18-002106FL Agency For Persons With Disabilities vs. Adams Group Home, Inc., Joyce Adams Status: Closed Recommended Order on Wednesday, August 22, 2018.

Summary: DCF's verified findings of abuse, neglect, or exploitation involving Ms. Adams in 2014 and 2015, and failure to obtain written consents for video monitoring in common areas did not warrant denial of Respondents' 2018 renewal license applications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH

DISABILITIES,

Petitioner,

vs. Case No. 18 - 2106FL

ADAMS GROUP HOME, INC., AND

JOYCE ADAMS,

Respondents.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings ( " DOAH " ) for

final hearing by video teleconference on June 20, 2018, at sites

in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petit ioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

For Respondent s : G. Barrington Lewis, Esquire

La w Office of George B. Lewis

19601 Skyhawk Lane

Loxahatchee, Florida 33470

STATEMENT OF THE ISSUE

Whether Respondents Adams Group Home, Inc., and Joyce Adams '

( " Respondents " ) group home licens ure renewal applications should

be denied.

PRELIMINARY STATEMENT

By letter dated March 13, 2018, Petitioner Agency for

Persons with Disabilities ( " APD " ) notified Respondents of the

denial of their group home licens ur e renewal applications.

Respondents timely filed a request for a formal hearing.

Subsequently, on April 24, 2018, APD referred the matter to DOAH

to assign an Administrative Law Judge to conduct the final

hearing. On May 7, 2018, the undersigned set the final hearing

for June 20, 2018.

The final hearing was held on J une 20, 2018. At the

hearing, APD presented the testimony of Bernadette Harding,

Michelle Ceville, Martina Pocaterra, Kimberly Robinson, Ashley

Cole, S hawn Hallich, and Maria Rubin. APD ' s Exhibits 1, 2, 4

through 12, 14 , and 15 were received in evidence. Respondents

presented the testimony of Joyce Adams. Respondents ' Exhibits A,

D, J, K, and P were received in evidence.

The two - volume final hearing Transcript was filed on

July 18, 2018. APD timely filed its P roposed R ecommended O rde r

on July 30, 2018 , at 4:50 p.m. Respondents filed their P roposed

R ecommended O rder on July 31, 2018, at 10:11 a.m., one day late.

However, there is no prejudice to APD as a result of Respondents '

late - filed P roposed R ecommended O rder. Accordingly, the parties '

proposed recommended orders have been considered in the

preparation of this Recommended Order.

On June 19, 2018, the parties filed their Pre - h earing

Stipulation, in which they stipulated to certain facts. These

facts have been incorporated into this Recommended O rder.

Unless otherwise stated, all statutory and rule references

are to the statutes and rules in effect at the time of the

alleged violations.

FINDING S OF FACT

Parties and Background

1. APD is the state agency charged with regulating the

licensing and op eration of fo ster care facilities, group hom e

facilities, and residential centers, pursuant to sections 20.197

and 393.067, Florida Statutes.

2. Under section 393.063(19), a group home facility means a

residential facility " which provides a family living environment

including supervision and care necessary to meet the physical,

emotional, and social needs of its residents. " The capacity of

such a facility must be at least four but not more than

15 residents.

3. Respondents are licensees of two group ho m e facilities,

known as Adams Group Ho m e #1, located at 2400 Oleander Drive,

Miramar, Florida 33023, and Adams Group Ho m e #2, located at

7131 South w est 16th Street, Pembroke Pines, Florida 33023.

4. Re spondents ' group homes provid e a family living

environm ent within a residential, single - family structure with a

combined total of not more than 12 adult residents with

developmental disabilities.

5 . Joyce Adams is Adams Grou p Homes ' corporate officer.

Ms. Adams has been licensed through APD to provide group ho me

services for 18 years.

6 . Group homes licensed by APD are required to apply for a

renewal license every year. The renewal process involves a

review of the applications to make sure they are accurate and

complete and an observation by a licensing spe cialist at the

facilities to ensure the facilities are in compliance with the

applicable statutes and administrative rules.

