IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of MARIANA GLIGOR, dba EVERGREEN SEASONS ADULT FAMILY HOME, Respondent,

v. STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Appellant. No. 70411-7-1 DIVISION ONE UNPUBLISHED OPINION

FILED: October 20, 2014 r*o (JZ< r~ <=> JBT J:"'*s TM CD r*i~ C~5

""—*• in.> '' rv= * ' -.. O :;- " ,*-> " 3C* 00 i"

-~- ;~l vXi

•' —! C CO CT>



### Trickey, J. — An agency's determination to revoke an adult family home license will not be sustained where the basis ofthe revocation lies in the alleged 

### poorcare and managementof the provider, such as the provider'sfailure to protect residents from the home's dog, where two ofthose same patients and the dog are 

### simply relocated to another home licensed and operated by the same provider. Such a decision is arbitrary and capricious. FACTS 

### An adult family home (AFH) is "a residential home in which a person or 

### persons provide personal care, special care, room, and board to more than one but not morethan six adults who are not related by blood ormarriageto the person 

### or persons providing the services." RCW 70.128.010(1). The Department of Social and Health Services (DSHS) licensed Mariana Gligor to operate two adult 

### family homes. Evergreen Adult Family Home (Evergreen) opened in 2000 andNo. 70411-7-1/2 

### Evergreen SeasonsAdult Family Home (ES) opened in2007.1 The licensefor ES states that the home has a specialty indevelopmental disabilities, dementia, and 

### mental health.2 On April 15, 2010, DSHS gave Gligor formal notice of a stop placement of admissions and the revocation of her license for ES.3 

### DSHS determined that Gligor had violated six separate administrative regulations:4 WAC 388-76-10020(1) License—Ability to provide care and services. [(Adult family home providermusthavethe understanding, ability, emotional stability and physical health to meet the needs of vulnerable adults.)] The licensee lacked emotional stability and understanding to provide care to two residents when one resident was reprimanded and humiliated by the licensee and another residentwas told she played withthefacility dog atherown risk afterthe dog bitthe resident. This failure placed all residents at risk for unmet needs. WAC 388-76-10220(2)0) Incident Log. [(Provider must keep a log of accidents, incidents affecting a resident's welfare, and any injury to a resident.)] The licensee failed to ensure she kept an incident log as required that documented when one resident was bitten by the facility dog. This failure resulted inthe facility having no system in place to track accidents or incidents. WAC 388-76-10230(2) Pets. [(An animal must have a suitable temperament, be clean and healthy, and otherwise pose no significant health or safety risks to any resident.) The licensee failed to ensure three residents were not exposed to a 

### facility dog afterthe dog bit a resident and urinated/defecated inthe home, including on a resident's bed. This failure resulted inharm for one resident who was bitten by the dog and placed the residents at

1 Office of Administrative Hearings Transcript ofProceedings (TR) at 25; Administrative Record (AR) at 392, Exhibit (Ex.) D-1. 2Findings ofFact 1; Ex. D-1 (License No. 750410). 3AR at 294-197. 4AR at 294-95.No. 70411-7-1/3 

### risk for additional dog bites. In addition, this failure resulted in the residents having to live in unsanitary conditions. WAC 388-76-10380(2) Negotiated care plan—Timing ofreviews and revisions. [(A negotiated plan must be reviewed and revised whenthe plan or parts ofthe plan no longeraddress resident's needs and preferences.)] The licensee failed to ensure two residents had their care plans updated when their conditions changed or incidents occurred requiring an update for care and services. This failure placed the residents at risk for unmet needs. WAC 388-76-10400(2)(3)(a)(b) Care and services. [(Provider must ensure each resident receives necessary care and services to help 

### resident reach highest level of physical, mental, and psychosocial well-being consistent with resident choice, current functional status, 

### and potential for improvement or decline. Provider must ensure the care and services are provided in a manner that actively supports 

### each resident's quality oflife and the safety ofeach resident.)] The licenseefailed to ensuretwo residents received appropriate care 

