20-001773FL Agency For Persons With Disabilities vs. Angel Heart Support Services, Inc., Group Home, Owned And Operated By Angel Heart Support Services, Inc. Status: Closed Recommended Order on Monday, July 20, 2020.

Summary: APD failed to properly serve Respondent with 3 of 4 related administrative complaints. Equitable tolling applies to excuse Respondent's late request for hearing and precludes license revocation of group homes without a hearing on the merits.

P RELIMINARY S TATEMENT

Respondent, Angel Heart Support Services, Inc. ( " Angel Heart " ) , is the

owner and operator of five group homes for disabled adults in Miami - Dade

County, Florida. Petit ioner, Agency for Persons with Disabilities ( " APD " ) is

the State agency responsible for licensing and regulating group homes for

disabled adults.

On January 23, 2020, APD issued four Administrative Complaints ( " ACs " )

to A ngel Heart ' s group homes 1 throug h 4. All four ACs were sent by certified

mail and arrived at Angel Heart ' s administrative office. The ACs for group

homes 1, 2, and 3 arrived on January 30, 20 20, and were signed for by

Odra Kok, an employee of Angel Hea rt. The AC for group home 4 arrived on

February 4, 2020, and was also signed for by Ms. Kok. Ms. Kok informed the

principal of Angel Heart, Eartha Ma ys, about the AC for group home 4, but

did not inform her about the ACs for group homes 1, 2, and 3 and, in fact, lost

those documents.

Ms. M ays made a timely request for the AC for group home 4 on

February 20, 2020. Ms. Mays did not timely appeal the ACs for group

ho mes 1, 2, and 3 because she was not aware of their existence in time to

make a timely request for hearing. On March 9, 2020, APD issued Final

Orders revoking Angel Heart ' s license to operate group homes 1, 2, and 3 for

failure to timely request a hearing. Ms. Mays first became aware of the

existence of the ACs for group homes 1, 2, and 3 when she received the Final

Orders.

On Marc h 16, 2020, Angel Heart filed a Motion to Vacate Final Orders

with the Agency. APD granted that Motion by Order dated April 9, 2020, and forwarded the matters to the Division of Administrative Hearings ( " DOAH " )

f or an evidentiary hearing. The three cases w ere consolidated by Order dated

April 24, 2020. On May 21, 2020, the parties submitted an Amended Joint

Pre - Hearing Stipulation, including a statement of undisputed facts. To the

extent that the stipulated facts are relevant, the facts are adopted and inco rporated herein as necessary.

The hearing commenced as scheduled on May 27, 2020. APD presented

the tes timony of Danielle Thompson, A PD 's Agency Clerk. APD ' s Exhibits 1

through 10 were admitted. Angel Heart presented the testimony of Odra Kok

and Eartha M ays. Angel Heart ' s Exhibits 1 through 12 were admitted.

The hearing T ranscript was filed on June 17, 2020. Both parties timely

submitted their proposed recommended orders, and each has been considered

in the preparation of this Recommended Order. Except as otherwise

indicated, citations to the Florida Statute s refer to the version that was in

effect during the time in which the facts of this case occurred.

F INDINGS OF F ACT

1 . APD is the state agency charged with regulating the licensing and

operation of group home facilities pursuant to section 20.197 and c hapter 393, Florida Statutes.

2 . Angel Heart is a Florida registered corporation . Its corporate officers

are Eartha Mays and Azjah Temple. Responde nt ' s registered agent is

Eartha Mays. The address for A zjah Temple, Eartha Mays, and the

corporation is 18901 Southwest 10 6 Avenue, Suite A - 111, Miami, Florida

33157.

3 . On January 23, 2020, AP D filed AC s against the licenses of Angel

Heart ' s group homes 1 through 4.

4 . According to the United State s Postal Se rvice, the ACs for group

homes 1 thro ugh 3 were delivered to 18901 Southwest 106 Avenue,

Suite A - 111 , Miami, Florida 33157 , and signed for by Odra Kok at 12:06 p.m. ,

on January 30, 2020.

5 . Odra Kok is the group home manager for Angel Heart ' s group home 3 .

