STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 80-2184
) Y & S PARTNERSHIP, LIMITED, d/b/a ) MANHATTAN CONVALESCENT CENTER )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice this cause came on for administrative hearing on February 24, 1981 at Tampa, Florida, before P. MICHAEL RUFF, Hearing Officer for the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Amelia M. Park, Esquire
District VI Legal Counsel Department of Health and
Rehabilitative Service 4000 West Buffalo Avenue Tampa, Florida 33614
For Respondent: Richard A. Gilbert, Esquire
de la Parte & Butler, P.A.
403 Morgan Street, Suite 102 Tampa, Florida 33602
and
Steven R. Reininger, Esquire
Tew, Critchlow, Sonberg, Traum & Friedbauer 10th Floor Flagship Center
777 Brickell Avenue
Miami, Florida 33131
ISSUE
By its Administrative Complaint, dated October 14, 1980, Use Petitioner seeks to impose an administrative fine in the amount of $1,500.00 upon the Y & S Partnership, Limited, d/b/a Manhattan Convalescent Center for alleged violations of Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. Specifically, the Petitioner charges the Respondent with allegedly failing to provide patients in its nursing home with adequate care consistent with their right to receive adequate health care in accordance with the established and recognized practice standards in the community and with rules promulgated by the Department pursuant to Section 400.022 (1)(g), Florida Statutes. The Petitioner charges also that the Respondent failed to maintain
its premises and equipment and conduct its operations in a safe and sanitary manner as required by Section 400.141(4), Florida Statutes. The Respondent is concomitantly charged with violations of Rules 10D-29.33(4) and 10D-29.38(1), and Rule 10D-29.52(4) Table (36), Florida Administrative Code, in the area of patient health care. A violation of Rule 10D-29.49(1), Florida Administrative Code is alleged on the ground that no effective maintenance plan was promulgated or implemented by the Respondent.
The charges at issue relate to an August 22, 1980 complaint investigation and surveillance visit conducted by personnel from the Tampa Office of Licensure and Certification of Petitioner's Department. On that visit it is charged that the Petitioner's personnel observed a patient and her bed linens soiled with fecal material and another patient who had soil accumulations on the right hand and was in need of hand care. Additionally, the Petitioner's personnel allegedly observed nurse paging cords missing or not attached to beds in approximately twelve rooms and observed various fixtures and equipment in need of repair.
The issues are thus whether the acts or omissions charged occurred, and whether they constitute violations of the above-cited legal authority and concomitantly, whether an administrative fine is appropriate pursuant to Section 400.102(c) and Section 400.121(2), Florida Statutes.
Two witnesses were called by the petitioner and five by the Respondent.
Ten exhibits were introduced into evidence. The Respondent moved to dismiss the Administrative Complaint. The Motion to Dismiss will be treated in the Conclusions of Law hereinbelow.
The Respondent has filed 248 proposed findings of fact and has requested separate rulings upon each. In that regard, the Hearing Officer has considered all proposed findings of fact, conclusions and supporting arguments of the parties. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments by them, are in accordance with the findings, conclusions and views stated herein they have been accepted, and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected.
Certain proposed findings and conclusions have been omitted as not relevant, dispositive or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings and conclusions herein, it is not credited.
FINDINGS OF FACT
The Y & S Partnership, Limited, d/b/a Manhattan Convalescent Center, operates a nursing home facility in Tampa, Florida. The Office of Licensure and Certification (OLC), of the Department of Health and Rehabilitative Services (HRS) is responsible for the investigation of complaints about the operation of nursing facilities such as that of the Respondent, which are licensed by HRS.
On August 22, 1980 a complaint investigation and surveillance of the Respondent's facility was conducted by O.L.C. employees Joel Montgomery and Muriel Holzberger. These individuals performed an inspection tour of the Respondent's facility accompanied by staff members of the Respondent to generally observe the level of health care accorded patients and the effectiveness of maintenance and repair operations carried out by the Respondent on its facilities and equipment.