### and services in a mannerthat actively supported and improved their 

### quality of life. The licensee's delivery of inappropriate care and services related to the residents' diagnoses resulted in harm for one resident, who suffered mental anguish and a sudden involuntary 

### discharge and harm foranother resident, who sustained a dog bite and did not have her mental health issues appropriately addressed. WAC 388-76-10615(2)(a)(3)(6) Resident rights—Transfer and 

### discharge. [(Before a home transfer or discharge, a resident must 

### attempt through reasonable accommodations to avoid transfer unless agreed to by the resident. The home must give notice of the transfer at least 30 days before resident istransferred ordischarged 

### and give the resident preparation and orientation toensure safe and orderly transferfrom the home.)] The licensee failed to ensure one resident received an appropriate 

### discharge from the adult family home. This failure resulted in sudden, disorderly discharge. 

### Gligor contested the revocation. In October 2010, an Administrative Law 

### Judge (ALJ) held a four-day administrative hearing, receiving testimony from 19No. 70411-7-1/4 witnesses and reviewing 24 exhibits as well as written closing arguments and reply 

### arguments.5 Counsel represented Gligor at that hearing. ALJ Andrea Conklin issued an initial order that upheld DSHS's violations 

### with the exception of having an unclean dog and no incident log.6 The ALJ found that Gligor's violation ofthe administrative regulations cited by DSHS placed the residents of ES in danger and revocation was appropriate. Gligor appealed the ALJ's decision to the DSHS Board of Appeals. The Board ofAppeals issued a 42-page written decision upholding the ALJ's decision 

### with slight modifications. Gligorappealedthatdecision to the superiorcourt, which upheld mostoftheviolations, but found thatthe remedy imposedwas arbitraryand capricious. DSHS appeals. ANALYSIS Standard of Review 

### The Washington Administrative ProcedureAct(APA), chapter34.05 RCW, governs judicial review offinal agency action. RCW34.05.510; Tapper v. Emp't Sec. Dep't, 122Wn.2d 397,402, 858 P.2d 494 (1993). When reviewing an agency 

### action, this court sits in the same position as the superior court, applying the 

### standards of the APAdirectlyto the record before the agency. Tapper, 122Wn.2d at 402. "The findings of fact relevant on appeal are the reviewing officer'sfindings offact—even those that replace the ALJ's." Hardee v. Dep't of Soc. & Health Servs., 172Wn.2d 1, 19, 256 P.3d 339 (2011) (citingTapper, 122Wn.2d at 406).

5AR at 179; TR at 1-733. 6AR at 179-191.No. 70411-7-1/5
Conclusions of law are reviewed de novo under an error of law standard. Wilson


### v. Emp't Sec. Dep't. 87 Wn. App. 197, 201, 940 P.2d 269 (1997). A reviewing courtdefersto an agency's interpretation ofambiguous statutes ifthe matter is withinthe agency's expertise. Williams-Batchelderv. Quasim. 103 Wn. App. 8,13-14,19 P.3d421 (2000) (citing St. Martin's Coll. v. Dep'tofRevenue. 68 Wn. App. 12, 15-16 841 P.2d 803 (1992)). This court grants relief from the reviewingjudge's orderifthe "orderis not supported by evidencethatis substantial when viewed in light ofthe whole record before the court." RCW 34.05.570(3)(e). Relief will also be granted where the "order is arbitrary or capricious." RCW 34.05.570(3)(h)(i). Arbitrary and Capricious RCW70.128.160 authorizes DSHS to impose a remedy againstadultfamily home providers for noncompliance with applicable statutes or regulations. These remedies include civil penalties, "stop placement" ofnew residents, or suspension

or revocation of a license. RCW70.128.160(2)(c)-(g); WAC 388-76-10940. DSHS 

### is required to impose a remedy when violations are repeated, uncorrected, 

### pervasive, or present a threat to the health, safety, orwelfare ofresidents. WAC 388-76-10945. However, DSHS's choice of remedy is discretionary and may include one ofthe following: (1) Denial ofan application for a license; (2) Impose reasonable conditions on a license; (3) Impose civilpenalties; (4) Order stop placement; and/or (5) Suspension or revocation of a license.
WAC 388-76-10940.No. 70411-7-1/6 

