20-001469 Agency For Health Care Administration vs. Kona Properties, Llc, D/B/A Greenleaf Assisted Living, Llc Status: Closed Recommended Order on Wednesday, November 25, 2020.

Summary: AHCA did not prove inadequate training, no background screening, that an adverse incident report was required, and a basis for survey fee imposition by clear & convincing evidence. Hearsay alone will not support a finding of fact.

S TATEMENT OF T HE I SSUE S

A. Did Respondent, Kona Properties, LLC, d/b/a Greenleaf Assisted

Living, LLC (Greenleaf) , violate section 429.26(7), Florida Statutes (2019) , 1

and Florida Administrative Code Rule 59A - 36.007(1) and, if so, what penalty

should be imposed? (Count I)

B. Did Greenleaf violate section 429.176 and 429.52(4 ) and ( 5) and r ule

59A - 36.010? If it did, wh at penalty should be imposed? (Count II)

C. Did Greenleaf violate r ule 59A - 36.010(2) and, if so, what penalty should

be imposed? (Count I I I)

D. Should the Agency impose a survey fee upon Greenleaf pursuant to

section 429.19(7)? If so, what amount of fee sh ould be imposed? (Count IV)

E. Did Greenleaf commit one or more Class I violations justifying

revocation of its license under section 429.14(1)(e)1.? (Count V)

F. Did Greenleaf violate the background screening requirements of

sections 408.809, 429.174, and 435.06(2)(a ) through ( d)? If so, what penalty

should be imposed ? (Count VI)

G. Did Greenleaf violate r ule 59A - 35.110 by not making timely adverse

incident reports, and, if so, what penalty should be imposed? (Count VII)

P RELIMINARY S TATEMENT

Petitioner, the Agency for Health Care Administration (Agency) , is the

state agency charged with licensing and regulating a ssisted l iving f acilities

(ALFs). Greenleaf is an ALF licensed by the Agency. In these consolidated

cases, the Agency seeks to impose sanctions, including license revocation,

upon Greenleaf.

On February 25, 2020, the Agency filed an Administrative Complaint

against Greenleaf in Agency Case No. 2020002754 (DOAH Case No. 20 - 1469).

1 All references to Florida Statutes are to the 2019 codification unless noted otherwise.

The Agency sought to revoke Greenleaf's license for various allege d violations

related to a tragic fire in the ALF. On March 26, 2020, the Agency filed a two -

count Administrative Complaint against Greenleaf in Agency Case Nos. 2019008343 and 2020003778 (DOAH Case No. 20 - 1890). It alleged

violations of background screenin g and adverse incident reporting

requirements observed during February 4, 2019, and December 30, 2019, surveys of Greenleaf. The Complaint sought to impose two $500.00 fines.

Greenleaf filed petitions requesting formal administrative hearings to

dispute th e allegations of both complaints. The Agency referred both matters

to the Division to conduct the hearings.

The undersigned set Case No. 20 - 1469 for hearing to be held beginning

June 15, 2020. After conducting a pre - hearing conference on May 6, 2020, the

undersigned issue d a Pre - h earing Order on May 7, 2020, establishing several

case management requirements and requiring the Agency to file amended

administrative complaints. The undersigned also consolidated the cases upon the joint motion of the parties. The Agency filed a seven - count Amended

Administrative Complaint (Administrative Complaint) combining the charges

of both complaints. The undersigned noticed the final hearing for the consolidated cases for June 15 through 17, 2020, and conducted it as sche duled.

The Agency presented testimony from Vanessia Bulger, Lorienda

Crawford, Lieutenant Stephen Gonella, Linda Gulian - Andrews, Kevin

Harman, Lorraine Henry, Vilma Pellot, and Jackie Shelton. Agency Exhibits 1 (limited purposes), 2, 5 (limited purposes) , 7, 19 (limited purposes),

21, 23 through 26, 35, 52 (page 15), 55 - 1, and 55 - 2 were admitted into

evidence . Greenleaf presented testimony from Joann Campbell, Erin Drybola,

and Marietta Terredanio. Greenleaf did not offer exhibits into evidence. The

four - volume T ranscript of the proceeding was filed July 29, 2020. The

undersigned entered an O rder extend ing the date for filing proposed

recommended orders to August 27, 2020. 2 The parties timely filed P roposed

R ecommended O rders. They have been considered in preparation of this

Recommended Order.

F INDINGS OF F ACT

1. The Agency is the regulatory authority respon sible for licensure of

ALFs and enforcement of the statutes governing ALFs, codified in chapter s

429, part I, and 408, part II, Florida Statutes, as well as the related rules in

Florida Administrative Code C hapters 5 9 A - 3 5 and 59A - 3 6 .

2. Greenleaf was, at all material times, an ALF in Kissimmee, Florida,

operating under the Agency's licensing authority. Greenleaf's license authorized it to operate a 75 - bed facility. Greenleaf also held a limited mental

health license. This authorized it to care for resident s with mental health

issues, residents that many facilities will not serve. Greenleaf was required

to comply with all applicable statutes and rules. There is no evidence that the

Agency has ever imposed sanctions on Greenleaf or determined that it violated statutes or rules. Joann Campbell was the administrator of

Greenleaf at all relevant times.

