21-002299FL Agency For Persons With Disabilities vs. 168 Street Group Home Owned And Operated Sunrise Community, Inc. Status: Closed Recommended Order on Tuesday, December 14, 2021.

Summary: APD failed to prove by clear and convincing evidence that Respondent failed to provide sufficient supervision. DCF's verified findings of abuse, neglect, or exploitation against employees of Respondent did not warrant revocation of group home license.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A GENCY F OR P ERSONS W ITH

D ISABILITIES ,

Petitioner ,

vs. Case No. 21 - 2299FL

168 S TREET G ROUP H OME O WNED A ND

O PERATED B Y S UNRISE C OMMUNITY , I NC . ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge (ÑALJÒ) Darren A.

Schwartz of the Division of Administrative Hearings (ÑDOAHÒ) for final

hearing on October 19 through 21, 2021, at a site in Miami , Florida , and by

Zoom conference.

A PPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Radhika Puri, Esquire

Agency for Persons with Disabilities

4030 E splanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

For Respondent: Steven Weinger, Esquire

Weinger Law

1881 South Bayshore Drive

Miami, Florida 33133

S TATEMENT OF T HE I SSUE

Whether the group home license of Respondent , 168 Street Group Home

Owned and Operated by Sunrise Community, Inc. (ÑRespondentÒ or

ÑSunrise Ò ) , should be revoked based on the charges alleged in the

Administrative Complaint.

P RELIMINARY S TATEMENT

On July 6, 2021, Petitioner , Agency for Persons with Disabilities (ÑAPDÒ) ,

issued a three - count Administrative Complaint against Respondent, seeking

to revoke RespondentÔs group home license. Respondent timely filed a request

for a formal administrative hearing to contest the allegations. Subsequently,

APD referred the matter to DOAH to assign an AL J to conduct the final

hearing.

The final hearing w as held on October 19 through 21, 2021, at a site in

Miami, Florida , and by Zoom conference , with all parties present. At the

hearing, APD presented the testimony of Latorria Grier, Cathleen Rosa, and

Margarita Singer , all of whom are employed by the Depar tment of Children

and Families (ÑDCFÒ) as adult protective investigator supervisors; Salvado

Sotomayor, DCF records custodian ; and Kim Walsh, APD government

operations consultant II. APDÔs Exhibits 1 through 3, 6 , 7, 10 , and 11 were

received into evidence. Respondent presented the testimony of Kathleen

Childs, Jameson Dormann, Favad Mallick, and Iviana Rico Arango, all of

whom are employees of Sunrise Community, Inc. RespondentÔs Exhibits 1 , 3 ,

4 (pages 38 - 43 only), 5 through 8, 12 through 14, 17, 19, 22 , 2 3 (pages 398,

399, 428, 490, and 493 only), 24 (pages 981 and 982 only), and 2 7 were

received into evidence.

Th e parties agreed that proposed recommended orders would be filed at

DOAH no later than 15 days after the filing of the final hearing Tran script.

The three - volume final hearing Transcript was filed at DOAH on

November 4, 2021 , and therefore, the parties Ô proposed recommended orders

were due by Friday, November 19, 2021 . APD timely filed its Proposed

Recommended Order on November 1 9, 2021, at 4:42 p.m. On Friday,

November 19, 2021, at 5:09 p.m., Respondent attempted to file its Proposed

Recommended Order. B ecause RespondentÔs P roposed R ecommended O rder

was not received at DOAH until after 5:00 p.m. on November 19, 2 0 21,

pursuant to Florida Adm inistrative Code Rule 28 - 106.104(3), it was not

deemed filed until the following Monday, November 22, 2021, at 8:00 a.m .

There is no prejudice to APD because of RespondentÔs late - filed Proposed

Recommended Order. Accordingly, the partiesÔ proposed recomme nded orders

have been considered in the preparation of this Recommended Order.

On October 12, 2021, Respondent filed its Unilateral Pre - Hearing

Statement. On October 13, 2021, APD filed its Unilateral Pre - Hearing

Statement. At the outset of the final h earing, Respondent stipulated to the

ÑStatement of Those Facts Which Are AdmittedÒ within paragraphs one

through four on page seven of APDÔs Unilateral Pre - Hearing Statement.

These facts have been incorporated into this Recommended Order as

indicated below .

