtain health

documentations to assure he did not have tuberculosis or

sexually transmitted diseases. Mr. Kasperowski had already

completed his CPR, first aid, and other requirements through the

home health care agency. All of the documents were provided to

Respondent.

23. When A.P. presented at the Merritt Island home , she

was provided a hospital bed. She had a rash that had to be

medically dressed, she wore adult diapers, she could not feed

herself or tend t o her toileting needs. Mr. Kasperowski

enlisted the help of his mother, Ms. Bachak , to help him with

A.P.

24. Since A.P. could not use her shoulders, physical and

occupational therapists came to the Merritt Island home to do

exercises with her.

25. Af ter a couple days with A.P. , Mr. Kasperowski was

given a second resident at the Merritt Island home. Respondent

introduced J.P. to the home. J.P. was an elderly person in her

80Ós. J.P. required assistance with bathing and toileting.

Mr. Kasperowski a sked his mother to assist J.P. because he knew

she might be uncomfortable with a male caregiver doing some of

the more personal care. J.P. was bathed by Ms. Bachak and fed

by her.

26. A third client came to the Merritt Island home for

approximately one week. H.T. was there for a short while

because his permanent residence was at RespondentÓs Titusville

home.

27. Mr. Kasperowski enlisted his motherÓs and

grandmotherÓs help at the home during this time. His

grandmother agreed to prepare some of the m eals.

28. It was difficult to care for A.P. during this time

because , in addition to her limited mobility , she suffered from

dementia and would yell at night. Her confusion and adjustment

to her new surroundings proved demanding for Mr. Kasperowski.

The level of care was such that he needed help from his family

to attend to the residentsÓ needs.

29. Because he had to remain on the premises at night ,

Respondent assigned a bedroom to Mr. Kasperowski. If

Mr. Kasperowski stayed at his condominium overnigh t, his mother

would use the bedroom to assure that residents were never left

alone.

30. The master bedroom at the Merritt Island home was

always designated for Respondent. He kept the room locked at

all times he was not on the property.

31. A fourth res ident from RespondentÓs Titusville home

also stayed overnight at the Merritt Island home on occasion.

J.C. lived at the Titusville home , and Mr. Kasperowski remained

his companion even after taking on the Merritt Island home. In

order for J.C. to spend t ime with Mr. Kasperowski, Respondent

would take him down to Merritt Island and leave him there. In

doing so, Mr. Kasperowski could bill the eight hours of

companion time per week that he logged with J.C.

32. The Merritt Island home continued in operatio n

unrestricted by state inspection or licensure until a complaint

was submitted to AHCA regarding RespondentÓs operations. Once

AHCA was notified of a claim of unlicensed activity, a

caseworker was assigned to review the matter. When AHCA

initiates an in vestigation into allegations of wrongdoing , it

conducts a Complaint Inspection Survey (survey) of the property.

Surveyors go to the property and seek admittance.

Surveys

33. After interviewing individuals and observing as much

as was allowed by Responden t , the survey findings concluded the

Merritt Island home was being operated as an ALF even though it

was unlicensed.

34. Findings of the survey determined residents at the

Merritt Island home required and received direct physical

assistance with, or sup ervision of, daily living activities and

administration of their medication. Further, all of the persons

residing at the home were over 18 years; resided at the facility

for some period of time receiving care, food, and shelter at the

home; and none were relatives of the owner or administrator of

the home. These findings were accurate.

35. On July 13, 2011, when an unannounced visit was made

to the Merritt Island home by AHCA staff , a female identified

herself as a caregiver at the property. The caregiv er advised

AHCA at that time that no one was to be admitted into the home.

On that date , AHCA issued a Notice of Violation of Unlicensed

Activity/Order to Cease and Desist.

36. On July 20, 2011, another unannounced visit was

conducted at the Merritt Isla nd home by AHCA surveyors who were

accompanied by deputy sheriffs with an inspection warrant. On

this date , Mr. Kasperowski allowed the party to enter the

premises and claimed he had a lease of the home that permitted

him to operate without a license. On this date , residents of

the home were observed who required assistance with their daily

living activities or personal services.

The Bogus Lease

37. Throughout these proceedings Respondent has maintained

that although he owned the Merritt Island home, h e leased it to

Mr. Kasperowski. The terms of the alleged lease required

Mr. Kasperowski to pay Respondent $5 , 000.00 per month. It is

found the lease was a fabrication on RespondentÓs part.

Respondent sought to circumvent the licensure requirements by

e stablishing an exemption. At no time did he relinquish control

of the home to Mr. Kasperowski. At no time was Mr. Kasperowski

in a financial position to honor the terms of the alleged lease.

