18-000658FL Agency For Persons With Disabilities vs. Eco Homes And Health Services, Group Home Owned And Operated By Eco Home And Health Services, Llc Status: Closed Recommended Order on Friday, October 19, 2018.

Summary: The Agency failed to prove by clear and convincing evidence that the group home operator pepper sprayed a resident of the home on either occasion alleged in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES,

Petitioner,

vs. Case No. 18 - 0658FL

ECO HOMES AND HEALTH SERVICES,

GROUP HOME OWNED AND OPERATED BY

ECO HOME AND HEALTH SERVICES,

LLC,

Respondent.

_____________________ __________/

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 12,

2018, in Orlando, Florida, before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge with the Division of

Administrative Heari ngs.

APPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

For Respondent: Clifford J. Geismar, Esquire

Law Office s of Clifford J.

Geismar, P.A.

Crealde Executive Center

2431 Aloma Avenue, Suite 150

Winter Park, Florida 32792

STATEMENT OF THE ISSUE S

Whether Respondent, ECO Home and Health Services Group

Home, owned and operated by ECO Home and Health Services, LLC

(ÐRespondentÑ or ÐE CO HomeÑ) , committed the violations of the

applicable statutes and rules alleged in the Administrative

Complaint ; and, if so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On or about January 17, 2018, Petitioner , Agency for

Persons with Disabili ties (ÐPetitionerÑ or ÐAPDÑ) , filed a two -

count Administrative Complaint against ECO Home. Count I of the

Administrative Complaint alleges that Sherman Carter, the owner

and sole stockholder of ECO Home, sprayed P.P., a client and

resident of ECO Home, in the face with pepper spray as

Mr. Carter attempted to de - escalate a violent situation at an

adult day training (ÐADTÑ) center on July 20, 2017. APD alleges

that Mr. CarterÓs action violated section 393.13(4)(g)1.,

Florida Statutes, and Florida Administra tive Code R ules 65G -

2.009(6)(a) and (c), 65G - 2.009(8)(d)2 . , and 65G - 8.009(1).

Count II of the Administrative Complaint alleges that Mr. Carter

pepper sprayed the same client on September 25, 2017, at the ECO

Home group home, in violation of the same statu tory and rule

provisions set forth under Count I.

On or about February 6, 2018, ECO Homes served APD with an

Answer and a Request for Formal Administrative Hearing. On

February 9, 2018, APD referred the case to the Division of

Administrative Hearings ("DO AH"). The case was scheduled for

hearing on April 24 and 25, 2018. On April 12, 2018, APD filed

a request for continuance, which was granted by Order dated

April 17, 2018. The hearing was rescheduled for June 12, 2018,

on which date it was convened and completed.

The parties submitted a joint Pre - h earing Stipulation, the

factual stipulations of which were accepted and are included in

the Findings of Fact below. At the hearing, Petitioner

presented the testimony of Jessica Moreira, an adult protective

in vestigative supervisor for the Department of Children and

Families (ÐDCFÑ); Kietta Mayweather - Gamble, the owner of

EduMatics, the ADT center where the alleged incidents of

July 20, 2017, occurred; and Joyce Leonard, APDÓs regional

program supervisor in the Quality Assurance/Quality Improvement

unit. Over RespondentÓs objection, the record was held open to

permit APD to take and submit the deposition testimony of Sara

Swarthout, the Ocoee Police Department officer who responded to

the incident at the EduMat ics center and wrote an Offense Report

about it. PetitionerÓs Exhibits 1 and 2 were entered into

evidence. PetitionerÓs Exhibits 3 and 4 were admitted into

evidence as Joint Exhibits 3 and 4.

Respondent presented the t estimony of Sherman Carter;

Coy J. P atterson, an employee of ECO Home during the period

relevant to this proceeding; Susan Carrington, a behavioral

assistant who was at ECO Home working with R.P., another

resident, during the period relevant to this proceeding; and

Cheryl Seaton, the mother of R.P. RespondentÓs Exhibits F, H,

I, and J were admitted into evidence.

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

on August 20, 2018. Both parties timely filed their Proposed

Recommended Orders on August 30, 2018.

FINDING S OF FACT

1. Among other duties, APD is responsible for regulating

the licensing and operation of group home facilities in the

S tate of Florida. APD's clients include vulnerable individuals

with developmental disabilities attributed to autism, cerebral

palsy, intell ectual disabilities, Phelan - McDermid syndrome,

Prader - Willi syndrome, or spina bifida.