Background Screening

3. On February 4, 2019, the Agency co nducted a survey of Greenleaf. As

part of the survey , the Agency investigator reviewed personnel files.

I nvestigator Pellot asked Greenleaf's Administrator, Joann Campbell, about

background screening for Destiny Castleberry. She asked because the paper

background screening report in Ms. Castleberry's personnel file indicated

that the background screening repo rt was "awaiting privacy policy." Ms.

Campbell acknowledged that was what the document said. She went on to

advise Ms. Pellot that the employee had passed the background screening

2 The parties' agreement to an extension waived the requirements of Florida Administrative

Code Rule 28 - 106.216( 1 ).

and was eligible to serve residents. Ms. Campbell immediately printed a

curr ent background screening report showing that Ms. Castleberry had

passed background screening and was eligible to serve residents. The Agency

representative maintains that an employee's file must have a printed copy of

a completed background screening.

4. The Agency also maintains that Ms. Pellot reviewed a personnel file for

someone named Eric and that the background screening report in his file was

out of date. The Agency did not offer the file into evidence. Ms. Pellot could

not remember the employee' s last name. A different Agency witness said that

she looked for Eric, last name unknown, in the Level II Background

Screening Clearing h ouse and "it told me that his background screening was

not valid." The Agency did not offer a printout demonstrating the information

stored in the C learinghouse or offer persuasive evidence that the investigator

even searched for the correct name. T he testimony was insufficient to prove

this employee did not have a current background - screening document. 3

Adverse Incident Report

5. Agency Investigator Pellot conducted a complaint survey of Greenleaf

on December 30, 2019. Information from this survey is the basis of the charge

that Greenleaf did not make a required adverse incident report. Ms. Pellot

testified about reports she read of Resident 40 leaving Greenleaf, the staff either being unaware of his departure or thinking he left with family, him

falling while not at the facility, and him being taken to a hospital emergency

room. The documents she reviewed were reports by individuals who did not testify . The documents were not offered into evidence. Ms. Pellot also testified

about the contents of a facility log for Resident 40. (Tr. V. I, p. 144) . Her

testimony about the interviews of staff and documents she reviewed is

3 Administrative The Agency did not offer an explanation why it waited until it issued the

C omplaint in Case No. 20 - 1890 on March 26, 2020, t o take action on an alleged violation on

February 4, 2019, over a year earlier.

hea rsay. The statements in the documents themselves are also hearsay. 4

Further there is not a record sufficient to establish that the contents of the

documents Ms. Pellot describe d would meet the business records hearsay

exception in section 90.803(6) , Florid a Statutes . The Agency did not offer any

of the documents, including the facility log, into evidence.

6. An admission of Greenleaf administrator , Joann Campbell , did

establish that Greenleaf had filed a "one - day" adverse incident report about

Resident 40 but had not filed a "15 - day" adverse incident report.

§ 90.803(18)(e), Fla. Stat. The admission goes only to filing of a report. It did

not involve or prove any of the assertions about the facts of the incident,

necessary to determine if the incident was o ne that had to be reported as the

Agency advocates. The Agency did not offer the incident report into evidence.

7. Ms. Campbell tried several times to submit a "15 - day" adverse incident

report. She was unable to because the website that the Agency require s ALFs

to use to submit adverse incident reports was malfunctioning.

Training

8. Due to a tragic fire, the Agency charged Greenleaf with providing

inadequate safety training. Greenleaf has a "Fire Safety Plan," which was in effect at all relevant times. It included the following section .

Fire Safety Training

A record of monthly fire drills is kept and logged by

the Assistant Administrator. The day after each

drill a staff meeting will be called and mistakes will be discussed and solutions to problems wil l be

recommended.

Training in Fire Control:

In - service for staff regarding Fire Safety and

Disaster Plans will be done every first Wednesday

of each month on the = Use of fire extinguishers, confining and securing areas in case of fire.

4 The undersigned noted the reliance upon hearsay and the limits of its use many times

during the hearing.

Fire Plan:

All pe rsonnel should be familiar with the plan by

frequent in - service. For new employees, copies of

disaster plan will be handed. Unannounced fire

drills to be conducted on an ongoing basis.

9. Greenleaf did not provide in - service training regarding Fire Safety and

Disaster Plans on the first Wednesday of each month as provided in its fire

safety plan. It also did not provide training in use of fire extinguishers on the

first Wednesday of each month as provided in one "Annex A" to its fire safety

plan . (Ex. 35 - 1 5). Similarly, it did not conduct monthly fire drills as provid ed

by another "Annex A" to its fire safety plan. (Ex. 35 - 11).

10. Greenleaf did, however, provide fire safety and emergency training to

its employees. Greenleaf conducted four fire drills per shift per year for its

employees, resulting in each employee participating in four drills per year.