Unless otherwise indicated, all statutory and rule references are to the

versions in effect at the time of the alleged violations.

F INDINGS OF F ACT

Parties and Background

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

operation of foster care facilities, group home facilities, and residential

centers, pursuant to section 393.067, Florida Statutes.

2. Under section 393.063(19), a group home facilit y means a residential

facility Ñwhich provides a family living environment includi ng 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 4 but not more than

15 residents. Ò

3. Sunrise Community, Inc. , is a registered and active Florida not - f or -

profit corporation which owns many group home facilities in s ix states.

Sunrise Community, Inc. , currently employs approximately 2 , 500 individuals

and serves 1 , 500 residents within these six states.

4. Sunrise Community, Inc. , is the licensee of the gr oup home facility

known as 1 68 Street Group Hom e. Sunrise Community, Inc. , acquired 1 68

Street Group Home in 1998 .

5. 168 Street Group Home provides a family living environment within a

four - bedroom, residential, single - family structure with a combined to tal of

not more than six adult residents with developmental disabilities.

6. At all times material hereto, Respondent cared for residents H.E. and

J.K., persons diagnosed with a Ñdevelopmental disability,Ò meaning Ña

disorder or syndrome that is attributab le to intellectual disability, cerebral

palsy, autism, spina bifida, Down syndrome, Phelan - McDermid syndrome, or

Prader - Willi syndrome ; that manifests before the age of 18; and that

constitutes a substantial handicap that can reasonably be expected to

cont inue indefinitely . Ò § 393.063(12), Fla. Stat.

7 . Count I of the Administrative Complaint arises out of the death of H.E.

on June 23, 2020. Following H.E.Ôs death, DC F commenced an investigation

which APD alleges resulted in DCFÔs verified findings of negl ect of a

vulnerable adult against Patricia Smith (ÑMs. SmithÒ) . APD alleges that

ÑDCF determined that . . . [Ms.] Smith was responsible for H.E.Ôs

asphyxiation and death, as she was responsible for ensuring adequate

supervision of H.E. at mealtime and arou nd food. Ò APD alleges that , based on

section 393.0673, it ÑmayÒ revoke RespondentÔs license based solely on DCFÔs

verified findings. APD further alleges that Respondent violated Florida

Administrative Code R ule 65G - 2.009(6)(a) Ñby failing to ensure that H. E.

received a sufficient level of supervision to protect him from harm.Ò

8 . Count II of the Administrative Complaint arises out of an injury to J.K.

on March 16 , 2021 , while he was riding in the group home van . Following

J.K.Ôs injury , DCF commenced an in vestigation , which APD alleges resulted

in DCFÔs verified findings of neglect of a vulnerable adult against

Jacquelyn Fremont (ÑMs. FremontÒ) , Ñfor failing to ensure J.K.Ôs seatbelt was

buckled during transportation . Ò APD alleges that Respondent violated

s ection 393.0673 by being verified as responsible for the neglect of J.K.

9 . Count III of the Administrative Complaint arises out of an injury to

J.K. on January 11, 2021 , when he fell in RespondentÔs group home and

sustained an injur y to his f oot . Follow ing J.K.Ôs in jury, DCF commenced an

investigation which resulted in verified findings of medical neglect and

inadequate supervision by Ms. Smith. APD alleges that Respondent violated

section 393.0673 by being verified as responsible for the neglect of J.K. Ñand

failing to remove or otherwise take remedial measures with respect to

Patricia Smith, despite her being previously found by DCF as the person

responsible for the asphyxiation and death of [H.E.]Ò

10. A verified finding by DCF in an investigation is based on the

Ñpreponderance of the evidence standard.Ò

Count I Ï Incident Involving H.E. on June 23, 2020

1 1 . H.E. was a resident of 168 Group Home for 20 years prior to June 23,

2020. On June 23, 2020, H.E. was a 51 - year - old male previously diagnosed

wi th a profound intellectual disability (IQ of 19), seizure disorder, asthma,

and organic brain syndrome. H.E. also suffered from gastroenterological

reflux disorder (ÑGERDÒ) and psychosis for which he was prescribed

medications and under the care of a p hysi cian .

