16-005764 Agency For Health Care Administration vs. Willine Gracia Status: Closed Recommended Order on Friday, December 9, 2016.

Summary: The Agency proved by clear and convincing evidence that Respondent was operating an assisted living facility without the required license thereby engaging in unlicensed activity. An administrative fine should be imposed for each day of noncompliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 16 - 5764

WILLINE GRACIA,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on November 10, 2016, by

video teleconference sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Valerie Laurel Fritts, Esquire

Lindsey L. Miller, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 7

Tallahassee , Florida 32308

For Respondent: No appearance

STATEMENT OF THE ISSUE S

The issues in this matter are whether Respondent, Willine

Gracia, operated an assisted living facility without the required

license , thereby engaging in unlicensed activity ; and, if so, the

appropriate penalty.

PRELIMINARY STATEMENT

On July 8, 2016, Petitioner, the Agency for Health Care

Administration (the ÐAgencyÑ), issued an Administrative Complaint

against Respondent, Willine Gracia. The Agency alleged that

Respondent was operati ng an unlicensed assisted living facility

in violation of chapter 429, Florida Statutes. The Agency seeks

to impose an administrative fine against Respondent in the amount

of $19,000 pursuant to section 408.812 , Florida Statutes .

On September 9, 2016, Res pondent requested an administrative

hearing under chapter 120. On October 3, 2016, the Agency

referred the matter to the Division of Administrative Hearings

(ÐDOAHÑ) to conduct an evidentiary hearing.

The final hearing was held on November 10, 2016. Resp ondent

did not appear. The Agency presented the testimony of Tresa

Johnston, Anthony Alexander, and Keisha Woods. Agency Exhibits 1

through 5 were admitted into evidence.

A court reporter recorded the final heari ng. Neither party

requested a t ranscript. At the close of the hear ing, the

undersigned advised that the parties could submit p ost - hearing

submittals within ten days following the final hearing. The

Agency filed a Proposed Recommended Order which was duly

considered in preparing this Recommended Order.

FINDING S OF FACT

1. The Agency is the state agency responsible for the

licensure of assisted living facilities (ÐALFsÑ) in the State of

Florida. See Ch. 429, Part I; and Ch. 408, Part II, Fla. Stat.

As part of its responsibilities, the Agency se rves as the

enforcement arm regarding the licensed (and unlicensed) activity

and operation of ALFs. See gen . , Chs. 408 and 429, Fla. Stat.;

Fla. Admin. Code R. 58A - 5 and 59A - 35.

2. Respondent owns a house located at 4502 C onley Street,

Orlando, Florida.

3. In January 2016, the Agency received a complaint

alleging the unlicensed operation of an ALF at the 4502 Conley

Street location.

4. The Agency maintains records of ALF licenses and license

applications pursuant to chapter 408 and r ule 59A - 35 . Keisha

Woods currently serves as an Operations and Management Consultant

in the Assisted Living Unit for the Agency. Ms. Woods testified

that she searched the AgencyÓs databases on October 26, 2016, and

November 9, 2016, and found no record that Respondent was

c urrently licensed as an ALF or had ever appli ed to be licensed

as an ALF.

esa Johnston is a Senior Human Services Program

Specialist, also known as a Ðsurveyor,Ñ for the Agency.

Ms. Johnston investigated the complaint on behalf of the Agency.

On J anuary 14, 2016, Ms. Johnston visited RespondentÓs house

located at 4502 Conley Street, Orlando, Florida. Ms. Johnston

arrived around 8:30 a.m. Respondent was not present.

Ms. Johnston knocked at the front door. An individual who

Ms. Johnston later c oncluded was residing in the house, greeted

her at t he door and allowed her entry.

6. Upon entering the house, Ms. Johnston met three

individuals who she determined were living in the residence. She

observed that the house contained three bedrooms and on e

bathroom. The residents informed Ms. Johnston that they stayed

in two of the three bedrooms. Ms. Johnston also found personal

effects in the bedrooms and bathroom that belonged to the

residents.

7. In the house, Ms. Johnston observed a combined living

room/dining room area in which she found a piano, a small

refrigerator, and a microwave. In the refrigerator, Ms. Johnston

discovered several frozen meals and drinks. In the bathroom,

Ms. Johnston did not find any toilet paper. She also noticed

that t he bathroom was lit only by a nightlight.

