 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of
                                                No. 70411-7-1
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MARIANA GLIGOR, dba EVERGREEN                                                 <=>

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STATE OF WASHINGTON                                                            CO
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DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
                                                FILED: October 20, 2014
                    Appellant.


       Trickey, J. — An agency's determination to revoke an adult family home

license will not be sustained where the basis of the revocation lies in the alleged

poor care and management of the provider, such as the provider's failure to protect

residents from the home's dog, where two of those 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 more than six adults who are not related by blood or marriage to 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 and
No. 70411-7-1/2


Evergreen Seasons Adult Family Home (ES) opened in 2007.1 The license for ES

states that the home has a specialty in developmental 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 provider must have the 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 resident was told she played
       with the facility dog at her own risk after the dog bit the 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 in the 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 after the dog bit a resident and urinated/defecated in the
       home, including on a resident's bed. This failure resulted in harm for
       one resident who was bitten by the dog and placed the residents at


1 Office of Administrative Hearings Transcript of Proceedings (TR) at 25; Administrative
Record (AR) at 392, Exhibit (Ex.) D-1.
2 Findings of Fact 1; Ex. D-1 (License No. 750410).
3AR at 294-197.
4 AR 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 of reviews
      and revisions. [(A negotiated plan must be reviewed and revised
      when the plan or parts of the plan no longer address 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 of life and the safety of each resident.)]

      The licensee failed to ensure two residents received appropriate care
      and services in a manner that 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 for another 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 is transferred or discharged
      and give the resident preparation and orientation to ensure safe and
      orderly transfer from 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 19
No. 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 of the 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 of Appeals issued a 42-page written decision upholding the ALJ's decision

with slight modifications. Gligor appealed that decision to the superior court, which

upheld most of the violations, but found that the remedy imposed was arbitrary and

capricious. DSHS appeals.

                                    ANALYSIS


Standard of Review

       The Washington Administrative Procedure Act (APA), chapter 34.05 RCW,

governs judicial review of final agency action. RCW 34.05.510; Tapper v. Emp't

Sec. Dep't, 122 Wn.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 APA directly to the record before the agency. Tapper, 122 Wn.2d

at 402. "The findings of fact relevant on appeal are the reviewing officer's findings

of fact—even those that replace the ALJ's." Hardee v. Dep't of Soc. & Health

Servs., 172Wn.2d 1, 19, 256 P.3d 339 (2011) (citing Tapper, 122Wn.2d at 406).




5 AR at 179; TR at 1-733.
6 AR 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 court defers to an agency's interpretation of ambiguous statutes

if the matter is within the agency's expertise. Williams-Batchelder v. Quasim. 103

Wn. App. 8,13-14,19 P.3d 421 (2000) (citing St. Martin's Coll. v. Dep't of Revenue.

68 Wn. App. 12, 15-16 841 P.2d 803 (1992)). This court grants relief from the

reviewing judge's order ifthe "order is not supported by evidence that is substantial

when viewed in light of the 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

       RCW 70.128.160 authorizes DSHS to impose a remedy against adult family

home providers for noncompliance with applicable statutes or regulations. These

remedies include civil penalties, "stop placement" of new 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, or welfare of residents. WAC

388-76-10945.      However, DSHS's choice of remedy is discretionary and may

include one of the following:

       (1)   Denial of an application for a license;
       (2)   Impose reasonable conditions on a license;
       (3)   Impose civil penalties;
       (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 under these circumstances was arbitrary and capricious.

      Arbitrary and capricious actions are those that disregard the facts and

circumstances, and are unreasoned and without consideration. Heinmillerv. Dep't

of Health, 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 in Conway v. Wash-

State Dep't of Soc. & Health Servs., 131 Wn. App. 406, 417, 120 P.3d 130 (2005),

such a decision is discretionary and capable of being reviewed. Although the court

cannot substitute a different remedy, it can determine ifthe remedy is arbitrary and

capricious.

       The question we are faced with here, is not whether there was substantial

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

arbitrary and capricious, even where we find that sufficient evidence supported the

reviewing judge's decision.
No. 70411-7-1/7


       The DSHS adult family home licenser, Estelle Sylvester, testified that DSHS

permitted the residents to move to Evergreen, the other home operated by Gligor.7

At the time, Gligor had no residents at Evergreen, and had not had any for two

years, but maintained her license there.8 Sylvester conducted two full inspections,

two follow-up inspections, a complaint investigation, and six monitoring visits of the

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 visit the 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 resident told Sylvester that the 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:

       If violations in an adult family home are of such nature as to present
       a serious risk or harm to residents of other homes operated by the
       same provider, the department may impose remedies on those other
       homes.




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


The availability of other, more appropriate sanctions, makes the remedy imposed

all the more arbitrary and capricious. If DSHS truly found the violations presented

a serious risk of harm to the remaining two residents, those residents should never

have been permitted to move with the same provider. That DSHS did not think 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

superior court that the remedy imposed was arbitrary and capricious.

       We affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.




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WE CONCUR:




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