13-001244 Pleasant Place, Inc. vs. Department Of Children And Families Status: Closed Recommended Order on Tuesday, September 24, 2013.

Summary: Petitioner failed to demonstrate its entitlement to renewal of its residential child caring agency license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLEASANT PLACE, INC.,

Petitioner,

vs. Case No. 13 - 1244

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

/

RECOMMENDED ORDER

On June 4 , 201 3 , an administrative hearing in this case was

held in Gainesville , Florida, before Lawrence P. Stevenson,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mortlake Nembhard

Pleasant Place, Inc.

732 Northwest 4 th Street

Gainesville, Florida 32601

For Respondent: Lucy Goddard - Teel , Esquire

Department of Children and Families

Building J (IO3)

1000 Northeast 16th Avenue

Gainesville , Florida 3 2 601

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Children and Families (ÐDepartmentÑ) properly denied the

application of Pleasant Place, Inc. (ÐPleasant PlaceÑ) to renew

its residential child caring agency license for foster children,

particularly maternity residents.

PRELIMINARY STATEMENT

By letter dated February 19, 2013 , referenced herein as the

ÐAgency Action Letter,Ñ Samuel Norris, an o perations and

m anagement consultant in the Foster Care Licensing unit of the

Department, informed Pleasant Place that its license as a child

caring agency for foster children would not be renewed, pursuant

to section 409.175(9)(a), Fl orid a Stat utes . The letter stated

as follows, in relevant part:

On November 29, 2011, the Regional Licensing

staff visited Pleasant Place, Inc. to

cond uct the annual relicensure review to

determine if the agency was meeting

licensure requirements as established in

Florida Administrative Code, 65C - 14. The

on - site inspection revealed concerns with

the program's background screening of staff,

program manag ement, proper record keeping

and proper documentation in the children's

files. The facility was issued a

provisional license on December 21, 2011, to

allow the facility time to correct the areas

of concern .

The Department has had ongoing concerns

regardi ng the facility's financial

stability. A final judgment of foreclosure

was issued against the facil ity on March 23,

2012, due to the agency being in default

with its second mortgage on the facility

property. It was ordered that the property

be sold at public sale on September 12,

2012, if the agency failed to pay the bank a

total of $72,369.47. Pleasant Place filed

for Chapter 11 Bankruptcy on September 12,

2012.

On November 19, 2012, the Department found

that the agency was unable to demonstrate

i ts f inancial stability by submission of the

Board approved financial audit for the most

recent fiscal year (ending June 30, 2012).

The agency provided the financial audit for

fiscal year ending June 30, 2010, on

October 1, 2012 .

Mortlake Nembhard and Chairma n of the Board,

Stuart Palmer, entered into a Corre ctive

Action Plan with the Department on

December 21, 2012, to address the areas of

non - compliance found during the 2012

relicensing review, regarding failure to

properly background screen and maintain

doc umentation of a full - time volunteer,

failure to maintain appropriate

documentation in the children's files,

failure to provide individualized service

plans and documentation of those services

for the children, failure to provi de

required menu consultation for the

parenting/pregnant teens.

On February 15, 2013, the Regional Licensing

Staff visited Pleasant Place to determine if

the agency is meeting the licensure

requirements of the Florida Administrative

Code 65C - 14 and the identified corrections

per the agreed upon Corrective Action Plan.

During this visit it was found that the

facility failed to be in substantial

compliance with administrative code and had

failed to complete the Corrective Action

Plan requirements.

Specifically the facility violated the

following administrative code requ irements:

65C - 14.076, Organization 1 /

(2) Funding: The agency shall provide

written documentation that it has sufficient

funds to meet all requirements for

licensure.

(4) Audit: The agency shall have financial

records audited annually.

The audit submited [sic] for fiscal year

ending June 30, 2012, did not meet the

standards applicable to financial audits

contained in Government Auditing Standards,

issued by the Comptroller General of the

United States. The audit did not contain an

opinion regarding the agency's internal

control over financial reporting and

compliance with certain provisions of law,

regulations, contracts, and grant agreements

and other matters. The agency has failed to

provide the appro ved financial audit for

fiscal year ending June 30, 2012.

65C - 14.080, Food Service

The facility shall assign a staff member to

the overall management of the food service.

If this person is not a professionally

registered dietitian, consultation on menu

planning shall be obtained at least

quarterly from a professionally registered

dietician or the local health department.

In maternity residences menus shall be

appropriate to meet the nutritional needs of

pregnant women.

The facility failed to provide do cumentation

that the menus were reviewed quarterly. The

menus were signed on 11/19/12, but stated

approval back to January 2012. There was

not evidence that the menus were signed by a

registered dietician.

65C - 14.072, Medical Information

(1 ) The mater nity residence shall compile

or have available a medical history of the

pregnant women. The records shall include

the dates of immunizations, medications,

examinations, and any treatments for

specific illness or medical emergencies.

The agency failed to document complete

medical history regarding doctor's visits,

immunizations records, etc. in three of the

four resident files, which were reviewed

during the [sic] on - site visit on 2/15/13 .

65C - 14.077, Child's Case Record

(1 ) The facility shall maintain individual

records for each child in care which include

the following: (b ) medical information

obtained at admission; (f ) Medical history,

treatment and clinical records and progress

reports, and any psychological and

psychiatr ic reports, educational or

vocational records and social history.

The agency failed to ensure that all

resident files had past school records.