7 . E very year prior to 2018, including 2014 through 2017,

Respondents ' group home licensure renewal applications for Adams

Group Ho me #1 and Adams Group Home #2 were approved by APD .

8 . No evidence was presented at hearing demonstrating that

Respondents have ever been the subject of any corrective action

plan or proposed disciplinary agency action in the form of an

administrative fin e, suspension or revocation of a license, or

moratorium on admissions, prior to APD ' s March 13, 2018, denial

letter.

The March 13, 2018, Denial Letter

9 . Against this backdrop, o n December 20, 2017, Respondents

submitted applications to APD for renewal of the licenses of

Adams Group Home #1 and Adams Group Home #2, which were set to

expire in March 2018.

10 . By letter dated March 13, 2018, APD notified

Respondents of the denial of their group home licens ur e renewal

applications. APD ' s grounds for the den ial of the license

applications are set forth in the denial letter in four counts.

1 1 . In Count s I and II , APD alleges th e Department of

Children and Families ( " DCF " ) commenced investigation s which

resulted in DCF ' s verified findings of abuse, neglect or

exploitation against Ms. Adams in February 2014 and

December 2015, respectively . APD further alleges that based

on section 393.0673(2), it " may " deny an application for

licensure based solely on DCF ' s verified finding s.

1 2 . In Count I II , APD alleges Resp ondent s use d video

cameras in the common areas in 2016 and 2017 without written

consents for the common areas in violation of Florida

Administrative Code R ule 65G - 2.009(7) , which constitutes a

Class II violation.

1 3 . In " Count IIII, " APD alleges that afte r Hurricane Irma

struck south Florida on September 10, 2017, Respondents had " no

power at the group home, " Respondents utilized a " makeshift

grill " less than ten feet from the structure , and failed to care

for its residents. APD specifically alleges that on

September 19, 2017, a res ident of Adams Group Home #2 " was taken

to the emergency room at Memorial Regional Hospital for confusion

and fever. "

1 4 . APD further alleges that Respondents ' conduct described

in " Count IIII " constitutes Class I violations, a nd that the

conduct violate s rul e 65G - 2.009(1)(d) with regard to the minimum

standards of facilities to ensure the health and safety of the

residents and address the provision of appropriate physical care

and supervision; adhering to and protecting residen t rights and

freedoms in accordance with the Bill of Rights of Persons with

Developmental Disabilities, as provided in section 393.13; and

section 393.13(3)(a) and (g) , relating to humane care, abuse,

neglect, or exploitation.

Count I

1 5 . The parties stip ulated that on December 29, 2013, DCF

commenced an investigation of Respondents ' group homes , and that

on February 25, 2014, DCF closed its investigation with verified

findings of abuse, neglect, or exploitation on the part of

Ms. A dams.

16 . AP D was aware of DCF ' s verified findings upon

completion of DCF ' s investigation.

17 . At hearing, APD provided no witnesses with first - hand

knowledge of the specific facts involved in the violation.

Instead, APD pr esented unsigned DCF investigative report s and a

DCF s upervisor ' s testimony regarding the general investigative

process .

18 . At hearing, Ms. Adams e xplained the facts and

circumstances surrounding the violation . Ms. Adams testified the

incident involved M.K., a 41 - year - old female resident of

Respondent s ' g r oup h ome since 2006, who is developmentally

disabled.

19 . According to Ms. Adams, o n Sunday, December 29, 2013,

M.K. was taken b y personal car to the emergency room at Memorial

Hospital, Pembroke Pines, where she was admitted. Ms. Adams

testified that M. K. had been coughing for a few d ays , and she had

consulted with a nurse practitioner about M.K. ' s condition o n

Thursday, December 26, 2013. However, M.K. ' s condition had not

improve d by Sunday , she looked weak, and Ms. Adams did not want

to wait until Mon day for M.K. to be seen by a doctor .

20 . M.K. was transported to the hospital on Sunday,

December 29, 2013, by a facility employee. Emergency ( 911 ) had

been called for M.K. on approximately eight occasions prior to

December 29, 2013 . M s. Adams persuasiv ely and credibly testified

she would not have hesitated to call 911 for M.K. if she felt it

was necessary.

