17-002710 Hailes Boarding Home vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, September 7, 2017.

Summary: Petitioner submitted a change of ownership application instead of a renewal application, then failed to submit a renewal application; recommended denial of renewal application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAILES BOARDING HOME,

Petitioner,

vs. Case No. 17 - 2710

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconference on July 10, 2017, with sites in Tampa

and Tallahassee, Florida, before Lynne A. Quimby - Pennock, the

duly - designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Thomas W. Caufman, Esquire

Quintairos, Prieto, Wood & Boyer, P.A.

Suite 200

1410 Northwest Shore Boulevard

Tampa, Florida 33607

For Respondent: Lindsay Wor sham Granger, Esquire

Agency for Health Care Administration

Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

Lourdes Naranjo, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive

Suite 330A

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue presented is whether PetitionerÓs application for

renewal of its assisted living facility (ALF) license, located in

Tampa, Florida , should be approved or denied.

PRELIMINARY STATEMENT

On March 14, 2017, the Agency for Health Care Administration

(AHCA) issued, via certified mail, to Andrea Elise Jones,

Administrator of Hailes Boarding Home (Hailes) 1/ an ÐAmended

Notice of Intent to Deny Hailes Boarding Home Assisted Living

Facility Renewal ApplicationÑ (ANOID). Hailes timely filed an

Election of Rights and Petition for Formal He aring disputing

AHCAÓs action.

Subsequently, on May 10, 20 17, AHCA referred the matter to

DOAH to assign an Administrative Law Judge to conduct the final

hearing. On May 18, 2017, the undersigned set the final hearing

for July 10, 2017. On May 22, 2017, AHCA filed a M otion to

R elinquish J urisdiction, to which H ailes filed an objection. The

motion was denied. On June 29, 2017, Hailes filed a Motion for a

Thirty (30) D ay C ontinuance whic h was denied on June 30, 2017.

On July 5, 2017, the parties filed a J oint R esponse to the

O rder of P re - hearing I nstructions, in which they stipulated to

certain facts. These facts have been incorporated into this

Recommended Order as indicated below.

The final hearing was held July 10, 2017, with both parties

represented. At the start of the hearing, AHCA amended its ANOID

by re moving two of the stated reasons for the denial . At the

hearing, Hailes presented the testimony of JoAnne Wils on and

Andrea Jones. HailesÓs C omposite Exhibit 1 was received into

evidence over objection. 2/ AHCA presented the testimony of Keisha

Woods. A HCAÓs Exhibits 1 through 8 were received into evidence

without objection.

The one - volume Transcript of the hearing was filed at DOAH on

July 31, 2017. A Notice of F iling Transcript was issued on

August 1, 2017, setting the date for the parties to file th eir

proposed recommended orders ( PRO s) on or before August 21, 2017.

Both parties timely submitted their PRO s , and each was given

consideration in the preparation of this Recommended Order.

Unless otherwise stated, all statutory and rule references

are to the statu t es and rules in effect at the time of the alleged

violations.

FINDING S OF FACT

1 . AHCA is the state agency charged with the licensure and

regulatory oversight of ALF s, pursuant to chapter s 408, part II ,

and 429, Florida Statutes ; and Florida Ad ministrative Code

C hapter s 59A - 35 and 58A - 5.

2. Hailes is licensed by AHCA as ÐAdrianne Wilson d/b/a

Hailes Board Home,Ñ licensed number 5776. Hailes is an ALF,

located at 1 009 N. Willow Avenue , Tampa, Florida.

3. Hailes started as a business in 1980 an d has been

operational since then. There are 12 residents who live at

Hailes, many of whom have been residents for multiple years.

Hailes operates as an extended family and members of the Hailes

family live and work on the premises.

