STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, HEALTH ) FACILITIES PROGRAM, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1344

) ORA INDUSTRIES, INC., HOSPITALITY ) CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, in Room 132, Department of Health and Rehabilitative Services, at 1217 Pearl Street, Jacksonville, Florida, at 11:00 A.M. on January 11, 1977.

APPEARANCES

For Petitioner: Mr. Robert M. Eisenberg

Department of Health and Rehabilitative Services

Post Office Box 2417 F Jacksonville, Florida 32231

For Respondent: Mr. Edward J. Brazil

Vice President of Operations ORA Industries, Inc.

225 Peachtree Street, Northeast, Suite 1612 Atlanta, Georgia 30303

FINDINGS OF FACT

Upon consideration of the admissible oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. By letter dated May 24, 1976, respondent was informed of petitioner's intention to impose an administrative fine against respondent in the amount of

   $2,000.00 for unacceptable violations of Chapter 400 of the Florida Statutes and Chapter 10D-29 of the Florida Administrative Code. The violations were found during a survey conducted on April 19 and 20, 1976, and during an appraisal visit by a professional nurse from petitioner's office on March 4, 1976. Among the violations cited were failures to provide protection of patients from neglect; failure to provide adequate and accurate nursing practices; failure to call for a physician when necessary and obtain orders for medication and treatment; administration of medication without a physician's direct order; failure to obtain the required services of at least two physicians to provide

   regular, consultative and emergency service to patients, failure to provide nursing service policies and procedures manuals meeting the total needs of patients; unsigned medical records; and inadequacy of records relating to monthly fire drills. The letter of May 24, 1976, is attached hereto and is made a part of these findings of fact the same as if fully set forth herein.

   
   

2. Respondent does not contest the charges set forth in the May 24, 1976 letter and stipulates that, at the time of the investigations referred to therein, the deficiencies existed and the violations charged therein were true. The purpose for respondent's request for and appearance at the administrative hearing was to present evidence in mitigation of the amount of the proposed

   $2,000.00 fine. The majority of evidence presented by respondent was of a hearsay nature and thus is not sufficient in itself to support a finding of fact in this recommended order.

   
   

3. Mr. Edward J. Brazil became employed with ORA Industries, Inc. on April 1, 1976, as Vice-President of Operations. Since that time, he and the organization have been working hard to upgrade the conditions and quality of patient care at Hospitality Care Center in Jacksonville Beach. Follow-up surveys conducted in June and later months in 1976 show that respondent has undertaken positive steps to correct the deficiencies noted in the May 24, 1976 letter. Most, if not all, of such deficiencies have now been corrected. Even though the financial condition of respondent's facility is poor, patient care is their first priority and respondent intends to continue its operation and to upgrade its staff and conditions.

   
   

   CONCLUSIONS OF LAW

   
   

4. Respondent having admitted the existence of the violations and deficiencies cited in petitioner's letter dated May 24, 1976, the only issue remaining is the propriety of the administrative fine in the amount of

   $2,000.00. It is respondent's contention that the amount of the fine is excessive due to the financial situation of the facility and lack of intent on the part of respondent's organization to violate petitioner's standards and regulations.

   
   

5. Section 400.102, F.S., imposes upon petitioner the duty and responsibility to take administrative or injunctive action when it has reason to believe that a facility such as operated by respondent has violated the provisions of Chapter 400, F.S., or the minimum standards, rules or regulations promulgated pursuant thereto. Administrative action includes the denial, revocation or suspension of a license or the imposition of a fine, not to exceed

   $500.00 for each violation. Each day a violation occurs constitutes a separate violation and is subject to a separate fine. F.S. Section 400.121(8).

   
   

6. The charges against respondent include well over fifty violations of petitioner's rules and regulations set forth in Chapter 10D-29 of the Florida Administrative Code. Under statutory mandate and its obligation to the public and patients in such facilities, petitioner has the responsibility to take such administrative action as it deems appropriate. While petitioner had the option to revoke or suspend respondent's license or to impose an administrative fine in excess of $25,000.00, it instead issued its intent to impose a fine in the amount of $2,000.00. Though such an amount may work an economic hardship on this particular facility, it cannot be concluded that petitioner abused its discretionary powers in imposing the fine, especially in light of the number and seriousness of the violations charged.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that an administrative fine in the amount of $2,000.00 be imposed, against respondent for the violations of Ch. 400, F.S. and Ch. 10D-29, F.A.C., set forth in the letter dated May 24, 1976.

Respectfully submitted and entered this 20th day of January, 1977, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Mr. Robert M. Eisenberg Department of Health and Rehabilitative Services

P.O. Box 2417 F Jacksonville, Florida 32231

Mr. Edward J. Brazil

Vice President of Operations ORA Industries, Inc.

225 Peachtree Street, N.E., Suite 1612

Atlanta, Georgia 30303

Docket for Case No: 76-001344

Orders for Case No: 76-001344