21. On Monday, December 30, 2013, the next business day,

Ms. Adams provided an incident report to APD . Ms. Adams also

immediately notified M.K. ' s w aiver support coordinator.

22. M.K. returned to Respondents ' group home after her

release from the hospital where she has continued to reside since

then.

Count II

2 3 . T he parties stipulated that on November 4, 2015, DCF

commenced an investigation of Resp ondents ' group homes , and that

on December 12, 2015, DCF closed its investigation with verified

findings of abuse, neglect, or exploitation on the part of

Ms. Adams.

2 4 . APD was aware of DCF ' s verified findings upon

completion of DCF ' s investigation.

2 5 . At hearing, Ashley Cole, regional program supervisor

for the southeast region of APD, testified about the facts and

circumstances surrounding the violation .

2 6 . T he violation involved the use of residents ' funds to

request a new support coordinator. 1 /

27 . Specifically, in November 2015, Ms. Cole conducted a

review of client files at one of Respondents ' group home s ,

including a review of financial ledgers, and saw disbursements of

money from three residents to an attorney , totaling $ 1,300 .00 .

28 . When as ked about this by Ms. Cole, Ms. Adams explained

that the funds were used to pay an attorney to write letters on

behalf of the three residents reque sting new support

coordinators.

29 . The funds were used to benefit the three residents and

the letters were written by Respondents ' attorney on behalf of

the three residents .

3 0 . At hearing, Ms. Cole testified that it is typical for

an APD client or the client ' s guardian to request a new support

coordinator, not the group home owner , and t hat it is not

required that a request for a new support coordinator be in

writing.

31 . Although it m ay not be typical for the group home owner

to request a new support coordinator in writing on behalf of the

residents, it is not prohibited by law .

3 2 . None of the three reside nts had guardians or family

members to assist in the handling of their affairs . Ms. Adams

testified that she had attempted to obtain assistance from the

current support coordinator to act on the residents ' behalf , but

to no avail .

33. Two of the resident s still resided at Respondents '

group home as of the beginning of 2018; the other resident died

about a year after the incident for reasons unrelated to the

written requests for a new support coordinator .

Count III

3 4 . Delmarva Foundation , n/k/a Qlarant , has contracted with

the State of Florida to evaluate the performance of group home

providers such as those operated by Respondents.

3 5 . On May 31, 2016, Delmarva Foundation Q uality A ssurance

R eviewer Martina Pocaterra performed an unannounced observation

visit at one of Respondents ' group homes. Ms. Pocaterra observed

video cameras in the common areas of the group home.

3 6 . The next morning, Respondents provided consent forms

from residents for use of cameras in the bedrooms, but not for

use in the c omm on areas of the group home. Because there were no

consent forms signed by residents allowing the use of video

cameras in the common areas, an alert notification form was

submitted to APD.

3 7 . On October 3, 2017, Delmarva Foundation Q uality

A ssurance R evi ewer Michelle Ceville performed a provider

discovery review at one of Respondents ' group homes. On this

occasion, Ms. Ceville observed video cameras in the common areas

of the group home.

3 8 . Respondents again provided consent forms from residents

for us e of cameras in the bedrooms, but not for use in the common

areas. Because there were no consent forms signed by residents

allowing the use of video cameras in the common areas, an alert

notification form was submitted to APD.

3 9 . The clear and convincin g evidence adduced at hearing

demonstrates that Respondents violated rule 65G - 2.009(7)(a)

and (b) by failing to obtain written consent of residents for the

use of video monitoring equipment in the common areas.

"Count IIII"

40 . On September 10, 2017, Hurr icane Irma struck Florida.

After the hurricane, APD contacted group homes to ensure that the

homes had electricity, lights, and air conditioning, and that the

homes were safe.

4 1 . On September 15, 2017, Adams Group Home, Inc. , informed

APD that Adams Gro up Home #2 had electricity and running water,

and that Adams Group Home #2 residents had not been evacuated.