Three of four resident files did not have

the necessary past educational documentation

such as past reports, ev aluation scores, IEP

documents, etc. By not obtaining the

documentation from past educational

providers, the facility failed to ensure

that the educational needs of each resident

were being met.

65C - 14.025 Volunteers

(2 ) A facility which utilizes volun teers to

work directly with children shall:

(a ) Develop a description of duties and

specific responsibilities;

(b ) Develop a plan for the orientation and

training in the philosophy of the facility,

the needs of the children in care, and the

needs of their families; and

(c) Provide for participation in carrying

out the service plans for children and

families they are working with.

(3) Volunteers who perform any services for

children shall have the same qualifications

and training as a paid employee for the

position and shall receive the same

supervision and evaluation as a paid

employee.

(4) Records shall be kept on the hours and

activities of volunteers.

The facility failed to ensure that a

volunteer who was performing the duties of a

paid staff person did not have documenation

[sic] in the file, reviewed on 2/15/13, of

the required safety training (CPR, First Aid

and water safety). This volunteer has been

observed to be the sole supervisor of the

residents. The lack of proper training

placed t he children at risk when left

unsupervised with this individual.

65C - 14.045, Program Services for Children In

Care

Service Plan:

(1) The facility shall develop a written

service plan or obtain a copy of the child's

performance agreement within 30 days of

placement for each child admitted into care.

The service plan shall integrate the

provisions of the performance agreement or

the permanent placement plan.

(a) The development of the service plan

shall involve:

(b) The child's parents, guardian and other

appointed representatives and a

representative of the referring agency if

appropriate.

(c) Staff, volunteers, and others who work

directly with children in care.

(2) The service plan shall include the

following:

(a) An assessment of the child' s and

family's needs, strengths, weaknesses, and

problems;

(b) An assessment of the child's

educational, vocational, recreational and

medical needs; a plan for meeting them; and

daily living activities;

(c) Arrangements for individual or group

counseli ng, as needed to resolve emotional

conflicts or improve self esteem to help

the child deal with personal problems,

develop satisfying relationships and grow

toward maturity;

(d ) A projection in regard to the child's

length of stay and the conditions und er

which the family will be reunited or another

appropriate plan will be made;

(e) A plan for agency contact with the

child's parent or guardian to work toward

reunification and resolution of the problems

which lead to placement.

The facility has faile d to provide regular

and beneficial counseling services in regard

to preparation for parenthood and family

life education for the residents. Services

such as Healthy Start and the Alachua County

Continuing Education Program for Parenting

Teens have refuse d to continue a working

relationship with the facility due to past

issues and concerns the service providers

have raised regarding the quality of care

the facility has provided. The facility

excusively [sic] served children in the

foster care system. Qua lity service

intervention is vital to ensure the children

are prepared to adequately parent.

It is the Department's expectation that all

group care facilities provide quality care

to all its residents on a continuous basis.

Children in group care facilities should be

able to live in environments that are

nurturing, stimulating and that promote

p ersonal growth.

Based on a thorough review of your file, the

Department of Children and Families has

determined that your Child Caring Agency,

Pleasant Place Inc . has failed to comply

with Florida Administrative Code 65C - 14.

The Department of Children an d Families

cannot ensure the safety and well - being of

children in your agency's care. Therefore,

your license as a child caring agency

provider for foster children will not be

renewed.

On or about March 14, 2013, Pleasant P lace timely filed a

Petition fo r Administrative Hearing (ÐPetitionÑ) containing a

detailed defense against the allegations of the Agency Action

Letter. The Department forwarded th e Petition to the Division

of Administrative Hearings ( " DOAH ") on April 10 , 2013 .

The hearing was scheduled for June 4 , 2013, on which date

it was convened and completed .

At the outset of the hearing, The Department agreed that

Mr. Nembhard could be allowed to represent Pleasant Place in his

capacity as executive director. The Depart ment also stipulated

that, the style of the case notwithstanding, it has the burden

of demonstrating that Pleasant Place is not entitled to a

renewal of its existing license.

The Department presented the testimony of Kendra Bradley, a

family services spe cialist in its foster care licensing unit;

Gail Jackson, a family care counselor at Partnership for Strong

Families; Mr. Norris, the operation s and management consultant

who wrote The Agency Action Letter ; and Mr. Nembhard. The

DepartmentÓs Exhibits 1 thr ough 12 were admitted into evidence.

Pleasant Place presented the testimony of Mr. Nembhard;

Ms. Bradley; Joleen Williams, a residential advisor at Pleasant

Place; and Stuart Palmer, chairman of the board of Pleasant

Place. Pleasant PlaceÓs Exhibits 1C, 1D, 3, 5, 8A and 8B were

admitted into evidence. Pleasant Place Exhibit 5 consists of

educational records of some of its residents. Pleasant Place

was allowed to file a redacted copy of this exhibit after the

hearing.

The one - volume transcript of the hea ring was filed at DOAH

on July 5, 2013. The Department timely filed its P roposed

R ecommended O rder on July 15, 2013. Pleasant Place did not file

a proposed recommended order.

FINDINGS OF FACT

1. The Department is the agency charged with the

responsibility of licensing foster homes in the state of

Florida. § 409.175, Fla. Stat.

2. Pleasant Place is a maternity home for children in

foster care. It has been licensed by the Department as a

residential child caring agency since 1998. Pleasant PlaceÓs

most recent license , number 100027820 , was a provisional

license .