4. The hearing testi mony confirmed , and the most recent

certificate evidencing the license at issue in this case provided ,

in pertinent part the following:

LICENSE #: AL5776

CERTIFICATE #: 48175

State of Florida

Agency for Health Care A dministration

Division of Health Quality Assurance

ASSISTED LIVING FACILITY

with LIMITED MENTAL HEALTH

STANDARD

This is to confirm that ADRIANNE WILSON has

complied with Chapter 429, Part I, laws of the

State of Florida and with 58A - 5, rules of the

State of Florida and is authorized to operate

the following:

HAILES BOARDING HOME

1009 N Willow Ave

Tampa, FL 33607 - 5549

HILLSBOROUGH COUNTY

TOTAL CAPACITY : 12

Optional State Supplementation Residents: 11

Private Pay Residents: 1

EFFECTIVE DATE: 02/22/2014

EXPIRATION DATE: 02/21/2016

Renewal Appli cation

5 . Florida ALF licenses must be renewed every two years.

HailesÓ license had been successfully renewed since it was first

issued. An issue with HailesÓ 2014 renewal application was not

resolved until September 12, 2016. 3/

6 . As the 2014 renewal application was winding its way

through AHCAÓs system, Adrianne Wilson became ill in 2015. Her

sister, Andrea Jones, became HailesÓ administrator. Prior to

becoming HailesÓ administrator, Ms. Jones worked with the HailesÓ

residents in the recreation dep artment, prepared meals for

everyone, and scheduled appointments for HailesÓ residents. After

she became the administrator, Ms. Jones helped to fill out some of

the licensing applications.

7 . On February 22, 2 016, Hailes filed a purported Ðrenewal

a pplic ationÑ which listed the name of the ALF as ÐHailes Assisted

Living Facility, IncÑ located at Ð1009 N Willow Ave Tampa,

Hillsborough FL 33607.Ñ This application provided that Andrea

Jones was contact person f or the application and held 100 percent

of the o wnership interest in the ÐIndividual and/or Entity

Ownership of LicenseeÑ section. This application did not provide

HailesÓ license number. The provided F ederal Employer

Identification N umber (FEIN) 47 - 3080379 is associated with Hailes

Assisted Living Fa cility, Inc.

8 . The 2016 Ð r enewal a pplicationÑ provided an ALF n ame and

ALF owner different from the HailesÓ licensee of record. By

correspondence dated March 10, 2016 (AHCAÓs Exhibit 3), 4/ AHCA

returned this application. This March 10th letter was add ressed

to Andrea Elise Jones as the administrator for Hailes and provided

the following explanation for the return of the application:

Pursuant to Section 408.815(2), Florida

Statutes a facility while in litigation, must

file a renewal application if their license is

due to expire during the litigation process.

On February 22, 2016, the Agency for Health

Care Administration received an application

from you which was marked as renewal, but

after review, it was determined it was a

change of ownership applica tion. This

determination is based on the fact that

Adrianne Wilson, is currently the 100% owner

of Hailes Boarding Home AL 5776. The

application received on February 22, 2016

lists Hailes Assisted Living Facility Inc,

FEIN No. 47 - 3080379 as the licensee and Andrea

Jones as 100% of the licensee, making it a

change of ownership instead of a renewal

application. Based on this determination the

application i s being returned to you along

with a refund form for the total amount

submitted with the application $ 574.65 and

Hailes Boarding Home licensure status will be

changed to failed to renew.

Thus, Hailes was put on notice that AHCA deemed the Ðrenewal

applicationÑ to be a change of ownership application (CHOW) and

returned it to the person who submitted it. The responsibility

fell to Hailes and its owner(s) or administrator to file a correct

renewal application.

9 . AHCA did not receive a renewal appl ication or any other

submission from Hailes. On April 7, 2016, AHCA issued a ÐNotice

Of Intent To Deny Rene wa l Application 60936 Ñ (NOID) . Within that

NOID, AHCA provided the ÐSpecific BasisÑ for the denial

determination as follows:

Per 59A - 35.060(8) Florida Administrative Code

(F.A.C.), an application for license renewal

may only be filed by the licensee. The n ame

of the current licensee is Adrianne Wilson.