8. On the doorway to the kitchen, Ms. Johnston encountered

a sign that read, ÐDo not enter kitchen at any time.Ñ The

residents informed Ms. Johnston that Respondent forbad them from

entering the kitchen. Disrega rding the sign and entering the

kitchen, Ms. Johnston saw that the refrigerator was chained and

locked. She found canned foods on the counter and packaged food

in the pantry. Ms. Johnston also disco vered a dead rat on the

floor.

9. Ms. Johnston found th e house was extremely cold. All

three residents were wearing coats. The residents advised

Ms. Johnston that Respondent did not allow t hem to manage the

temperature.

10. Respondent arrive d at the house around 9:10 a.m.

Respondent was carrying a plastic bag containing medication for

all three residents. Upon entering the house, Ms. Johnston

testified that she saw Respondent take several prescription

bottles out of the bag, pour a dosage of medication into the caps

of each bottle, and instruct the reside nts to ingest the

medication. The residents then placed some medications in a

daily pill box for a one - day supply. Respondent observed that

one medication bottle was empty. She shook it and advised one of

the residents, ÐI owe you one of these. I have to refill it.Ñ

Respondent, after giving the residents their medication, put the

medication bottles back into the plastic bag. Ms. Johnston also

heard Respondent declare that she would have to return in the

afternoon to give a resid ent her medication.

11. Thereafter, Ms. Johnston interviewed Respondent.

During this interview, Respondent informed Ms. Johnston that she:

a. does not live at 4502 Conley Street;

b. is not related to any of the three residents;

c. provides housing, meals, and manages medic ations for all

three residents;

d. cooks two meals a day for the residents. (The residents

are supposed to eat a frozen meal for their third meal);

e. does not allow the residents into the kitchen;

f. keeps the residentsÓ medications in a locked cabine t in

her home because two of the residents cannot take care of their

own medicatio ns without her assistance; and

g. generally arrives at the 4502 Conley Street location

bet ween 9:00 to 9:30 a.m. each day.

12. Respondent also called the residents her Ðcli ents.Ñ

Respondent explained to Ms. Johnston that her clients were

referr ed to her by a local hospital.

13. Respondent explained to Ms. Johnston that she is paid

to lodge two of the residents through a payee. She was in the

process of obtaining a payee f or the third resident.

14. On January 22, 2016, Ms. Johnston contacted Anthony

Alexander , who is a Representative Payee for the Social Security

Administration. At the final hearing, Mr. Alexander explained

that the Social Security Administration designat ed him a payee

for certain individuals who have been determined to be unable to

manage paying their own personal expenses with their Social

Security benefits. Mr. Alexander testified that in his capacity

as Representative Payee, he made rental payments to Respondent

for two of the residents Ms. Johnston found staying at

RespondentÓs house. Mr. Alexander recounted that he made the

rental payments through direct deposit to RespondentÓs bank

account. Mr. Alexander further stated that he mailed weekly

stipen d checks for the two residents to the 4502 Conley Street

address. Mr. Alexander represented that his records show that

t he stipend checks were cashed.

15. In addition, Mr. Alexander testified that, as of the

date of the final hearing, he is still paying rent to Respondent

for one of the residents. He is also still mailing a weekly

stipend check for that individual to 4502 Con ley Street, Orlando,

Florida.

16. Based on her personal observations and the information

provided directly to her from Respondent and the three residents

of 4502 Conley Street, Ms. Johnston concluded that Respondent was

engaged in unlicensed activity by operating an ALF without a

license. Therefore, on January 14, 2016, Ms. Johnston issued

Respondent a Notice of Unlicensed Activity (the ÐNoticeÑ). The

Notice instructed Respondent to immediately cease operating an

A LF without proper licensure.

17. On February 1, 2016, Ms. Johnston revisited 4502 Conley

Street. Ms. Johnston again asked a resident permission to enter

the house. This time she was denied entry. However, she saw

that two of the three residents she met during her initial visit

on January 14, 2016, were still in the house. Based on her

observations, Ms. Johnston determined that Respondent was

continuing to engage in unl icensed activity after receiving the

Notice on January 14, 2016.

18. Respondent was not present at the final hearing.

However, in her Election of Rights she presented to the Agency ,

Respondent wrote:

I Willine Gracia have never owned or operated

a non li cense facility. . . . IÓve never

promoted myself as such. However, I did have

renters in my home and at times some of them

came through Lakeside Behavioral. Each of

these ladies were independent and did not

require supervision and could live on their

ow n without a caregiver. . . . I only

offered meals to those ladies who wanted

that. I did not provide anything more. . . .