Employees, including Ms. Drybola and Ms. Terredanio, and residents,

participated in the drills. The drills included review of use of a fire

extinguisher. Th e review did not include physically using a fire extinguisher. Verbal and video instruction was provided. Use of a fire extinguisher is one of

the first trainings Greenleaf provided new employees. The drills did not

specifically address the circumstance of a resident literally catching fire or a

resident being covered with flaming fabric.

11. The undersigned recognizes that some employees testified, albeit

inconsistently, that they had not been trained. However, other testimony of

the same employees about what they did and why indicates that they had received traini ng. For instance Ms. Drybola, when asked what she would

have done based on a normal fire drill , responded by saying she would assist

a resident with clothes on fire by using a wet or fireproof blanket. When asked if the day's event went like previous fire drills, she responded "no." She

did not respond that there had been no fire drills. She also stated, "This time

we had a real person," implying that she had been through the procedures

before w ithout "a real person." (T r . V . 3, p . 425). This testimony indicates she

had received training. Ms. Drybola also acknowledged receiving emergency

training on August 26, 2019.

12. The testimony of Mr. Harman similarly indicates that Greenleaf

trained its e mployees. He said that he had not received training. Yet he said

he received verbal instructions on how to respond to an emergency for

evacuation. (Tr. V . I, p. 122). He also referred to having had a fire drill two or

three months before the incident. (Tr. V . I, p. 127). Mr. Harman also referred

to the fire drill training as mandatory. Ms. Terredanio's testimony also

supports finding that Greenleaf trained its employees in fire safety and other

emergency procedures. The fact that she could describe how to u se the fire

extinguisher enhanced her credibility and persuasiveness. Furthermore,

Ms. Terredanio described other emergency responsibilities and procedures.

(Tr. V. IV, pp. 465 - 468 ) .

13. The employees received training in emergency procedures, including

fi re safety procedures. The statements of some employees about not receiving

training appear to be due to difficulty understanding questions, nervousness,

and a lack of clarity in questions about what "training" is. The training was irregular. The Agency did not prove that the training was inadequate. It did

not prove what the training consist ed of or how frequently it occurred, even

though Agency employees knew Greenleaf's plan provided for a training log

that could have been offered into evidence. The Agenc y could have offered

personnel files into evidence to demonstrate employees had not received training. The Agency did not do this. In addition, the Agency did not offer testimony from a witness qualified under section 90.702 to offer an opinion

about what adequate emergency training wo uld be.

The Fire

14. A tragic and fatal fire on January 25, 2020, is the genesis of Case No.

20 - 1469 . The incident was recorded by a video camera facing down a hallway.

The 15 minute , 33 second video records events occurring on one section of one

hallway in a two - story building. The findings here are based on review of the

video recordings and testimony from two employees who worked to save the

resident. The recording s and employee testimony are the only direct and

persuasive evidence of events.

15. The fire started in r oom 9 on the first floor. Resident 1, a smoker with

lung problems who used an oxygen concentrator, lived in Room 9. That day

an oxygen concentrator was in the room. Around 1:25 on the afternoon of

January 25, Erin Drybola, who served Greenleaf residents as a caregiver and provided housekeeping services to Greenleaf , heard a fire alarm sounding off.

She ran toward the alarm and found a fire in room 9, wher e Resident 1 was.

Smoke began to fill the hallways. The fire sprinklers activated and

emergency lights began flashing.

16. Ms. Drybola beckoned for help and entered the room. She found

Resident 1 in her wheelchair, beside the b ed, e ngulfed in flames. Ms. D rybola

called for Marietta Terredanio to come help. Smoke quickly grew thicker.

Another employee in the hall, closer to the lobby, began directing residents

toward the lobby exit on the south side of the building. A worker dressed in scrubs also evacuated residents through a west side exit on the dining room

end of the hall. A male staff member ran down the hall toward another area

of the facility to assist residents with evacuation .

17. Ms. Drybola ran to get a telephone and returned with it , calling as s he

ran. This took approximately 23 seconds. More residents hastened toward the dining room, west exit area, with encouragement from staff. Ms. Drybola re -

entered the room with the fire. Resident 1's wheelchair and a lap blanket or

wrap of some sort coverin g her lower body were burning.

18. Ms. Drybola and Ms. Terredanio tried to extinguish the flames with a

blanket, although it was not a "fire blanket." Their efforts failed. Ms. Drybola

and Ms. Terredanio moved Resident 1 in the flaming wheelchair from r oo m 9

to the hall because of the danger that the oxygen concentrator posed. At this

time, approximately one minute and 27 seconds after the alarm sounded,

smoke made it almost impossible to see except the area around the

wheelchair illuminated by the fire. M s. Drybola pushed the wheel chair down

the hall to a more open area in front of an elevator. This kept the burning

wheelchair and resident from blocking the hall. At this point, the smoke was

so thick, only the resident and her wheelchair are visible in the recording.

19. Ms. Terredanio ran to get pitchers of water from the kitchen adjacent

to the dining room to pour on the flames. Ms. Drybola did too. These trips

resulted in the resident being left alone for brief periods. The residen t

struggled to leave t he wheel chair. Although the video does not have sound,

Resident 1's moving lips and heaving chest indicate she was crying or

screaming. Ms. Drybola made three trips, each with two pitchers of water.