4 2 . On September 19, 2017, Kimberly Robinson, an APD human

services program analyst, conducted a wellness check at on e of

Respondents ' group homes . It is unclear from Ms. Robinson ' s

testimony which group home she actually visited. However,

Ms. Robinson observed that the home had air conditioning, and

that " everything in the home was fine. "

4 3 . On September 19, 2017, Pembroke Pines Assistant Fire

Marshal Shawn Hallich visited Adams Group Home #2 and conducted

an inspection. He testified that he " did a walk around real

quick, " and that on the enclosed outdoor patio on the back porch

of the home, he noticed " a pot on two blocks with two pieces of

wo od and an open flam e with charcoal, and something . . . being

cooked on it . "

4 4 . According to Mr. Hallich, the cooking device was

located on the back patio " approximately, probably 10 feet from

the sliding glass door, may be a little bit less than that . "

Mr. Hallich did not use any device to measure the distance of the

cooking device f rom the structure of the home. Mr. Hallich

testified that the cooking device was a safety hazard because

there was an open flame and there was nothing to prevent the

cookin g device from being tipped over or falling over on its own.

4 5 . During his inspection, Mr. Hallich also observed that

there was no air conditioning inside the home. There was some

electricity inside the home, but not enough voltage necessary for

the air conditioning system to operate.

4 6 . However, there were fans located and operating in every

room of the home , and the windows were open. Mr. Hallich

testified it was hot, but he did not use any device to measure

the temperature inside the home. Mr. Ha llich also acknowledged

that if the fans were on inside the home, the circulation would

have made it feel cooler inside the home.

4 7 . On September 19, 2017, Mr. Hallich issued a Notice of

Violation, stating t he nature of the violation as: " No air

conditi oning and unsafe coo king practices being conducted . "

Mr. Hallich recommended the following action be taken:

( 1) " Must relocate all residence [sic] until all power has been

restored[; ( 2) ] All cooking must be conducted at least 10 feet

away from the struc ture using a commercial cooking appliance . "

4 8 . As to the violation found by Mr. Hallich with respect

to the outside cooking device , Ms. Adams asked Mr. Hallich

whether she could use it outside , and he told her that " it had to

be 10 feet away from the st ructure for cooking . "

4 9 . In issuing the Notice of Violation with respect to

the cooking device , Mr. Hallich specifically relied on

section 10.1 0 .6.1 of the Florida Fire Prevention Code which

provides as follows:

For other than one - and two - family dwellin gs ,

no hibachi , grill , or other similar devices

used for cooking , heating , or any other

purpose shall be used or kindled on any

B alcony , under any overhanging portion , or

within 10 ft (3 m) of any structure.

50 . Mr. Hallich ' s reliance on section 10.1 0 .6. 1 of

the Florida Fire Prevention Code is misplaced because

Adams Group Home #2 is a single - family dwelling. As a single -

family dwelling, Respondents ' group home is exempt from

section 10.1 0 .6.1. In any event, APD failed to present clear

and convincing ev idence that the cooking device was located

within ten feet of the single - family dwelling.

5 1 . In addition, APD failed to present clear and convincing

evidence that any residents of the group home were taken to the

hospital or were not properly cared for b y Respondents because of

the lack of air conditioning.

5 2. In sum, APD failed to present clear and convincing

evidence at hearing to demonstrate a violation of rule 65G -

2.009(1)(d) and section 393.13 .

CONCLUSIONS OF LAW

5 3 . DOAH has jurisdiction over the subject matter and

parties pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2018) .

5 4 . In the instant case, Respondents have applied for the

renewal of their group home license s and challenge APD ' s decision

to deny the renewal applications.

5 5 . 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. Dep ' t of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932, 934 (Fla. 1996).

56 . In this particular proceeding, however, A PD states in

paragraph 13 of its P roposed R ecommended O rder that " it has been

held that the denial of the renewal application is penal in

nature and APD has the burden of proof by clear and convincing

evidence. "

57 . The " clear and convincing evidence " standard requires

that the evidence be found 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 - of - fact a

firm belief or conviction, without hesitancy, as to the truth of

the allegations sought to be est ablished. In re Davey , 645 So.

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

(Fla. 4th DCA 1983).