On January 30, 2020, Ms. Kok happened to be in Respondent ' s

administrative office and received and signed the certified mail receipts for

the ACs related to group homes 1, 2, and 3. Ms. Kok placed the ACs on a

table in the office and they were subsequent ly lost. Neither Ms. Mays nor

Ms. Temple was in the office at the time Ms. Kok received the ACs.

6 . Angel Heart d id not respond to the ACs for group homes 1, 2, and 3

within 21 days of January 30, 2020.

7 . On March 9, 2020, APD entered default final order s that revoked the

licenses of group homes 1, 2, and 3 . APD vacated the final orders in response

to a motion filed by Respondent.

8 . Eartha Mays timely appealed the AC for group home 4.

9 . At the time the ACs were issued in January 2020, Angel Heart was

al ready operating under a settlement agreement with APD regarding group

homes 1 through 4 that resulted from one AC issued in May 2019 against all

four group homes.

10 . The settlement agreement placed a number of requirements on

Angel Heart, including attend ance at quarterly meetings with APD officials

to review compliance issues. The four identical ACs issued in January 2020

allege that Angel Heart failed to comply with certain terms of the settlement

agreement.

11 . On February 5, 2020, one day after receiv i ng the AC for group home 4,

Eartha Mays emailed the AC to Kirk Ryon, APD ' s Regional Program

Supervisor for South Florida , to get more information. Mr. Ryon did not

inform Ms. Mays that three identical ACs had been issued for group homes 1

through 3.

12 . On February 14, 2020, Ms. Mays met with Kirk Ryon and other APD

officials in person to conduct a quarterly meeting. The purpose of the

quarterly meetings was to address any problems or complaints APD had with

Angel H eart, including compliance issues. None of the APD officials at that

meeting mentioned to Ms. Mays that there were a total of four ACs issued in

January.

13 . On February 20, 2020, Ms. Mays filed her Request for Administrative

Hearing with the APD Agency Clerk, Danielle Thompson, in response to the AC for group home 4 . Although Ms. Thompson was aware of the existence of

the other three ACs at the time of receiving the Request for Hearing on group

h ome 4, Ms. Thompson did not call or correspond with Ms. Mays to inquire as

to why she did not appeal th e other three ACs.

14 . After filing her Request for Administrative Hearing, Ms. Mays emailed

Trevor Suter, the APD attorney who authored all of the ACs, to make sure

that her Request for Administrative Hearing had been received. Mr. Suter

responded to that email later that same day, saying that he would make sure

the clerk received it. Even though he had authored all four ACs, Mr. Suter

did not call or correspond with Ms. Mays as to why she did not appeal the three other ACs.

15 . The allegations in all four ACs are identical as to Count I, and make

no distinctions as to which allegations apply to which facility.

16 . Ms. Thompson found that the Request for Administrative Hearing

filed by Ang el Heart as to group home 4 was legally sufficient, including

listing the facts alleged in the AC which were in dispute.

17 . Ms. Thompson testified that the only thing Angel Heart would have

had to do to make the Request for Administrat ive Hearing applicable to all

four ACs was to list the additional license numbers or styl e the title so it was

clea r that the appeal included all four group homes.

18 . Ms. Thompson explained that it is APDs standard procedure to give

appellants who file timely, but legally deficient requests for hearing, multiple opportunities to amend their h earing requests to address deficiencies .

Ms. Thompson will often call pro se appellants to advise of any deficiencies

and permit them extra time to refile or amend their filing. Ms. Thompson

indicated that as long as the petition for hearing was filed time ly, she would

allow appellants extra time to amend their petition even after the 21 days to

appeal had expired.

C ONCLUSIONS OF L AW

19 . The Division of Administrative Hearings has jurisdiction over the

subject matter of and parties to this proceeding. §§ 1 20.569, 120.57(1), Fla.

Stat. (2019).

20 . APD has the burden to show that notice of intended action was

received and that Respondent ' s request for hearing was untimely.

Respondent, as the party seeking equitable tolling, has the burden of proof as

to that issue. Menominee Indian Tribe of Wis. v. U.S. , 136 S. Ct. 750, 755 - 56

(2016). The standard of proof for each of the parties is a preponderance of the

evidence. § 120.57(1)(j), Fla. Stat.

