97-005693
Gwendolyn Whittingham vs.
Agency For Health Care Administration
Status: Closed
Recommended Order on Tuesday, April 21, 1998.
Recommended Order on Tuesday, April 21, 1998.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8GWENDOLYN WHITTINGHAM, )
11)
12Petitioner, )
14)
15vs. ) Case No. 97-5693
20)
21AGENCY FOR HEALTH CARE )
26ADMINISTRATION, )
28)
29Respondent. )
31__________________________________)
32RECOMMENDED ORDER
34Pursuant to notice, the Division of Administrative Hearings,
42by its duly designated Administrative Law Judge, William J.
51Kendrick, held a formal hearing in the above-styled case on
61March 18, 1998, in Miami, Florida.
67APPEARANCES
68For Petitioner: Gwendolyn Whittingham, pro se
7415560 Northwest 26th Avenue
78Miami, Florida 33054
81For Respondent: Edward M. Lerner, Esquire
87Agency for Health Care Administration
928355 Northwest 53rd Street
96Miami, Florida 33166
99STATEMENT OF THE ISSUE
103At issue in this proceeding is whether Petitioner's
111application for a license to operate an Assisted Living Facility
121should be approved.
124PRELIMINARY STATEMENT
126Petitioner, as the applicant for a license to operate an
136Assisted Living Facility (ALF), was notified by Respondent on
145October 16, 1997, that her application had been denied for the
156following reasons:
158Submission of a fraudulent statement on the
165notarized application form. The application
170form asks if you have been arrested for a
179crime involving injury to persons. You wrote
186a comment stating "no injury". The
193background screening results from the Florida
199Department of Law Enforcement revealed that
205you have been arrested and convicted of
212aggravated assault and were received in the
219Florida Department of Corrections on 03/12/92
225and discharged on 11/03/95. Submission of a
232fraudulent statement on the notarized
237application form is grounds for denial of
244this application, section 400.414(2)(i), F.S.
249An individual who is convicted of a crime
257involving injury to persons is considered not
264to be of suitable character to provide
271continuing adequate care to residents,
276section 400.414(2)(b), F.S.
279Failure to provide a complete application
285package. In a letter dated 09/16/97 you were
293informed that the application package was
299incomplete and that additional documentation
304must be provided on or before 10/07/97 or the
313application would be denied. You did not
320provide the requested documentation. The
325Agency is unable to verify that the applicant
333can provide adequate care to residents
339without a complete application package being
345on file, section 400.411(1), F.S.
350Petitioner responded to Respondent's letter of denial on
358October 21, 1997, and disputed the grounds advanced by the Agency
369for the denial of her application. Consequently, the matter was
379referred to the Division of Administrative Hearings for the
388assignment of an administrative law judge to conduct a formal
398hearing pursuant to Sections 120.569, 120.57(1), and 120.60(3),
406Florida Statutes.
408At hearing, Petitioner testified on her own behalf, but
417offered no further proof. Respondent called Mary Ippolito,
425Jo Ann Linch, and Elizabeth Werner as witnesses, and the
435Respondent's Exhibits 1 through 9 and 11 were received into
445evidence. 1
447The transcript of the hearing was filed April 6, 1998, and
458the parties were accorded ten days from that date to submit
469proposed recommended orders. Respondent elected to file such a
478proposal, and it has been duly considered in the preparation of
489this recommended order.
492FINDINGS OF FACT
495Petitioner's application and the Agency's denial
5011. On or about September 5, 1997, Petitioner, Gwendolyn
510Whittingham, submitted an application to Respondent, Agency for
518Health Care Administration (Agency), for initial licensure of a
5274-bed Assisted Living Facility (ALF) to be known as Gwen's
537Heavenly Resort, and to be located at 15560 Northwest 26th
547Avenue, Opa Locka, Florida. Respondent was named as the owner
557and proposed administrator.
5602. Pertinent to this case, item VIIA on the application,
570entitled "Criminal Abuse History," required that Petitioner
577answer yes or no to the following question by checking the
588appropriate box:
590Has any owner, administrator, partner, or
596director ever been arrested for -- or
603convicted of-- a crime involving injury to
610persons, or involving financial or business
616management (e.g. assault, battery,
620embezzlement, or fraud)?
