15-002422 Agency For Persons With Disabilities vs. Daniel Madistin, Llc. Status: Closed Recommended Order on Wednesday, November 25, 2015.

Summary: Respondent, a licensed group home operator, did not violate several statutes and rules governing such homes and their staffs in connection with the accidental death of a resident or otherwise, contrary to Petitioner's allegations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES ,

Petitioner,

Case No. 1 5 - 2422FL

vs.

DANIEL MADISTIN LLC #1 ,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

July 29 and September 22 , 2015 , at sites in Tallahassee and West

Palm Beach , Florida.

APPEARANCES

For Petitioner: Elaine M. Asad , Esqui re

Agency for Persons w ith Disabilities

4030 Esplanade Way , Suite 380

Tallahassee , Florida 3 2399

For Respondent: John M. Howe , Esquire

Law Offices of John M. Howe

500 Australian Avenue South, Suite 515

West Palm Beach , Florida 33 401

STATEMENT OF THE ISSUES

The primary issue in this case is whether Respondent, a

licensed group home operator , violated several statutes and

rules governing such homes and their staffs, with most of the

alleged offenses occurring, Pe titioner charges, in connection

with the accidental death of a resident. If Respondent is found

guilty of any disciplinable offense s , then it will be necessary

to determine the appropriate penalties for such violation (s) .

PRELIMINARY STATEMENT

On April 9, 2015 , Petitioner Agency for Persons with

Disabilities issued an A dministrative Complaint against

Respondent Daniel Madistin LLC #1 , charging the licensed group

home operator with offense s relating to noncompliance with the

statutes and rule s governing group homes and their staffs,

including direct service providers .

The licensee timely exercised its right to be heard in a

formal administrative proceeding. On April 29 , 2015 , the agency

referred the matter to the Division of Administrative Hearings,

w here the case was assigned to an Administrative Law Judge.

The final hearing commenced as scheduled on July 2 9 , 2015 ,

with both parties present , and resumed, after a continuance, on

September 22, 2015, coming to a conclusion that day . The agency

called the following witness es: Daniel Madistin, Ashley Cole,

Lori Kohler (whose testimony was stricken without objection),

Paul Valerio, Lisa Davis, and Sabah Bissainthe. Petitioner's

Exhibits 1 through 13 were received in evidence without

objection . Mr. Madi stin , a principal of Respondent, returned to

the stand to testify on behalf of Respondent during its c ase in

chief. No Respondent's e xhibits were offered.

The final hearing transcript was filed on October 16, 2015 .

Each side submitted a proposed recomme nded order in accordance

with the deadline established a t the conclusion of the hearing .

Unless otherwise indicated, citations to the official

statute law of the state of Florida refer to Florida Statutes

2015 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful act s .

FINDINGS OF FACT

1. At all times relevant to this action, Respondent

Daniel Madistin LLC #1 ("DM1") held a Certificate of License,

numbered 091867 , which authorize d DM1 to operate a group home

for the developmentally disabled i n West Palm Beach , Florida ,

for the one - year period from April 1, 2014 , through March 31,

2015 . D M1 had been licensed as a group home since 2009. DM1's

facility (the "Home") could house up to six residents at a time.

2. As a group home licensee, DM1 falls under the

regulatory jurisdiction of Petitioner Agency for Persons with

Disabilities ("APD") , which issued DM1's initial and annual

renewal licenses and periodically inspected the Home .

3. One of the Home's lon gtime residents was a young man

named V.H . - D. This wheelchair - bound, nonverbal resident

suffered from a number of medical conditions, i ncluding severe

cerebral p a lsy , as a result of which he was unable to care for

himself. The Home's staff, therefore, were required, among

other things, to feed V.H. - D., whose difficulty swallowing solid

foods had caused him to be placed, on doctor's order s, on a diet

of puree as a precaution against choking. ( V.H. - D.'s family had

refused to consent to the placement of a feeding tube .)