21 . In relevant part, section 120.60(5) , Florida Statutes, provides:

No revocation, suspension, annulment, or

withdrawal of any license is lawful unless, prior to

the entry of a final order, the agency has served, by

personal service or certified mail, an administrative complaint which affords reasonable notice to the licen see of facts or conduct which warrant the

intended action and unless the licensee has been

given an adequate opportunity to request a

proceeding purs uant to ss. 120.569 and 120.57.

22 . The requirement that a hearing must be requested within 21 days of

rec eipt of the notice of agency action is clear. Florida Administrative Code

Rule 28 - 106.111 provides in relevant part:

(2) Unless otherwise provided by law, persons

seeking a hearing on an agency decision which does

or may determine their substantial interes ts shall

file a petition for hearing with the agency within 21

days of receipt of written notice of the decision.

* * *

(4) Any person who receives written notice of an agency decision and who fails to file a written

request for a hearing withi n 21 days waives the

right to request a hearing on such matters. This

provision does not eliminate the availability of

equitable tolling as a defense.

23 . Section 120.569(2)(c) provides that a request for hearing " shall be

dismissed if it has been untim ely filed. " The statute expressly notes that

this does not eliminate the availability of equitable tolling as a defense.

24 . In this case, the parties dispute whether the ACs were properly

served . It is undisputed that the Request for Hearing was returned more

than 21 days after service of the ACs for group homes 1 through 3.

Notice Was Not Properly Served

25 . Process against a private corporation may be served on: the president,

vice president, or other head of the corporation; in their absence, the cashie r,

treasurer, secretary , or general manager; in the absence of the previous two

categories, any director; in the absence of the previous three categories, any

officer or business agent residing in the state. § 48.081(1), Fla. Stat.

26 . Alternatively, servi ce of process can be performed on the designated

registered agent. § 48.081(3)(a), Fla. Stat. However, service can be made on

any employee of the corporation at the corporation ' s principal place of

business if service cannot be made " because of a failure t o comply with section

48.091, Florida Statutes . " (emphasis added ). § 48.081(3)(a), Fla. Stat.

A person attempting service of process can serve any employee of the

registered agent even if the registered agent is temporarily absent from the

office. § 48.081 (3)(a), Fla. Stat.

27 . APD argues that Ms. Mays serves as both the director and the

registered agent of the company and Ms. Temple serves as a member. All

share the same addres s with the corporation, 18901 Southwest 106 Avenue,

Suite A - 111, Miami, Florida — the location where the complaints were served.

Ms. Mays and Ms. Temple were, at least temporarily, away from the office at

the time of service. Ms. Kok is an employee of Ms. Mays because Ms. Mays is

the 100 percent owner of Angel Heart for which Ms. Kok wo rks . APD argues

that service on Ms. Kok was proper in this circumstance.

28 . However , APD failed to demonstrate that Angel Heart did not comply

with section 48.091, Florida Statutes, which provides in relevant part:

Every corporation shall keep the registe red office

open from 10 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays, and shall keep one or more registered agents on whom process may be served at the office during these

hours. The corporation shall keep a sign posted in

the off ice in some conspicuous place designating the

name of the corporation and the name of its

registered agent on whom process may be served.

29 . The evidence shows that Ms. Kok signed for the ACs at 12:06 p.m . No

evidence was presented regarding whether Ms. Mays, as registered agent,

was availabl e to accept service between 10:00 a.m . and noon or whether the

appropriate signage was in the office. Accordingly, APD failed to demonstrate

that notice as to group homes 1 through 3 was properly served.

Equitable Tol ling is Appropriate

30 . Assuming arguendo that service on Ms. Kok was sufficient to

constitute proper service on Angel Heart, the doctrine of equitable tolling

would excuse Angel Heart ' s delay in requesting an administrative hearing for

group homes 1 throu gh 3.

