17-004353FL Angel Child Home Care Corporation, Inc. vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, March 9, 2018.

Summary: Petitioner failed to prove by a preponderance of the evidence that its application for an additional group facility license should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGEL CHILD HOME CARE

CORPORATION, INC.,

Petitioner,

vs. Case No. 17 - 4353FL

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (ÐD OAH Ñ), on November 29 , 2017, by video

teleconference at sites located in St. Petersburg and

Tallahassee, Florida.

APPE ARANCES

For Petitioner: Shaddrick Haston, Esquire

Suite 103

1618 Mahan Center Boulevard

Tallahassee, Florida 32308

For Respondent: Trevor S. Suter, Esquire

Agency for Persons with Disa bilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue for determination in these proceedings is w hether

PetitionerÓs application for licensure of a n additional group

home facility should be approved by Respondent , the Agency for

Persons with Disabilities (ÐAPDÑ) .

PRELIMINARY STATEMENT

On February 7, 2017, Petitioner submitted an application to

Respondent for licensure as a group home facility. Petitioner

has other group h ome licenses issued by Respondent. The

February 7, 2017, application is for an additional license. On

March 29, 2017, Petitioner completed its application for

licensure as a group home facility. By letter dated June 7,

2017, APD notified Petitioner that PetitionerÓs application for

licensure was denied. Petitioner timely filed a request for an

administrative hearing involving disputed issues of material fact

to contest the denial of its application for licensure. On

August 2, 2017, this matter was refe rred to DOAH and was assigned

DOAH C ase No. 17 - 4353FL.

At the hearing, Petitioner presented the testimony of

Marilou Burden, Joseph Burden, Rebecca Brown, Mary Hall, Daniel

Godfrey; and A PD employees Nancy Honl, Myra Leitold, and Larry

Collins . Petitioner offered five exhibits, all of which were

admitted into evidence. Respondent presented the testimony of

Myra Leitold, Larry Collins, Nancy Honl, Police Officer Michael

Jenson , Police Officer Geoffrey Newton, and Police Detective

El iad Glenn . Respondent o ffered eight exhibits, all of which

were admitted into evidence.

A two - volume Transcript of the final hearing was filed on

December 18, 2017 . Both parties timely submitted Proposed

Recommended Order s on or before January 17, 2018 , which have been

duly con sidered in the preparation of this Recommended Order .

References to statutes are to Florida Statutes (201 7 ),

unless otherwise noted. References to rules are to Florida

Administrative Code (201 4 ), unless otherwise noted.

FINDING S OF FACT

1. Respondent , AP D, is the state agency charged with

regulating the licensing and operation of foster care facilities,

group home facilities, and residential habitation centers

pursuant to section 20.197 and chapter 393, Florida Statutes.

APD is charged with reviewing all applications and ensuring

compliance with the requirements for licensure.

2. Petitioner is an applicant for licensure of a group home

facility. PetitionerÓs representative, Marilou Burden, submitted

the completed application to APD on March 29, 2017.

3. PetitionerÓs application requested licensure of an

additional group home facility. The proposed name of the

facility was Iyachel Group Home, to be located at 1625 Woodridge

Drive, in Clearwater, Florida.

4. Angel Child Home Care Corporation, Inc., is a Florida

registered corporation. Marilou Burden is PetitionerÓs corporate

officer.

5. Respondent may deny an application for licensure if the

applicant has Ð[f]ailed to comply with the applicable

requirements of this chapter or rules applicable to the

applicant.Ñ § 393.0673(2) (a) 3., Fla. Stat. Based upon its

initial findings of such violations, Respondent denied

PetitionerÓs application for licensure for an additional group

home.

6. At all times material to these proceedings , L.L. was a

resident of PetitionerÓs facility.