Ms. Holzberger, a registered nurse and accepted as an expert in the area of proper nursing care standards, personally observed at least 90 percent of the 176 patients resident at the Respondent's facility. In that connection, witness Holzberger observed patient A. W. who was bedridden at the time. This witness observed a brown stain approximately the size of a half dollar on the top sheet of patient A. W.`s bed. The witness described the stain as appearing to be the color of fecal material and it apparently was dry. She did not touch it, but made a determination by its visual appearance only. The stain only consisted of a brown coloration and no fecal material was observed adhering to the stained area. The sheet of this patient was raised by Nurse Holzberger who thereupon observed wet excrement on the patient's buttocks and on a waterproof pad that had been placed under the patient. Ms. Holzberger opined that at this point and time at least, the patient had not been cleaned. No dried excrement material was observed on the patient or on the waterproof pad however.
Patient A. W. had a medical history of constant fecal incontinence and other bowel problems consisting generally of frequent impactions, coupled with constant oozing of fecal matter. Proper nursing care for such a patient was established to consist of changing sheets and washing the patient frequently to avoid the danger of skin breakdown in the anal and coccyx area which can be caused by frequent contact with fecal material. This witness, however, was unable to testify that patient A. W. had not been cleaned frequently inasmuch as she had a constant oozing of fecal material due to her inability to achieve sphincter control. The witness was similarly unable to establish that the wet excrement observed on the patient's buttocks and the waterproof pad beneath her had not been disposited there immediately before her observation of the patient. It was not shown that the patient had remained in a soiled condition for a significant period of time and indeed the witness acknowledged that allowing such a patient to remain in a soiled condition for a short period of time would not, on one or two occasions, affect that patient's health and safety. It is inferred that the soiling could just as likely have occurred immediately prior to Ms. Holzberger's observation inasmuch as it was described to be wet. Ms. Holzberger's observed no patients in the nursing home exhibiting skin breakdown or other ill effects caused by contact with excrement.
Nurse Holzberger also observed patient C. M. who had severe contractures of the hands. Ms. Holzberger maintained that she observed soil accumulations in the right hand and the fingernails were in need of trimming. This witness described generally accepted hand care for contractured hands as consisting of washing or soaking in warm water at least daily and that if the contracture is severe, causing pain to open the hand, a washcloth should be wrapped on a tongue blade and inserted into the hand to clean it in that fashion. Drying is accomplished in a similar manner followed by insertion of a soft hand roll at least one inch in diameter to prevent indentation of the nails into the hand and to prevent build up of perspiration and to allow air to circulate. The nails should be trimmed as short as possible. Ms. Holzberger concluded, based primarily on the observance of the soil or stain in the hand, that it had been several days since hand care had been performed on this patient.
Nurse Holzberger admitted that she knew nothing of the medical history of the patient C. M., a 97-year-old lady who suffers from severe degenerative arthritis and osteoporosis in both hands. The hand in question is so severely contractured as to be "in a ball." The witness acknowledged that no patient at the facility, including patient C. M., had any wounds caused by long nails, and that patient C. M. did have a gauze pad inserted into her hand. Witness Holzberger acknowledged that the brown stain on the patient's hand could have
been due to the use of betadine which is a form of disinfectant medication and indeed Nurses Campanillo and Groves who testified for the Respondent, and were similarly accepted as experts, confirmed that the stain on patient C. M.`s hand was not caused by soil accumulation, but rather the betadine medication applied the day before in the course of regular hand care. Witness Holzberger testified that such hand care should be performed once a day and that she did not know whether it had been performed on the day of the inspection or not. The Respondent's witnesses confirmed that it had not been performed on that day at the time of her inspection shortly after 11:00 a.m., but that within the regular schedule of care for patients, it should be and was performed before 12:30 that day. Witness Holzberger admitted that there was no danger to the health and safety of the patient even if the hand was allowed to remain unclean for a reasonable period of time, which it was not. The Respondent thus demonstrated that the hand care was performed daily and that this patient could not tolerate a hand roll under her fingers to retard perspiration and indentation of the nails into the palm because it was extremely painful to even slide a tongue depresser with a washcloth under her fingers. Consequently, hand care was adequately accomplished on a daily basis by inserting a four inch gauze pad beneath her fingers and against her palm soaked with betadine solution and keeping her nails trimmed as short as possible.