Ms. Terredanio made one trip .

20. Ms. Drybola and Ms. Te rredanio substantially extinguished the fire

within three minutes and thirty - nine seconds of Ms. Drybola hearing the

alarm.

21. Ms. Drybola and Ms. Terredanio directed more residents down the hall

toward the dining room exit. Ms. Drybola supported one resi dent as he

walked.

22. Three rooms down from r oom 9 and on the other side of the hall, a fire

extinguisher hung on the wall . Ms. Drybola and Ms. Terredanio did not use

the fire extinguisher on Resident 1 because they feared that the chemicals in

it were d angerous to a human. Their trainings had not addressed what to do

when a person is aflame.

23. A police officer arrived at about 1:29 p.m. , four minutes after the

alarm sounded. At almost the same time, Ms. Drybola escorted some of the

last of the residents visible fro m the area. The officer pulled charred, still

smoking fabric from the back of Resident 1's chair and from Resident 1. He

was carrying a fire extinguisher. The officer put down the fire extinguisher.

Like Ms. Drybola and Ms. Terredanio , the officer elected to use pitchers of

water to extinguish smoldering spots on the wheelchair. Like Ms. Drybola

and Ms. Terredanio, he prioritized extinguishing the fire and briefly left

Resident 1 alone while he obtained more water.

24. After giving t he officer another pitcher of water, Ms. Drybola went to a

barely visible area off the lobby to escort two more residents out. Another

employee identified one last resident in a room beside the elevator and, along

with an officer, directed him out of the a rea toward the dining room exit.

25. Firefighters did not arrive until the fire was extinguished and police

officers were in charge of the scene. At the time the firefighters arrived, at

least three officers were tending to Resident 1, managing the scene, and

directing the activities of Greenleaf employees.

26. The video records a horrific, chaotic scene: a burning resident

struggling in a burning wheelchair and smoke so thick a person could not see

past her extended arm. Ms. Drybola and Ms. Terredanio acte d bravely and

quickly in an effort to save Resident 1 and other residents. They made their

best judgment about the risks of using a fire extinguisher, a judgment

validated by the officer's election to use water, not his fire extinguisher.

27. While the ev ents described above played out on the first floor, Kevin

Harman evacuated residents from the second floor. Mr. Harman was working

as cook that afternoon. He had been trained that when the fire alarm

sounded the "cook is supposed to go upstairs, going door - to - door, knocking on

them, opening them, making sure everybody is out." (Tr. V . I, p . 121) As soon

as he heard the alarm, that is what he did. Mr. Harman went upstairs and

started evacuating residents.

28. One resident in a wheelchair had difficulty walk ing. Mr. Harman

started taking the resident down the stairs, step by step in his wheelchair.

The resident was anxious, and Mr. Harman feared he would fall. Mr.

Harman changed to helping the resident scoot down the stairs on hi s behind.

By the time they got about half way down the stairs, two officers arrived and

took over. They supported the resident walking down the stairs and out the

exit. Mr. Harman fulfilled his responsibilities and evacuated the upstairs

residents quickly. 5

2 9 . With the exception of fire extinguisher use , Greenleaf employees,

visible in the video recording complied with the facility's fire safety plan. It is

also important to note that the video records activities on one segment of one

hall on one floor of a two - story facility. The on ly evidence about activities in

other parts of the facility is the testimony about Mr. Harman successfully

fulfilling his responsibilities. Smoke from the fire quickly obscured visibility

in the hall. Moreover, the horrific, extraordinary sight and sound o f

Resident 1 burning was enough to cause panic in anyone, regardless of

training. To the extent there is such a thing as an ordinary emergency, this was no ordinary emergency.

30 . Greenleaf took several actions after the fire. It brought in counselors

to provide long - term services to residents and employees. It dramatically

increased emergency training frequency, especially for fires.

Smoking Policies and Practices

3 1 . Greenleaf permitted residents to have and use tobacco products,

including cigarettes. R ule 59 A - 36.007 (6)(d) requires an ALF to have rules and

procedures that must address the facility's policies about alcohol and tobacco

use. This necessarily contemplates ALF residents smoking . Greenleaf had a

tobacco policy. But it was not offered into evid ence. Greenleaf prohibited

smoking inside the building. Gleaning from a resident's tobacco use policy acknowledgement (Ex. 52 - 1 5), the policy designated a smoking area,

5 Mr. Harman's testimony presents a good example of the weaknesses an d ambiguity of the

Agency's evidence. He said that he had no emergency response training. (Tr. V . I, p. 121). Yet

in the next sentence he said he "was verbally told what I was supposed to do, but there was

no training connected to it." Training would encom pass being "verbally told what to do."