4. On the morning of Sunday, October 19, 2014, an employee

of DM1, Pharah Murat, fed V.H. - D. his breakfast, as she had done

many times since starting to work in the Home in June of 2014.

Because V.H. - D. could not talk, he generally manifested satiety

by regurgitating food and expelling it from his mouth, at which

point the caregiver would clean him up. So, this day, when

V.H. - D. began expelling food, Ms . Murat stopped feeding him and

wiped his mouth, per the routine.

5. The situation was not routine, however, as M s . Murat

soon realized. V.H. - D. became pale and nonresponsive and looked

unwell. Concerned, Ms. Murat immediately called her supervisor,

Daniel Madistin, the eponymous pr incipal of DM1. Upon hearing

Ms . Murat's description of V.H. - D.'s condition, Mr. Madistin,

who was at church with his wife, ended the call and promptly

dialed 911. Having thus summoned emergency medical services and

law enforcement, Mr. Madistin rushed to the Home.

6. Meantime, Ms. Murat and a fellow employee, Marie Cadet,

attended to V.H. - D. as they awaited the arrival of the

paramedics. The evidence, which is in conflict, persuades the

undersigned to find that , more likely than not, Ms. Murat placed

V.H. - D. on the floor and performed cardiopulmonary

resuscitation, or tried to, although to what avail cannot be

determined. Afterwards, she and Ms. Cadet returned V. H. - D. to

his wheelchair and moved him from the dining room to the front

door , so that the paramedics would be able to work on him

without delay once they appeared, which they did within a matter

of minutes.

7. V.H. - D. was removed from the Home and taken by

ambulance to the hospital, where he died from asphyxiation due

to pulmonary aspiration of food secondary to cerebral p a lsy.

8. APD contends that V.H. - D. was the victim of "neglect"

because (a) Ms. Mu rat called Mr. Madistin, instead of 911, and

(b) th e staff failed to (i) recognize that V.H. - D was choking

and (ii) handle an emergency situation promptly and

intelligently. While there is no dispute that Ms. Murat called

Mr. Madistin, there is no debate that she did so immediately

upon realizing that V.H . - D. might be in distress , which she

observed very quickly. The evidence does not establish whether

or not Ms. Murat realized that V.H. - D. was choking, but it does

clearly prove that she not only realized something was wrong,

but also acted upon that reco gnition without delay.

9. APD insinuates that by not calling 911 first, Ms. Murat

increased the response time of the EMTs, to the detriment of

V.H. - D. There is, however, no persuasive evidence that

Ms. Murat's actions decreased the likelihood of V. H. - D . 's

survival, nor is that a reasonable inference. To the contrary,

it is more reasonable to infer, although not necessary to find,

that Ms. Murat expedited the delivery of emergency medical

services because she could converse in her primary language w ith

Mr. Madistin, whose first language , too, is Creole, enabling the

latter, who is fluent in English, to relay the relevant

information efficiently to the 911 dispatcher.

10. In addition, it should be mentioned that DM1's policy

directed employees to call 911 in an emergency. So, even if

Ms. Murat's failure to call 911 first amounted to neglect in

this instance, which it did not, there is no basis in the

evidence for holding the licensee responsible , for there is no

evidence suggesting that DM1 knew or should have known that

Ms. Murat would act as she did in a crisis.

11. In any event, the evidence shows, and the undersigned

finds, that Ms. Murat and Ms. Cadet acted with reasonable skill

and eff iciency in th is emergency. I n making this finding, the

undersigned is mindful that direct care staff are not medical

providers. Indeed, at the time DM1 hired Ms. Murat, a caregiver

needed only an eighth - grade education to meet the minimum

academic requir ements , 1 / and even under the current rule a high

school diploma or its equivalent suffices . 2 / The point is that

it i s unreasonable to expect a direct service provider in a

group home, when responding to a medical emergency, to meet the

standard of care ap plicable to a doctor, nurse, or EMT. No

persuasive evidence in the instant record establishes the

appropriate standard of care for direct service providers, but

the undersigned is nevertheless able to determine, based on the

totality of the circumstances, that the performance of DM1's

staff, while probably falling short of heroic, was at least

reasonable, and certainly not neglectful.