31 . In Machules v. Department of Administration , 523 So. 2d 1132, 1134

(Fla. 1988), the Florida Supreme Court stated, " [g]enerally, the tolling

doctrine has been applied when the plaintiff has been misled or lulled into

inaction, has in some extraord inary way been prevented from asserting his

rights, or has timely asserted his rights mistakenly in the wrong forum. "

32 . Regarding the use of equitable tolling in administrative proceedings ,

the Machules Court explained:

The tolling doctrine is used in th e interests of

justice to accommodate both a defendant ' s right not

to be called upon to defend a stale claim and a

plaintiff ' s right to assert a meritorious claim when

equitable circumstances have prevented a timely

filing. Equitable tolling is a type of e quitable

modification which ' focuses on the plaintiff ' s

excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant. ' Cocke v.

Merrill Lynch & Co. , 817 F.2d 1559, 1561 (11th Cir.

1987)(quoting Naton v. Bank of California , 649

F.2d 691, 696 (9th Cir. 1981)). . . The doctrine [of

equitable tolling] serves to ameliorate harsh results

that sometimes flow from a strict, literalistic

construction and application of administrative time

limits contained in statutes and rules.

Id. at 1134.

33 . The initial AC that Ms. Mays received in May 2019 addressed all four

group homes in a single document. This led Ms. Mays to believe that APD ' s

ACs address all facilities subject to the complaint in one document.

34 . Ms. Mays had multiple conta cts and communications with APD

representatives, prior to the deadline for ap pealing the ACs for group

homes 1, 2 and 3, all of whom were aware of the existence of those ACs and

all of whom failed to make her aware of the ACs in time to appeal them.

35 . On February 20, 2020, Ms. Mays filed her Request for Hearing at

10:50 a.m. a s to group home 4. Ms. Thompson testified that, at the time she

received the Request for Hearing, she was aware of the existence of the other

three ACs but made no attempt to contact Ms. Mays to inquire whether sh e

intended to appeal the other three ACs. Ms. Thompson testified that she did

not do this because she assumed Angel Heart was only disputing the fourth

one. Yet, she also testified that she routinely contacts other persons wh o file

petitions with deficiencies and gives them several opportunities to amend

their petitions, particularly pro se appellants like Ms. Mays because " they

need a little bit of procedural help with it. "

36 . On the same day, Ms. Mays re ceived emails from T revor Suter ,

counsel for APD in this case, acknowledging that he would make sure the

clerk received her appeal. As the author of all four ACs, Mr. Sute r was aware

of the existence of all four and also that the appeal he received was only for

one AC. He cou ld have, but did not, reach out to Ms. Mays to find out why she

had only appealed one.

37 . There is no reason to believe any of these APD representatives acted

intentionally to preve nt Ms. Mays from appealing all four ACs. Nevertheless ,

their conduct misle d and lulled Ms. Mays into inaction by believing that

there was only one AC.

38 . License revocation for group homes is an unacceptable harsh result

given Angel Heart ' s clear intention to di s pute the allegations of the ACs .

Accordingly, the doctrine of equ itable tolling applies to excuse Angel Heart ' s

late filing of a request for hearing as to groups homes 1 through 3.

39 . APD will not be prejudiced by accepting a late appeal from Angel

Heart for group homes 1, 2, and 3, particularly because these ACs are

v irtually identical to the AC for group home 4, for which there is already a

pending appeal.

R ECOMMENDATION

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

R ECOMMENDED that the Agency for Persons with Disabilities treat the

pending Re quest for Hearing for group home 4 as an appeal of all four

Administrative Complaints or, in the alternative, allow Angel Heart Support

Services, Inc. , an additional 21 days from the date of the Final Order to

appeal the Administrative Complaints for group homes 1, 2 , and 3.

D ONE A ND E NTERED this 20th day of July, 2020 , in Tallahassee, Leon

County, Florida.

M ARY L I C REASY

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 20th day of July , 2020 .

C OPIES F URNISHED :

Michael Paul Gennett, Esquire

Polsinelli, P.C.

1111 Brickell Avenue , Suite 2800

Miami, Florida 33131

(eServed)

Trevor S. Suter, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 315C

Tallahassee, Florida 32399 - 0950

(eServed)

Danielle Thompson

Senior Attorney/Agency Clerk

Agency for Persons with Disabilit ies

4030 Esplanade Way, Suite 3 09

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Francis Carbone, General Counsel

Agency f or Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(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.