Witness Joel Montgomery was the hospital consultant on the Department's inspection team. Witness Montgomery observed a leaking air conditioner unit, a broken water closet tank cover, a leaking faucet in a janitor's closet, an inoperative water fountain and a missing baseboard in two of the rooms, as well as the allegation that nurse call cords were missing or not attached to the beds in approximately 12 rooms. The witness conceded that this is a large nursing home and such deficiencies are not unusual for a nursing home of this size and type, and that the staff of this nursing home had made sincere and continuing efforts to make repairs. He has seen improvements in maintenance over conditions existing at previous inspections. The witness was unable to state how many nurse paging cords were severed or missing, but that most of the 12 were simply not attached to the patients' beds. His testimony was not clear as to the existence of a requirement for attaching the paging cords to the beds, but the general tenor of his testimony was that that was the accepted procedure required by the Petitioner in regulating and overseeing patient care in nursing homes. The witness could not recall which, if any, beds were occupied in the rooms where he noticed the call cords were not attached to the beds. The witness also acknowledged that some of the cords were reattached to the beds in his presence, but he did not recall how many. The Respondent has a policy of detaching the cords from the beds when the patients are not in bed in order to change the linen, move the beds or to better allow ingress or egress by the patient from the bed. This witness did not establish that that policy conflicts with any Department policy or rule or constitutes an adverse influence on health care. The Respondent adduced evidence which established that only two call cords were actually inoperative during the inspection and that those were repaired during the inspection. The Respondent's witness to this effect Ann Killeen, the Administrator of the facility, made the inspection tour in the company of witness Montgomery for the Petitioner and corroborated the fact that the cords were clipped to the wall when patients are out of the beds or beds were being changed in order to prevent cords from breaking when the beds are moved, and that she was unaware that this violated any minimum standard promulgated by the Petitioner. The broken toilet tank cover was corrected while the inspector was on the premises, the leaking faucet in the janitor's closet sink was a slight drip causing no standing water inasmuch as the leaking water went down the drain. The leaking air conditioner drip pan was the only one of
89 air conditioners with such a problem. The testimony of this witness, as well
as Respondent's witness Robert Cole, the employee of the facility in charge of maintenance, establishes that the inoperative call cords as well as the loose baseboards, the inoperative water fountain and broken water closet tank cover were repaired on the day of the inspection while the inspector was still on the premises with the exception of the air conditioner which was repaired within one week after the inspection and the baseboards which were repaired the day after the inspection. The water fountain was the subject of regular maintenance and had been repaired a number of times and the plumber was summoned to repair it once again after its deficiency was noted by Mr. Montgomery.
None of the deficiencies with regard to the nurse call cords, the condensation dripping from the air conditioner, the broken water closet tank cover, the leaking faucet, the inoperative water fountain and the loose baseboards were shown to have been a recurring problem or problem existing for any significant period of time. The Petitioner did not show when these conditions occurred or how long they had been allowed to exist, nor did it show any resultant effect on the health or safety of the patients.
The Respondent called Earnest H. Brown as an adverse witness. Mr. Brown is the Supervisor of the Tampa area Office of Licensure and Certification for the Petitioner. This witness admitted that he recommended a fine with regard to witness Holzberger's observance of patient A. W., who was fecally incontinent, because he believed fecal material had been found dried upon that patient's bed sheet. He relied on witness Holzberger's professional judgment in reporting to him. Witness Holzberger's testimony at the hearing, however, does not establish that any dried fecal material was found on patient A. W.`s bed sheet. With regard to his decision to recommend a fine concerning the deficient nurse calling cords, the witness admitted that this was predicated on the other observances of deficient call cords at the Respondent's facility on past inspections. The witness could not recall how many call cords, if any, had been observed to be inoperative or otherwise used improperly on past inspections. It should be noted parenthetically that the Administrative Complaint contains no allegation of such past deficiencies as a predicate to the charge regarding call cords in the Administrative Complaint stemming from the inspection of August 22, 1980 and in support of the fine which the Petitioner seeks to impose for this condition.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. The Petitioner has charged the Respondent with violations of Sections 400.022(1)(g) and 400.141(4), Florida Statutes, as well as Rules 10D-29.33(4), 10D-29.38(1), 10D-29.52(4) Table (36), and 10D-29.49(1), Florida Administrative Code. Section 400.022(1)(g) provides in pertinent part as follows:
(1) All nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the patients residing in such facilities and shall treat such patients in accordance with the
provisions of said statement. The statement shall insure each patient the following:
(g) The right to receive adequate and appropriate health care consistent with established and recognized practice standards within the
community and with rules as promulgated by the Department.
Section 400.141(4) provides:
. . . every facility shall comply with all applicable standards, rules and regulations of the Department of Health and Rehabilitative Services and shall:
(4) Maintain its premises and equipment and conduct its operations in a safe and sanitary manner.