12. A fter the EMTs had left for the hospital , Palm Beach

County Sheriff's Office ("PBSO") deputies stayed behind at the

H ome to investigate. One of the officers tried to interview

Ms. Murat, but she was reluctant to speak. Ms. Murat and

Ms. Cadet are Hai tian immigrants whose native tongue is Creole,

and once the officers realized this, they called for the

assistance of D eputy Vessage , a bilingual PBSO deputy who often

serves as a translator in such instances. Deputy Vassage

responded to this request and questioned the women in Creole,

without incident.

13 . APD has alleged that Ms. Murat and Ms. Cadet were not

fluent speakers of English and thus were incapable of

communicating effectively in the official la nguage of the state

of Florida. 3 / This allegation was not proved. That Ms. Murat

insisted upon using her primary language when speaking with law

enforc ement officers, who were investigating a fatal event that

had just recently occurred in her presence, shows good judgment,

not a lack of communication skills. At any rate , the evidence

persuades the undersigned to find that both women likely we re

able to speak English with sufficient proficiency to make

themselves understood in ordinary circumstances . More

important, however, as will be discussed below , the law does not

require that direct service providers such as Ms. Murat and

Ms. Cadet be capable of c ommunicating effectively in English ,

but rather that they be capable of communicating effectively.

Needless to say, speaking in English is not the only way to

communicate effectively ; nor, for that matter, is talking

necessary for effective communication .

14. APD investigated the circumstances surro unding the

death of V.H. - D., and in so doing reviewed DM 1 's business

records, including the personnel file for Ms. Murat. APD claims

that DM1 failed to maintain written evidence of Ms. Murat's

qualifications as required by Florida Administrative Code

Rule 65G - 2.012(5)(b)( 19 78) . This r ule was substantially amended

in 2014, however, and the recordkeeping requirem ent was

repealed, effective July 1, 2014. See Fla. Admin. Code R. 65G -

2.012 ( 2014 ). There is no persuasive evidence in this record to

support a finding that DM1 failed to com ply with the former

version of r ule 65G - 2.012 while it was in effect. 4 /

15. It is undisputed that DM1 did not terminate

Ms. Murat's employment, or otherwise discipline her, as a

result of V.H. - D.'s death.

16. On January 16, 2015, an APD employee named Sabah

Bissainthe made an unscheduled visit to the Home to conduct an

inspection . Upon her arrival, she encountered Sinclair Concin,

who worked for DM1. Mr. Concin, who was not expecting visitors,

called Mrs. Naomi Madistin for guidance when he realized that

Ms. Bissainthe was a state employee performing official

business. Mr. Conc in put Ms. Bissainthe on the phone with

Mrs. Madistin, and the two made arrangements for Mrs. Madistin

to meet Ms. Bissainthe at the Home as soon as Mrs. Madistin

could get there, which she did within an hour. Mrs. Madistin

cooperated fully with Ms. Biss ainthe. Ms. Bissainthe was not

refused entry to the Home or forbidden from inspecting any part

of the facility, contrary to APD's allegations.

17. Mr. Concin's primary language is Creole, which

Ms. Bissainthe does not speak. APD alleged that Mr. Con cin does

not speak English, but the evidence fails to prove that charge,

which would not , at any rate, be a disc iplinable offense,

without more. APD further asserted that Mr. Concin is unable to

communicate effectively because he did not converse in Engli sh

with Ms. Bissainthe. The evidence shows, however, that

Mr. Concin and Ms. Bissainthe did communicate effectively,

notwithstanding that each spoke a different primary language,

because Mr. Concin proved capable , in fact, of accomplishing the

task when the circumstances required that he accommodate an APD

investigator who had appeared unannounced at the doorstep of the

Home.