623The question further provided:
627If the answer . . . is "YES" attach a
637separate letter of explanation stating the
643charges, dates of arrest/conviction, and
648disposition for each incident. Check will be
655made for each applicant.
659Petitioner did not check either the "YES" box or the "NO" box,
671but wrote in the words "No Injury."
6783. Also pertinent to this case, item VIII of the
688application provided the following "application checklist" for an
696initial licensure application:
699_____ Are all sections on this application
706completed?
707_____ Is the application signed & notarized
714below?
715_____ Completed Attachment A - Statement of
722Operations?
723_____ Completed Attachment B - Statement of
730Assets & Liabilities?
733_____ Completed Attachment C - Zoning
739Certificate?
740_____ Have you attached Proof of Business
747Liability Insurance?
749_____ Have you submitted the correct fee?
756The check list included the following cautionary statement:
764Please note that your application may be
771denied for failure to submit the
777documentation required above.
7804. Item IX of the application called for the signature of
791the owner or administrator, and that the application be
800notarized. The following affirmation was required:
806The undersigned hereby swears (or affirms)
812that the statements in this application, and
819its attachments, are true and correct and
826that to the best of my knowledge and belief
835all persons in ownership or employment are of
843good moral character, and that the ownership
850possesses sufficient funds to operate this
856facility in a satisfactory manner.
8615. Apart from not responding directly to item VIIA, the
871application submitted by Petitioner (Respondent's Exhibit 7) was
879not signed and notarized; did not include a "Statement of
889Operations"; did not include a "Statement of Assets &
898Liabilities"; did not include a "Zoning Certificate" verified by
907the local government authority; and did not include "Proof of
917Business Liability Insurance." Moreover, Petitioner did not sign
925the application form for the "Florida Protective Services System
934Background Check" she submitted, and the fee she submitted
943($138.00) was, as discussed infra , not adequate.
9506. By letter of September 16, 1997, the Agency advised
960Petitioner that it had received her application and the fee she
971had tendered. The letter further advised Petitioner that:
979The application submitted was found to be
986incomplete. The information or documentation
991requested below must be received back in this
999office by 10/07/97 or your application will
1006be denied.
1008APPLICATION
1009The application form you submitted has not
1016been in use by this Agency in over six years.
1026This form is not acceptable. A current
1033application form is enclosed. Please
1038complete the current application form and
1044have it notarized.
1047FEE
1048The fee submitted is incorrect because you
1055submitted an outdated application package.
1060The correct fee cannot be determined until
1067you submit a current application form. The
1074current application fee is $253 plus $33 for
1082each private pay bed. If a bed is to be
1092designated for a recipient of OSS services,
1099there is no per bed fee. Please refigure the
1108fee due and submit the remaining balance due.
1116INSURANCE
1117You must submit proof of current business
1124liability insurance coverage for the
1129operation of the Assisted Living Facility. A
1136copy of a certificate of insurance form or a
1145copy of the policy declarations page that
1152includes the facility name, street address,
1158type of facility, type of insurance issued,
1165and the beginning and ending effective dates
1172of coverage. Binders are not acceptable.
1178(Please do not send the entire policy.)
1185Since you are unsure of the effective date of
1194the license, you may submit proof that
1201insurance coverage will begin at a future
1208date. However, no license will be issued
1215until proof of insurance has been provided.
1222FIRE SAFETY
1224Please contact the local fire marshal's
1230office that has jurisdiction over the
1236physical location of the facility. A
1242satisfactory fire safety inspection must be
1248completed before you can be licensed. Please
1255submit a copy of the inspection report as
1263proof the inspection has been completed. The
1270report submitted must indicate that any cited
1277deficiencies have been corrected or that you
1284are approved for ALF licensure.
1289SANITATION INSPECTION REPORT
1292Please submit a copy of the sanitation
1299inspection report completed by your county
1305public health unit environmental services
1310office. The report submitted must indicate
1316that the inspection report was satisfactory
1322(any cited deficiencies have been corrected).