58 . Moreover, the statutory and rule provisions upon which

APD relies " must be construed strictly, in favor of the one

against whom th e penalty would be imposed. " Munch v. Dep ' t of

Prof ' l Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st

DCA 1992).

59 . Turning to the instant case, as to Counts I and II,

section 393.0673(2)(b) expressly provides that APD " may " deny a n

applic ation for licensure if DCF " has verified that the applicant

is responsible for the abuse, neglect or abandonment of a child

or the abuse, neglect, or exploitation of a vulnerable adult. "

As detailed above, it is undisputed that DCF made verified

findings of abuse, neglect, or exploitation against Ms. Adams .

6 0 . Although APD " may " deny an application for license

based on verified findings by DCF, the question remains whether

Respondents ' licensure renewal applications should be denied.

R elying solely on t he stipulation regarding DCF ' s verified

findings of abuse, neglect, or exploitation and section

393.0673(2)(b), APD argues that non - renewal of Respondents '

licensure applications is justified. 2/

6 1 . In Comfortable Living in Good Hands v. Agency for

Person s With Disabilities , 2014 Fla. Div. Adm in . Hear. LEXIS 361,

*10 (Fla. DOAH July 2, 2014), upon which APD relies, a pro se

litigant ' s applica tion for initial licensure of a foster care

facility was denied by APD because of inaccurate answers in the

a pplicat ion. One of the questions asked if the applicant had

ever been identified as responsible for the abuse or neglect of a

child, to which she answered " no. " During APD ' s review of the

application and verification process, APD found there had been

eight veri fied findings of neglect against h er . At hearing, the

applicant contended that some of the allegations pertaining to

the DCF verified findings of neglect " may not have been

completely accurate. " Id. at *10. Judge David Watkins stated:

" whether the alleg ations were true or not is not relevant to this

proceeding (nor does DOAH lack jurisdiction to reconsider the

findings on those allegations in this proceeding). " Id.

6 2 . Unlike Comfortable Living , the instant case involves

proposed discipline against a f acility already licensed. As APD

acknowledges in its P roposed R ecommended O rder, the in stant case

is penal in nature.

6 3 . The undersigned agrees that DOAH and APD lack

jurisdiction to reconsider DCF ' s verified findings of abuse,

neglect, or exploitation against Ms. Adams. However, the

specific facts and circumstances and other factors pertaining to

the violations are relevant to the dispositive issue of whether

Respondents ' licens ur e renewal applications should be denied

based on DCF ' s verified findings of abuse, neglect, or

exploitation against Ms. Adams .

6 4 . Rule 65G - 2.0041 , w hich APD references in its denial

letter, represents APD ' s i nterpretation and application of the

discretionary term " may " contained within section 393.0673(2)(b).

R ule 65G - 2.0041 sets forth various factor s APD " shall " consider

in determining whether to pursue disciplinary action in response

to verified findings of abuse, neglect, or exploitation by DCF.

In other words, rule 65G - 2 . 0041 dictates when an application for

a ren e wal li cense should be denied , where, as in the instant

case, APD ' s denial is based on DCF ' s verified findings of abuse,

neglect, or exploitation on the part of the facility owner . In

its Proposed Recommended Order, APD fails to address rule 65G -

2.0041.

6 5 . Rul e 65G - 2 . 0041 provides as follows:

65G - 2.0041 License Violations Î Disciplinary

Actions.

(1) Determination of disciplinary action

involving abuse, neglect, or exploitation. In

determining whether to pursue disciplinary

action in response to verified find ings by the

Department of Children and Families of abuse,

neglect, or exploitation involving the

licensee or direct service providers rendering

services on behalf of the licensee, the Agency

will consider the licensee ' s corrective action

plan and other act ions taken to safeguard the

health, safety, and welfare of residents upon

discovery of the violation. Considerations

shall include the following:

(a) Whether the licensee properly trained and

screened, in compliance with Section 393.0655,

F.S., the staf f member(s) responsible for the

violation;

(b) Whether, upon discovery, the licensee

immediately reported any allegations or

suspicions of abuse, neglect, or exploitation

to both the Florida Abuse Hotline as well as

the Agency;

( c) Whether the licensee fully cooperated

with all investigations of the violation;

(d) Whether the licensee took immediate and

appropriate actions necessary to safeguard the

health, safety and welfare of residents during

and after any investigations.

