STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2172

) LEA WEINCHOWSKI d/b/a SIMMONS ) HESPERIDES HOMES FOR THE ELDERLY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on November 18, 1981, in Tampa, Florida.

APPEARANCES

For Petitioner: Janice Sortor, Esquire

Assistant District VI Legal Counsel

4000 West Buffalo Avenue Tampa, Florida 33614

For Respondent: Lee Weinchowski

4710 Hesperides Street

Tampa, Florida 33614 ISSUES

Whether the Department of Health and Rehabilitative Services' intention to impose a civil penalty in the amount of $200.00 upon Lea Weinchowski based on her denial of an agent (employee) of Petitioner, the right of entry into Simmons Hesperides Homes For the Elderly, is warranted.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the record compiled herein, the following relevant facts are found.

   
   

2. By its Administrative Complaint filed on August 10, 1981, Petitioner's district administrator notified Respondent that the Department intended to impose a civil penalty in the amount of two hundred dollars ($200.00) based on the fact that Respondent denied to one of Petitioner's employees the right of entry into Simmons Hesperides Home For The Elderly.

3. Simmons Hesperides Home For The Elderly is an adult congregate living facility (ACLF) licensed to operate as such pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. The facility is located at 4710 Hesperides Street in Tampa, Florida. The facility was licensed as an ACLF on December 2, 1980.

   
   

4. Petitioner's program specialist, Alice Adler, made a periodic visit to Respondent's facility on June 23, 24 and 25, 1981, to perform a routine check of Respondent's operation to determine compliance with the applicable rules and regulations of the Department. During the June, 1981, visits, Ms. Adler advised Respondent that she did not have on hand a seven-day supply of non-perishable food to meet nutritional needs of residents and she was, therefore, in violation of Rule 10A-5.10(1)(k), Florida Administrative Code. Ms. Adler memorialized this deficiency by completing a deficiency report, a copy of which was provided Respondent. Approximately one week later, on July 1, 1981, Ms. Adler made another check of Respondent's facility to determine if Respondent was in compliance with the above cited rule requirement, at which time Respondent denied Ms. Adler the right of entry into the facility. Ms. Weinchowski was thereafter advised that her failure to permit her (Ms. Adler) to enter the facility could result in the imposition of a civil fine.

   
   

5. Ms. Weinchowski, the owner/operator of Simmons Hesperides Home For The Elderly admitted that she denied Ms. Adler the right of entry into the facility on July 1, 1981. Ms. Weinchowski voiced her opinion that she was being harassed by Ms. Adler and, therefore, she did not permit her to enter the facility on July 1, 1981.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. The Department of Health and Rehabilitative Services, State of Florida, has jurisdiction over Respondent by virtue of the provisions of Chapter 400, Part II, Florida Statutes, also known as the "Adult Congregate Living Facilities Act."

   
   

9. Respondent, Lea Weinchowski is the owner/operator of Simmons Hesperides Home For The Elderly. Simmons Hesperides Home For The Elderly is an adult congregate living facility which is licensed to operate as such, in compliance with Chapter 400, Part II, Florida Statutes, and Rule 10A-5, Florida Administrative Code.

   
   

10. On July 1, 1981, Respondent, Lea Weinchowski denied the right of entry into her facility to Petitioner's employee, Alice Adler, program specialist, whose purpose was to determine the facility's state of compliance with the Adult Congregate Living Facilities Act and the administrative rules in force thereto. As such, Respondent violated Section 400.434, Florida Statutes. The above violation constitutes grounds for Petitioner to levy a civil penalty against Respondent pursuant to Chapter 400.419(1)(b)(4), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Department's notice of intent to impose a civil penalty in the amount of two hundred dollars ($200.00) upon Lea Weinchowski d/b/a Simmons Hesperides Home For The Elderly, be upheld.

RECOMMENDED this 24th day of November, 1981, in Tallahassee, Florida.

COPIES FURNISHED:

Janice Sortor, Esquire Assistant District VI Legal Counsel

4000 West Buffalo Avenue Tampa, Florida 33614

Lea Weinchowski

4710 Hesperides Street

Tampa, Florida 33614

JAMES E. BRADWELL, 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 24th day of November, 1981.

Docket for Case No: 81-002172

Orders for Case No: 81-002172