Training is teaching. No specific method is required. https://www.merriam -

webster.com/dictionary/train (last visited November 15, 2020.) Even the Agency's counsel's

questions acknowledge verbal instruction as training . ("[Y]ou said that the only training you

received was verbal instruction … ." [Tr. V. I, p. 122]) . Mr. Harman was able to describe his

responsibilities in an emergency. (Tr. V . I, p. 121) . And he drew on that training to care for

second - floor residents.

prohibited smoking in bedrooms or anywhere else inside the building, and

required res idents to acknowledge that smoking inside the building

endangered residents, staffs, and visitors. The policy apparently also

provided that a resident would be given a 45 - day notice or evicted for

violating the smoking policy. Until the fire, Greenleaf per mitted residents to

keep their cigarettes and lighters in their rooms.

32 . Greenleaf employed Jackie Shelton from sometime in June 2019 to

about March 31, 2020. Two or three months after she began working at

Greenleaf, Ms. Shelton observed signs of resi dents smoking in the facility.

This was no earlier than August 2019 to n o later than mid - October 2019. The

signs included smelling smoke in a room and seeing cigarette butts in the

garbage. She verbally reported the signs of residents smoking in the facili ty

to Ms. Campbell, the facility administrator. Ms. Campbell told Ms. Sh elton

that she would "look into it." Greenleaf did not have a process for monitoring

resident compliance with smoking rules. There is, however, no rule or statute

that requires a proce ss . There is also no testimony from an expert qualified

under section 90.702 to offer opinions that could support a finding that an

ALF should have a policy for monitoring smoking by residents.

3 3 . The Agency maintains that Ms. Campbell knew that Resident 1

smoked in her room. The Agency, however, did not prove this. It offered only

hearsay evidence of statements allegedly made by residents to Agency

employees. It did not offer testimony from any of the residents.

3 4 . Greenleaf did learn that Resident 2 sm oked in the bathroom the day

after the fire. It promptly issued a warning and a "45 day notice" of eviction to Resident 2. By the time of the hearing, Greenleaf had not evicted Resident

2 because it could not find a placement for him due to his mental heal th

issues and the limited number of ALFs with mental health licenses.

3 5 . After the fire, Greenleaf changed its smoking practices. It now

requires residents to give their smoking materials to staff. Greenleaf staff

places the materials in plastic container s kept in the kitchen or medicine

room. Residents must ask for them when they wish to smoke. Greenleaf still

only permits smoking in a designated outside area.

C ONCLUSIONS OF L AW

Jurisdicition and Burden of Proof

36 . Sections 120.569 and 120.57(1), Florida Statutes (2020), grant the

Division jurisdiction over the parties to and the subject matter of this

proceeding.

37. This case involves the Agency's prosecution of an administrative

complaint seeking to impose fine s on Greenleaf and revoke its license. The Legislature has charged the Agency with the responsibility of licensing ALF s.

Ch . 429, Part I, Fla. Stat. This includes responsibility for imposing sanctions

for violations of statutes or rules . §§ 408.813 & 4 29 .1 4 , Fla. Stat. The Agency

must prove the grounds for sanctioning Greenleaf by clear and convincing

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

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Coke v. Dep't of

Child . & Fam. Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998).

3 8 . The opinion in Evans Packing Company v. Department of Agriculture

and Consumer Services , 550 So. 2d 112, 116 n. 5 (Fla. 1st DCA 1989), defined

clear and convincing evidence as follows:

Clear and con vincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly remembered; the evidence must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in is sue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations

sought to be established. Slomowitz v. Walker , 429

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

3 9 . This well known, long established, standard of proof plays a role in the

Agency's failure to prove some charges. For example the Agency seeks to

sanction Greenleaf for failure to have a current background screening for an

employee whose last name the Agency witness cannot remember based upon

testimony about a document and computer screen observed over nine months ago. The evidence is not precise or explicit, distinctly remem bered , or lacking

in confusion.

40 . Also, in disciplinary proceedings , the statutes and rules for which a

violation is alleged must be strictly construed in favor of a respondent. Elmariah v. Dep't of Prof'l Reg. , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v.

Dep't of Prof'l Reg. , 534 So. 2d 782, 784 (Fla. 1st DCA 1988).

C ount I (Section 429.26(7) and Rule 59A - 36.007 (1 ) )

4 1 . Section 429.26(7) requires a facility to "notify a licensed physician

when a resident exhibits signs of dementia or cognitive impairment or has a

change of condition in order to rule out the presence of an underlying

physiological condition that may be contributing to such dementia or

impairment." The Agency does not address this alleged violation in its

P roposed R ecommended O rder and therefore has abandoned it. 6 The Agency

also did not prove a violation of this statute.

4 2 . Rule 59A - 36.007(1), u nder the heading "SUPERVISION , " requires an

ALF to "provide care and services appropriate to t he needs of the residents

." It lists six specific requirements such as maintaining a general

awareness of residents ' w hereabouts and notifying health care providers and

family members of significant changes in a resident. The Agency did not prove a violation of this rule. The Agency's theory is that Greenleaf violated

this rule by its response to the fire and failure to monitor residents' smoking.

6 The P roposed R ecommended O rder is the most recent and complete statement of the

Agency's claims. Any violation not included in the Proposed Recommended Order is deemed

abandoned, as are violations asserted without citation to the record support for them. Cf.