2. APD's clients can choose to live in an institutional

setting, group home, or independently. A client makes this

choice with the assistance of a residential placeme nt

coordinator. A group home is a licensed facility providing a

living arrangement similar to a family setting. The provider is

responsible for the clientÓs room and board, safety,

transportation, and assistance with the activities of daily

living.

3. EC O Home holds an APD - issued license to operate a group

home. Sherman Carter is ECO HomeÓs owner and sole corporate

officer.

4. P.P. was a client of ECO Home. He lived at ECO Home

from August 2016 until November 27, 2017. He is eligible for

APD servic es due to his diagnosis of intellectual disability.

He has also been diagnosed as schizophrenic.

5. Mr. Carter testified that P.P. was mostly happy while

living at ECO Home. P.P. had certain behavioral quirks. He

heard voices. He liked to watch wrestl ing and the show ÐCopsÑ

on television. While watching television, P.P. would sometimes

suddenly stand up and rip off his shirt, as if someone had

spoken to him insultingly, and would say that he was going to

Ðfuck upÑ this person.

6. Over time, staff at ECO Home learned how to de - escalate

P.P.Ós behavior by taking him for walks, for drives in the car,

or by giving him a CD to listen to. The staff at ECO Home was

trained in Professional Crisis Management (ÐPCMÑ) restraint

techniques, but never needed to e mploy them with P.P. while he

was physically in the ECO Home.

7. Mr. Carter testified that de - escalation was necessary

about once a week, and was almost certain to be needed on the

Monday or Tuesday after P.P. had visited his mother over the

weekend.

8. Count I of the Administrative Complaint alleges that

Mr. Carter sprayed pepper spray in P.P.Ós face as Mr. Carter

attempted to de - escalate a violent situation at an ADT center on

July 20, 2017.

9. While living at ECO Home, P.P. attended ADT classes at

EduMatics, an ADT center in Ocoee. Kietta Mayweather - Gamble,

the owner of EduMatics, testified that on July 20, 2017, she was

driving to the center when she received a phone call from a

staff person. The staff person told Ms. Mayweather - Gamble that

P.P. was at the center with his mother and was acting in a way

that no one at the center had seen before.

10. Ms. Mayweather - Gamble arrived at the center and

encountered P.P. and his mother. P.P. was cursing and

belligerent. Ms. Mayweather - Gamble told P.P. that he was not

allowed to use such language at the center and told P.P.Ós

mother that she would have to leave and take P.P. with her.

11. The mother signed P.P. out of the center and left with

him. However, she returned 10 minutes later with P.P., who w as

still enraged and cursing. The mother told Ms. Mayweather -

Gamble that she had an appointment and could not take her son

with her in his present state. Ms. Mayweather - Gamble told the

mother that he could not stay at the center. She immediately

phoned Mr. Carter and asked him to come get P.P. Mr. Carter

told her he was on his way. Ms. Mayweather - Gamble testified

that she tried to force the mother to stay until Mr. Carter came

to the center, but she left shortly before he arrived.

12. Ms. Mayweather - G amble attempted to calm P.P., who was

cursing and saying he was not going with Mr. Carter. P.P.

picked up a chair. The scene reminded Ms. Mayweather - Gamble of

the movie ÐGladiator.Ñ She stayed calm and continued to speak

to P.P. Ms. Mayweather - Gamble t old P.P. that a Rasta does not

behave in this way, appealing to his pride in his Jamaican

heritage in a way that was usually successful. However, on this

day , P.P. could not be talked out of his anger.

13. When Mr. Carter arrived, P.P. was in the EduMa tics

office with Ms. Mayweather - Gamble and Marcia Richardson, an

EduMatics staff person. Mr. Carter entered the room and asked

P.P. what was wrong. P.P. said, ÐMotherfucker, IÓm not going

nowhere with you. I want to go with my mother today.Ñ

Mr. Carter tried verbally to calm P.P. and persuade him to put

down the chair. He employed the Rasta compliment, to no avail.

He told P.P. they would go for a drive. P.P. continued to

berate Mr. Carter and complain that his mother Ðleft me in this

fucking place.Ñ

14. P.P. finally said, ÐIf I go anywhere with you today,

IÓm going to kill you.Ñ P .P. then threw the chair at

Mr. Carter, who ducked it. P.P. threw another chair at a wall.