1328ZONING
1329You must contact the Department of Children
1336and Family Services, Community Residential
1341Home Coordinator, Ellison Shapiro, (305) 377-
13477511, to obtain Form 1786 if the ALF will be
1357in a single family or multiple family zoned
1365area. The white copy of this form should be
1374sent to the agency.
1378Verification of zoning approval must be
1384provided from the city or county zoning
1391office having jurisdiction where the facility
1397is located. (This would be the zoning
1404office, not Ellison Shapiro's office.)
1409Zoning authorities must complete the Assisted
1415Living Facility Form 3180-1007, or provide a
1422letter on their letterhead stationery showing
1428the name and address of the facility and that
1437it is approved for use as an ALF. If the
1447local zoning office will not complete the
1454form, please submit proof that the zoning
1461office has had the opportunity to approve or
1469deny your request. (A dated, signed,
1475handwritten note from the zoning authority
1481and a business card stapled to the form would
1490be acceptable.)
1492HIV TRAINING
1494Please complete and submit the enclosed HIV
1501Education Confirmation form. This form is
1507used to verify that all employees have been
1515trained or will be trained in the required
1523HIV education material.
1526ASSETS AND LIABILITIES STATEMENT
1530Please complete the enclosed assets and
1536liabilities statement or provide a current
1542balance sheet. Directions are on the reverse
1549side of the form. You may desire to seek the
1559assistance of a bookkeeper or an accountant
1566in completing this form. The Agency must be
1574able to verify that you have the financial
1582ability to operate an ALF before your
1589application can be approved. The form must
1596be consistent with the application and the
1603statement of operation form.
1607STATEMENT OF OPERATION
1610Please complete the enclosed statement of
1616operation form. Directions are on the
1622reverse side of the form. This form is a
1631projection of anticipated expenses for the
1637first year of operation. Directions for
1643completing the form are on the reverse side
1651of the form. Please consider seeking
1657professional help, such as a bookkeeper or an
1665accountant in completing the form. The
1671information on this form must be consistent
1678with the application submitted and the assets
1685and liabilities statement.
1688WARRANTY DEED/LEASE AGREEMENT
1691You must provide proof that the applicant has
1699the legal right to occupy the premises.
1706Please submit a copy of the recorded warranty
1714deed or a lease agreement in the applicant's
1722name. If the corporation does not own the
1730property, a lease agreement should be
1736submitted between the property owner and the
1743corporation.
1744FLOOR PLAN
1746Submit a floor plan of the facility
1753indicating those rooms and areas that are to
1761be licensed as part of the ALF. Each room
1770should be labeled indicating the use of the
1778room (example: bedroom, living room,
1783bathroom, kitchen). The plan should be drawn
1790on 8 1/2" X 11" paper. A simple hand drawn
1800plan is acceptable. Architectural drawings
1805are too large to fit into the Agency's files
1814and should not be submitted to meet this
1822requirement.
1823BACKGROUND SCREENING
1825Florida Abuse Hotline Information System
1830Background Form AHCA 3110-0003 must be
1836completed by each ALF owner with 10 percent
1844or more interest, the administrator, general
1850partner, each limited partner, and corporate
1856officers (president, vice-president,
1859secretary, and treasurer). The fee for
1865background screening is included in the
1871license fee. Please complete and sign the
1878form.
18797. Petitioner did not respond to the Agency's letter of
1889September 16, 1997. Consequently, by letter of October 16, 1997,
1899the Agency advised Petitioner as follows:
1905Your application for an initial license to
1912operate the above Assisted Living Facility
1918(ALF) is denied. It has been determined by
1926the Agency for Health Care Administration
1932that your application does not meet nor
1939comply with the standards as an ALF pursuant
1947to section 400.414, Florida Statutes (F.S.),
1953and Chapter 58A-5, Florida Administrative
1958Code (F.A.C.).
1960The specific basis for this determination
1966is:
1967Submission of a fraudulent statement on
1973the notarized application form. The
1978application form asks if you have been
1985arrested for a crime involving injury to
1992persons. You wrote a comment stating "no
1999injury". The background screening results
2005from the Florida Department of Law
2011Enforcement revealed that you have been
2017arrested and convicted of aggravated
2022assault and were received in the Florida
2029Department of Corrections on 03/12/92 and
2035discharged on 11/03/95. Submission of a
2041fraudulent statement on the notarized
2046application form is grounds for denial of
2053this application, section 400.414(2)(i),
2057F.S.