D.H. v. Adept Cmty. Servs. , 271 So. 3d 870 (Fla. 2018) (Claims of error not raised in initial

brief deemed abandoned); W ickham v. State , 124 So. 3d 841, 860 (Fla. 2013) ( Failure to

pursue a claim amounts to abandonment of the claim. ); Downs v. Moore , 801 So. 2d 906 , 912,

n. 9 (Fla. 2001) (Failure to propose jury instruction on an issue is deemed abandonment of

the issue).

None of the Agency's assertions fall within any reasonable construction of the

rule, let alone a strict construction. The Agency did not prove Count I of its

Administrative Complaint.

Count II (Sections 429.176 and 429.52(4 ) a nd ( 5) and Rule 59A - 36.010 )

4 3 . Section 429.176 requires an ALF to notify the Agency if the ALF

owner changes administrators. The Agency offered no evidence of a violation

of this statute. It also did not refer to the alleged violation in its P roposed

R ecommended O rder. The charge is therefore abandoned. 7

4 4 . Section 429.52(4) imposes training, education, and testing

requirements for newly employed ALF administrators. Section 429.52(5)

imposes continuing education requirements on ALF administrators. Th e

Agency offered no evidence tending to prove a violation of either statute.

4 5 . Rule 59A - 36.010, titled "Staffing Standards , " establishes standards for

an ALF administrator in paragraph (1) and for ALF staff in paragraph 2. It

also imposes facility staf fing standards. Rule 59A - 36.010(1) states that an

administrator is "responsible for the operation and maintenance of the facility including the management of all staff and the provision of appropriate

care to all residents as required by [law and rule]."

4 6 . Rule 59A - 36.010(2), titled "STAFF," imposes several requirements for

ALF staff. The Agency relies upon a requirement that "[s]taff must be qualified to perform their assigned duties consistent with their level of

education, training, preparation, and ex perience." Fla. Admin. Code R. 59A -

36.010(2)(b). Rule 59A - 36.010(2)(c) mandates that staff "comply with the

training requirements of rule 58A - 5.0191." That rule has been renumbered as

rule 59A - 36.011. The only part of the rule applicable here is r ule 59A -

36.011 (3)(b)2. It r equires ALFs to provide dire c t care staff "a minimum of 1

hour in - service training w i thin 30 days of employment that covers," among

other things , "[f]acililty emergency procedures including chain - of - command

7 See foot note 6 , supra .

and staff roles relating to emergency evacuation." The relevant evidence

related to this requirement that the Agency could have , but did not , offer

includes the training log (or absence thereof) referred to in Greenleaf's f ire

s afety p lan and training documentation from employee personnel files .

4 7 . T he Agency's primary theory for the alleged violation is that the

Greenleaf staff's response to the horrific fire of January 25, 2020, proves that

the staff were not qualified due to inadequate training . Opinions have

recognized that e mployees failing to perform as trained is not clear and

convincing evidence that their employer failed to satisfy its training

obligations. See Pic N' Save Cent. Fl . , Inc. v. Dep't of Bus. Reg, Div. of

Alcoholic Bev. & Tobacco , 601 S o. 2d 245 (Fla. 1st DCA 1992) (Employees

violating law prohibiting selling alc o hol to minors did not prove that

employer had not fulfilled its obligation to train them.) . Also the Agency did

not offer persuasive evidence showing what training employees sho uld have

had or what training they had. 8 Furthermore it did not offer expert opinion

evidence demonstrating how trained employees would necessarily react in the

extreme circumstances of this case.

4 8 . T he Agency argues that because no one greeted firefighter Stephen

Gonnella to direct him to the fire when he arrived at the facility the facil i ty

did not train its staff properly in compliance with its emergency plan. The proof for this claim is insufficient for several reasons. First , the building ha d

two entrances. Greenleaf staff would have no way of knowing which entrance

to monitor for emergency personnel. They would also have had to leave the

duties of evacuating residents to wait to greet the arriving personnel. Second,

the firefighters were not the first responders. Police officers were. Third ,

firefighters came into the building through at least two entrances. The fact

8 Expert testimony is an appropriate way to prove the adequacy of training. See, e.g. , Russo v. City of

Cin cinnati, 953 F.2d 1036 , 1047 (6th Cir. 1992) (Expert opinion that police training was inadequate was

sufficient to preclude summary judgment for the City.); Parker v. D.C. , 850 F.2d 708 , 713 (D.C. Cir. 1988)

(Expert opinion testimony about inadequate train ing for police officers supported judgment against police

force.)

that someone did not greet Mr . Gonnella and direct him to the fire does not

mean that the firefigh t ers coming in other entrance s were not properly

directed. The smoking entrance to Resident 1's room was visible from the

lobby door through which several firefighters entered. Finally , by the time

the firefighters arrived, the officers, Ms. Drybola, and Ms. Terredanio, had

extinguish ed the fire, and the officers had taken over responsibility for caring

for Resident 1 and directing staff's activities. Any duty to direct emergency responders to the site of the emergency had been fulfilled. The Agency did not

prove Count II of the Admini strative Complaint by clear and convincing

evidence.