18. On February 18, 2015, an investigator from the

Attorney General's office, Paul Valerio, paid an unannounced

visit to the Home in connection with a matter unrelated to

V.H. - D.'s death. Ne ither Mr. nor Mrs. Madistin was on - site at

the time, so Mr. Valerio called Mr. Madistin to let him know

that an official investigation was under way. The two men

agreed that Mr. Valerio would meet with Mrs. Madistin at the

Home the next day, and that meeting took place as planned.

Mrs. Madistin full y cooperated with Mr. Valerio, who completed

his investigation without difficulty. The evidence does not

establish that Mr. or Mrs. Madistin was una vailable or

uncooperative, as A P D charged.

Ultimate Factual Determinations

19 . Neither Ms. Mu rat nor Ms. Cadet abused, neglected,

exploited, or harmed V.H. - D. , who received prompt and

appropriate medical treatment on the day he died. Moreover,

Ms. M u rat and Ms. Cadet were mentally competent to perform their

duties as direct service providers. The evidence, therefore,

does not establish the violations of sections 393.13(3)(a),

393.13(3)(g), and 393.13(4)(c), Florida Statutes; and Florida

Administrati ve Code Rule s 65G - 2.008(1)(h) and 65G - 2.009(1)(d)

set forth in Count I of the Administrative Complaint.

20. The evidence failed to establish that Ms. Mu rat and

Ms. Cade t , or either of them, were (i) incapable of

demonstrating effective communication or (ii) not mentally

competent to perform their jobs as direct service providers.

Thus, the violations of r ules 65G - 2.008(1) (g) and 65G -

2.008(1)(h) alleged in Count II were not proved.

21. The charges brought in Count III of the Administrative

Complain t are duplicative of the charges set forth in Count I

and fail for the same reas ons of fact.

22. The charges in Count IV are based on allegations that

DM1 failed to maintain adequate personnel records for Ms. Murat ,

in violation of outdated provisions Fl orida Administrative Code

Rule 65G - 2.012(5) (1978) , which expired on July 1, 2014 , when a

new version of the rule took effect . The evidence failed to

show that DM1 violated the former rule at any time during its

existence .

23. The charges brought in Count V of the Administrative

Complaint are duplicative of the charges set forth in Count I I

and fail for the same reasons of fact.

24. The allegations of Count VI largely overlap those of

Counts I and III, with the additional allegation that DM1 fai led

to fire Ms. Murat or suspend her employment. While it is true

that Ms. Murat was not punished as a result of V.H. - D.'s death,

DM1's decision not to take such action does not constitute a

disciplinable offense, and the remaining allegations of Count VI

fail for the same reasons of fact that doom the charges set

forth in Count I.

25. The charges in Count VII are based on allegations that

Sinclair Concin (i) was unable to communicate effectively with

Sabah Bissainthe and (ii) refused to allow Ms. Bissai nthe to

enter the Home to conduct an investigation , thereby puttin g DM1

in violation of r ules 65G - 2.008(1) (g), 65G - 2.008(1)(h) , and 65G -

2.0032(3). The evidence showed, however, that Mr. Concin did

communicate effectively with Ms. Bissainthe , and that he l et her

into the Home. Therefore, the charges were not proved.

26. In Count VIII, APD charged DM1 with failure to have a

facility operator (manager) on - site or on call at all times, in

violation of r ule 65G - 2.012(1)(a). This charge was based on the

allegation that when investigator Paul Valerio arrived at the

Home for an unscheduled visit, neither Mr. Madistin nor his wife

was in the residence . Mr. Valerio was able immediately to reach

Mr. Madistin by phone , however, and make plans to meet with

Mr s. Madistin the following day. Thus, the charge set forth in

Count VIII was not proved.

CONCLUSIONS OF LAW

27 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569 and 120.5 7(1), Florida Statutes.