The grounds for action by the Department against the Respondent for violations of the above authority are contained in Section 400.102, Florida Statutes (1979) which provides:
Any of the following conditions shall be grounds for action by the Department of Health and Rehabilitative Services against a facility:
An intentional or negligent act materially affecting the health or safety of residents of the facility;
Misappropriation or conversion of the property of a resident of the facility;
Violation of provision of this Chapter or of minimum standards rules, or regulations promulgated pursuant thereto; and,
Any act constituting a ground upon which application for a license may be denied.
If the Department has reasonable belief that any of the said conditions exist, it shall take the following action:
In the case of an applicant for original licensure, denial action as provided in Section 400.121;
In the case of an applicant for relicensure or a current licensee, administrative action as provided in Section 400.121, or injunctive action as authorized by Section 400.125; and
In the case of a facility operating without a license, injunctive action as authorized in Section 400.125.
Penalties assessible against nursing homes which are in violation of the above authority are provided for in Section 400.121 Florida Statutes (1979) which states in part:
The Department of Health and Rehabilitative Services may deny, revoke, suspend a license or impose an administrative fine, not to exceed $500 per violation per day, for a violation of any provision of Section 400.102(1)(a),
(b) or (d). All hearings shall be held within the county in which the licensee or applicant operate or applies for a license to operate a facility as defined
herein.
The Department, as part of any final order issued by it under the provisions of this Chapter, may impose such fine as it deems proper, except that such fine shall not exceed $500 for each violation. Each day a violation of this Chapter occurs shall constitute a separate violation and shall be subject to a separate fine, but in no event shall any fine aggregate more than $5,000. A fine may be levied pursuant to this Section
in lieu of and notwithstanding the provisions of Section 400.23.
Since the Petitioner has only alleged and sought to prove "violations of provisions of this Chapter [400] or of minimum standards, rules or regulations promulgated pursuant thereto" as provided in Section 400.102(1)(c), it may not request a penalty provided for in the first paragraph of Section 400.121, Florida Statutes (1979) . That paragraph does not encompass or provide for fines for violations of Section 400.102(1)(c), Florida Statutes (1979) under which the Department is proceeding, but rather for 400.102(a) or (d) . A penalty under the second paragraph of Section 400.121, Florida Statutes (1979) is the appropriate remedy sought here since it encompasses any violation enumerated in Section 400.102 including (1)(c) which, of course, provides for a right of action for violation of any provision of Chapter 400 or related rules. Thus, the Motion to Dismiss predicated on the grounds that the Department may only seek a fine in this situation for violations of Section 400.102(1)(a), (b), or (d) should be denied. See Department of Health and Rehabilitative Services against Manhattan Convalescent Center, Case No. 80-1364, Division of Administrative Hearings, Recommended Order, March 31, 1981 and Department of Health and Rehabilitative Services against Golden Shores Convalescent Center, Inc., Case Nos. 80-341 and 80-342, Division of Administrative Hearings, Recommended Order, April 10, 1981. In view of the Conclusions of Law reached herein, however, the issue raised by the Respondent's Motion to Dismiss has been rendered moot.
Rule 10D-29.33(4) requires in pertinent part that the ownership and management of a facility licensed under Chapter 400, Florida Statutes, shall be responsible for compliance with all provisions of Chapter 400 and all rules promulgated thereunder. Rule 10D-29.38(1) requires that the Administrator of each skilled nursing hone and intermediate care nursing home shall designate a registered nurse licensed in the state to be Director of Nurses who should be responsible for nursing care of all patients and for the direction of adequate and accurate nursing practices in the home including supervision of "all details of nursing care to patients."
Rule 10D-29.52(4) Table, (36), Florida Administrative Code, requires that each nursing home such as the Respondent shall have a nurse call system from a patient's bed, toilet, bath, shower, to the corridor and nursing station.
Rule 10D-29.49(1), Florida Administrative Code, provides:
(1) Maintenance - Every nursing home and related health care facility shall have an effective maintenance plan and necessary staff.
This subsection of the rule then provides that the plan shall provide for keeping the building in good repair and free of hazards, keeping all equipment and systems in a safe and functioning condition and to maintain the building in a reasonably attractive fashion in terms of paint and general repair work.