Count III (Rule 59A - 36.010(2))

4 9 . The Agency's charge and arguments for Count III rehash the charge

and arguments of Count II. They have been addressed above. The Agency did

not prove Count III of the Administrative Complaint.

Count IV (Section 429.19(7) )

50 . Section 429.19(7) authorizes the Agency to assess a survey fee "equal

to the lesser of one half of the facility's biennial license and bed fee or $500,"

to cover the cost of complaint investigation s resulting in a finding of a

violation. The Agency offered no evidence to prove the amount of Greenleaf's biennial license and bed fee. This makes conducting the analysis required by section 429.19(7) to determine which is less $500.00 or one - half of the

facility's biennial license and bed fee impossible. Consequently , the Agency

may not impose a survey fee. Cristal Palace Resort PB, LLC v. A g. for Health

Care Admin. , Case No. 19 - 1667 (Fla. DOAH March 17, 2017), adopted in

part , AHCA No. 2019000548 (AHCA M ay 5, 2020). The Agency did not prove

Count IV of the Administrative Complaint.

Count V (Section 429.14(1)(e)1. )

5 1 . Section 429.14(1) e mpowers the Agency to revoke a license and impose

fines for violations of Part I (governing ALFs) , C hapter 429 of the Florida

Statutes. Section 429.14(1)(e)1. specifically authorizes license revocation for

one or more Class I violations of section 429.19. Section 408.813(2)(a) defines

Class I violat ion s as follows:

Class “I” violations are those conditi ons or

occurrences related to the operation and

maintenance of a provider or to the care of clients

which the agency determines present an imminent

danger to the clients of the provider or a substantial probability that death or serious physical or emotion al harm would result therefrom.

The condition or practice constituting a class I

violation shall be abated or eliminated within 24

hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrat ive fine as provided by law

for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation.

5 2 . The Agency has not prove n a Class I violation. Therefore it has not

proven Count V.

Count VI (Sections 408.809, 429.174, and 435.06 ( 2 )( a through d) )

5 3 . The statutes the Agency relies upon for the charges in Count VI

impose background screening requirements for ALF employees. The Agency

argues that Greenleaf violated these requirements for Eric (last name unknown) and Ms. Castleberry. The Agency did not prove the charge s by

clear and convincing evidence. When the Agency cannot even provide the last

name of " Eric, " the evidence surely is not distinctly remembered, precise, and

explicit . The Agency cannot dispute that Ms. Castleberry did not have a

current background screening. It certainly did not prove it by c lear and

convincing evidence. Ms. Campbell was able to immediately print a copy of a

background screening for Ms. Castleberry when asked about it.

5 4 . The Agency relies upon a theory that the background screening does

not satisfy the statutory requirement s unless a printed copy is physically in an employee's file. ( Tr. V. I, p. 137) . The Agenc y did not charge a violation of

r ule 59A - 35.090(3)(c) which requires an employer to m aintain eligibility

results of employ ee screening in the employee's personnel fil e. Consequently ,

it may not impose a fine for violation of that rule. Klein v. Dep't of Bus. &

Prof'l Reg. , 625 So. 2d 1237 (Fla. 2d DCA 1993). See also Trevisani v. Dep't of

Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A physician may not be

discipl ined for an offense not charged in the complaint."); Marcelin v. Dep't of

Bus. & Prof'l Reg. , 753 So. 2d 745, 746 - 747 (Fla. 3d DCA 2000)("Marcelin

first contends that the administrative law judge found that he had committed three violations which were not alleged in the administrative complaint. This

point is well taken… . We strike these violations because they are outside the

administrative complaint."); and Delk v. Dep't of Prof'l Reg. , 595 So. 2d 966,

967 (Fla. 5th DCA 1992)("[T]he conduct proved must l egally fall within the

statute or rule claimed [in the administrative complaint] to have been

violated.").

5 5 . The Agency has not proven Count VI.

Count VII (Rule 59A - 35.110)

5 6 . Rule 59A - 35.110( 2 )(a) 2 . requires ALFs to report adverse incidents. It

states:

Adverse incident reports must be submitted

electronically to the Agency within 1 business day

after the occurrence of the incident, and within 15

days after the occurrence of the incident as required in Section 429.23, F.S., on Assisted Living Facility Adverse Incident, AHCA Form 3180 - 1025

OL, April 2017, which is hereby incorporated by

reference and availiable [sic] at:

https://www.flrules.org/Gateway/reference.asp?N

o=Ref - 08778 , and through the Agency’s adverse

incident reporting system which c an only be

accessed through the Agency’s Single Sign On

Portal located at: https://apps.ahca.myflorida.com

/SingleSignOn Portal .

5 7 . Section 429.23(2)(a) defines "adverse incident" as "[a]n event over

which facility personnel could exercise control rather than as a result of a

resident's condition and results in" a list of incidents and conditions such as

brain damage, bone fractures, and transfer to a facility providing more acute

care. The alleged adverse incident is a fall while the resident was not in the

facility and the consequences of that fall . Due to its reliance upon hearsay

testimony, the Agency did not prove tha t an "advers e incident" triggering the

reporting requirement occurred. If it had proved the alleged incident, the incident was not an event over which facility personnel could exercise control.