1 2 . H.E. had a documented history of eating food too quickly, stealing

food, and putting too much food in his mouth at one time. H.E.Ôs Support Plan

noted these tendencies and ensured that he was properly supervised by staff

when eating.

1 3 . The part ies stipulated that , on J une 23, 2 0 2 0, at the 168 Street Group

Home, H.E. went to use the bathroom approximately three hours after eating

dinner. The group home staff person who was serving as the direct care

worker that evening ( Ms. Smith ) followed H.E. t o the bathroom where he had

started vomiting. Ms. Smith contacted 911, successfully performed

Cardiopulmonary Resuscitation (Ñ CPR Ò) , and followed the other approved

procedures. H.E. was alive when the paramedics arrived and alive at Jackson

South Hospital . H.E. d ied sometime later that evening while in the care of

Jackson South Hospital.

1 4 . The parties further stipulated that the cause of death listed on H.E. Ôs

death certificate was aspiration pneumonia, autism, organic brain disorder,

and seizure disorde r.

1 5 . Prior to the subject incident, Ms. Smith was aware of H.E.Ôs particular

dietary needs and food behaviors. Ms. Smith had worked with H.E. and

Respondent for 20 years. Over this 20 - year period, H.E. would have received

a total of approximately 20,000 meals while residing at 168 Street Group

Home .

1 6 . Ms. Smith was properly trained in nutritional management, which

included how to prepare and serve food to residents and monitor residents at

mealtimes. In addition, Ms. Smith was properly trained in CPR, choking, the

Heimlich Maneuver, and dealing with residents having trouble breathing and

swallowing. Ms. Smith had received this training on an annual basis for 20

years.

1 7 . At hearing, APD provided no witnesses with first - hand knowledge of

the specific facts involved in th is incident. Instead, APD presented DCF

incomplete investigative reports (lacking medical records) and DCF

supervisorsÔ testimony regarding DCFÔs investigati ons .

1 8 . DCF commenced an investigation which resulted in DCFÔs verified

fin ding of n eglect of a vulnerable adult ag ainst Ms. Smith for the June 23,

2020, incident involving H.E. There was no verified finding of abuse, neglect ,

or exploitation of a vulnerable adult against Respondent. Respondent

self - reported the incident , fully cooperated with all matters regarding DCFÔs

investigation , and submitted a corrective action plan regarding the incident

which was suitable to APD .

1 9 . There is no evidence that H.E. vomited because of a lack of supervision

at dinner , hours earlier. Ther e is no evidence that anything went wrong at

H.E.Ôs mealtime or at any time on June 23, 2020, regarding H.E.Ôs

involvement with food. The re is nothing to suggest there was any improper or

injurious behavior on the part of H.E. involving his ingestion of fo od during

the evening of June 23, 2020.

20 . DCF expressly found that the allegation of inadequate supervision was

unsubstantiated and not verified.

2 1 . At hearing, Ms. Grier acknowledged that she could not say that H.E.

ate too much food on the evening o f June 23, 2020 . Ms. Grier further testified

that there is no indication of why H.E. vomited that evening.

2 2 . Ms. Grier further testified that there is no indication that

asphyxiation was the cause of H.E.Ôs death based on the death certificate;

that she could not say that H.E. died from asphyxiation due to maltreatment

by Ms. Smith; and that death by maltreatment was only added to the DCF

investigative report because H.E. died , not because of any lack of care .

2 3 . Ms. Grier further testified that there is nothing in the DCF

investigative report to indicate that anyone at 168 Street Home or any staff

members were negligent with respect to causing H.E.Ôs death.

2 4 . At hearing, Ms. Walsh also testified that there is no evidence that , on

the evening o f June 23, 2020, H.E. overate, became aggressive with food, took

food, or did anything else inappropriate or unsafe regarding food. Ms. Walsh

further testified she could not say what staff at the group home could have

done regarding the care and supervisio n of H.E. during the evening of

June 23, 2020 , to prevent H. E.Ôs death.

2 5 . In fact, Ms. Walsh acknowledged that it would take an extraordinary

provider to be able to safely serve H.E. for 20 years; t hat there was no basis

for Sunrise to discipline Ms. Smi th for her conduct on the day of H.E.Ôs

medical catastrophe ; a nd that Sunrise did not do anything wrong by failing to

discipline Ms. Smith with regard to the incident involving H.E. on June 23,

2020.