When P.P. bent down to pick up a third chair, Mr. Carter jumped

over the desk that separated them and took P.P. down using PCM

technique.

15. During the scuffle, P.P. managed to draw blood by

biting Mr. CarterÓs arm. Mr. Carter also cut his face on one of

the desks as they went down to the floor. Mr. Carter held P.P.

on the floor until he calmed down. P.P. got up and sat in a

chair. Mr. Carter sat with him.

16. At some point during the melee, Ms. Mayweather - Gamble

called the Ocoee Police Department. 1/ When the police arrived,

Mr. Carter and P.P. were sitting in the chairs. Th e police

asked Mr. Carter what happened, and he told them that P.P. was a

client of his group home and had been acting up in the EduMatics

center. He told the police that he had held P.P. down as he had

been trained to do. He told the police that P.P. is diagnosed

with schizophrenia and medically non - compliant.

17. While Mr. Carter spoke to the police, P.P. began to

become agitated again, saying, ÐWell, IÓm getting out of this

fucking house today. I donÓt care what I have to say to get out

of it.Ñ The police officers saw that P.P. was becoming angry

and asked Mr. Carter to wait outside. Mr. Carter testified that

he spoke no more to the police that day.

18. P.P. complained that his chest hurt. He was taken to

the hospital by the fire department, which was also dispatched

to EduMatics. Mr. Carter picked him up a little while later and

took him back to ECO Home.

19. Officer Sara Swarthout of the Ocoee Police Department

completed the ÐOffense ReportÑ on this incident. No charges

were filed; the face of the report states that it is Ðfor

informational purposes only.Ñ Officer SwarthoutÓs report states

as follows, in relevant part:

On 7/20/17, I responded to edumatics at

2715 Old Winter Garden Rd. in reference a

mentally ill person causing a disturbance.

Upon arrival there was no longer a

disturbance. I met with Sherman Carter, who

stated he was able to de - escalate the

situation. When Carter arrived he observed

a male known to him as [P.P.], throwing

chairs and yelling. Carter is the group

home director where [P.P.] resides. When

[P.P.] saw Carter he charged towards him and

threw a chair in his direction. Carter

sprayed pepper spray on [P.P.Ós] face and

held him down to calm him down . . . .

20. Officer Swarthout confirmed in her testimony that she

b elieved Mr. Carter told her that he pepper sprayed P.P.

Officer Swarthout did not witness the alleged pepper spraying.

P.P.Ós only complaint was chest pain. He said nothing to

Officer Swarthout about his eyes and she made no observation of

any ocular di stress.

21. Ms. Mayweather - Gamble did not see Mr. Carter pepper

spray P.P. She saw Mr. Carter take P.P. to the ground and

subdue him, then she ran out to direct the police to the room.

Ms. Mayweather - GambleÓs testimony means that any pepper spraying

had to have occurred after Mr. Carter subdued P.P., when there

would have been no reasonable need to employ pepper spray.

22. Mr. Carter adamantly and credibly denied pepper

spraying P.P. He denied telling Officer Swarthout that he had

pepper sprayed P.P. Mr. CarterÓs reasonable suspicion was that

P.P. had told Officer Swarthout that he had been pepper sprayed.

After watching ÐCops,Ñ P.P. frequently told Mr. Carter that he

knew just what he would tell the police when he called them to

take him away from EC O Home.

23. Susan Carrington, a behavioral assistant who was

frequently at ECO Home working with R.P., the other resident of

the home, was at the EduMatics center on July 20, 2017, and

witnessed the incident. She saw Mr. Carter take P.P. down to

the fl oor. She saw Mr. CarterÓs bloody face and arm.

Ms. Carrington testified that Mr. Carter never used pepper

spray. She said that P.P. never rubbed his eyes or indicated

any form of distress consistent with having been pepper sprayed.

She testified that s he could hear Mr. Carter speaking with

Officer Swarthout and that she heard nothing about pepper spray.

24. Ms. Carrington testified that P.P. habitually

complains that Ðmy heart is hurting meÑ when he becomes upset

and agitated. He gets attention by com plaining of chest pain

and asking to go to the hospital. Ms. Mayweather - Gamble

confirmed that P.P. likes to go to the hospital.

25. Finally, a Confidential Investigative Summary written

by DCF adult protective investigator Jessica Moreira reported

that P .P. himself denied to Ms. Moreira that he had been pepper

sprayed on July 20, 2017.