I do live at 4502 Conley Street and this is

my personal home, which I can prove not a ALF

or business.

19. Based on the competent substantial evidence in the

record, the facts demonstrate that Respondent was operating an

ALF as that term is defined in section 429.02(5). The evidenc e

and testimony also establish that Respondent was engaging in this

activity, without the proper licen se, from January 14, 2016,

through February 1, 2016.

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. See §§ 120.56 and 120.57(1),

Fla. Stat.

21. The Agency initiated this action against Respon dent

alleging that she owned, operated, or maintained an unlicensed

ALF at 4502 Con ley Street, Orlando, Florida.

22. The Agency is responsible for the licensure of ALFs in

the State of Florida pursuant to chapter 429 and Florida

Administrative Code R ule 5 8A - 5 . As part of its responsibilities,

the Agency enforces all applicable federal regulations , Florida

statutes , and administrative rules governing the unlicensed

operation of ALFs. See gen . , Chs. 408 and 429, Fla. Stat.; and

Fla. Admin. Code R. 58A - 5 an d 59A - 35 .

23. Based on her unlicensed activity, the Agency seeks to

impose sanctions on Respondent in the form of an administrative

fine. An action to impose a fine is penal in nature.

Accordingly, AHCA bears the burden of proof to establish the

grounds for doing so by clear and convincing evidence. Dep't of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996); see also Fla. Dep't of

Child. & Fams. v. Davis Fam. Day Care Home , 160 So. 3d 854 (Fla.

2015).

24. Clear and convincing evidence is a heightened standard

that requires more proof than a mere preponderance of the

evidence. Clear and convincing evidence requires that the

evidence Ðmust be found to be credible; the facts to which the

witnesses testif y must be distinctly remembered; the testimony

must be precise and explicit and the witnesses must be lacking in

confusion as to the facts at issue. The evidence must be of such

weight that it produces in the mind of the trier of fact a firm

belief or con viction, without hesitancy, as to the truth of the

allegations sought to be established.Ñ In re Davey , 645 So. 2d

398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

25. According to section 429.07(1), Ð[a] license issued by

the agency is required in order to operate an assisted living

facility in this state.Ñ ALFs are required to be licensed by the

Agency unless specifically exempted under section 429.04.

26. An ALF is defined in section 429.02(5) to mean:

[A] ny building or . . . private home,

boarding home, home for the aged, or other

residential facility, whether operated for

profit or not, which undertakes through its

ownership or management to provide housing,

meals, and one or more personal services for

a period exce eding 24 hours to one or more

adults who are not relatives of the owner or

administrator.

27. ÐPersonal servicesÑ are defined in section 429.02(17)

to mean:

[D] irect physical assistance with or

supervision of the activities of daily living

and the self - administration of medication and

other similar services which the department

may define by rule. ÐPersonal servicesÑ

shall not be construed to mean the provision

of medical, nursing, dental, or mental health

services.

28. The Agency seeks to fine Respon dent for her unlicensed

activity pursuant to s ection 408.812. Section 408.812 states, in

pertinent part:

(1) A person or entity may not offer or

advertise services that require licensure as

defined by this part, authorizing statutes,

or applicable rules to the public without

obtaining a valid license from the agency.

* * *

(2) The operation or maintenance of an

unlicensed provider or the performance of any

services that require licensure without

proper licensure is a violation of this part

and authorizing statutes. Unlicensed

activity constitutes harm that materially

affects the health, sa fety, and welfare of

clients.

* * *

(3) It is unlawful for any person or entity

to own, operate, or maintain an unlicensed

provider. If after rece iving notification

from the agency, such person or entity fails

to cease operation and apply for a license

under this part and authorizing statutes, the

person or entity shall be subject to

penalties as prescribed by authorizing

statutes and applicable rul es. Each day of

continued operation is a separate offense.

(4) Any person or entity that fails to cease

operation after agency notification may be

fined $1,000 for each day of noncompliance.

29. Based on the evidence in the record, the Agency proved,

by clear and convincing evidence, that Respondent operated an ALF

without the required license, in violation of chapter 429.

30. Initially, the uncontroverted records of the Agency

establish that Respondent does not possess, has never possessed,

nor has s he ever applied for a license to operate an ALF in

Florida.

31. Next, the clear and convincing evidence presented at

the final hearing demonstrates that Respondent operated an ALF as

defined in section 429.02(5) , from January 14 through February 1,

2016 . The evidence shows that Respondent had undertaken t o

provide housing, meals, and one or more personal services to

three adul ts who were not her relatives.