28 . A proceeding, such as this one, which arises from an

agency's preliminary decision not to renew a license based upon

the licensee's alleged commission of a disciplinable offense , is

penal in na ture because nonrenewal of licens ure is tantamount to

imposing a penalty upon the licensee . See Wilson v. Pest

Control Comm'n , 199 So. 2d 777, 781 (Fla. 4th DCA 1967) .

Accordingly, just as it would if the agency were seeking to

revoke the license at issue, AP D must prove the charges against

DM1 by clear and convincing evidence. 5 / See Coke v. Dep't of

Child. & Fam. Servs. , 704 So. 2d 726, 726 (Fla. 5th DCA 1998) (to

deny application for renewal of day care license based on

alleged misconduct , agency agreed it ne eded to prove , by clear

and convincing evidence , that child was injured while in

licensee's care and under her supervision ) ; Dubin v. Dep't of

Bus. Reg. , 262 So. 2d 273, 274 (Fla. 1st DCA 1972)(refusal to

renew the license of one who previously has shown that he meets

the statutory requirements for licensure cannot be used as a

substitute for revocation); Dep't of Banking & Fin., Div. of

Sec. & Investor Prot. v. O sborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995). 6 /

29 . Regarding the standard of proof, in S lomowitz v.

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

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

Th e court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking i n confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supr eme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[ a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 1279 (F la. 1992)(citation omitted).

30 . Section 393.0673(2)(a)3., Florida Statutes, authorizes

APD to deny an application for licensure i f the applicant has

"[f]ailed to comply with the applicable requirements of this

chapter or rules applicable to the applicant."

31. Florida Administrative Code Rule 65G - 2.009 provides in

relevant part as follows:

(1) MINIMUM STANDARDS. Residential

facility services shall ensure the health

and safety of the residents and shall also

address the provision of appropriate

physical care and supervision.

* * *

(d) The facility shall adhere to and

protect resident rights and freedoms in

accordance with the Bill of Rights of

Persons with Developmental Disabilities,

as provided in Section 393.13, F.S.

Violations of Section 393.13(3)(a), F.S.

relating to humane care, abuse, sexual

abuse, neglect, or exploitation and all

violations of Section 393.13(3)(g), F.S.,

shall constitute a Class I violation. All

other violations of Section 393.13(3), F.S.,

shall constitute Class III violations.

All violations of Sections 393. 13(4)(c)1.

and 2., (f), and (g), F.S., shall constitute

Class I violations. All violations of

Section 393.13(4)(h), F.S. shall constitute

Class II violations. All other violations of

Section 393.13(4), F.S., shall constitute

Class III violations.

32. A PD accused DM1 of violating the following provisions

of the Bill of Rights of Persons with Developmental

Disabilities , to whi ch adherence is required under r ule 65G -

2.009(1)(d) :

( 3) RIGHTS OF ALL PERSONS WITH

DEVELOPMENTAL DISABILITIES. Ï The rights

describ ed in this subsection shall apply to

all persons with developmental disabilities,

whether or not such persons are clients of

the agency.

(a) Persons with developmental disabilities

shall have a right to dignity, privacy, and

humane care, including the ri ght to be free

from abuse, including sexual abuse, neglect,

and exploitation.

* * *

(g) Persons with developmental disabilities

shall have a right to be free from harm,

including unnecessary physical, chemical, or

mechanical restraint, isolation, excessive

medication, abuse, or neglect.

* * *

(4) CLIENT RIGHTS. Ï For purposes of this

subsection, the term " client, " as defined in

s.393.063, shall also include any person

served in a facility licensed under

s. 393.067.

* * *

(c) Each client shall receive prompt and

appropriate medical treatment and care for

physical and mental ailments and for the

prevention of any illness or disability.

Medical treatment shall be consistent with

the accepted standards of medical practice

in the community.

§ 393.13, Fla. Stat.