2058An individual who is convicted of a crime
2066involving injury to persons is considered
2072not to be of suitable character to provide
2080continuing adequate care to residents,
2085section 400.414(2)(b), F.S.
2088Failure to provide a complete application
2094package. In a letter dated 09/16/97 you
2101were informed that the application package
2107was incomplete and that additional
2112documentation must be provided on or before
211910/07/97 or the application would be
2125denied. You did not provide the requested
2132documentation. The Agency is unable to
2138verify that the applicant can provide
2144adequate care to residents without a
2150complete application package being on file,
2156section 400.411(1), F.S.
2159The letter further advised Petitioner of her right to request a
2170formal administrative hearing to challenge the Agency's decision
2178to deny her application.
21828. By letter of October 21, 1997, Petitioner responded to
2192the Agency's letter of denial, and requested a formal hearing.
2202With regard to the Agency's charge that she had submitted a
2213fraudulent statement by stating "No Injury" in response to
2222item VIIA, Petitioner stated her response was accurate because "I
2232stated that I was convicted [and] wrote in the words 'no
2243injuries' because it was worded as if with injury only." In
2254response to the claim that her "conviction of a crime involving
2265injury to others" rendered her of unsuitable character to qualify
2275for licensure, Petitioner apparently disputed the Agency's
2282contention that the crime involved injury to others, or that she
2293was otherwise disqualified. She did not, however, dispute her
2302conviction of a crime, which resulted in a sentence of
2312imprisonment for a term of three years. Finally, with regard to
2323the Agency's claim that she had failed to submit a complete
2334application package, Petitioner responded, "I have no idea nor
2343was I told of any documents missing out of package - please
2355provide copy of document request and whatever documents are
2364needed."
2365Petitioner's criminal conviction
23689. Pertinent to Petitioner's conviction of a criminal
2376offense, the proof demonstrates that on or about September 17,
23861990, an Information was filed in the Circuit Court, Dade County,
2397Florida, under Case No. 90-34662, which charged that Petitioner
2406did, on August 27, 1990:
2411. . . unlawfully and feloniously commit an
2419aggravated assault upon OFFICER GARCIA, a Law
2426Enforcement Officer during the course of or
2433in the scope of said victim's duty and/or
2441engaged in the lawful performance of his or
2449her duty, by intentionally threatening by
2455word or act to do violence to said victim,
2464coupled with an apparent ability to do so, by
2473point a SHOTGUN at said victim and threatened
2481to kill him with a DEADLY WEAPON, to wit: A
2491SHOTGUN, in violation of 784.021 and 784.07
2498and 775.0823 and 775.087 Florida Statutes.
2504Based on the facts alleged, the Information charged Petitioner
2513with three counts or violations of law, as follows:
2522I. AGGRAVATED ASSAULT ON A LAW ENFORCEMENT
2529OFFICER 784.021 & 784.07 & 775.0823 Fel.
2536II. IMPROPER EXHIBITION OF A DANGEROUS
2542WEAPON
2543III. RESISTING OFFICER WITHOUT VIOLENCE TO
2549HIS PERSON
255110. On or about February 27, 1992, Petitioner was tried and
2562found guilty of Count I, Aggravated Assault on a Law Enforcement
2573Officer with a Deadly Weapon (a shotgun), a second degree felony
2584proscribed by Sections 784.021, 784.07, 775.0823, and 775.087,
2592Florida Statutes. As a result, Petitioner was sentenced to a
2602term of three years and committed to the custody of the
2613Department of Corrections until her discharge on November 3,
26221995, upon expiration of her sentence.
2628Further findings regarding Petitioner's failure
2633to file a complete application
263811. At hearing, Petitioner did not dispute her application
2647was incomplete or that the Agency, by letter of September 16,
26581997, had requested additional information and documentation.