At no time did Respondent vacate his portion of the premises.

38. Additionally, all monies paid on behalf of the

residents at the home were funneled through Respondent. Food

and supplies purchased for the residents at the Merritt Island

home were paid for by Respondent. Comrie concocted the lease

because he knew or should have known that the activities at the

Merritt Island home required licensure. Mr. Kasperowski

admitted that the alleged lease was a fiction created by

Respondent to try to appease authorities. Mr. Kasperowski never

officially resided at the Me rrit Island home, and could not

comply with the terms of the alleged lease.

Determination of Unlicensed Activity

39. Based upon the foregoing findings, and the persuasive

weight of the credible evidence presented by the parties, it is

determined:

A. Resp ondent owned the Merritt Island home.

B. Respondent allowed residents at the Merritt Island home

who required assistance with their daily living activities and

who , without substantial support could not live independently.

C. Respondent did not obtain an ALF license for the

Merritt Island home.

D. Respondent did not obtain any license for operation of

the Merritt Island home, including an AFCH license. Respondent

could not license the Merritt Island home as a n AFCH because his

permanent residence was th e Titusville AFCH .

E. Respondent allowed two residents to live at the Merritt

Island home on a full - time basis and two other residents to live

at the home on a part - time basis. The two who resided part - time

were supposed to be permanently housed at the T itusville home.

F. Respondent has enjoyed a good reputation among the

residents of his Titusville home ; however , none of them were as

fragile and vulnerable and required the level of care the

residents in Merritt Island did. Despite RespondentÓs efforts

to provide a quality home environment , his lack of candor and

obfuscation of the facts surrounding the Merritt Island home

raise a serious question as to RespondentÓs trustworthiness.

CONCLUSIONS OF LAW

40 . DOAH has jurisdiction over the parties to and the

subject matter of this case. §§ 120.569 and 120.57, Fla. Stat.

41. AHCA bears the burden of proof in this matter to

establish by clear and convincing evidence the allegations of

the complaint. See Dep Ó t of Banking & Fin . , Div . of Sec . & Inv .

Prot . v . Osborne Stern & Co . , 670 So. 2d 932 (Fla. 1996); and

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

42 . Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reason able doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). Evidence that is credible, denoted

by precise facts and information that a witness distinctly

remembers is sufficient to support the burden of clear and

convincing evidence. See In re Davey , 645 So. 2d 398 (Fla.

1994) ; Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

43. Section 429.04, Florida Statutes , provides, in part:

(1) For the administration of this part,

facilities to be licensed by the agency

shall include all assisted l iving facilities

as defined in this part.

(2) The following are exempt from licensure

under this part:

* * *

(c) Any facility licensed as an adult

family - care home under part II.

(d) Any person who provides housing, meals,

and one or more per sonal services on a 24 -

hour basis in the personÓs own home to not

more than two adults who do not receive

optional state supplementation. The person

who provides the housing, meals, and

personal services must own or rent the home

and reside therein. (e mph asis a dded ) .

44. Section 429.65(2), Florida Statutes , defines AFCH as:

(2) ÐAdult family - care homeÑ means a full -

time, family - type living arrangement, in a

private home, under which a person who owns

or rents the home provides room, board, and

personal care, on a 24 - hour basis, for no

more than five disabled adults or frail

elders who are not relatives. The following

family - type living arrangements are not

required to be licensed as an adult family -

care home:

(a) An arrangement whereby the person who

owns or rents the home provides room, board,

and personal services for not more than two

adults who do not receive optional state

supplementation under s. 409.212 . The

person who provides the housing, meals, and

personal care must own or rent the home and

reside therein. (emphasis added) .

45. Section 408.813, Florida Statutes , provides, in part:

Administrative fines; violations. As a

penalty for any violation of this part,

authorizing statutes, or applicable rules,

the agency may impose an administrative

fine.

(1) Unless the amount or aggregate

limitation of the fine is prescribed by

authorizing statutes or applicable rules,

the agency may establish criteria by rule

for the amount or aggregate limitation of

administrative fines applicable to this

part, authorizing statutes, and applicable

rules. Each day of violation constitutes a

separate violation and is s ubject to a

separate fine. For fines imposed by final

order of the agency and not subject to

further appeal, the violator shall pay the

fine plus interest at the rate specified in

s. 55.03 for each day beyond the date set by

the agency for payment of the fine.