(e) Whether the occurren ce is a repeat

violation and the nature of such violation.

(f) The specific facts and circumstances

before, during, and after the violation.

(2) Factors considered when determining

sanctions to be imposed for a violation. The

Agency shall consider the following factors

when determining the sanctions for a

violation:

(a) The gravity of the violation, including

whether the incident involved the abuse,

neglect, exploitation, abandonment, death, or

serious physical or mental injury of a

resident, whether death or serious physical or

mental injury could have resulted from the

violation, and whether the violation has

resulted in permanent or irrevocable injuries,

damage to property, or loss of property or

client funds;

(b) The actions already taken or bein g taken

by the licensee to correct the violations, or

the lack of remedial action;

(c) The types, dates, and frequency of

previous violations and whether the violation

is a repeat violation;

(d) The number of residents served by the

facility and the nu mber of residents affected

or put at risk by the violation;

(e) Whether the licensee willfully committed

the violation, was aware of the violation, was

willfully ignorant of the violation, or

attempted to conceal the violation;

(f) The licensee ' s coope ration with

investigating authorities, including the

Agency, the Department of Children and

Families, or law enforcement;

(g) The length of time the violation has

existed within the home without being

addressed; and

(h) The extent to which the licensee was

aware of the violation.

(3) Additional considerations for Class I

violations, repeated violations or for

violations that have not been corrected.

(a) Subject to the provisions of subsection

65G - 2.0041(1), F.A.C., in response to a

Class I violation , the Agency may either file

an Administrative Complaint against the

licensee or deny the licensee ' s application

for renewal of licensure.

(b) A second Class I violation, occurring

within 12 months from the date in which a

Final Order was entered for an Administrative

Complaint pertaining to that same violation,

shall result in the imposition of a fine of

$1000 per day per violation, revocation,

denial or suspension of the license, or the

imposition of a moratorium on new resident

admissions.

(c) The in tentional misrepresentation, by a

licensee or by the supervisory staff of a

licensee, of the remedial actions taken to

correct a Class I violation shall constitute a

Class I violation. The intentional

misrepresentation, by a licensee or by the

supervisory staff of a licensee, of the

remedial actions taken to correct a Class II

violation shall constitute a Class II

violation. The intentional misrepresentation,

by a licensee or by the supervisory staff of a

licensee, of the remedial actions taken to

correct a Class III violation shall constitute

a Class III violation.

(d) Failure to complete corrective action

within the designated timeframes may result in

revocation or non - renewal of the facility ' s

license.

(4) Sanctions. Fines shall be imposed,

pursuan t to a final order of the Agency,

according to the following three - tiered

classification system for the violation of

facility standards as provided by law or

administrative rule. Each day a violation

occurs or continues to occur constitutes a

separate vio lation and is subject to a

separate and additional sanction. Violations

shall be classified according to the following

criteria:

(a) Class I statutory or rule violations are

violations that cause or pose an immediate

threat of death or serious harm to th e health,

safety or welfare of a resident and which

require immediate correction.

1. Class I violations include all instances

where the Department of Children and Families

has verified that the licensee is responsible

for abuse, neglect, or abandonment of a child

or abuse, neglect or exploitation of a

vulnerable adult. For purposes of this

subparagraph, a licensee is responsible for

the action or inaction of a covered person

resulting in abuse, neglect, exploitation or

abandonment when the facts and circu mstances

show that the covered person ' s action, or

failure to act, was at the direction of the

licensee, or with the knowledge of the

licensee, or under circumstances where a

reasonable person in the licensees ' position

should have known that the covered p erson ' s

action, or failure to act, would result in

abuse, neglect, abandonment or exploitation of

a resident.

2. Class I violations may be penalized by a

moratorium on admissions, by the suspension,

denial or revocation of the license, by the

nonrenewal of licensure, or by a fine of up to

$1,000 dollars per day per violation.

Administrative sanctions may be levied

notwithstanding remedial actions taken by the

licensee after a Class I violation has

occurred.