26. APD has failed to present evidence sufficient to

establish Count I of the Administrative Complaint. No one

witnessed the alleged pepper spraying. Eyewitnesses saw no

pepper spray and saw P.P. display no aftereffects of having been

pepper sprayed. Officer SwarthoutÓs report is the sole evidence

supporting the charge, and it appears likely that Officer

Swarthout inadvertently misattributed a statement of P.P.Ós to

Mr. Carter.

27. Count II of the Administrative Complaint alleges that

Mr. Carter pepper sprayed P.P. on or about September 25, 2017,

at the ECO Home group home.

28. The basis for this charge is Ms. MoreiraÓs

Confidential Investigative Summary. On or about S eptember 26,

2017, the Florida Abuse Hot line received a report that

Mr. Carter had pepper sprayed P.P. on two occasions. The first

occasion was the July 2017 incident referenced in Count I of the

Administrative Complaint. The second was alleged to have

o ccurred in January 2017, when Mr. Carter Ðwas observed spraying

pepper spray in [P.P.Ós] eyes.Ñ 2/

29. Ms. Moreira testified that she investigated both

alleged pepper spraying incidents. She spoke by phone to a man

named Cole who claimed to be a neighbor of Mr. CarterÓs and to

have been training to work at ECO Home when he witnessed

Mr. Carter pepper spray P.P. Mr. Cole told her that P.P. was

cursing and approaching Mr. Carter aggressively when Mr. Carter

pepper sprayed him. Mr. Cole stated that they wip ed P.P.Ós eyes

with a wet cloth. Mr. Cole, the sole purported eyewitness,

could not tell Ms. Moreira the date on which the pepper spraying

occurred.

30. Ms. Moreira conceded that she was taking Mr. Cole

entirely at his word. She never met him in person and had no

way of knowing if he actually trained at ECO Home.

31. Ms. Moreira interviewed P.P., who denied having been

pepper sprayed by Mr. Carter. She interviewed Mr. Carter, who

denied ever using pepper spray on P.P. or anyone else. She

interviewed P.P.Ós mother, who had no first - hand knowledge but

believed that Mr. Carter pepper sprayed her son.

32. After conducting her interviews, Ms. Moreira reviewed

Officer SwarthoutÓs report of the July 17, 2017, incident at

EduMatics. She accepted the reportÓ s statement that Mr. Carter

admitted using pepper spray.

33. Ms. Moreira testified that she made verified findings

of physical injury to P.P. Her findings were based on the

eyewitness statement of Mr. Cole and Officer SwarthoutÓs report,

which in tande m she found to constitute a preponderance of the

credible evidence. She te stified that she ÐbalancedÑ

Mr. CarterÓs statement that he did not pepper spray P.P. against

the motherÓs statement that Mr. Carter did use pepper spray,

despite the admitted fact t hat P.P.Ós mother had no first - hand

knowledge. Ms. Moreira apparently gave no weight to P.P.Ós

denial that he had been pepper sprayed.

34. On cross - examination, Ms. Moreira noted that she had

attempted to interview Coy Patterson, an employee of ECO Home,

but had been unable to reach him. When asked if it would have

been important to interview Mr. Patterson, Ms. Moreira answered,

ÐItÓd depend on what he had to say.Ñ She testified that it

would not have been important to her if Mr. Patterson disputed

her conclusions, because she had the statement of Mr. Cole.

35. Coy Patterson, who w orked at ECO Home from

December 2016 through February 2018, testified at the final

hearing and stated that he never saw Mr. Carter use pepper spray

or any method other than re direction on P.P. Mr. Patterson

testified that residents of the home were never ÐdisciplinedÑ by

staff. He dealt with P.P. frequently and never had a problem

with him. P.P. would be agitated when he came back from a visit

with his mother, but was not ag gressive and was readily

redirected.

36. Most significantly, Mr. Patterson denied knowing

anyone named Cole and denied that anyone had been trained at ECO

Home during his two years working there.

37. Ms. Carrington, the behavioral assistant, worked

10 - h our weekend shifts at ECO Home for over a year and never saw

pepper spray being used. She never saw anyone in the home being

disciplined by staff.