(2) Violations of this part, authorizing

statutes, or applicable rules shall be

classified according to t he nature of the

violation and the gravity of its probable

effect on clients. The scope of a violation

may be cited as an isolated, patterned, or

widespread deficiency. An isolated

deficiency is a deficiency affecting one or

a very limited number of clie nts, or

involving one or a very limited number of

staff, or a situation that occurred only

occasionally or in a very limited number of

locations. A patterned deficiency is a

deficiency in which more than a very limited

number of clients are affected, or m ore than

a very limited number of staff are involved,

or the situation has occurred in several

locations, or the same client or clients

have been affected by repeated occurrences

of the same deficient practice but the

effect of the deficient practice is no t

found to be pervasive throughout the

provider. A widespread deficiency is a

deficiency in which the problems causing the

deficiency are pervasive in the provider or

represent systemic failure that has affected

or has the potential to affect a large

port ion of the providerÓs clients. This

subsection does not affect the legislative

determination of the amount of a fine

imposed under authorizing statutes.

Violations shall be classified on the

written notice as follows:

(a) Class ÐIÑ violations are thos e

conditions or occurrences related to the

operation and maintenance of a provider or

to the care of clients which the agency

determines present an imminent danger to the

clients of the provider or a substantial

probability that death or serious physical

o r emotional harm would result therefrom.

The condition or practice constituting a

class I violation shall be abated or

eliminated within 24 hours, unless a fixed

period, as determined by the agency, is

required for correction. The agency shall

impose an administrative fine as provided by

law for a cited class I violation. A fine

shall be levied notwithstanding the

correction of the violation.

46. Section 429.71, Florida Statutes , provides , in part:

Classification of deficiencies;

administrative fines. Ï

(1) In addition to the requirements of part

II of chapter 408 and in addition to any

other liability or penalty provided by law,

the agency may impose an administrative fine

on a provider according to the following

classification:

(a) Class I viola tions are those conditions

or practices related to the operation and

maintenance of an adult family - care home or

to the care of residents which the agency

determines present an imminent danger to the

residents or guests of the facility or a

substantial pro bability that death or

serious physical or emotional harm would

result therefrom. The condition or practice

that constitutes a class I violation must be

abated or eliminated within 24 hours, unless

a fixed period, as determined by the agency,

is required for correction. A class I

deficiency is subject to an administrative

fine in an amount not less than $500 and not

exceeding $1,000 for each violation. A fine

may be levied notwithstanding the correction

of the deficiency.

47. Section 408.815, Florida S tatutes , provides, in

pertinent part:

License or application denial; revocation. Ï

(1) In addition to the grounds provided in

authorizing statutes, grounds that may be

used by the agency for denying and revoking

a license or change of ownership applicati on

include any of the following actions by a

controlling interest:

* * *

(c) A violation of this part, authorizing

statutes, or applicable rules.

48. Section 408.804, Florida Statutes , provides:

License required; display. Ï

(1) It is unlaw ful to provide services that

require licensure, or operate or maintain a

provider that offers or provides services

that require licensure, without first

obtaining from the agency a license

authorizing the provision of such services

or the operation or main tenance of such

provider.

(2) A license must be displayed in a

conspicuous place readily visible to clients

who enter at the address that appears on the

license and is valid only in the hands of

the licensee to whom it is issued and may

not be sold, assi gned, or otherwise

transferred, voluntarily or involuntarily.

The license is valid only for the licensee,

provider, and location for which the license

is issued.

49. Section 408.812, Florida Statutes , provides:

Unlicensed activity. Ï

(1) A person or e ntity may not offer or

advertise services that require licensure as

defined by this part, authorizing statutes,

or applicable rules to the public without

obtaining a valid license from the agency.

A licenseholder may not advertise or hold

out to the publi c that he or she holds a

license for other than that for which he or

she actually holds the license.

(2) The operation or maintenance of an

unlicensed provider or the performance of

any services that require licensure without

proper licensure is a violat ion of this part

and authorizing statutes. Unlicensed

activity constitutes harm that materially

affects the health, safety, and welfare of

clients. The agency or any state attorney

may, in addition to other remedies provided

in this part, bring an action for an

injunction to restrain such violation, or to

enjoin the future operation or maintenance

of the unlicensed provider or the

performance of any services in violation of

this part and authorizing statutes, until

compliance with this part, authorizing

s tatutes, and agency rules has been

demonstrated to the satisfaction of the

agency.

(3) It is unlawful for any person or entity

to own, operate, or maintain an unlicensed

provider. If after receiving notification

from the agency, such person or entity fa ils

to cease operation and apply for a license

under this part and authorizing statutes,

the person or entity shall be subject to

penalties as prescribed by authorizing

statutes and applicable rules. Each day of

continued operation is a separate offense.

(4) Any person or entity that fails to

cease operation after agency notification

may be fined $1,000 for each day of

noncompliance.