33. APD alleged that DM1 had violat ed the following

provisions of r ule 65G - 2.008 (1) :

(g) Direct service providers must be

capable of demonstrating effective

communication with the residents of the

homes as well as other individuals such as

waiver support coordinators, Agency staff,

family members of residents, and others who

routinely interact with residential staff.

A violation of this paragraph shall

constitute a Class III violation.

(h) Direct service provide rs must be

mentally competent to comprehend, comply

with, and implement all requirements

provided by law and Agency rule for the

provision of services rendered to residents

of their facilities. In addition, they must

be physically capable of performing du ties

for which they are responsible. A violation

of this paragraph shall constitute a Class

II violation.

(Emphasis added.) 7 /

34. APD charged DM1 with having violated the following

provisions of r ule 65G - 2.102(5)(1978):

(b) Staff identified in the application for

licensure and providing direct care services

must be at least eighteen years of age.

Written evidence of the qualifications of

the direct care staff shall be maintained.

Minimum criteria shall be demonstrated

abilit y to meet the written established job

description, appropriate life experience,

and eighth grade education.

(c) Staff shall be of suitable physical and

mental ability to care for the clients they

propose to serve; have knowledge of the

needs of the clien ts; be capable of handling

an emergency situation promptly and

intelligently; and be willing to cooperate

with the supervisory staff.

(d) At least three written character

references (excluding relatives) and an

employment work history shall be require d

for direct care staff.

35. Rule 65G - 2.012(1)(a), which DM1 allegedly violated,

provides as follows:

Each group home facility shall have a

designated facility operator on - site or on

call at all times. The facility operator is

responsible for the on - go ing operation of

the group home facility and for ensuring

compliance with Chapter 65G - 2, F.A.C., and

Section 393.067, F.S. whenever the facility

operator is on - site or on call and one or

more residents are present in the facility.

36. APD charged DM1 wit h a violation of r ule 65G -

2.0032(3), which states:

Licensees and facility employees must permit

any Agency staff or designated agent of the

State of Florida, who presents proper State

of Florida - issued identification, to enter

and inspect any part of an y facility

building or to inspect records relating to

the operation of the facility or the

provision of client care at any time that

facility staff, management, owners,

directors, or residents are present in the

facility. A violation of this subsection

sh all constitute a Class II violation.

3 7 . The foregoing statutory and rule provisions "must be

construed strictly, in favor of the one against whom the penalty

would be impo sed." Munch v. Dep't of Prof'l Reg., Div. of Real

Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v.

Dep't of Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA

2002); McClung v. Crim. Just. Stds. & Training Comm'n , 458 So.

2d 887, 888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revoc ation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.");

see also, e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n , 57

So. 3d 929 , 931 (Fla. 1st DCA 2011)(statutes imposing a penalty

must never be extended by construction).

38 . As discussed above, t he undersigned has det ermined

that DM1 is not guilt y, as a matter of ultimate fact, of having

committed the several violations charged in the Administrative

Complaint.

39 . In making these ultimate determin ations, the

undersigned concluded that the plain language of the applicable

statutes and rule s , being clear and unambiguous, could be

applied in a straightforward manner to the historical events at

hand without resorting to principles of interpretation or

examining extrinsic evidence of legislative intent . It is

theref ore unnecessary to make additional legal conclusions

concerning th ese violation s .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a final order finding th at Daniel Madistin

LLC #1 is not guilty of the offense s charged in the Amended

Administrative Complaint.

DONE AND ENTERED this 25th day of November , 20 1 5 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

A dministrative 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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November , 20 1 5 .

ENDNOT ES

1 / Fla. Admin. Code R. 65G - 2.012(5)(b)(19 78).

2 / Fla. Admin. Code R. 65G - 2.008(1)(e)(2014) .

3 / See Art . II, § 9, Fla. Const.

4 / In its "Proposed Final Order," APD argues that DM1 failed

likewise to keep sufficient personnel records on Ms. Cadet.