3. All Class I violations must be abated or

c orrected immediately after any covered person

acting on behalf of the licensee becomes aware

of the violation other than the covered person

who caused or committed the violation.

(b) Class II violations are violations that

do not pose an immediate threat to the health,

safety or welfare of a resident, but could

reasonably be expected to cause harm if not

corrected. Class II violations include

statutory or rule violations related to the

operation and maintenance of a facility or to

the personal care of re sidents which the

Agency determines directly threaten the

physical or emotional health, safety, or

security of facility residents, other than

Class I violations.

1. Class II violations may be penalized by a

fine of up to $500 dollars per day per

violat ion.

If four or more Class II violations occur

within a one year time period, the Agency may

seek the suspension or revocation of the

facility ' s license, nonrenewal of licensure,

or a moratorium on admissions to the facility.

2. A fine may be levied not withstanding the

correction of the violation during the survey

if the violation is a repeat Class II

violation.

(c) Class III violations are statutory or

rule violations related to the operation and

maintenance of the facility or to the personal

care of residents, other than Class I or

Class II violations.

1. Class III violations may be penalized by a

fine of up to $100 dollars per day for each

violation.

2. A repeat Class III violation previously

cited in a notice of noncompliance may incur a

fine ev en if the violation is corrected before

the Agency completes its survey of the

facility.

3. If twenty or more Class III violations

occur within a one year time period, the

Agency may seek the suspension or revocation

of the facility ' s license, nonrenewal of

licensure, or moratorium on admissions to the

facility.

(d) The aggregate amount of any fine imposed

pursuant to this section shall not exceed

$10,000.

66 . In the instant case, Respondents fully cooperated in

the investigations; the conduct was not willful; there were no

previous or repeat occurrences of the violations; the violations

were isolated and short in duration ; and APD did not req uire a

corrective action plan.

67 . In fact, APD decided not to propose any disciplinary

action against Respond ents based on DCF ' s verified findings of

abuse, neglect, or exploitation until the March 2018 denial

letter -- more than four years after DCF ' s verified findings in

2014, and three years after DCF ' s verified findings in 2015.

68 . Moreover, d espite having kn owledge of DCF ' s verified

findings upon completion of DCF ' s investigations, APD renewed

Respondents ' license for each of the years since the findings

until the most recent renewal period for the license s set to

expire in March 2018.

69 . The specific fac ts and circumstances before, during,

and after the violations militate in favor of the renewal of

Respondents ' license applications.

70 . As to Count III, r ule 65G - 2.009(7)(b) expressly

provides, with respect to video monitoring, that :

" [m]onitoring shall be permitted only with the written consent

of resident . . . . The facility must explain when and where

monitoring will occur and the purposes of the monitoring system. "

7 1 . As detailed above, Respondents violated rule 65G -

2.009(7)(b) because the writte n consents did not allow for video

monitoring in the common areas.

7 2 . However, the lack of written consents, a Class II

violation, does not support a denial of Respondents ' renewal

applications.

7 3 . As detailed above, APD failed to prove the allegation s

in "Count IIII" by clear and convincing evidence.

7 4 . In sum, APD did not require any corrective action plan

or take any proposed disciplinary action against Respondents for

several years following DCF ' s verified findings ; renew ed

Respondents ' applicati ons for every year following the verified

findings; and wait ed until March 2018 to attempt to d eny the

instant licens ur e renewal applications . This i ndicates that APD

did not consider DCF ' s verified findings of abuse, neglect, and

exploitation on the part of Ms. Adams and the lack of consent

forms for video cameras in the common areas, standing alone at

the time of these occurrences , as justif y ing any disciplin ary

action or non - renewal of Respondents ' licenses.

7 5 . It was only after the conduct alleged in "Count IIII , "

which was not proven by clear and convincing evidence , that APD

decided to take proposed disciplinary action against Respondents '

license in the form of the denial of their most recent licens ur e

renewal applications. APD attempts to justify its most recent

and only proposed agency action against Respondents ' licenses

based largely on conduct that occurred years earlier , for which

APD took absolutely no action other than approving Respondents '

prior licens ur e renewal applications , and the con duct alleged in

"Count IIII , " which was not proven by clear and convincing

evidence .