3. In December 2011, Pleasant Place received a provisional

license after the DepartmentÓs review disclosed deficiencies

regarding drop - side cribs, fire inspections, health inspectio ns,

and failure to provide an annual audit. At the time of the 2012

review to determine relicensure , Pleasant Place had corrected

the crib and inspection issues but had still failed to provide

audit reports for the fiscal years ending June 30, 2010 and

Ju ne 30, 2011. Therefore, Pleasant PlaceÓs license was still in

provisional status at the time of the re - licensure review.

4. On September 11, 2012, Pleasant Place filed for

bankruptcy protection under Chapter 11 of the United States

Bankruptcy Code. This filing was made to circumvent a

foreclosure judgment against Pleasant PlaceÓs real and personal

property in favor of Hancock Bank, which was successor in

interest to Peoples First Community Bank on a mortgage agreement

with Pleasant Place. The foreclosur e judgment indicated that

Pleasant Place owed $72,369.47 on the mortgage. The judgment,

dated March 23, 2012, gave Pleasant Place until September 12,

2012 , to pay this sum to Hancock Bank or face the sale of its

property at public auction. This note was a second mortgage on

Pleasant PlaceÓs real property.

5. By October 1, 2012, t he Department had learned of the

bankruptcy filing. On that date, family services specialist

Kendra Bradley and program administrator Linda Compton met with

Mr. Nembhard, who ex plained that the foreclosure involved a

second mortgage. Pleasant Place had stopped making payments on

the loan and tried to renegotiate the terms of th e mortgage with

Hancock Bank, which had acquired the loan as receiver for the

failed Peoples First Comm unity Bank. Peoples First had rolled

the loan over several times for Pleasant Place , but Hancock Bank

showed no interest in doing so because the account was in

default . Hancock Bank would not renegotiate unless Pleasant

Place brought the payments current .

6. Mr. Nembhard testified that Pleasant Place had stopped

making the roughly $700 per month mortgage payments in the

spring of 2011 and was unable to bring the account into current

status. Pleasant Place believed that it had no choice but to

file for bankruptcy protection in order to force a negotiation

with the bank through the bankruptcy trustee.

7. Mr. Nembhard testified that Pleasant PlaceÓs financial

difficulties began in March 2010 , when it received a hold on

placements due to sexual exploitation allegations against the

facility that were investigated and ultimately determined to be

unfounded. Pleasant Place was forbidden to take new residents

from March until early July 2010. Mr. Nembhard testified that

even after the formal hold was lifted, there were few clients at

Pleasant Place for the remainder of 2010. Even though the 16

bed facility had only one resident between April and November

2010 , Pleasant PlaceÓs overhead remained relatively fixed and

the facility was forced to use its reserves to stay in

compliance with regulations and keep the doors open. By

January 2011, Pleasant Place was in such dire financial straits

that it could no longer make the payments on the second

mortgage.

8 . At the October 1, 2012 , meeting, Mr. Nembhard provided

Ms. Bradley with Pleasant PlaceÓs audit report for the fiscal

year ending June 30, 2010 (Ð2010 auditÑ). Ms. Bradley reminded

Mr. Nembhard that Pleasant PlaceÓs license was still in

provisional status for failure to provide its annual au dits, and

that Pleasant Place still had not submitted its audit report for

the fiscal year ending June 30, 2011 (Ð2011 auditÑ).

9 . Ms. Bradley also reminded Mr. Nembhard that Pleasant

Place would need to prepare its audit report for the fiscal year

endi ng June 30, 2012 (Ð2012 auditÑ) for submission in December

2012. Ms. Bradley testified that in her experience licensed

agencies provide their audits within six months of the end of

their fiscal years without much problem . She conceded there was

no provis ion in rule or statute that mandates a six - month

turnaround on audits. However, it is reasonable to expect that

annual audits be performed roughly within th e six - month

timeframe, given that entities seeking licensure must provide

Ðs atisfactory evidence of financial ability to provide care for

the children in compliance with licensing requirements. Ñ

§ 409.175(5)(a)8., Fla. Stat. A two - year - old audit report tells

the Department little about the current financial situation of a

facility. 2 /

10 . On November 19, 2012, Ms. Bradley conducted a site

visit to Pleasant Place in order to conduct the annual re -

licensure review. Based on her in - depth review of Pleasant

PlaceÓs facility and documentation, Ms. Bradley prepared a

report, dated December 19, 2012. In thi s review, Ms. Bradley

made the following deficiency findings: Pleasant Place had

initiated but not completed its 2011 audit and had not even

initiated its 2012 audit; Pleasant Place had failed to document

whether its board of directors had conducted the r equired annual

meeting; Pleasant Place had failed to fully document its fire

drills; Pleasant Place did not document that it had performed

the required quarterly consultation with a registered dietician

to ensure that the facility was meeting the dietary n eeds of

pregnant women and children; medical, medica tion and educational

logs for certain residents were incomplete; and certain employee

and volunteer files did not contain documentation of background

reviews.

11 . Ms. BradleyÓs report concluded as fol lows, in relevant

part:

It has been noted that the facility has

experienced some financial difficulties this

relicensing year. A final judgment of

foreclosure was issued against the facility

on March 23, 2012 , due to the agency being

in default with its second mortgage on the

facility property. It was ordered that the

property be sold at a public sale on

September 12, 2012, if the agency failed to

pay the bank a total of $72,369.47.

Pleasant Place filed for C hapter 11

Bankruptcy on September 12, 2012.