COUNT I

7. Clearwater P olice O fficer Geoffrey Newton testified

regarding the events of February 24, 2017. Officer Newton was

dispatched to PetitionerÓs facility. Officer Newton testified

that upon arrival at the Angel Child Home C are facility,

everyone was in the front yard. Officer Newton testified that

R esident L.L. was in obvious distress and appeared to be having

an emotional breakdown. Officer Newton was able to immediately

calm L.L. down and speak to L.L. Officer Newton st ated that

after speaking to L.L., L.L . was very compliant and cooperative

with each request made by Officer Newton. L.L. told O fficer

Newton that he wanted to harm himself. Officer Newton took L.L.

into custody. L.L. was ultimately held pursuant to the Baker

Act . Further testimony also noted that on February 24, 2017,

Mr. Joseph Burden, an auto mechanic, was also able to easily

calm L.L. However, Ms. Burden and the facility staff were not

able to calm L.L. The sole staff member on duty merely told L.L .

to listen to music. There is no evidence that facility staff

employed any other technique s in an attempt to calm L.L.

8. After easing L.L.Ós behavior episode, Officer Newton

spoke to Ms. Burden. Officer Newton described Ms. Burden as

Ðabsolutely uncoo perative.Ñ Ms. Burden insisted that L.L . be

arrested. Officer Newton refused to arrest L.L. for a criminal

act. Ms. Burden informed Officer Newton that Ms. Burden was

going to call Congress because Officer Newton was not doing his

job. Officer Newton s tated that it appeared that Ms. Burden does

not have enough staff at the facility to ensure it provides a

safe working environment for Ms. BurdenÓs employees.

9. Petitioner failed to properly report the Baker Act

of L.L. to APD .

COUNT II

10. Police Detec tive El iad Glenn testified that on

February 11, 2017, he was dispatched to PetitionerÓs facility

because of a call about an emotionally disturbed person. Upon

arrival at the facility, Detective Glenn found that L.L. had hit

himself and had suffered a smal l laceration on his face. L.L.

indicated that he wanted to hurt himself. Detective Glenn

took L.L. to a facility for emotionally disturbed persons

pursuant to the Baker Act .

11. Again, Petitioner failed to report the Baker Act

of L.L. to APD.

12. At th e hearing, Petitioner attempted to demonstrate

that Petitioner submitted the required incident report to APD via

e - mail. However, Petitioner failed to admit the incident

reporting form from this incident into evidence. Instead,

Petitioner merely submitte d what appears to be a screen shot of

the header of an e - mail. The header of the e - mail does not

indicate that the e - mail contained an attachment. PetitionerÓs

attempt to prove that it submitted the incident report in this

manner is not credited , since t he document purported to have been

submitted to APD was not produced.

COUNT III

13. Clearwater P olice O fficer Michael Jenson testified that

on July 26, 2016, he was dispatched to Ms. BurdenÓs facility in

response to a potential battery. Officer Jenson co ntacted L.L.

Angel Child Home Care staff informed Officer Jenson that L.L. had

gotten upset and thr own furniture inside the home. Angel Child

Home Care staff informed Officer Jenson that no one was injured.

Officer Jenson determined that a battery did n ot occur.

14. L.L. informed Officer Jenson that he did not want to go

back to the home. Officer Jenson asked Angel Child Home Care

staff if there was a counselor or physician available to speak

to L.L. Officer Jenson was informed that no counselor or

ph ysician was available to assist L.L. Officer Jenson took L.L.

into custody pursuant to the Baker Act , so that L.L. could

receive assistance from a counselor or physician .

15. Again, Petitioner failed to report the Baker Act

of L.L. to APD.

16. Similar t o the February 11, 2017 , incident, Petitioner

attempted to demonstrate that it submitted the required incident

report to APD via e - mail. However, as before, Petitioner failed

to admit the incident reporting form from this incident into

evidence. Instead, Petitioner merely submitted what appears to

be a screen shot of the header of an e - mail. The header of the

e - mail does not indicate that the e - mail contained an attachment.

PetitionerÓs attempt to prove that it submitted the incident

report in this mann er is not credited , since the document

purported to have been submitted to APD was not produced.

COUNT IV

17. Clearwater P olice O fficer Michael Jenson testified that

on July 5, 2016, he was dispatched to Ms. BurdenÓs facility

located at 1641 Sunset Point Road. St. MichaelÓs Guardian Home

Care (ÐSt. MichaelÓsÑ) , a Department of Children and Families

group home , which is owned by Ms. Burden , reported R esident B.B.

as a runaway. St. Michael Ó s agents or employees reported

that B.B. was not welcome at St. Mic hael Ó s. Officer Jenson

confirmed that the child was locked out of St. Michael Ó s ,

and B.B. stayed at PetitionerÓs facility on Sunset Point Road.

