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Avalon's Assisted Living, LLC v. Agency for Health Care Admin.

Florida Court of Appeal, First District

November 30, 2011

AVALONS ASSISTED LIVING, LLC d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park, and Avalon's Assisted Living II, LLC d/b/a Avalon's Assisted Living at Southmeadow, Appellant,
v.
AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.

Rehearing Denied Jan. 4, 2012.

Page 348

John E. Terrel, of Law Office of John E. Terrel, P.A., Tallahassee, for Appellant.

Dwight O. Slater, Senior Attorney; and Tracy Lee Cooper, Chief Appellate Counsel, of Agency for Health Care Administration, Tallahassee.

PER CURIAM.

In this appeal, Appellants, which are two six-bed Florida limited liability corporations, challenge an amended final order issued by the enforcement agency, Agency for Health Care Administration (the Agency), revoking Appellants' assisted living facility licenses, denying their licensure renewal applications, and imposing administrative fines. After conducting a complaint investigation, the Agency filed an administrative complaint comprising Counts One through Four. Concluding that the Agency's support for Counts One through Three consisted of uncorroborated hearsay, we reverse the Agency's conclusion that these claims were proven. § 120.57(1)(c), Fla. Stat. (2009) (" Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." ). Count Four alleged (1) a demonstrated pattern of deficient performance by one of the Appellants, as well as (2) Appellants' owners/administrators' operation of a third Florida facility, Avalon III, without obtaining a valid license or qualifying for a license exemption. Because the Agency offered only uncorroborated hearsay to support its " history of deficient performance" claim, we reverse the Agency's conclusion that it was proven.

This leaves for our review only the findings of the administrative law judge (ALJ), adopted by the Agency, relating to the " unlicensed activity" claim. The Florida Legislature has defined " assisted living facility" as follows in the Assisted Living Facilities Act:

" Assisted living facility" means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.

§ 429.02(5), Fla. Stat. (2009). Because Appellants' licenses were at stake, the Agency, as the complainant, had the burden to prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292, 294-95 (Fla.1987). Appellants contend, first, that the ALJ relied on uncorroborated hearsay in making crucial factual findings concerning the allegation that Appellants' owners/administrators were operating an unlicensed assisted living facility, Avalon III. Second, Appellants assert that upon realizing that the Agency had not met its burden of proof, the ALJ improperly shifted the burden to Appellants to disprove the critical findings of fact.

Specifically, Appellants argue that the Agency failed to present any witness at the administrative hearing who had first-hand knowledge that the facility in question was providing personal services " for a period of 24 hours to one or more adults who are not relatives of the owner or administrator," which are material elements of the statutory definition of assisted living facility. Our review of the testimony discloses competent substantial evidence that Avalon III provided personal services such as washing clothes and feeding, bathing, grooming, and administering

Page 349

medications to its residents. The Agency's only admissible evidence concerning when, and how long, those residents were at the facility is as follows. Gaccia Brown, a former employee at Avalon III, testified that the facility had five or six residents when she worked there for six weeks in Summer 2009. Her shifts ranged from 8:00 A.M. to 8:00 P.M. She relieved someone when her shift began and someone relieved her when her shift ended. Brown's testimony that she never saw a resident leave the facility at the end of the day or arrive in the morning does not foreclose the possibility that these residents were at the facility for periods less than 24 hours, for the record does not indicate that Brown was present from 8:00 in the evening until 8:00 in the morning.

Enid Atkinson, a visiting registered nurse, testified that she provided intermittent assessments to some residents at Avalon III between June and July 2009. In one instance, she arrived at the facility sometime between 6:30 and 7:00 A.M. and awakened her patient to take blood and prepare her for breakfast.

Antoinette Williams, a licensed practical nurse, testified that she provided assistance with activities of daily living for one resident at Avalon III beginning at 8:00 A.M. on August 5, 2009, which coincided with the Agency's " unlicensed activity" survey of the premises. This was Williams' first visit to Avalon III and she worked approximately three hours that day on a shift that was scheduled to end at 7:00 P.M. Williams met with a nurse who indicated he had stayed overnight with his resident, and Williams received an overnight report. Williams assumed that the other residents at the facility had also spent the whole night there, for she observed unmade beds and closets with clothing and personal items. She also observed staff helping the residents get out of bed and setting up breakfast. No one testified about working a late-night or early-morning shift that covered the period from 8:00 P.M. until daybreak, and the overnight report referenced by Williams was not entered into evidence.

On the element of whether the residents were relatives [1] of the owner or administrator, competent substantial evidence demonstrates that Chiqquittia Carter-Walker had an office at Avalon III and held herself out to the staff and visitors as the administrator of the facility. Her husband, Robert Lee Walker, Jr., held himself out as having an ownership interest in the facility. The Agency asked Atkinson if she had knowledge whether her patients were related to Carter-Walker or another owner or administrator. The ALJ denied an objection based on " leading and speculation." Atkinson testified that as part of her assessments, she had to ask for " next of kin." Carter-Walker's name was not given for either resident. Vanessia Bulger, an Agency Health Facility Evaluator II, testified she had performed a survey at Avalon III on August 5, 2009, based on a complaint the facility was ...


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