32. Ms. Johnston credibly testified regarding her

observations of RespondentÓs house located at 450 2 Conley Street,

Orlando, Florida, as well as the conversations she had with its

three occupants and Respondent. Regarding RespondentÓs provision

of housing to the residents, Ms. Johnston relayed that while

touring the house, she discovered three beds tha t were currently

in use , as well as various personal items belonging to the

residents throughout the premises. In addition, all three

residents , as well as Respondent , confirmed to Ms. Johnston that

Respondent was housing the residents. Furthermore, Ms. Johnston

verified that Respondent was receiving rental payments for two of

the three residents during the relevant time period. Finally, at

least two of the three residents she encountered at the house on

January 14, 2016 , were observed in the house on Fe bruary 1, 2016.

33. Regarding the provision of meals, Respondent admitted

to Ms. Johnston that she does not allow the residents in the

kitchen to cook their own meals. Instead, she routinely provides

the residents at least two of their meals a day. This finding is

supported by the sign located outside the kitchen door forbidding

the residents from entering , as well as the chained and locked

refrigerator.

34. Regarding the provision of Ðpersonal services,Ñ

Ms. Johnston observed Respondent directly assis t and supervise

the residentsÓ administration of their daily medications.

Respondent also admitted to Ms. Johnston that she personally

maintained custody of the residentsÓ medication in a locked

cabinet in her home .

35. In the course of this administrati ve proceeding,

Respondent did not present evidence that she should be exempt

from licensure under section 429.04. Therefore, the undersigned

concludes that Respondent should have been licensed as an ALF

when she provided personal services to one or more r esidents at

the house located at 4502 Conley Street, Orlando, Florida. The

undersigned further concludes that Respondent offered services as

an ALF from January 14 through February 1, 2016.

36. Section 408.812(4) provides that any person who Ðfails

to ce ase operation after agency notification may be fined $1,000

for each day of noncompliance.Ñ On January 14, 2016,

Ms. Johnston notified Respondent that she was operating an ALF

without the proper license. On February 1, 2016, Ms. Johnston

returned to the house and observed that Respondent was continuing

to provide services as an ALF. The time period between

January 14 and February 1, 2016, is 18 days. 2/ A ccordingly, the

Agency is entitled to impose an administrative fine in the amount

of $18,000 agains t Respondent.

37. In sum, based on the competent substantial evidence in

the record, the Agency met its burden of establishing by clear

and convincing evidence that Respondent provided housing, meals,

and personal services to one or more adults without th e requisite

ALF license. Accordingly, the Agency proved that Respondent's

actions constituted the unlicensed operation of an AL F in

violation of chapter 429.

RECOMMENDATION S

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDE D that the Agency issue a final order

finding that Respondent Willine Gracia operated an ALF without a

license in violation of chapter 429. It is further reco mmended

that the Agency impose an administrative fine in the amount of

$18,000 against Respondent pursuant to section 408.812.

DONE AND ENTERED this 9 th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

12 30 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9 th day of December, 2016 .

ENDNOTE S

1/ All statutory references ar e to the 2016 Florida Statutes,

unless otherwise noted.

2 / In calculating the fine, the Agency counted 19 days of

noncompliance. The Agency included January 14, 2016, the day it

served the Notice of Unlicensed Activity on Responde nt, in its

calculation. S ection 408.812(3) states : ÐEach day of continued

operation is a separate offense . Ñ S ection 429.812(5) instructs

that the Agency may fine Respondent for each day of noncompliance

only Ðafter agency notification.Ñ Further, section 429.02(5)

defines Ðas sisted living facilityÑ as a private home operated

Ðfor a period exceeding 24 hours.Ñ Reading these sections in

conjunction, the undersigned concludes that the Agency should

begin counting the days of noncompliance on January 15, 2016, not

the day it serv ed the Notice of Unlicensed Activity.

Accordingly, for purposes of calculating the administrative fine,

the facts in the record establish that Respondent was

noncompliant with chapter 429 for a period of 18 days.

COPIES FURNISHED:

Willine Gracia

d/b/a Willine Gracia

4502 Conley Street

Orlando, Florida 32811

Richard Joseph Saliba, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Valerie Laurel Fritts, Esquire

Agency for Health Care Admin istration

2727 Mahan Drive, Mail Stop 7

Tallahassee, Florida 32308

(eServed)

Lindsey L. Miller, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 7

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Interi m Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

T homas M. H oeler, Chief Facilities Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(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.