The entity (Hailes Assisted Living Facility

Inc.) that submitted the renewal application

did not have the authority to do so. The

Federal Employer Identification Number (47 -

3080379) listed on the applicatio n differed

from that of the current licenseeÓs sole

proprietor FEIN 26 - 2977465.

The licensee has been cited for unlicensed

activity pursuant to Section 408.812, Florida

Statutes; and

The provider has failed to submit an employee

roster pursuant to Sectio n 435.12(2), Florida

Statues [sic] (F.S.).

10 . Approximately a year later, on February 13, 2017, 5/

another application was submitted as a Ðrenewal applicationÑ for

an entity located at 1009 N . Willow Ave nue Tampa, Hillsborough,

Florida 33607. HailesÓ l icense number AL5776 was listed on this

application. However, the name of the ALF was listed as Adrianne

Wilson, not Hailes. The FEIN number 47 - 3080379 is associated with

the entity called ÐHailes Assisted Living Facility, Inc.Ñ

11 . AHCAÓs witness, Keis ha Woods , is the unit manager for

the assisted living unit at AHCA. Ms. Woods testified that AHCA

reviewed the application , and subjected it, as it does with all

renewal license applications, to the same standard as initial

license applications. The stan dards are found in rule 59A - 35 .

12 . On March 14, 2017, AHCA issued the ANOID. Within this

ANOID, AHCA provided the basis for this determination as

follows 6/ :

The specific basis for this determination is

pursuant to Chapter 59A - 35.060(8), Florida

Administ rative Code (F.A.C.); an application

for license renewal may only be filed by the

current licensee.

On February 21, 2016, an ALF application

marked as a renewal was submitted on behalf of

Hailes Boarding Home, Inc. This application

has Hailes Assisted Li ving Facility, Inc. as

the name of the ALF and the licensee. Agency

records and previous applications have Hailes

Board ing Home as the name of the ALF and

Adrianne Wilson as 100% ÐSole ProprietorÑ as

the licensee. This application was denied due

to a cha nge in its ownership. The ownership

is listed as a corporation and not as a sole

proprietor.

On February 13, 2017, an ALF application was

received marked as a renewal with the owner of

the ALF listed as Adrianne Wilson and the

ownership type as ÐIndividu alÑ. However, the

Federal Employer Identification Number

provided for the licensee is associated with

Hailes Assisted Living Facility, Inc. This

again shows a change of ownership from a sole

proprietor to a corporation.

Based upon the Florida Department of State,

Division of Corporations (Sunbiz) Hailes

Boarding Home is listed as a sole proprietor

with the Federal Employee Identification

Number (FEIN) 26 - 2977465; the FEIN 47 - 3080379

listed on this application is associated with

Hailes Assisted Living Fac ility, Inc., a

corporation. This constitutes a change in the

FEIN, and shows the licensee/entity has

changed from a sole proprietor to a

corporation, see section 408.803(5)(a) Florida

Statutes (F.S.), making this a change of

ownership application, not a r enewal

application.

13 . Ms. Jones is aware that Hailes has been licensed by AHCA

for over 20 y ears, and that renewals are filed every two year s .

Further, Ms. Jones is aware there are specific time frames for

filing a CHOW.

CONCLUSIONS OF LAW

14 . The Di vision of Administrative Hearings has jurisdiction

over the subject matter and parties pursuant to sections 120.569

and 120.57(1), Florida Statutes (2014).

15 . In the instant case, H ailes filed a CHOW, but thought it

had ap plied for the renewal of its lic ense to operate an ALF .

Hailes challenges AHCAÓs decision to deny the renewal license

application.

16 . A license to operate an ALF is a public trust and a

privilege, not an entitlement. § 429.01(3), Fla. Stat.

17 . Generally, the applicant for licensure has the burden of

proof to demonstrate, by a preponderance of the evidence, that it

satisfies the requirements for licensure and is entitled to

receive the license. DepÓt of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932, 934 (Fla. 1996); M.H. v. DepÓt of Child. &

Fam. Servs. , 977 So. 2d 755, 762 (Fla. 2d DCA 2008).