### This court reviews legal issues de novo, including whether a decision is arbitrary and capricious. Dodge City Saloon, Inc. v. Wash. State Liquor Control Bo\, 168 Wn. App. 388, 395, 288 P.3d 343, rev, denied. 176 Wn.2d 1009 (2012). Here, even if DSHS proved each and every allegation, the remedy of license revocation underthese circumstances was arbitrary and capricious. Arbitrary and capricious actions are those that disregard the facts and circumstances, and are unreasoned and withoutconsideration. Heinmillerv. Dep't ofHealth, 127 Wn.2d 595, 609, 903 P.2d 433, 909 P.2d 1294 (1995). The right to 

### be free from arbitrary and capricious actions is a fundamental right. Williams v. Seattle Sch. Dist. No. 1. 97 Wn.2d 215, 221-22, 643 P.2d 426 (1982). RCW 

### 70.128.160(2)(b)-(f) gives the agency authority to impose reasonable conditions, civil penalties, or a license suspension as well as license revocation. 

### The APA requires an adjudicative proceeding for revocation, suspension,

or modification of a license. RCW 34.05.422(1)(c). As noted inConway v. WashState Dep'tofSoc. &Health Servs., 131 Wn. App. 406, 417, 120 P.3d 130 (2005), 

### such a decision isdiscretionary and capableofbeing reviewed. Although the court cannotsubstitute a differentremedy, itcan determine ifthe remedy is arbitrary and capricious. 

### The question we are faced with here, is not whetherthere was substantial 

### evidence to support the violations, but rather whether the remedy applied is 

### arbitrary and capricious, even where wefind thatsufficientevidence supported the reviewingjudge's decision.No. 70411-7-1/7 The DSHS adultfamily home licenser, EstelleSylvester, testified thatDSHS 

### permitted the residentsto move to Evergreen, the other home operated byGligor.7 At the time, Gligor had no residents at Evergreen, and had not had any for two 

### years, butmaintained herlicensethere.8 Sylvesterconducted twofull inspections, two follow-up inspections, a complaintinvestigation, and six monitoring visits ofthe 

### two homes.9 Sylvester testified that the residents from ES were relocated to Evergreen. Sylvester had no concern with the moving of the residents to Evergreen. Her only concern was that the residents be informed and that they receive a 30-day notice and an opportunity go visitthe home to see if it would be comfortable.10 

### In August 2010, Sylvester conducted a full inspection of the Evergreen 

### home. The resident whom the dog had bitten, really liked the dog.11 The other remaining residenttold Sylvesterthatthe dog did not bother him. 

### DSHS argues that it did not have authority to prevent the relocation of residents to Evergreen because the license is for the home, not the provider, and there were no enforcement actions pending against Evergreen. However, WAC 388-76-10985(2) provides: 

### Ifviolations in an adultfamily home are ofsuch nature as to present a serious risk or harm to residents of other homes operated by the 

### sameprovider, the departmentmay impose remedies onthose other homes.

7TR at 296. 8TR at 314. 9TR at 260. 10TR at 295. 11 TR at 315-16.No. 70411-7-1/8 

### The availability of other, more appropriate sanctions, makes the remedy imposed allthe more arbitrary and capricious. IfDSHS trulyfound the violations presented

a serious risk ofharm to the remaining two residents, those residents should never have been permitted to move with the same provider. That DSHS did notthink so is evidenced by its permitting the residents to be moved there. Accordingly, even though the record contained sufficient evidence to support the reviewing judge's decision as to the violations, we agree with the superiorcourtthat the remedy imposed was arbitrary and capricious. We affirm in part, reverse in part, and remand for further proceedings consistentwith this opinion. 

# *\s\ A.M ^ +

WE CONCUR:

)jLClL 

# CSL