The Petitioner has not proven the charges alleged in the Administrative Complaint. Regarding the charge that patient A. W. was found to be soiled with fecal material and that some of the excrement had dried on the sheets, it was not established that the stain on the sheet was from excrement from this patient and the evidence showed that no actual fecal material was observed on the stained area. The patient was indeed observed with wet excrement upon her buttocks, but it was not established that this material had been there for a significant amount of time and that the patient was not cleaned and changed on a regular and frequent basis. This patient in fact had severe bowel control problems and suffered constantly oozing diarrhea. In view of the patient's medical history, the Petitioner was unable to establish that the wet excrement observed on the patient's buttocks or the water proof pad beneath her had not been disposited there immediately prior to observation by the Petitioner's witness and thus did not prove that the patient had been allowed to remain in a soiled condition for any significant period of time such that any reasonable inference could be drawn that the condition in which she was observed constituted less than adequate and appropriate health care not in accordance with established and recognized practice standards within the community and with the rules promulgated by the Department. The Respondent's evidence established that the patient was cleaned on a regular and frequently occurring basis on each nursing shift and indeed the Petitioner's witness acknowledged that allowing a patient to remain in a soiled condition for short periods of time would not affect the patient's health and safety. There is no allegation in the Administrative Complaint that such a condition occurred on any other occasions, thus it was not established that the level of care accorded patient A. W. was less than that required by the above statutory and rule provisions.
The charge that the Respondent failed to provide patient C. M. with adequate hand care due to soil accumulation and neglected fingernails occurred in her contractured hand was supported only by Nurse Holzberger testifying for the Petitioner. This witness knew nothing, however, of the medical history of the patient C. M., who is a 97-year-old lady who suffers from severe degenerative arthritis and osteoporosis and resultant severe contracture of the hands. The witness admitted that neither patient C. M. nor any other patient in the facility had any wounds caused by long fingernails. The testimony of expert witnesses Groves and Campanillo for the Respondent established that the stain on patient C. M.`s hand was not caused by soil accumulation, but rather by betadine medication applied the day before the inspection in the course of the regularly scheduled hand care. The Petitioner's witness admitted that such a stain could be caused by betadine. Although the Petitioner's witness opined that hand care should be performed once daily and that a one inch gauze roll should be placed under the patient's fingers to prevent wounding by the nails and to allow air circulation under the fingers, the Respondent established in an unrefuted way, that this particular patient could not suffer her fingers to be raised enough for use of the hand roll, but that cleansing of the hand had to be accomplished by inserting a washcloth on a tongue depresser beneath her fingers as well as gauze soaked in betadine to retard bacteria, which caused a great deal of pain. Although the patient had not yet had hand care on the day of the inspection, it was established without controversion that the inspection occurred prior to the normal time of day when hand care was administered to this patient and indeed the practical nurse in charge of that duty performed the required cleansing and
hand care on patient C. M. a few minutes after the subject inspection on the day in question.
In short, the Petitioner did not adduce sufficient substantial, competent evidence to demonstrate that the level of nursing care to this lady's contractured hand was such as to cause a danger to her health or safety, was inadequate or did not comport with established and recognized practice standards within the community or the Department's rules. Indeed witness Holzberger for the Petitioner admitted that there was no danger to the patient's health or safety caused by the hand in the condition in which she observed it and had it not been cleaned that day such would not cause a significant health or safety detriment to the patient unless it remains so for a substantial period of time. Thus, no violation of the above statutory or rule authority has been demonstrated and Paragraph 3(a) of the Administrative Complaint should be dismissed.
Paragraphs 3(b) and (c) of the Administrative Complaint charge that various items of disrepair to the facility itself or inoperative equipment were observed on the date of the inspection. The Petitioner's witness in support of the charges observed the items discussed in the above Findings of Fact and yet he conceded that, inasmuch as this is a large nursing home, his experience was that such deficiencies are not unusual for a nursing home of this size and type, and that a sincere continuing effort to make all required repairs was being made. The witness also admitted that the level of maintenance upon this visit was improved over that of previous observations. The witness's testimony was equivocal with regard to the number and location of alleged inoperative nurse calling cords severed from the wall attachment or otherwise inoperative, but his testimony does show that most of the 12 cords alleged to be the subject of deficiencies were merely not attached to the patients' beds at the time of inspection. The Respondent's regular practice of removing the nurse calling cords from the beds when the patients are out of the beds or when the beds were to be moved or the linen changed, in order to lessen the chance that the cords would be broken was shown to be a reasonable procedure designed to insure the viability of the required nurse paging system. The above rule serving as a predicate for this charge contains no prohibition against this practice and the Petitioner presented no substantial, competent evidence which would establish that this practice of detaching the cords from the beds under these conditions conflicts with the rule or serves to degrade the level of nursing care afforded the Respondent's patients and required by the authority cited in the Administrative Complaint.