2 6 . In sum, APD failed to prove by clear and convinci ng evidence that

H.E. died of asphyxiation; that Ms. Smith was responsible for H.E.Ôs death

Ñby asphyxiation Ò ; and that Respondent failed to ensure that H.E. received a

Ñ sufficient level of supervision to protect him from harm , Ò in violation of

rule 65G - 2. 009(6)(a) , as alleged in the Administrative Complaint.

Count III Ï Incident Involving Resident J.K. on January 11, 2021

2 7 . J . K . was a resident of RespondentÔs group home for decades prior to

January 11, 2021. As of the date of the January 11, 2021, inci dent, J.K. was a

75 - year - old male with intellectual disabilities and other conditions .

2 8 . On January 11, 2021, J.K. fell out of bed in RespondentÔs group home

sustaining an injury to his toe.

2 9 . On January 13, 2021, J.K. was taken to his primary care p hysician,

where an x - ray confirmed a fracture d toe .

30 . At hearing, APD provided no witnesses with first - hand knowledge of

the specific facts involved in the incident involving J.K.

3 1 . Following J.K.Ôs injury, DCF commenced an investigation which

resulted in verified findings of medical neglect and inadequate supervision by

Ms. Smith. There was no verified finding of abuse, neglect , or exploitation of

a vulnerable adult against Respondent.

3 2 . Following J.K.Ôs injury, Respondent conducted an investigation.

RespondentÔs Executive Director , Manny Fernandez , expressly found that

Ms. Smith Ñhad no excuse for waiting two days to seek medical careÒ for J.K.,

and that her failure to immediately take J.K. Ñto the ER or Urgent Care,

constitut ed Ñ a serious lack of ju dgment , Ò in direct violation of Sunrise policy.

As a direct result of this incident, Ms. SmithÔs employment with Respondent

was terminated.

Count II Ï Incident Involving Resident J.K. on March 21, 2021

3 3 . On March 16, 2021, Ms. Fremont , an employee o f Respondent for over

20 years, was driving RespondentÔs group home van in which J.K. was a

passenger. At some point while Ms. Fremont was driving the van , J.K. stood

up, fell, and hit his head.

3 4 . J.K. was taken to an outpatient urgent care center , wher e he was

evaluated, treated for a cut on his head which required stitches , and sent

home.

3 5 . The stitches were removed within a couple weeks, J.K. completely

recovered from the incident, and, a s of the date of the final hearing, J.K.

continues to reside at RespondentÔs group home.

3 6 . Ms. Fremont received defensive driving training, including training on

driver safety and use of seatbelts, prior to the subject incident. There is no

evidence of any other accidents or injuries to an y other residents or oc cupants

of a van driven by Ms. Fremont prior to March 16, 2021.

3 7 . At hearing, APD provided no witnesses with first - hand knowledge of

the specific facts involved in the incident involving J.K.

3 8 . Following J.K.Ôs injury, DCF commenced an investigation w hich

resulted in DCFÔs verified findings of neglect of a vulnerable adult against

Ms. Fremont Ñfor failing to ensure J.K.Ôs seatbelt was buckled during

transportation.Ò There was no verified finding of abuse, neglect , or

exploitation of a vulnerable adult against Respondent.

3 9 . As a result of this incident, Respondent issued a written warning to

Ms. Fremont for failing to ensure proper safety of J.K. during transport ,

which resulted in J.K. sustaining an injury in direct violation of Sunrise

policy.

C ONCLUSIONS OF L AW

40 . DOAH has jurisdiction over the subject matter and parties pursuant to

sections 120.569 and 120.57(1), Florida Statutes.

4 1 . This is a proceeding whereby APD seeks to revoke RespondentÔs

lic ense to operate a group home. A proceeding to impose discipline against

RespondentÔs license is penal in nature, and APD bears the burden to prove

the allegations in the Administrative Complaint by clear and convincing

evidence. DepÔt of Banking & Fin., Di v. of Sec. & Investor Prot. v. Osborne

Ste r n & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987) ; Bridlewood G r oup Home v. Ag . for Pers . w ith Disab s . , 136 So. 3d

652, 656 (Fla. 2d DCA 2013) .