The agency was issued a provisional license

at last yearÓs relicensure due to the lack

of a satisfactory health inspection,

satisfactory fire inspection and the

financial audits for 2010 and 2011 and also

the pr esence of non - compliant cribs. The

agency submitted documentation of the health

inspection, fire inspection, and new cribs

by March 2012. The agency provided the 2010

financial audit on October 1, 2012. The

agency has not submitted the financial audit

f or 2011. It is noted that the agencyÓs

most recent fiscal year ended June 30, 2012,

and there is no documentation that audit has

been initiated. The executive director

informed the Department on December 17,

2012, that there was an issue obtaining the

20 11 audit as payment had to be approved by

the bankruptcy court.

The facilityÓs overall compliance rating of

88% and ongoing financial issues are of

grave concern to the Department. Due to the

currently [sic] population of five mothers

and six infants/tod dlers, the Department can

only recommend at this time a sixty (60) day

short term license, pursuant to FAC 65C - 14,

for a period effective December 20, 2012 , to

February 19, 2013, for a capacity of

fourteen (14) total children. The facility

will be subject to a corrective action plan

regarding the areas of non - compliance during

the stated time period. The Department will

also issue a placement hold during this time

period, to allow for the facility to correct

their issues and/or allow for al ternative

placement of the current residents

elsewhere.

1 2 . The referenced corrective action plan (ÐCAPÑ) was

issued on December 20, 2012. As to each deficiency noted in the

relicensure review, the CAP stated a corrective action, named

the party respons ible for taking that action, and set forth a

target date for completion of the corrective action.

1 3 . As to the financial audit issue, the CAP required

Mr. Nembhard to provide the Department with a copy of the

completed 2011 audit, with a target date of February 19, 2013.

The CAP also required Mr. Nembhard to Ðengage the services of a

certified public accountant (CPA) to ensureÑ that the 2012 audit

is completed. The target date for engaging the CPA was

January 19, 2013. The CAP concluded by stating th at Pleasant

Place must provide Ðdocumentation of the initiation of the 2012

auditÑ no later than the stated deadline.

1 4 . Pleasant Place submitted its completed 2011 audit on

February 18, 2013. The 2011 audit showed total current assets

of $24,754, inclu ding $2,181 in cash, $20,713 in grants

receivable, and $1,860 in deposits. Pleasant PlaceÓs current

assets were well short of six monthsÓ reserves to cover

expenses. Ms. Bradley explained that licensed agencies such as

Pleasant Place are required to have six monthsÓ reserves because

they generally receive their monies after the fact through

reimbursement contracts with child placement agencies. There

may be a 30 - day lag time between the p lacement of the child at

Pleasant Place and the commencement of pay ments for that child ,

meaning that Pleasant Place must have the wherewithal to provide

quality services notwithstanding the delay in payment.

1 5 . The 2011 audit showed total combined revenue of

$192,393 and total expenses of $207,431 , a revenue shortfal l of

$15,038. In contrast, Pleasant PlaceÓs 2010 audit showed that

its total combined revenue of $280,892 more than covered its

total expenses of $279,088 . The 2011 audit report noted

Ðmaterial weaknesses or significant deficienciesÑ in Pleasant

PlaceÓs handling and recordation of cash payments, and in its

recordation of both accounts payable and receivable.

1 6 . On February 15, 2013 , Pleasant Place submitted to

Ms. Bradley an engagement letter from its CPA firm, Sexton &

Sch oll, dated January 31, 2013, to undertake the 2012 audit.

Ms. Bradley read the document and informed Mr. Nembhard that it

was too vague to be considered an engagement letter.

Mr. Nembhard subsequently submitted an addendum to the

engagement le t ter, which Ms. Bradley also found too v ague. At

the hearing, Ms. Bradley testified that in her experience, a

CPAÓs engagement letter specifically states the review period,

the initiation date of the audit, the information required from

the client, and the anticipated completion date and requir ed

payment.

1 7 . Ms. Bradley cited to no statute or rule that provides

specific requirements for a CPAÓs engagement letter in this

context, nor did she establish her own credentials in the

accounting profession that might lend more weight to her

opinion. Therefore, the opinion she expressed as to the

sufficiency of the engagement letter was merely that of a

layperson, albeit one with some experience in reading similar

documents.

1 8 . The undersigned finds that Ms. BradleyÓs

interpretation was too stric t and failed to take into account

the fact that Sexton & Scholl had a long - term relationship with

Pleasant Place. The letter commits Sexton & School to Ðaudit

the statements of financial position of Pleasant Place, Inc. as

of June 30, 2012 , and the relate d statements of activities,

functional expenses, and cash flows for the year then ended.Ñ

The letter and addendum establish that the firm will complete

the audit no later than 180 days after receipt of information

and all required fees. The fee is stated at $10,200 for the

audit and $800 for the information returns, to be billed

monthly, with a deposit of $5,000 to be submitted at the

commencement of the audit work. The letter and addendum appear

sufficient to establish the basic terms of Sexton & Scholl Ós

engagement in light of the firmÓs ongoing relationship with

Pleasant Place .

19. Ms. Bradley conceded that this engagement letter

looked Ðnot very much differentÑ than Sexton & SchollÓs

engagement letters to Pleasant Place in previous years. Because

of the ongoing issue of late audits, Ms. Bradley believed that

this letter should have provided Ðmore specificsÑ than the

earlier ones. However, the evidence provided at the hearing

indicated that the problem with late audits was not the fault of

the audito rs but was due to Pleasant PlaceÓs failure to pay them

on time, complicated after September 2012 , by the need to get

approval of the bankruptcy court for auditing expenses. There

was thus no reason to require Sexton & Scholl to modify its

standard engagem ent letter.