The Respondent's evidence establishing that only two calling cords were severed and that those were repaired during the course of the inspection on the same day and that the Respondent was unaware that any minimum standards or rule prohibited the clipping of the cords to the wall out of the way when patients were removed from beds or when beds were being moved or changed, was unrefuted.
The Petitioner's evidence did not demonstrate that any of the isolated instances of equipment or fixtures requiring repair were of a recurring nature or existed for any significant period of time nor was the Petitioner able to establish when these conditions first occurred, how long they had been allowed to exist nor how often they reoccurred if at all. The Respondent's maintenance personnel were able to promptly repair the air conditioner, faucet and other items and it was not shown that any of these conditions affected the health or safety of the patients.
Thus, the issue raised concerning the nurse calling system was not shown to involve to any significant degree an actual inoperative or nonexistent nurse paging system, but was rather primarily a technical issue raised concerning where the nurse call cords should be placed in the patients' rooms when the beds are being moved or changed or the patient was out of bed. No violation of Rule 10D-29.52(4) Table (36), Florida Administrative Code, has been proven inasmuch as the patients were all shown to have ready access to a nurse paging system and evidence of the items or conditions requiring repair was not sufficient to demonstrate the lack of an effective maintenance plan as required by Rule 10D-29.49(1), Florida Administrative Code. Accordingly, Paragraph 3(b) and (c) of the Administrative Complaint should be dismissed.
It should be finally pointed out that the Petitioner's employee, Earnest H. Brown, the area supervisor of the Tampa Office of Licensure and Certification, when called as an adverse witness by the Respondent, indicated that he recommended the proposed $500 fine with regard to the deficient nurse calling system because of alleged observances of deficient call cords at the Respondent's facility upon past inspections. The witness demonstrated no independent personal knowledge of any past deficiencies however. There was moreover, no allegation in the Administrative Complaint that any alleged deficiency involving the nurse paging system or "call cords" was an ongoing, recurring problem or that there had been such deficiencies noted upon past inspections such that the problem could be described as cumulative or aggravated in any fashion. Thus, inasmuch as the factor of aggravation or the existence of a continuing or long standing deficiency in this regard as supportive of the
$500 proposed administrative fine was not pled, consideration of such hearsay evidence of such aggravating factors is inappropriate. The law in Florida on the specificity required in an administrative complaint is predicated upon principles of notice and due process required to be afforded by such a petitioner to a respondent so a respondent may have sufficient specific knowledge of the totality of the charges and proposed penalty and the theories supporting them so that a cogent defense to them may be presented. To the extent that the administrative fine recommended for the charge involving the nurse calling system is predicated on past experiences or observations by the Petitioner which have not been pled in the Administrative Complaint, the complaint in this regard is deficient. Lester v. The Department of Professional and Occupational Regulation, 348 So.2d 923 (Fla. 1st DCA 1977). The charging agency may not go outside the facts alleged in its complaint in order to support its case. Department of Professional Regulation v. Lerro, Division of Administrative Hearings, Case No. 80-1330, Recommended Order, January 2, 1981.
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings of the parties, it is
RECOMMENDED that the Administrative Complaint filed against the Respondent in this cause should be dismissed.
DONE AND ENTERED this 27th of April, 1981, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1981.
COPIES FURNISHED:
Amelia M. Park, Esquire District VI Legal Counsel Department of Health and
Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614
Richard A. Gilbert, Esquire de la Parte & Butler, P.A.
403 Morgan Street, Suite 102 Tampa, Florida 33602
Steven R. Reininger, Esquire Tew, Critchlow, Sonberg, Traum
& Friedbauer
10th Floor Flagship Center 777 Brickell Avenue
Miami, Florida 33131
| Issue Date | Proceedings |
|---|---|
| May 19, 1981 | Final Order filed. |
| Apr. 27, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 13, 1981 | Agency Final Order | |
| Apr. 27, 1981 | Recommended Order | Dismiss petition. There was no proof of poor sanitation, failure to perform routine duties for patients or to maintain home in repair. |