The Agency has not proven Count VII.

Conclusion

5 8 . This is a proceeding under chapter 120 . Section s 120.569 and 120.57

give citizens and businesses a right to a n administrative hearing when they

dispute the facts that a government agency relies upon to take an action,

such as revoking a license . Buchheit v. Dep't of Bus. & Pro f'l Reg . , Div. of Fla .

Land Sales, Condos & Mobile Homes , 659 So. 2d 1220 (Fla. 4th DCA 1995) .

As reviewed earlier, long established, well known principles require an

agency to prove charges for which it intends to impose a sanction by clear and convincing evidence. This standard is more rigorous than the "preponderance

of the evidence" standard in civil proceedings , but not as rigorous as the

"beyond a reasonable doubt" standard of criminal proceedings. State v.

Graham , 240 So. 2d 486 , 488 (Fla. 2d DCA 197 0) .

5 9 . Section 120.57 (1)(c) permits hearsay evidence in administrative

hearings but specifies that hearsay evidence alone is not sufficient to support a finding of fact unless it would be admissible over objection in circuit court.

Application of the hearsay rule is no mere legal technicality. The hearsay

rule is one of the oldest and most effective means of ensuring decisions that

determine people's lives and fortunes are based on reliable information. Florida's Fifth District Cou rt of Appeal described the importance of the rule

as follows:

Rules governing the admissibility of hearsay may

cause inconvenience and complication in the

presentment of evidence but the essence of the

hearsay rule is the requirement that testimonial

asse rtions shall be subjected to the test of cross

examination. 5 Wigmore on Evidence, § 1362

(Chadbourne Rev. 1974). As stated by Professor

Wigmore, the hearsay rule is "that most characteristic rule of the Anglo - American law of

evidence -- a rule which may b e esteemed, next to

jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364.

Dollar v. State , 685 So. 2d 901, 903 (Fla. 5th DCA 1996) .

60 . A pplication of the c lear and convincing burden of proof and the limits

upon the use of hearsay play a material role in the resolution of this case.

Overlooking these principles ha s contributed to the inability of agencies to

prove charges in other proceeding s . See , e.g. , Cristal Palace Resort PB, LLC v.

Ag . for Health Care Admin. , Case No. 19 - 1667 (Fla. DOAH Mar. 17, 20 20 ),

modified in part , AHCA No. 2019000548 (AHCA May 5, 2020)

9 ; Hospice of

Fla. Suncoast, Inc. v. Ag . for Health Care Admin. , Case No. 18 - 4986 (Fla.

DOAH Sept . 17, 2019), modified in part ( Fla. AHCA Oct . 16, 2019); Ag . for

Health Care Admin . v. Blue Angel Enterprises, Inc. , Case No. 18 - 6677 (Fla.

DOAH July 5, 2019), modified in part , AHCA Nos. 2018004077 and

2018004263 (Fla. AHCA Sept. 17, 2019); Ag . for Health Care Admin . v.

Cristal Palace Resort PB, LLC , DOAH Case No. 17 - 2149 (Fla. DOAH June

29, 2018) modified in part, Case No. 2017004532 (Fla. AHCA Aug . 15, 2018) ;

MILA ALF, LLC v. Ag . for Health Care Admin . , Case No. 17 - 1559 (Fla.

DOAH May 10, 2018 ), modified in part , AHCA No. 2015010344 (Fla. AHCA

July 12, 2018); and Dep't Child. & Fam. v. Early Years Child Dev . C tr . , Case

No. 16 - 6249 (F la. DOAH M ar . 30, 2017), modified in part Rendition No. DCF -

17 - 285FO (Fla. DCF Dec. 22, 2017). Like the agencies in these cases , t he

Agency in this proceeding relied upon hearsay reports of interviews of

9 The under signed advised counsel of this O rder during a pre - hearing conference and cited it in the Pre -

hearing Order entered May 7, 2020.

residents, hearsay in survey notes, and hearsay testimony about what

documents said. This and the standard of proof contributed to the outcome in

this proceeding.

6 1 . The Agency failed to prove the charges of the Amended Administrative

Complaint by clear and convincing evidence .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Agency for Health Care Administration enter a final

order dismissing the Amended Administrative Complaint.

D ONE A ND E NTERED this 25 th day of November , 2020 , in Tallahassee,

Leon County, Florida.

J OHN D. C. N EWTON , II

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 25 th day of November , 2020 .

C OPIES F URNISHED :

Shaddrick A. Haston, Esquire

3812 Coconut Palm Drive , Suite 200

Tampa, Florida 33619

(eServed)

Andrew Beau - James Thornquest, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North , Suite 330

St. Petersburg, Florida 33701

(eServed)

Michael Roscoe, Senior Attorney

Agency for Health C are Administration

545 Mirror Lake Drive North , Suite 330

St. Petersburg, Florida 33701

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health C are Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shevaun L. Harris, Acting Secretary

Agency for Health C are Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Bill Roberts, Acting General Counsel

Agency for Health C are Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health C are Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health C are Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.