20 . However, the engagement letter made it clear that

Sexton and SchollÓs performance of the audit was contingent on

submission of the deposit and provision of the general ledgers

and other information needed for the audit. As of the date of

the hearing in this case, Pleasant Place had neither paid the

deposit nor provided the necessary documentation, meaning that

the 2012 audit had not been initiated and was still at least six

months from completion. It thus appeared to the Department that

P leasant Place would submit its 2012 audit at least one year

after the date it should reasonably have done so, after having

submitt ed its 2010 audit two years late and having been more

than one year late submitting its 2011 audit. Based on all the

facts, i t was not unreasonable for the Department to conclude

that Pleasant Place had failed to document the initiation of the

2012 audit.

21 . Mr. Nembhard testified that Pleasant Place attempted

to fully comply with the CAP. He believed that delivery of the

201 1 audit report and submission of the engagement letter for

the 2012 audit would be sufficient to obtain relicensure .

However, the DepartmentÓs concerns about the financial condition

of Pleasant Place went beyond the chronic late filing of the

annual audit s and were not satisfied a s the end of the 60 - day

short - term license period approached in mid - February 2013.

22 . Ms. Bradley testified that Pleasant Place provided her

with a copy of its financial report to the bankruptcy court, but

that the report did not show sufficient revenue to satisfy the

DepartmentÓs concerns about Pleasant PlaceÓs financial capacity .

23 . Sam uel Norris , the Department operational management

consultant who supervises Ms. Bradley, testified that the

DepartmentÓs decision not to renew Pleasant PlaceÓs license was

primarily based on the facilityÓs financial problems. T he

foreclosure and bankruptcy indicated that Pleasant Place was not

able to meet its financial obligations. Mr. Norris testified

that the rule requirement that a licensed entity file an annual

audit means an audit for the fiscal year just ended . Pleasant

Place should have submitted its 2011 audit at the time of the

2011 licensing review in December 2011 and its 2012 audit at the

time of the 2012 review. Mr. Norris t estified that Pleasant

PlaceÓs submission of a two - year - old audit d id not comply with

the requirement for an annual audit and that the document it

submitted as an engagement letter for its 2012 audit was not

sufficient .

24 . Though th e financial concerns were the main reason for

the DepartmentÓs decision, Pleasant Place also had a continuing

problem with poor recordkeeping. Pleasant Place failed to

regularly obtain the required documentation for all teen

mothersÓ medical, educational and case records and individual

service plans. This documentation is required to be obtained

prior to admission.

25 . Ms. Bradley testified that based on her observations

during the 2012 and prior licensing reviews, Pleasant Place made

an effort to obtain complete medical and education al records and

to update service plans for all children only in response to the

licensing review process. Too often, r ecords were completed

Ðafter the factÑ in response to a Department inquiry.

26 . Gail Jackson is a f amily care counselor employed by

the Partnership for Strong Families/Family Preservation

Services , child welfare services providers operating in the

Gainesville area. For several years , Ms. Jackson has provided

courtesy supervision for children from other counties who are

placed at Pleasant Place. Ms. Jackson testified that she has

had to return to Pleasant Place multiple times to obtain

documentation on the children under her supervision. Missing

items included birth certificates , which are necessary to enroll

a child in school. In one case, a girl staying in Pleasant

Place missed nearly a month of school because the facility did

not have her birth certificate. Ms. JacksonÓs overall

observation was that Pleasant Place was historically reliable in

provi ding services to its clients, but did a poor job in

documenting its services . She believed the facilityÓs

performance in this respect had recently improved to a degree.

27 . Jolene Williams has work ed at Pleasant Place as

residential advisor and program c oordinator since 2003 , and she

manages the childrenÓs files at Pleasant Place. Ms. Williams

testified that it is often difficult to obtain all the required

documentation upon admission because of the urgent circumstances

under which the children are comin g to Pleasant Place. She

testified that many of the girls come in because they have

Ðblown placementÑ somewhere else and need a place to stay.

Sometimes the girls have gone through three or four placements

in the space of a few months , and their document s are trailing

behind them . The girls usually come in with their birth

certificates and Social Security i n formation, but it sometimes

takes ten days or so for all of the required documentation to

c ome in.

28 . At the hearing, Pleasant Place argued that so me of the

documentation that Ms. Bradley determined to be missing was

actually at the facility and would have been provided to

Ms. Bradley if only she had asked for it. Ms. Bradley

persuasively responded that when she performs a relicensure

review at a facility, she expects the facility to provide her

with all the relevant documentation. If her review of the files

provided by the facility shows that something is missing, she

reasonably assumes the documentation is not there.

29 . Pleasant Place failed to provide to the Department

required documentation that its menus were reviewed by a

registered dietician on a quarterly basis in 2012. Pleasant

PlaceÓs documentation of a contract with a dietician was

provided after the review, and did not establish that a

registered dietician had in fact been performing quarterly

reviews of Pleasant PlaceÓs menus in 2012. Again, Pleasant

Place was submitting required documentation after the fact, in

response to pressure from the Department.

30 . Pleasant P lace failed to maintain required

documentation for its full - time volunteer, Rodney Williams, the

husband of Ms. Williams. At the time of the licensing review

Pleasant Place did not have documentation of Mr. WilliamsÓ

background screening, number of volunt eer hours, volunteer

activities performed or training, although he had been a full -

time volunteer at least since October 1, 2012.