This charge was not pleaded in the Administrative Complaint,

however, and for that reason will not be considered.

5 / This question regarding the standard of proof in proceedings

involving renewal of licensure arises with surprising frequency,

for a matter that one would think should have been

authoritatively settled by now. To be clear, the question is

whether an agency can refuse to renew a license based upon its

determination that the licensee, as a licensee, committed a

disciplinable offense, where the misconduct was proved merely by

a preponderance of the evidence. To further frame the issue, it

is well settled that, wh ile an agency may decline to issue an

initial license based upon proof of the applicant's misconduct

by the greater weight of the evidence, it may revoke a license,

once issued, only upon clear and convincing proof of a

disciplinable offense. One's positi on on the standard of proof

applicable in renewal proceedings, therefore, generally turns on

whether one views nonrenewal for cause as tantamount to

revocation or, rather, the equivalent of the denial of an

initial application for licensure.

Those who th ink an application for renewal is the same as

an initial application for licensure naturally tend to conclude

that the standard of proof for nonrenewal based upon a

disciplinable offense should be preponderance of the evidence.

While conceding that revoca tion for the same offense would

require clear and convincing proof, they maintain that when a

license reaches its renewal date, it simply vanishes in the eyes

of the law, returning the licensee to the status quo ante

licensure, as if he had never been lice nsed, which obviates the

need to revoke. In this view, every renewal is a new beginning,

and the licensee must start from scratch every year or two when

the time to renew comes around. From this premise it follows

that an applicant for renewal is no diff erent from those who, by

filing applications for initial licensure, seek to enter the

field for the first time.

The undersigned rejects this view, which does not

adequately account for the true nature of licensure. For most

licensees, the license repres ents a long - term commitment to a

business, occupation, or profession, one that often entails a

substantial investment of resources. Once obtained, a license

is the sort of thing around which careers and lives are planned.

Doubtless few licensees think of their licensure status as

comprising a series of separate licenses. Rather, they look at

licensure, not a sequence of discrete, time - limited segments,

but as a seamless state continuing without interruption over

time. As a practical matter, not many ord inary licensees plan

their lives according to the renewal schedule, for renewal is a

form of maintenance, not acquisition. To the licensee,

nonrenewal for cause is indistinguishable from revocation;

either event frustrates reasonable expectations of ongoi ng

licensure arising from possession of the license in a way that

denial of initial licensure, before one has come to rely upon

the license, does not. The undersigned, consequently, perceives

no meaningful distinction between nonrenewal for cause and

revo cation.

Once it is concluded that nonrenewal for cause equals

revocation, it follows that the standard of proof must be the

same for both, i.e., that clear and convincing evidence of

alleged wrongdoing is required for termination of a license,

whether th e disciplinable offense is charged in an

administrative complaint or a notice of nonrenewal. There is

another pragmatic reason, as well, why this should be so. If

the courts were to decide that nonrenewal for cause is

supportable on proof of misconduct b y a preponderance of the

evidence, then agencies would be encouraged simply to wait until

the time for renewal to take action against licensees suspected

of wrongdoing, especially in cases where clear and convincing

proof might be difficult to obtain or th e alleged misconduct

occurred in close proximity to the renewal date. The agency

would be in control of the standard of proof by the expedient of

timing its action to coincide with renewal.

This case is a good example of how agencies could dictate

the standard of proof. Here, APD issued its Administrative

Complaint nine days after DM1's most recent license expired, and

in that complaint announced its intent to impose the penalty of

nonrenewal. The events giving rise to the complaint, of course,

all o ccurred while DM1 was licensed and acting in its capacity

as a licensee. Had APD issued its Administrative Complaint a

few months or weeks earlier, it necessarily would have sought

revocation, and its burden clearly would have been to prove the

charges by clear and convincing evidence. If a court decides

that the standard of proof in this case (or one like it) is

preponderance of the evidence, such will be so only because APD

(or some other agency) waited to take action until DM1 (or a

similarly situated licensee) applied for renewal of its license.