COUNT V

18. On May 2, 2016, police were called to Angel Child Home

CareÓs facility. As a result, L.L. was ins titutionalized

pursuant to the Baker Act.

19. Yet again, Petitio ner failed to report the Baker Act

of L.L. to APD.

20. A s before, Petitioner failed to admit the incident

reporting form from this incident into evidence. Instead,

Petitioner merely submitt ed what appears to be a screen shot of

the header of an e - mail. The header of the e - mail does not

indicate that the e - mail contained an attachment. PetitionerÓs

attempt to prove that it submitted the incident report in this

manner is not credited , since the document purported to have been

submitted to APD was not produced.

CONCLUSIONS OF LAW

21 . The Division of Administration Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

22 . Petitioner, as the party asserting the affirmative of

the issue in this proceeding, has the burden of proof. Balino v.

DepÓt of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977); DepÓt of Agric.

& Consumer Servs. v. Strickland , 262 So. 2d 893 (Fla. 1st DCA

1972) . The level of proof is generally a preponderance of the

evidence. DepÓt of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932 (Fla. 1996). See also Davis v. DepÓt of Child. &

Fam. Servs. , 160 So. 3d 854, 857 (Fla. 2015). Here, Petitioner

must prove by a preponderance of the evidence that its

application for an additional licensed facility should be

approved.

23. Section 393.067 sets forth APDÓs responsibilities

regarding application procedures and provider qualifications.

Section 393.0673 provides considerations pertaining to the

denial, suspension, or revocation of a license. Section

393.0673(2) provides that the agency may deny an application for

licensure submitted pursuant to section 393.067, if the applicant

has failed to comply with the requ irements of c hapter 393 or the

rules applicable to the applicant. § 393.0673(2)(a) 3 ., Fla.

Stat.

24. In Counts I - III and V, Petitioner violated rules

applicable to the applicant by failing to properly report L.L.Ós

commitments to a mental health service pursuant to the Baker Act.

Fla. Admin. Code R. 65G - 2.010(5)(b)7. and 65G - 2.010(5)( c ), ( d ) ,

and (e) .

25. In Counts II - V, Petitioner violated rules applicable to

the applicant by failing to provide the level of supervision

necessary to ensure that residents are protected from harm and

that a safe and healthy living environment is created and

maintained. Fla. Admin. Code R. 65G - 2.009(3)(b) and 65G -

2.009(6)(a) and (c).

26. The evidence and testimony at hearing demonstrated that

Petitioner is unable to properl y supervise L.L . or ensure that

he has a safe living environment. Petitioner merely demands

that L.L. be arrested by police when ever L.L. has an outburst.

Police officers and an auto mechanic were better able to

calm L.L. than PetitionerÓs staff. Additi onally, Petitioner

does not have enough staff at the facility to provide a safe

working environment for PetitionerÓs employees.

27. Petitioner failed to meet its burden of proving that it

can comply with the statutes and rules for operation of its

curren t facility in a safe and proper manner. The thought of

awarding Petitioner a license for an additional facility is

neither supported by the evidence nor sensible.

28. Accordingly, considering the various statutory and rule

provisions cited above, APD was justified in denying PetitionerÓs

application for licensure of an additional facility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Persons with

Disabilities enter a f inal o rder den ying PetitionerÓs application

for licensure.

DONE AND ENTERED this 9th day of March , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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

Division of Administrative Hearings

this 9th day of March , 2018 .

COPIES FURNISHED:

Kurt Eric Ahrend t, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Shaddrick Haston, Esquire

Suite 103

1618 Mahan Center Boulevard

Tallahassee, Florida 32308

(eServed)

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Gypsy Bailey, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 335E

Tallahassee, Florida 32399 - 0950

(eServed)

Richard D. Tritschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 323 99 - 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 is sue the Final Order in this case.