2665Rather, in an apparent effort to avoid the consequences of an
2676incomplete application, Petitioner averred she did not receive
2684the Agency's letter of September 16, 1997.
269112. If true, Petitioner's plea does not excuse her failure
2701to file a complete application or foreclose the Agency from
2711relying on the incompleteness of the application as a basis for
2722denial. Rather, what is dispositive is that, within 30 days of
2733its receipt of the application, the Agency provided Petitioner
2742with written notice by mail, at her address of record, of the
2754errors or omissions in her application. The timely notice to
2764Petitioner, which was not returned by the United States Postal
2774Service, and not the actual receipt of the letter by Petitioner,
2785preserves the Agency's right to deny the application as
2794incomplete. Subsections 120.60(1) and (3), Florida Statutes.
2801Notably, notwithstanding the de novo nature of these proceedings,
2810Petitioner had not, as of the date of hearing, corrected the
2821omissions in her application.
2825CONCLUSIONS OF LAW
282813. The Division of Administrative Hearings has
2835jurisdiction over the parties to, and the subject matter of,
2845these proceedings. Sections 120.569, 120.57(1), and 120.60,
2852Florida Statutes.
285414. Pertinent to this case, Section 400.14(2), Florida
2862Statutes, provides that the Agency may deny an application for
2872licensure on the following grounds:
2877(b) The determination by the agency that
2884the facility owner or administrator is not of
2892suitable character or competency, or that the
2899owner lacks the financial ability, to provide
2906continuing adequate care to residents,
2911pursuant to the information obtained through
2917s. 400.411, s. 400.417, or s. 400.434.
2924* * *
2927(i) A fraudulent statement on an
2933application for a license or any other
2940documents required by the agency that is
2947signed and notarized.
295015. Here, the Agency predicates its denial under subsection
2959400.14(2)(b) on the incompleteness of Petitioner's application,
2966as well as Petitioner's conviction of aggravated assault, as
2975proscribed by Section 784.021, Florida Statutes. First, with
2983regard to the incompleteness of the application, the Agency has
2993demonstrated that Petitioner's application failed to provide the
3001information required by Section 400.411, Florida Statutes, and
3009Rule 58A-5.014, Florida Administrative Code; that it provided
3017Petitioner with timely notice of the omissions; that Petitioner
3026failed to correct the deficiencies; and, that absent such
3035information, the Agency could not reasonably verify the
3043applicant's ability to provide adequate care to residents.
3051Second, with regard to Petitioner's conviction of aggravated
3059assault, the Agency has demonstrated that, pursuant to Section
3068435.03(2)(g), Florida Statutes, Petitioner is disqualified from
3075the licensure she seeks. 2
308016. Finally, the Agency contends Petitioner's application
3087should be denied under subsection 400.14(2)(i) because, in
3095response to the question "[Have you] . . . ever been arrested
3107for -- or convicted of -- a crime involving injury to
3118persons . . . ?" Petitioner responded "No injury." According to
3128the Agency, such response was fraudulent.
313417. Here, it cannot be reasonably concluded that
3142Petitioner's response was false or misleading, or that she
3151knowingly and intentionally sought to deceive the Agency. 3 As
3161importantly, since the application was not "signed and
3169notarized," no violation of subsection 400.14(2)(i) could be
3177shown under any circumstances. 4
3182RECOMMENDATION
3183Based on the foregoing Findings of Fact and Conclusions of
3193Law, it is
3196RECOMMENDED that a Final Order be entered which denies
3205Petitioner's application for a license to operate an Assisted
3214Living Facility.
3216DONE AND ENTERED this 21st day of April, 1998, in
3226Tallahassee, Leon County, Florida.
3230___________________________________
3231WILLIAM J. KENDRICK
3234Administrative Law Judge
3237Division of Administrative Hearings
3241The DeSoto Building
32441230 Apalachee Parkway
3247Tallahassee, Florida 32399-3060
3250(850) 488-9675 SUNCOM 278-9675
3254Fax Filing (850) 921-6847
3258Filed with the Clerk of the
3264Division of Administrative Hearings
3268this 21st day of April, 1998.