If it were to become the law that agencies may control the

standard of proof by the timing of their actions, then rational

agencies would opt for the least demanding standard as often as

possible, with the result many licensees accused of wrongdoing

would lose the protection they are supposed to enjoy as a result

of the stricter standard of proof otherwise applicable in penal

proceedings, and similarly situated licensees would receive

equal treatment under the standard of proof ÏÏ or not ÏÏ as a matter

of agency discretion. These undesirable consequences may be

avoided by requiring clear and convincing proof of any alleged

wrongdoing which is relied upon as grounds for refusing to issue

a renewal license.

6 / The decision in M.H. v. Department of Children and Family

Services , 977 So. 2d 755 (Fla. 2d DCA 2008), might appear to

hold that an agency may deny the renewal of a license based on a

disciplinable offense proved by a preponderance of the evidence,

but on examination the language in the opinion arguably

supporting such a proposition is properly regarded as dicta.

There, the agency sought to deny the renewal of a foster care

license, claiming that the foster parents had intentionally

harmed a child in their care. After conducting a formal

hearing, the administrative law judge found that the agency had

failed to prove the allegations of misconduct by a preponderance

of the evidence and accordingly recommended that the renewal

license be issued. Id. at 758. The agency rejected the ALJ's

conclusion regarding the applicable standard of proof and

entered a final order refusing to issue a renewal license,

reasoning that it had offered competent substantial evidence in

support of its allegations, and that was eno ugh. Id. The issue

on appeal, therefore, was whether the correct standard of proof

in a renewal - license denial case is less demanding than

preponderance of the evidence, which latter mark the agency had

failed to meet.

The court rejected the agency's position. In so doing, the

court drew no distinction (or even acknowledged that there might

be a difference) between the denial of an initial license and

the denial of a renewal license, but instead it discussed the

issues presented as if the two were id entical. This is not

surprising because the law clearly required (and requires) proof

of misconduct by a preponderance of the evidence when an agency

proposes to deny an initial license on such a charge ÏÏ the very

standard which the ALJ had applied in find ing for the licensees.

Having prevailed under this standard, the appellants had no

incentive to argue, nor the court reason to find, that a

stricter standard of proof should apply. To reverse the

agency's conclusion about the standard of proof, as it did , id.

at 762, the court needed only to determine that the correct

standard is no less than preponderance of the evidence. The

court did not need to hold that the correct standard is no more

than preponderance of the evidence. Put another way, the facts

of M.H. required the court only to rule that proof of misconduct

by the greater weight of the evidence is necessary to justify

the refusal to renew a license, because in M.H. there was no

such pro of; the case provided no occasion to rule that a

preponderance of evidence is sufficient , without more, to

support the denial of a renewal license for misconduct, where

such evidence is presented. Consequently, to the extent the

opinion implies a rejectio n of the clear and convincing

standard, it is nonbinding dicta.

7 / "Effective communication" is not further defined in the rule

to require that direct service providers be capable of speaking

English according to some standard of fluency. Clearly, one

n eed not speak English, or any language for that matter, to

communicate effectively. People who do not speak the same

language can generally convey meaning effectively using body

language and hand gestures. To be sure , conversing in the same

language is u sually more efficient than resorting to hand

gestures, but efficiency is different from effectiveness. To

the extent that APD construes r ule 65G - 2.008(1)(g) as requiring

direct service providers to speak English fluently, this

interpretation is rejected a s contrary to the rule's clear and

unambiguous language. Such a rule, further, would come

dangerously close to providing a warrant for employment

discrimination based on national origin or even disability.

COPIES FURNISHED :

Elaine M. Asad, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399

(eSer v ed )

John M. Howe, Esquire

Law Offices of John M. Howe

500 Australian Avenue South, Suite 515

West Palm Beach, Florida 33401

(eSer v ed )

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

( eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excepti ons 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.