CONCLUSIONS OF LAW

3 1 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla. Stat. (20 1 3 ). 3 /

32. Section 409.175, Florida Statutes, provides as

follows, in relevant part:

(1)(a) The purpose of this section is to

protect the health, safety, and well - being

of all children in the state who are cared

for by family foster homes, residential

child - caring agencies, and child - placing

agencies by providing for the establishment

of licensing requirements for such homes and

agencies and providing procedures to

determine adherence to these requirements.

* * *

(2) As used in this section, the term:

(a) ÐAgencyÑ means a residential child -

caring agency or a child - placing agency.

* * *

(f) ÐLicenseÑ means ÐlicenseÑ as defined in

s. 120.52 (10). A license under this section

is issued to a family foster home or other

facility and is not a professional license

of any individual. Receipt of a license

under this section shall not create a

property right in the recipient. A license

under this act is a public trust and a

privilege, and is not an entitlement. This

privilege must guide the finder of fact or

trier of law at any administrative

proceeding or court action initiated by the

department.

* * *

(i) ÐPersonnelÑ means all owners,

operators, employees, and volunteers working

in a child - placing agency, family foster

home, or residential child - caring agency who

may be employed by or do volunteer work for

a person, corporation, or agency that holds

a license as a child - placing agency or a

residential child - caring agency, but the

term does not include those who do not work

on the premises where child care is

furnished and have no direct contact with a

child or have no contact with a child

outside of th e presence of the childÓs

parent or guardian. For purposes of

screening, the term includes any member,

over the age of 12 years, of the family of

the owner or operator or any person other

than a client, over the age of 12 years,

residing with the owner or operator if the

agency or family foster home is located in

or adjacent to the home of the owner or

operator or if the family member of, or

person residing with, the owner or operator

has any direct contact with the children.

Members of the family of the owner or

operator, or persons residing with the owner

or operator, who are between the ages of 12

years and 18 years are not required to be

fingerprinted, but must be screened for

delinquency records. . . .

(j) ÐResidential child - caring agencyÑ means

any person, corporation, or agency, public

or private, other than the childÓs parent or

legal guardian, that provides staffed 24 -

hour care for children in facilities

maintained for that purpose, regardless of

whether operated for profit or whether a fee

is charged. Such residential child - caring

agencies include, but are not limited to,

maternity homes, runaway shelters, group

homes that are administered by an agency,

emergency shelters that are not in private

residen ces, and wilderness camps.

Residential child - caring agencies do not

include hospitals, boarding schools, summer

or recreation camps, nursing homes, or

facilities operated by a governmental agency

for the training, treatment, or secure care

of delinquent yo uth, or facilities licensed

under s ection 393.067 or s. 394.875 or

chapter 397.

(k) ÐScreeningÑ means the act of assessing

the background of personnel and includes,

but is not limited to, employment history

checks as provided in chapter 435, using the

le vel 2 standards for screening set forth in

that chapter.

* * *

(5)(a) The department shall adopt and amend

licensing rules for family foster homes,

residential child - caring agencies, and

child - placing agencies. The department may

also adopt rules relating to the screening

requirements for summer day camps and summer

24 - hour camps. The requirements for

licensure and operation of family foster

homes, residential child - caring agencies,

and child - placing agencies shall include:

1. The operation, con duct, and maintenance

of these homes and agencies and the

responsibility which they assume for

children served and the evidence of need for

that service.

2. The provision of food, clothing,

educational opportunities, services,

equipment, and individual su pplies to assure

the healthy physical, emotional, and mental

development of the children served.

* * *

5. The good moral character based upon

screening, education, training, and

experience requirements for personnel.

* * *

8. Satisfactory evidence of financial

ability to provide care for the children in

compliance with licensing requirements.

9. The maintenance by the agency of records

pertaining to admission, progress, health,

and discharge of children served, including

written case plan s and reports to the

department.

* * *

(d) In promulgating licensing rules

pursuant to this section, the department may

make distinctions among types of care;

numbers of children served; and the

physical, mental, emotional, and educational

needs of t he children to be served by a home

or agency.

* * *

(6)(a) An application for a license shall

be made on forms provided, and in the manner

prescribed, by the department. The

department shall make a determination as to

the good moral character of the applicant

based upon screening.

(b) Upon application, the department shall

conduct a licensing study based on its

licensing rules; shall inspect the home or

the agency and the records, including

financial records, of the agency; and shall

interview the applicant. The department may

authorize a licensed child - placing agency to

conduct the licensing study of a family

foster home to be used exclusively by that

agency and to verify to the department that

the home meets the licensing requirements

established by the department. Upon

certification by a licensed child - placing

agency that a family foster home meets the

licensing requirements, the department shall

issue the license.

(c) A licensed family foster home, child -

placing agency, or residential child - c aring

agency which applies for renewal of its

license shall submit to the department a

list of personnel who have worked on a

continuous basis at the applicant family

foster home or agency since submitting

fingerprints to the department, identifying

those for whom a written assurance of

compliance was provided by the department

and identifying those personnel who have

recently begun working at the family foster

home or agency and are awaiting the results

of the required fingerprint check, along

with the dat e of the submission of those

fingerprints for processing. The department

shall by rule determine the frequency of

requests to the Department of Law

Enforcement to run state criminal records

checks for such personnel except for those

personnel awaiting the results of initial

fingerprint checks for employment at the

applicant family foster home or agency.

* * *

(g) In the licensing process, the licensing

staff of the department shall provide

consultation on request.

(h) Upon determination that the ap plicant

meets the state minimum licensing

requirements, the department shall issue a

license without charge to a specific person

or agency at a specific location. A license

may be issued if all the screening materials

have been timely submitted; however, a

license may not be issued or renewed if any

person at the home or agency has failed the

required screening. The license is

nontransferable. A copy of the license

shall be displayed in a conspicuous place.

Except as provided in paragraph (j), the

licen se is valid for 1 year from the date of

issuance, unless the license is suspended or

revoked by the department or is voluntarily

surrendered by the licensee. The license is

the property of the department.

(i) A license issued for the operation of a

family foster home or agency, unless sooner

suspended, revoked, or voluntarily returned,

will expire automatically 1 year from the

date of issuance except as provided in

paragraph (j). Ninety days prior to the

expir ation date, an application for renewal

shall be submitted to the department by a

licensee who wishes to have the license

renewed. A license shall be renewed upon

the filing of an application on forms

furnished by the department if the applicant

has first met the requirements established

under this section and the rules promulgated

hereunder.

* * *

(7)(a) The department may issue a

provisional license to an applicant who is

unable to conform to the licensing

requirements at the time of the study, but

who is believed able to meet the licensing

requirements within the time allowed by the

provisional license. The issuance of a

provisional license shall be contingent upon

the submission to the department of an

acceptable written plan to overcome the

defic iency by the expiration date of the

provisional license.

(b) A provisional license may be issued

when the applicant fails to meet licensing

requirements in matters that are not of

immediate danger to the children and the

agency has submitted a corrective action

plan which is approved by the department.

A provisional license may be issued if the

screening material has been timely

submitted; however, a provisional license

may not be issued unless the applicant is in

compliance with the requirements in this

section for screening of personnel.

(c) A provisional license shall not be

issued for a period in excess of 1 year and

shall not be subject to renewal; and it may

be suspended if periodic inspection by the

department indicates that insufficient

progress has been made toward compliance

with the requirements.

* * *

(9)(a) The department may deny, suspend, or

revoke a license.

(b) Any of the following actions by a home

or agency or its personnel is a ground for

denial, suspension, or revocation of a

license:

1. An intentional or negligent act

materially affecting the health or safety of

children in the home or agency.

2. A violation of the provisions of this

section or of licensing rules promulgated

pursuant to this section.

3. Noncompliance wi th the requirements for

good moral character as specified in

paragraph (5)(a).

4. Failure to dismiss personnel found in

noncompliance with requirements for good

moral character.

5. Failure to comply with the requirements

of sections 63.0422 and 790.335 .

33. Florida Administrative Code Rule 65C - 14.026 , titled

ÐOrganization,Ñ provides as follows, in relevant part:

(1) Administration: The agency shall

maintain a current organization chart

showing the administrative structure

including the lines of auth ority. This

chart shall be available to the department.

(2) Funding: The agency shall provide

written documentation that it has sufficient

funds to meet all requirements for

licensure. Facilities beginning operation

shall provide evidence of sufficient funding

for operation of the program for at least 6

months.

(3) Budget: The agency shall prepare a

written budget annually.

(4) Audit: The agency shall have financial

records audited annually. ...

34. Florida Administrative Code Rule 65C - 14.025 , titl ed

ÐVolunteers,Ñ provides as follows, in relevant part:

(1) A facility which utilizes volunteers to

work directly with children on an

intermittent basis for more than 40 hours

per month must be screened in the same

manner as the employees of the facility. A

volunteer who assists on an intermittent

basis for less than 40 hours per month is

exempt from screening provided that the

volunteer is under direct and constant

supervision by staff at the facility.

(2) A facility which utilizes volunteers to

work d irectly with children shall:

(a) Develop a description of duties and

specific responsibilities;

(b) Develop a plan for the orientation and

training in the philosophy of the facility,

the needs of the children in care, and the

needs of their families; an d

(c) Provide for participation in carrying

out the service plans for children and

families they are working with.

(3) Volunteers who perform any services for

children shall have the same qualifications

and training as a paid employee for the

position and shall receive the same

supervision and evaluation as a paid

employee.

(4) Records shall be kept on the hours and

activities of volunteers. ...

35. Florida Administrative Code Rule 65C - 14.070, titled

ÐSpecific Rules for Maternity Residences,Ñ provides as follows,

in relevant part:

(1) Administration: The agency shall

maintain a current organizational chart

showing the administrative structure

including the lines of authority. This

chart shall be available to the department.

(2) Funding: Facilities beginning

operation shall provide evidence of

sufficient funding for operation of the

program for at least 6 months.

(3) Budget: The agency shall prepare a

written budget annually.

(4) Fees: If fees for services are

charged, the agency sh all have a written

policy which describes the conditions under

which fees are charged or waived. This

policy shall be available to any person upon

request. . . .

36. Florida Administrative Code Rule 65C - 14.077, titled

ÐCase Record,Ñ provides as follows :

(1) The facility shall maintain individual

records for each young woman which include

the following:

(a) Information including the name,

address, sex, race, religion, birthdate,

birth place.

(b) Date of admission, source of referral,

and medical information obtained at

admission.

(c) Medical history, treatment, clinical

records, any psychological and psychiatric

reports, educational or vocational records

and social history if available.