18 . AHCA cited the following statutory and rule citations in

the ANOID to deny H ailes Ó renewal license: sections 408.803(5)(a)

and 408.815(1)(c) , Florida Statutes, and rule 59A - 35.060 (8). 7/

19 . Section 408.803(5)(a) provides:

408.803 Definitions. Ï As used in this part, the

term:

(5) ÐChange of ownershipÑ means:

(a) An event in which the licensee sells or

otherwise transfers its ownership to a

different individual or entity as evide nced by

a change in federal employer identification

number or taxpayer identification number; or

* * *

A change solely in the management company or

board of directors is not a change of

ownership.

20 . Section 408.815(1)(c) provides:

(1) In add ition to the grounds provided in

authorizing statutes, grounds that may be used

by the agency for denying and revoking a

license or change of ownership application

include any of the following actions by a

controlling interest:

* * *

(c) A viola tion of this part, authorizing

statutes, or applicable rules.

21 . Rule 59A - 35.060(8) provides:

An application for license renewal may only

be filed by the licensee.

22 . The persuasive evidence adduced at hearing establishes

that Hailes did not submit the requisite renewal application for

the continuation of its license. Hailes failed to demonstrate,

by a preponderance of the evidence, that it met the applicable

re - licensure requirements and that it is entitled to a renewal of

its license. HailesÓ fai lure to appreciate being advised that

what it perceived to be a renewal application was a CHOW and to

timely revise it by providing the correct information ,

demonstrates a lack of attention to details.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that that the Agency for Health Care

Administration enter a final order upholding the denial of

Hailes Ó licensure renewal application. 8/

DONE AND ENTERED this 7 th day of September , 2017 , in

Tallahassee, Leon Count y, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7 th day of September , 2017 .

ENDNOTE S

1/ The ANOID is addressed to Ms. Jones. However, the salutation

is to Ms. Wilson, either the former administrator or the woman

w ho testified; the actual i dentity is unknown.

2 / AHCAÓs objection to PetitionerÓs Exhibit 1 was based on

relevancy and Ðgetting into the (facilityÓs) history, . . . would

be confusing and frankly, at this point, irrelevant.Ñ AHCA then

proceeded to use t he facilityÓs history to explain why the denial

was appropriate.

3 / AHCA issued a notice of intent to deny HailesÓ 2014 renewal

application and Hailes requested a hearing not involving disputed

issues of fact. In May 2014, a hearing was held, and a

Reco mmended Order was issued in December 2014. The parties

entered a settlement agreement in August 2016. The Final Order,

in which AHCA Ðagreed to grant the license application for the

licensure period of February 22, 2014 to February 21, 2016 , Ñ was

execute d on September 12, 2016. No testimony was provided as to

why it took over two years to resolve this renewal application.

4 / There was a second page, a form, attached to this letter,

ÐApplication for Refund From State of Florida,Ñ which was

partially com pleted.

5/ Although , in the ÐStatement of Admitted FactsÑ the parties

provided that this application was submitted on February 22,

2017, the date - stamped application provided that the application

was received by AHCA on February 13, 2017.

6/ As previou sly stated, two of the listed reasons for the ANOID

were withdrawn and are not found within this section.

7/ See Endnote 6 above. The statutory citations to the two

omitted reasons are also omitted from this discussion.

8/ Sufficient time should be af forded to allow for the orderly

transition of the current residents to another facility.

COPIES FURNISHED:

Thomas W. Caufman, Esquire

Quintairos, Prieto, Wood & Boyer, P.A.

Suite 200

1410 Northwest Shore Boulevard

Tampa, Florida 33607

(eServed)

Lindsa y Worsham Granger, Esquire

Agency for Health Care Administration

Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Lourdes Naranjo, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive

Suite 330A

St. Petersburg, Florida 33 701

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahas see, Florida 32308

(eServed)

William Robert s, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Dr ive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

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.