4 2 . The clear and convincin g evidence standard :

R equires that the evidence must be found to be

credible ; the facts to which the witnesses testify

must be distinctly remembered ; the testimony must

be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The

evidence must be of such weight that it produces in

the mind of the trier o f fact a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established.

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

4 3 . In a proceeding to revoke a license , APD cannot rely solely on

wrongdoing or negligence committed by an employee of the licensee; rather,

APD Ñmust prove that the licens e e was at fault somehow for the employeeÔs

conduct, due to th e licenseeÔs own negligence, intentional wrongdoing, or lack

of due diligence.Ò Bridlewood Group Home , 136 So. 3d at 656.

4 4 . Moreover, charges in a disciplinary proceeding must be strictly

construed , with any ambiguity construed in favor of the lic ensee. Munch v.

Dep't of Prof'l Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA

1992). T he allegations set forth in the Administrative Complaint are those

upon which this proceeding is predicated. Cottrill v. DepÔt of Ins. , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996). Due process prohibits APD from taking

disciplinary action against a licensee based on conduct not specifically alleged

in the Administrative Complaint. Id ; see also Delk v. DepÔt of ProfÔl Reg. , 595

So. 2d 966, 967 (Fla. 5th DCA 1 992).

4 5 . Turning to the instant case, APD, relying on Bridlewood Group Home ,

specifically alleges in paragraph 30 of the Administrative Complaint that

Ñ[b]y failing to take any action with respect to Ms. Smith for the incident

involving H.E., Resp ondent was negligent, lacked due diligence, and engaged

in grossly negligent misconduct that led to the incident involving J.K. Ò APD

further alleges that Ñ Respondent knew of SmithÔs verified misconduct for

negligence in the death of H.E. and failed to take any appropriate remedial

action against Smith.Ò

4 6 . However, as detailed above, APD conceded at hearing that neither

Ms. Smith nor Respondent were negligent or engaged in any conduct which

caused H.E. Ôs death ; that there was no basis for Sunrise to d iscipline

Ms. Smith for her conduct on the date of H.E.Ôs medical catastrophe; that

Sunrise did not do anything wrong in failing to take any action against

Ms. Smith for the incident involving H.E. ; and that the allegation of

inadequate supervision was uns ubstantiated and not verified.

4 7 . Rule 65G - 2.009(6)(a), entitled Resident Care and Supervision

Standards, provides in pertinent part:

(a) Each facility must provide the level of

supervision necessary to ensure that residents are

protected from h arm and that a safe and healthy

living environment is created and maintained.

Direct service providers must b e given specific

information and strategies to provide such an

environment for all of residents of the facility. To

the maximum extent possible, ho wever, the facility

shall respect the rights of residents to privacy and

self - determination.

4 8 . As detailed above, APD did not prove by clear and convincing evidence

that Respondent failed to provide the level of supervision necessary to ensur e

that H.E. was protected from harm . Accordingly, Respondent did not violate

rule 65G - 2.009(6)(a). 1

4 9 . In any event, s ection 393.0673( 1 )(b) expressly provides that APD

"may" revoke or suspend a license or impose an administrative fine, not to

excee d $1,000 per violation per day, if DCF "has verified that the licensee 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. Smith and Ms. Fremont , only , and no verified finding s as to the

licensee.

50 . Even if APD " could " impose discipline against Respondent based on

the verified findings by DCF, the question remain s whether Respondent' s

group home licens e should be revoked . Relying in its Proposed Recommended

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

section 393.0673(2)(b), APD argues that revocation of Respondent Ô s group

home li cense is justified .

5 1 . In Comfortable Living in Good Hands v. Ag ency for Persons with

Disab ilities , 14 - 0689 (Fl orida DOAH July 2, 2014 ; APD July 18, 2014 ), upon

which APD principally relies, a pro se litigant's application for initial

licensure of a foster care facility was denied by APD because of inaccurate

answers in the application. 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 revie w of the application and verification

1 A violation of rule 65G - 2.009(6)(a) constitutes a Class I violation. A Class I violation may be

penalized by revocation of a license. § 393.0673, Fla. Stat.; Fla. Admin. Code R . 65G -

2.0041(4)(a). In the instant case, APDÔs reliance on rule 65G - 2.009(6)(a) as a basis for its

proposed revocation is confined to Count I , the only alleged Class I violation . To the extent

APD may seek to rely on rule 65G - 2.009(6)(a) as a purported ground for revocation under

Counts II and III, it is beyond the scope of the Admin istrative Complaint. Even if APD could

process, APD found there had been eight verified findings of neglect against

her. At hearing, the applicant contended that some of the allegations

pertaining to the DCF verified findings of neglect "may not have been

c ompletely accurate." Judge David Watkins stated: "whether the allegations

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)."