(5) When a controlling interest or licensee

has an interest in more than one provider

and fails to license a provider re ndering

services that require licensure, the agency

may revoke all licenses and impose actions

under s. 408.814 and a fine of $1,000 per

day, unless otherwise specified by

authorizing statutes, against each licensee

until such time as the appropriate license

is obtained for the unlicensed operation.

(6) In addition to granting injunctive

relief pursuant to subsect ion (2), if the

agency determines that a person or entity is

operating or maintaining a provider without

obtaining a license and determines that a

condition exists that poses a threat to the

health, safety, or welfare of a client of

the provider, the perso n or entity is

subject to the same actions and fines

imposed against a licensee as specified in

this part, authorizing statutes, and agency

rules.

(7) Any person aware of the operation of an

unlicensed provider must report that

provider to the agency. ( e mphasis a dded ) .

50. Section 429.01, Florida Statutes , provides:

Short title; purpose. Ï

(1) This act may be cited as the ÐAssisted

Living Facilities Act.Ñ

(2 ) The purpose of this act is to promote

the availability of appropriate services for

elderly persons and adults with disabilities

in the least restrictive and most homelike

environment, to encourage the development of

facilities that promote the dignity,

individuality, privacy, and decision - making

ability of such persons, to provide for the

healt h, safety, and welfare of residents of

assisted living facilities in the state, to

promote continued improvement of such

facilities, to encourage the development of

innovative and affordable facilities

particularly for persons with low to

moderate incomes, to ensure that all

agencies of the state cooperate in the

protection of such residents, and to ensure

that needed economic, social, mental health,

health, and leisure services are made

available to residents of such facilities

through the efforts of the A gency for Health

Care Administration, the Department of

Elderly Affairs, the Department of Children

and Family Services, the Department of

Health, assisted living facilities, and

other community agencies. To the maximum

extent possible, appropriate commun ity - based

programs must be available to state -

supported residents to augment the services

provided in assisted living facilities. The

Legislature recognizes that assisted living

facilities are an important part of the

continuum of long - term care in the st ate.

In support of the goal of aging in place,

the Legislature further recognizes that

assisted living facilities should be

operated and regulated as residential

environments with supportive services and

not as medical or nursing facilities. The

services available in these facilities,

either directly or through contract or

agreement, are intended to help residents

remain as independent as possible.

Regulations governing these facilities must

be sufficiently flexible to allow facilities

to adopt policies t hat enable residents to

age in place when resources are available to

meet their needs and accommodate their

preferences.

(3) The principle that a license issued

under this part is a public trust and a

privilege and is not an entitlement should

guide the finder of fact or trier of law at

any administrative proceeding or in a court

action initiated by the Agency for Health

Care Administration to enforce this part.

51. Petitioner has established by clear and convincing

evidence that Respondent violated num erous provisions of law.

In so doing , Respondent has ignored his duty to the public and

abused his privilege to operate an AFCH. Specifically,

Respondent could not license the Merritt Island home as an AFCH

because as a matter of law he was required to a cknowledge his

permanent residence as the Titusville home. See § 429.65(2),

Fla. Stat. Given the level of care offered at the Merritt

Island home, Respondent should have licensed that home as an

ALF. He did not. Respondent should not have advertised th e

Merritt Island home. He could not operate under the Titusville

license at that address , and he did not appropriately license

the Merritt Island home. Respondent took in frail, dependent

clients. As a matter of law , unlicensed activity constitutes

harm . See § 408.812, Fla. Stat. He knew or should have known

their care exceeded mere residential placement. Finally, even

after the cease and desist order was issued , Respondent allowed

the Merritt Island home to continue in operation. In so doing,

Respon dent ignored the requirements of the law and placed his

license in Titusville in jeopardy. See § 408.812(4), Fla. Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Admin istration impose an administrative fine in the amount of

$7 , 000.00 against Respondent and suspend his license to operate

a n AFCH for a period not less than six months or until such time

as the administrative fine is paid in full.

DONE AND ENT ERED this 3rd day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of October , 2012 .

COPIES FURNISHED :

Geoffrey D. Smith, Esquire

Smith and Associates

Suite 202

1499 South Harbor Boulevard

Melbourne, Florida 32901

Susan Suarez Hurley , Esquire

Agency for Health Care Administration

Sebring Building, Suite 330G

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Paul Anthony Dieguez, Esquire

Smith and Associates

Suite 20 2

1499 South Harbor Boulevard

Me lbourne, Florida 32901

Thomas J. Walsh, II, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330G

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 M ahan Drive, Mail Stop 3

Tallahassee, Florida 32308

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.