38. Mr. Carter testified that he never pepper sprayed P.P.

in the home or anywhere else. He had no clue wh o Mr. Cole was,

though he later discovered that someone named Cole lived across

the street from P.P.Ós mother. Mr. Carter believed that P.P.Ós

mother called the Florida Abuse Hotline on the day after he told

her that she could not address his employees as Ðthese bitches.Ñ

39. APD has failed to present evidence sufficient to

establish Count II of the Administrative Complaint. There is an

absolute failure to prove that the alleged pepper spraying

occurred Ðon or about September 25, 2017.Ñ The Florida Abus e

Hotline report that initiated the investigation of this charge

alleged the pepper spraying occurred in January 2017. The sole

witness to the alleged pepper spraying was someone named

ÐMr. Cole,Ñ who could not provide the investigator a date on

which the pepper spraying occurred. The DCF investigator did

not meet Mr. Cole in person. Mr. Cole did not testify at the

final hearing. Mr. Carter and M r. Patterson denied knowing

Mr. Cole and denied that anyone had been in training at ECO

Home. Ms. Moreira do wnplayed Mr. CarterÓs denial and testified

that Mr. PattersonÓs statement would have made no difference in

light of the statement she obtained from the phantom Mr. Cole.

40. The only other evidence offered by APD was Officer

SwarthoutÓs report regarding t he events of July 20, 2017, which

is obviously insufficient t o establish the charge that

Mr. Carter pepper sprayed P.P. Ðon or about September 25, 2017.Ñ

CONCLUSIONS OF LAW

41. DOAH has jurisdiction over the parties and subject

matter of this case purs uant to sections 120.569 and 120.57(1),

Florida Statutes (2018).

42. Petitioner is responsible for regulating the licensing

and operation of group home facilities pursuant to section

20.197 and chapter 393, Florida Statutes.

43. Petitioner seeks to take action against Respondent's

group home license pursuant to section 393.0673. In a

proceeding to impose discipline against a license, APD bears the

burden to prove the allegations in the Administrative Complaint

by clear and convincing evidence. § 120.57(1 )(k), Fla. Stat.;

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

44. The clear and convincing standard requires that:

[T]he 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 in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier o f fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

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

45. The Administrativ e Complaint cites section 393.0673,

which at the time of the alleged offenses, provided, in relevant

part:

(1) The agency may revoke or suspend a

license or impose an administrative fine,

not to exceed $1,000 per violation per day,

if:

(a) The licensee has:

1. Falsely represented or omitted a

material fact in its license application

submitted under s. 393.067 ;

2. Had prior action taken against it under

the Medicaid or Medicare program; or

3. Failed to comply with the applicable

requirements of this chapter or rules

applicable to the licensee; or

(b) The Department of Children and Families

has verified th at the licensee is

responsible for the abuse, neglect, or

abandonment of a child or the abuse,

neglect, or exploitation of a vulnerable

adult.

46. The Administrative Complaint is entirely premised on

the allegation that Mr. Carter twice pepper sprayed hi s client,

P.P. The only direct evidence that either event occurred was a

police officerÓs report that Mr. Carter told her he did it and

the hearsay statement of Mr. Cole, a witness APD could not

produce or even identify by first name. Mr. Carter credibly

denied that he ever pepper sprayed P.P. Eyewitnesses denied

that the events occurred. The alleged victim, P.P., told the

DCF investigator that he was not pepper sprayed. This case

would have failed to meet a far lesser standard than that of

clear and c onvincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Persons with Disabilities

issue a final order dismissing the Administrative Complaint in

this case.

DONE AND ENTER ED this 1 9 th day of October , 2018 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 9 th day of October , 2018 .

ENDNOTE S

1/ Ms. Mayweather - Gamble testified that Mr. Carter told her to

call 911 . Mr. Carter testified that he did not know who called

the police. This was the only significant point on which their

testimony did not agree.

2/ It is apparent at the outset that Count II of the

Administrative Complaint did not give Mr. Carter adequat e notice

of the charge. Count II alleges that the pepper spraying

occurred Ð[o]n or about September 25, 2017.Ñ In fact, the

incident is alleged to have occurred sometime in January 2017.

The only significance of September 25, 2017, in Ms. MoreiraÓs

repo rt is that the caller to the Florida Abuse Hotline alleged

that Ðthe owner denied everythingÑ on that date.

COPIES FURNISHED:

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eS erved)

Clifford J. Geismar, Esquire

Law Offices of Clifford J. Geismar, P.A.

Crealde Executive Center

2431 Aloma Avenue, Suite 150

Winter Park, Florida 32792

(eServed)

Gypsy Bailey, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, S uite 335E

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Dis abilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any excepti ons

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.