5 2 . Unlike Comfortab le Living ( and other ALJ decisions cited in APDÔs

Proposed Recommended Order ) , the instant case involves proposed discipline

against a facility already licensed. As APD acknowledges in its Proposed

Recommended Order, the instant case is penal in nature.

5 3 . The undersigned agrees that DOAH and APD lack s jurisdiction to

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

Ms. Smith and Ms. Fremont . However, the specific facts and circumstances

and other factors pertaining to the violations are relevant to the dispositive

issue of whether Respondent Ô s group home license should be revoked b ased

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

Ms. Smith and Ms. Fremont . Ag . for Persons with Disa b s . v. Adams Grou p

Home, Inc., 18 - 2106FL (Fla. DOAH Aug . 22, 2018; APD Fin . O r . Appr .

Settlement Jan . 4 , 2019).

5 4 . Rule 65G - 2.0041 , effective July 1, 2014, represents APD's

interpretation and application of the discretionary term "may" contained

within section 393.0 673(2)(b). Rule 65G - 2.0041 sets forth various factors APD

"shall" consider in determining whether to pursue disciplinary action in

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

Ñinvolving the licensee or direct service providers r endering services on behalf

of the licensee.Ò In other words, rule 65G - 2.0041 dictates when a license

should be revoked or disciplined , where, as in the instant case, APD's

rely on this rule as a purported ground under Counts II and III, APD failed to prove by clear

and convincing evidence that Respondent violated the rule with respect to these counts .

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

explo itation on the part of direct service providers of the licensee . 2 In its

Proposed Recommended Order, APD fails to address rule 65G - 2.0041.

PetitionerÔs reliance on recommended orders from other ALJ s involving

conduct prior to the effective date of rule 65G - 2.0041 , and not even discussing

t he application of the rule , are misplaced .

5 5 . Rule 65G - 2.0041 provides as follows:

65G - 2.0041 License Violations Ï Disciplinary

Actions.

(1) Determination of disciplinary action involving

abuse, neglect, or exploit ation. In determining

whether to pursue disciplinary action in response

to verified findings by the Department of Children

and Families of abuse, neglect, or exploitation

involving the licensee or direct service providers

rendering services on behalf of th e licensee, the

Agency will consider the licensee's corrective action

plan and other actions taken to safeguard the

health, safety, and welfare of residents upon

discovery of the violation. Considerations shall

include the following:

(a) Whether the licen see properly trained and

screened, in compliance with Section 393.0655,

F.S., the staff member(s) responsible for the

violation;

(b) Whether, upon discovery, the licensee

immediately reported any allegations or suspicions

of abuse, neglect, or exploitatio n 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

2 Under section 393.063(12), direct service provider Ñmeans a person 18 years of age or older

who has direct face - to - face contact with a client while providing services to the client or has

access to a clientÔs living areas or to a clientÔs funds or personal property.Ò

appropriate actions necessary to safeguard the

health, safety and w elfare of residents during and

after any investigations.

(e) Whether the occurrence 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 det ermining 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, a bandonment, 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 propert y, or loss of property or

client funds;

(b) The actions already taken or being 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 repe at

violation;

(d) The number of residents served by the facility

and the number 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 v iolation, or attempted to conceal

the violation;

(f) The licensee's cooperation 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 th e 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 wit hin 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 t he imposition of a moratorium on new

resident admissions.

(c) The intentional 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. Th e 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

superv isory 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 fa cility's license.

(4) Sanctions. Fines shall be imposed, pursuant 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. E ach day a v iolation occurs or

continues to occur constitutes a separate violation

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 c ause or pose an immediate threat of death or

serious harm to the 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 th e 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 circumstances 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 i n the licensees' position should

have known that the covered person'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 suspen sion,

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 h as occurred.

3. All Class I violations must be abated or corrected

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 viola tions 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 residents 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 penaliz ed by a fine of

up to $500 dollars per day per violation.