3274ENDNOTES
32751/ Petitioner's objection to Respondent's Exhibit 10 was
3283sustained, and it was not received in evidence.
32912/ Petitioner may, however, apply for an exemption from
3300disqualification under Section 435.07, Florida Statutes.
33063/ To establish that an applicant committed a violation of
3316subsection 400.14(2)(i), the Agency must show not only that the
3326applicant provided false or misleading information on her
3334application, but that she did so knowingly and intentionally.
3343Gentry v. Department of Professional and Occupational Regulations ,
3351293 So. 2d 95, 97 (Fla. 1st DCA 1974) (statutory provision
3362prohibiting physician from "[m]aking misleading, deceptive and
3369untrue representations in the practice of medicine" held not to
3379apply to "representations which are honestly made but happen to be
3390untrue"; "[t]o constitute a violation, . . . the legislature
3400intended that the misleading, deceptive and untrue representations
3408must be made willfully (intentionally)"). Accord, Munch v.
3417Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st
3427DCA 1992), and Walker v. Department of Business and Professional
3437Regulation , 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998).
34474/ In determining whether Petitioner violated the provisions of
3456subsection 400.14(2)(i), as alleged, one "must bear in mind that
3466it is, in effect, a penal statute. . . . This being true, the
3480statute must be strictly construed and no conduct is to be
3491regarded as included within it that is not reasonably proscribed
3501by it." Lester v. Department of Professional and Occupational
3510Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
3520COPIES FURNISHED:
3522Gwendolyn Whittingham, pro se
352615560 Northwest 26th Avenue
3530Miami, Florida 33054
3533Edward M. Lerner, Esquire
3537Agency for Health Care Administration
35428355 Northwest 53rd Street
3546Miami, Florida 33166
3549Sam Power, Agency Clerk
3553Agency for Health Care Administration
3558Fort Knox Building 3, Suite 3431
35642727 Mahan Drive
3567Tallahassee, Florida 32308-5403
3570Paul J. Martin, General Counsel
3575Agency for Health Care Administration
35802727 Mahan Drive
3583Tallahassee, Florida 32308-5403
3586NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3592All parties have the right to submit written exceptions within 15
3603days from the date of this Recommended Order. Any exceptions to
3614this Recommended Order should be filed with the agency that will
3625issue the Final Order in this case.
- Date
- Proceedings
- Date: 06/26/1998
- Proceedings: Final Order filed.
- Date: 04/15/1998
- Proceedings: Respondent`s Proposed Recommended Order (filed via facsimile).
- Date: 04/06/1998
- Proceedings: Transcript filed.
- Date: 03/18/1998
- Proceedings: CASE STATUS: Hearing Held.
- Date: 03/12/1998
- Proceedings: (Respondent) Motion for Abatement filed.
- Date: 03/12/1998
- Proceedings: (Respondent) Witness and Exhibit List for Hearing; Exhibit filed.
- Date: 03/10/1998
- Proceedings: Order Denying Abatement sent out.
- Date: 03/10/1998
- Proceedings: (Respondent) Ex-Parte Motion for to Compel and Expedite Discovery (filed via facisimile) filed.
- Date: 03/09/1998
- Proceedings: (Respondent) Notice of Taking Deposition filed.
- Date: 03/09/1998
- Proceedings: (Respondent) Motion for Abatement (filed via facisimile) filed.
- Date: 03/02/1998
- Proceedings: Notice of Substitution of Counsel filed.
- Date: 02/23/1998
- Proceedings: (From E. Lerner) Notice of Appearance filed.
- Date: 01/07/1998
- Proceedings: Notice of Hearing sent out. (hearing set for 3/18/98; 8:45am; Miami)
- Date: 12/23/1997
- Proceedings: Joint Response to Initial Order (filed via facsimile).
- Date: 12/11/1997
- Proceedings: Initial Order issued.
- Date: 12/05/1997
- Proceedings: Notice; Request for Formal Administrative Hearing, letter form; Agency Action Letter filed.
Case Information
- Judge:
- WILLIAM J. KENDRICK
- Date Filed:
- 12/05/1997
- Date Assignment:
- 03/16/1998
- Last Docket Entry:
- 06/26/1998
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO