14-002652 Our House Too vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Thursday, April 23, 2015.

Summary: Petitioner had a verified finding of inadequate supervision, giving Respondent legal justification for denying Petitioner's application for a residental facility.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OUR HOUSE TOO ,

Petitioner ,

vs. Case No. 1 4 - 2652

AGENCY FOR PERSONS WITH

DISABILITIES ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a fin al hearing was conducted in this

case on February 11, 2015 , by way of video teleconference, with

sites in Tallahassee and Orlando , Florida, before Administrative

Law Judge R. Bruce McKibben of the Division of Administrative

Hearings.

APPEARANCES

For P etitioner: Nancy Pico Campiglia, Esquire

Your Towne Law, P.A.

1720 South Orange Avenue, Suite 302

Orlando, Florida 32806

For Respondent: Kurt E. Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent , Agency for

Persons w ith Disabilities ( Ð APD Ñ or the Ð Agency Ñ ) , should have

approved the application submitted by Petitioner, Our House Too

(ÐOur HouseÑ), seeking licensure as a residential facility

( specifically , a group home facility ) .

PRELIMINARY STATEMENT

By letter dated May 19 , 2014 , the Agency notified Our House

that its application for licensure as a group home facility had

been denied. Pet itioner timely filed a Request for Formal

Administrative Hearing , which was forwarded to the Division of

Administrative Hearings (ÐDOAHÑ) and assigned to the undersigned

a dministrative l aw j udge. By agreement of the parties and order

of the undersigned , t he hearing was held at the place and date

set forth above.

At the final hearing, Our House called two witnesses: Jane

Milsap, certified home day care operator; and Amanda Bowden (nee

Marchese) , child protection investigator . Our HouseÓs E xhibits

A throug h E were admitted into evidence. Our House requested

that its Exhibit E be supplemented with four additional

reference letters following the final hearing ; the Department

had no objection and the exhibit was supplemented as requested.

The supplement was received February 11, 2015. The Agency

called one witness: Joyce Leonard, supervisor for licensed or

certified group homes. APDÓs E xhibits A and B were offered and

received into evidence .

A T ranscript of the final hearing was ordered and was filed

at D OAH on March 11, 2015. By rule, t he parties have 10 days

from the date of final hearing to submit proposed recommended

orders (PROs) . The parties requested and were granted

additional time. Each party filed a PRO and each was considered

in the preparati on of this Recommended Order .

FINDINGS OF FACT

1. Our House applied for a license to operate a

residential facility /group home with a capacity of five

residents in February 2014. A group home is a place where

persons with certain medical, psychological , or other limiting

conditions , may reside and have companion care and specified

personal care assistance services. The facility proposed by Our

House would provide respite care, supported living coaching, and

transportation services. Milsap signed the a pplication form on

behalf of Our House .

2. Contained within the application was th e following

question: ÐHave you or anyone identified as a board member or

party to ownership ever been identified as responsible for the

abuse, neglect, or abandonment of a child or the abuse, neglect,

or exploitation of a vulnerable adult?Ñ Our House truthfully

and accurately answered ÐNoÑ to the question and submitted the

application. The application was signed by Milsap and notarized

on February 9, 2014.

3. Milsap al so owns and operates a registered family day

care home. By le tter dated April 14, 2015, Milsap was notified

that an investigation which had been conducted by the Department

of Children and Families ( ÐDCFÑ) on March 5, 2014, at

Ms. MilsapÓs family day care home was now complete . 1 / Milsap had

been at her home when the investigation occurred, so she was

already aware of the nature of the investigation and that it had

occurred . By the time she received notice about the

investigation being concluded , Ms. Mils ap had already submitted

her residential facility application to APD.

4. No evidence was presented to indicate that Milsap was

ever notified by DCF concerning sanctions or penalties resulting

from the investigation of her family day care home. Nor is

the re any evidence she received notification that would allow

her to contest the findings set forth in the investigative

report. She was simply notified that the investigation had been

completed.

5. APD is the state agency responsible for, inter alia,

lic ensing and monitoring residential facilities. By letter

dated May 19, 2014, APD notified Ms. Milsap that the application

for licensure as a group home facility was being denied because

she was Ðresponsible for the abuse, neglect, or abandonment of a

child .Ñ The decision stemmed from the aforementioned

investigation conducted by DCF in March 2014 at MilsapÓs

registered family day care home .

6. What DCF had concluded in its investigation (and

ultimately reported to APD) was that on or about March 5, 2014,

Ms. Milsap was serving as the owner and operator of Milsap

Family Day Care Home. On that date, there were three children

being cared for at the home. A child (identified herein as

B.H.) sustained approximately 13 bites on his head, arms, and

back while i n MilsapÓs care. Milsap was in the kitchen

preparing food for the children when the biting occurred. There

was a half door separating the kitchen from the room where B.H.

and two other children were playing. The entire playroom was

not directly visible from the kitchen area. There were no

adults physically inside the playroom when the biting occurred.

7. Milsap does not dispute that B.H. was bitten several

times by one of the other children in the playroom. She

maintains that her presence in the kit chen area was not improper

as she did not know one of the children may have a propensity to

bite and, therefore, she had no reason to be physically present

in the playroom at all times . She maintains that she was

appropriately caring for the children at a ll times and that the

biting incident was unforeseen and was not preventable.

8. Th e biting incident was the first offense cited against

MilsapÓs Family Day Care Home. Milsap has a reputation for

providing good, quality care to the children in her char ge.

After completing its investigation, DCF made a verified finding

of Ðinadequate supervision,Ñ an offense under the general

umbrella of abuse or neglect. DCF recommended remediation as

the sanction for the incident , but there is no evidence as to

wheth er re mediation ever occurred . It is clear, however, that

n o action was taken against the Family Day Care Home license.

In fact, the homeÓs license was renewed by DCF at its next

renewal date in August 2014. Also , the DCF investigation

concluded that the risk to the child (B.H.) was ÐlowÑ following

the incident.

9. Nonetheless , APD considered the incident serious enough

to warrant denial of Our HouseÓs application for licensure to

operate a group home facility. The person who purportedly made

the decisi on to deny the application, Tom Rice (licensing

supervisor), did not testify at final hearing as to his

reasoning or basis.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (201 4 ) . Unless stated otherwise herein, all references

to Florida Statutes shall be to the 201 4 codification.

11. Section 393.0673(2) , Florida Statutes, provides in

relevant part as follows:

(2) The agency may deny an application for

licensure submitted under s. 393.067 if:

* * *

(b) The D epartment of Children and Families has

verified that the applicant is responsible for the

abuse, neglect, or abandonment of a child or the

abuse, neglect, or exploitation of a vulnerable

adult.

(Emphasis added ) .

12. In the present case, DCF made a verifi ed finding that

Milsap was responsible for Ðinadequate supervision Ñ of a c hild

in her care. 2 / That finding, according to APD, constituted

neglect on the part of Milsap because inadequate supervision

falls under the heading of neglect within DCFÓs child

ma ltreatment index which contains 20 to 30 different kinds of

maltreatments, from the more serious offenses like sexual abuse

to less serious things such as inadequate supervision.

13. Because there was a verified finding of Ðneglect , Ñ APD

has the statuto ry authority to deny the application filed by

Milsap for Our House. It must be noted that there is no

statutory mandate that the license be denied, only that the

authority to do so exists if APD wishes to exercise it.

14. There is insufficient evidenc e to make a determination

of what factors Î other than the verified finding of inadequate

supervision Î APD relied upon in making its decision. APDÓs

denial of the application is legally permitted under the wording

of the statute . A bsent evidence that AP D ignored any mitigating

or aggravating factors, there is no basis to overturn the

decision as it falls within APDÓs authority .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be enter ed by Respondent,

Agency for Persons with Disabilities , upholding its denial of

the licensure application filed by Petitioner, Our House Too .

DONE AND ENT ERED this 23rd day of April , 2015 in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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

Di vision of Administrative Hearings

t his 23rd day of April , 2015.

ENDNOTES

1 / The letter was apparently misdelivered to MilsapÓs neighborÓs

house, but Milsap eventually received it.

2 / The Department offered into evidence the summary of an

investig ative report that had been compiled by DCF. Our House

objected to the summary on the basis of it being hearsay, but

the ultimate relevant finding of the report, i.e., that the

findings were Ðverified,Ñ was corroborated by other competent

evidence.

COPIE S FURNISHED :

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Nancy Pico Campiglia, Esquire

Your Towne Law, P.A.

1720 South Orange Avenue , Suite 302

Orlando, Florida 32806

(eServed)

Michael Sauve, Esquire

Agency for Persons with Disabilities

400 West Robinson Street , Suite S - 430

Orlando, Florida 32801

(eServed)

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallaha ssee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplande Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilit ies

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

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.