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

admi ssions to the facility.

2. A fine may be levied notwithstanding 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 main tenance

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 even 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.

5 6 . In the instant case, Respondents fully cooper ated in the

investigations and there w as no willful conduct .

5 7 . As to the incident involving H.E., Respondent self - reported the

incident and Ms. Smith was properly trained for dealing with H.E.Ôs unique

eating needs . In addition, there is no evidence tha t H.E. vomited because of a

lack of supervision at dinner , hours earlier. There is no evidence that

anything went wrong at H.E.Ôs mealtime or at any time on June 23, 2020,

regarding H.E.Ôs involvement with food. There is nothing to suggest there

was any im proper or injurious behavior on the part of H.E. involving his

ingestion of food during the evening of June 23, 2020. DCF expressly found

that the allegation of inadequate supervision was unsubstantiated and not

verified. There was no negligence on the par t of Ms. Smith or Respondent

resulting in H.E.Ôs death. Accordingly, no discipline of Ms. Smith was

warranted as acknowledged by APD at hearing . Nevertheless, Respondent

submitted a corrective action plan suitable to APD.

5 8 . Notably, APD decided not to p ropose any disciplinary action

against Respondent based on DCF's verified finding until July 6, 2021, more

than one year after H.E.Ôs death.

5 9 . Moreover, despite having knowledge of DCF's verified finding upon

completion of DCF's investigations, APD ren ewed Respondent' s license. This

indicates that APD did not consider DCFÔs verified finding on the part of

Ms. Smith, standing alone at the time of these occurrences, as justifying any

disciplinary action against RespondentÔs group home license.

60 . It was only after the conduct alleged in Counts II and III that APD

decided to take proposed disciplinary action to revoke RespondentÔs license.

APD attempts to justify its most recent and only proposed agency action

against RespondentÔs license based largely on conduct that occurred over one

year earlier, for which APD took absolutely no action other than renewing

RespondentÔs license.

6 1 . As to the two incidents involving J.K. in Counts II and III ,

Ms. Smith and Ms. Fremont were properly trained, and there wa s no

negligence on the part of Respondent. Nevertheless, Respondent undertook

investigations and immediate and appropriate actions necessary to safeguard

the health, safety, and welfare of J.K. during and after any investigations.

6 2 . As a result of the January 13, 2021, incident, Ms. Smith was

terminated. As a result of the March 21, 2021, incident, Ms. Fremont

received a written reprimanded. J.K. fully recovered from his injuries and

remains a thriving resident of RespondentÔs group home.

6 3 . The speci fic facts and circumstances before, during, and after the

violations militate against the revocation of RespondentÔs group home license.

6 4 . For the detailed reasons discussed above and based on the unique

and particular facts of this case, Respondent Ô s l icense should not be revoked

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

exploitation on the part of Ms. Smith and /or Ms. Fremont .

R ECOMMENDATION

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

R ECOMMENDED that Petitioner , Agency for Persons with Disabilities , enter a

f inal o rder dismissing the Administrative Complaint against Respondent .

D ONE A ND E NTERED this 1 4 th day of December , 2021 , in Tallahass ee,

Leon County, Florida.

S

D ARREN A. S CHWARTZ

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 4 th day of December , 2021 .

C OPIES F URNISHED :

Trevor S. Suter, Esquire Steven Weinger, Esquire

Agency for Persons With Disabilities Weinger Law

4030 Esplanade Way , Suite 380 1881 South Bayshore Drive

Tallahassee, Florida 32399 - 0950 Miami, Florida 33133

Crystal Jarvis, Agency Clerk Francis Carbone , General Counsel

Agency for Persons With Disabilities Agency for Persons With Disabilities

4030 Esplanade Way , Suite 309 4030 Esplanade Way , Suite 380

Talla hassee, Florida 32399 - 0950 Tallahassee, Florida 32399 - 0950

Barbara Palmer, Director Radhika Puri, Esquire

Agency for Persons With Disabilities Agency for Persons With Disabilities

4030 Esplanade Way , Suite 3 80 4030 Esplanade Way , Suite 3 09

Tallahassee, Florida 32399 - 0950 Tallahassee, Florida 32399 - 0950

N OTICE OF R IG HT 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.