76 . O f course, APD may properly consider an applicant ' s

entire performance while licensed , including DCF ' s verified

findings , in determining whether renewal of a license is

appropriate.

77. Although denial of Respondents ' renewal license s may be

statutorily authorized under section 393.0673(2)(b) based on

DCF ' s verified findings of abuse, neglect, or exploitation

against Ms. Adams, one must question whether , in this cas e, it

would be appropriate. Braddy v. Dep ' t of Health & Rehab. Servs. ,

1988 Fla. Div. Adm in . Hear. LEXIS 4755, *12 (Fla. DOAH Dec . 12,

1988).

7 8 . For the detailed reasons discussed above and b ased on

the unique and particular facts of this case, Responde nts '

instant licens ur e renewal applications should not be denied based

on DCF ' s verified findings of abuse, neglect, or exploitation on

the part of Ms. Adams and the lack of written consents for video

cameras in the common areas.

RECOMMENDATION

Based on t he foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that that the Agency for Persons with

Disability enter a final order granting Respondents ' applications

for licensure renewal. 3/

DONE AND ENTERED this 2 2nd day of August , 2018 , in

Tall ahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 2 2nd day of August , 2018 .

ENDNOTE S

1/ A support coordinator is defined in section 393.063(41) as

follows:

" Support coordinator " means a person who i s

designated by the agency to assist

individuals and families in identifying their

capacities, needs, and resources, as well as

finding and gaining access to necessary

supports and services; coordinating the

delivery of supports and services; advocating

on behalf of the individual and family;

maintaining relevant records; and monitoring

and evaluating the delivery of supports and

services to determine the extent to which

they meet the needs and expectations

identified by the individual, family, and

others w ho participated in the development of

the support plan.

2/ Based on the stipulation of the parties, it is unnecessary for

the undersigned to make a specific factual finding as to whether

APD proved the allegations contained i n Counts I and II by clear

an d convincing evidence.

3 / As to Counts I and II of the denial letter, the only specific

conduct alleged to support APD ' s non - renewal of Respondents '

licens ure renewal applications is the fact of DCF ' s verified

findings of abuse, neglect, or exploitation on the part of

Ms. Adams, which was stipulated by the parties.

At hearing and in its P roposed R ecommended O rder, APD does

not rely on rule 65G - 2.009(1)(d) as grounds for denial . Rather,

APD contends that based on the verified findings , denial was

justified based solely on section 393.0673(2)(b).

Although rule 65G - 2.009(1)(d) is referenced in Counts I

and II of the denial letter , A PD is precluded from relying on

th is rule as a separate ground for denial because the only

alleged conduct suppor ting denial is DCF ' s verified findings of

abuse, neglect, or exploitation on the part of Ms. Adams . Smith

v. Fla. Dep ' t of Bus. & Prof ' l Reg. , 182 So. 3d 767, 769

(Fla. 1st DCA 2015).

Moreover, r ule s 65G - 2 . 009(1)(d) and 65G - 2.0041 w ere adopted

on Ju ly 1, 2014, after DCF ' s verified finding of February 25,

2014. Accordingly, these rules cannot be applied to the

violation alleged in Count I because the y did not exist at the

time of the violation . Jordan v. Dep ' t of Prof 'l Reg. , 522 So.

2d 450, 453 (Fl a. 1st DCA 1988).

Although rule 65G - 2.0041 does not apply to the verified

finding in Count I, and the undersigned is prohibited from

applying the rule in determining whether Respondents ' group home

licens ur e renewal applications should be denied base d on the

February 2014 verified finding, the statutory law in effect at

the time of the violation, specifically section 393.0673(2)(b),

allows the undersigned and APD to consider various factors, some

of which were subsequently codified by APD in the rule.

COPIES FURNISHED:

G. Barrington Lewis, Esquire

Law Office of George B. Lewis

19601 Skyhawk Lane

Loxahatchee, Florida 33470

(eServed)

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 323 99 - 0950

(eServed)

Gypsy Bailey, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 335E

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, S uite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

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 t o 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.