(d) A n individual service plan, reviews and

revisions reflecting the young womenÓs

adjustment to the facility.

(2) Case records shall be kept

confidential.

(3) Staff entries in case records shall be

dated and signed.

(4) The case record must be maintained for

a minimum of 5 years after a young woman has

left the facility.

37. Florida Administrative Code Rule 65C - 14.080, titled

ÐFood Service,Ñ provides as follows:

The maternity facility shall assign a staff

member to the overall management of the food

ser vice. If this person is not a

professional registered dietitian,

consultation on menu planning shall be

obtained at least quarterly from a

professional registered dietitian or the

local health department. In maternity

residences menus shall be appropriat e to

meet the nutritional needs of pregnant

women. Residential programs participating

in the Department of EducationÓs Food and

Nutrition Management Program will meet this

requirement. Nutritious snacks which meet

the requirements of the United States

De partment of Agriculture, Food and

Nutrition Service shall be provided.

38. The Department is proposing to deny the renewal of

Pleasant PlaceÓs residential child caring agency license for

foster children. A foster home license is not a professional

license and does not create a property right. § 409.175(2)(f),

Fla. Stat. Accordingly, the Department must establish facts

that support its position by a preponderance of the evidence

rather than by the clear and convincing standard imposed in

profession al license cases. Dep't of Banking & Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996); M.H. & A.H. v. Dep't

of Child. & Fams. , 977 So. 2d 755, 762 (Fla. 2d DCA 2008); Fla.

Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981). Once t he Department has met its burden, Pleasant Place,

as the applicant for relicensure , bears the ultimate burden of

establishing entitlement to the license sought. In this case,

the Department met its burden. Pleasant Place did not.

39. The paramount conce rn in the DepartmentÓs licensing

decisions is the safety of foster children. The D epartment has

the discretion to deny, suspend or revoke a license , provided

that discretion is not exercised in an arbitrary or capricious

manner.

40. Pleasant Place had th e statutory obligation to

demonstrate to the Department during its licensing review that

it had the financial ability to continue to provide care to

children. § 409.175(5)(a)8., Fla. Stat.

41. Pleasant Place had been on a provisional license since

Decemb er 2011 , and was not entitled to continue to operate under

a provisional license. § 409.175(7)(c), Fla. Stat.

42. The Department proved by a preponderance of the

evidence that Pleasant Place had serious financial problems and

had not provided the Department with information demonstrating

that it had the current financial ability to continue to provide

care for children.

43. Specifically, the Department was entitled in December

2012 , to demand that Pleasant Place present it with a current

audit for the fiscal year that ended on June 30, 2012. When the

DepartmentÓs re - licensing review indicated that Pleasant Place

had not even retained an auditor to undertake the 2012 audit,

the Department issued a CAP that gave Pleasant Place until

February 19, 2013 , to demonstrate that the audit had at least

been initiated. Pleasant Place proved unable to accomplish even

that measure.

44. At the hearing, Pleasant Place presented a sympathetic

explanation for why it f ound itself in a poor financial

position, but failed to present documentary evidence sufficient

to demonstrate that it possesses the present financial ability

to provide care for children.

45. The Department further proved by a preponderance of

evidence that Pleasant Place violated Florida Admini strative

Code C hapter 65C - 14, by its failure to consistently and timely

maintain childrenÓs records, volunteer records, and record of

review of menus by a certified dietician.

46. The Department has proved by a preponderance of the

evidence that its decis ion to deny Pleasant Place Ós renewal

application for a residential child caring agency license for

foster children was properly within the bounds of the

discretion granted by the cited statutes and rules. Pleasant

Place failed to counter the DepartmentÓs presentation with

evidence sufficient to establish its entitlement to the license

sought.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Children and Families

enter a final order denying the application of Pleasant Place,

Inc. , to renew its residential child caring agency license for

foster children .

DONE AND ENTERED this 2 4 th day of September , 2013 , 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 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 4th day of September , 2013 .

ENDNOTES

1 / The citation is incorrect. The rule quoted at this point of

the Agency Action Letter is Florida Administrative Code Rule

65C - 14.026.

2 / At the hearing, Mr. Nembhard attempted to argue that the

Ðannual auditÑ provision of Florida Administrative Code R ule

65C - 14.026(4) does not necessarily mandate that the audit be for

the current year. His theory appeared to be that so long as the

facility submits an audit each year, it does not matter that the

submitted audit is one or two years in arrears. Under hi s

theory, Pleasant Place should not be required to submit its 2012

audit until the end of 2013. Mr. NembhardÓs argument on this

point is without merit, as it would defeat the purpose of the

rule, which is to give the Department an understanding of the

cur rent financial position of the licensed entity.

3 / References to Florida Statutes are to the 2013 version,

unless otherwise indicated.

COPIES FURNISHED :

Lucy Goddard - Teel, Esquire

Department of Children and Families

Building J (IO3)

1000 Northeast 16th Avenue

Gainesville, Florida 32601

Mortlake Nembhard

Pleasant Place, Inc.

732 Northwest 4th Street

Gainesville, Florida 32601

Gregory D. Venz, Agency Clerk

Department of Children and Families

Building 2, Room 204 B

1317 Winewood Boulevard

Tallahassee, Florida 32399

Marion Drew Parker, Gen eral Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399

Esther Jacobo, Interim Secretary

Department of Children and Families

Building 1 , Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399

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 s hould be filed with the agency that

will issue the final order in this case.