STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCIS VILLA (ACLF), )

)

Petitioner, )

)

vs. ) CASE NO. 81-2748

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on February 10, 1982, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mr. Morton Francis

c/o Francis Villa

1398 Northeast 156th Street

North Miami Beach, Florida 33162

For Respondent: Martha F. Barrera, Esquire

Long Term Care Office Department of Health and

Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146

BACKGROUND

These proceedings began on October 13, 1981 when Petitioner, Morton Francis, requested an administrative hearing on Respondent's intent to deny his application for relicensure to operate an Adult Congregate Living Facility (ACLF). On October 30, 1981 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. Because the Petitioner was out of the Miami area during January the final hearing was scheduled for February 10, 1982.

At that hearing Petitioner presented himself as his only witness; he offered no exhibits. Respondent presented Ms. Sylvia Williams as its only witness and offered no exhibits. At the conclusion of the hearing the parties were informed of their right to file proposed Findings of Fact and proposed Recommended Orders. Neither party wished to file any proposals.

FINDINGS OF FACT

1. Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services.

   
   

2. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department;

   (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents;

   (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department.

   
   

3. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility.

   
   

4. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

   
   

6. The procedure for relicensure of an ACLF is governed by Section 10A- 5.14(6), Florida Administrative Code. It requires all applicants for renewal of a license, to meet the requirements stated in Section 10A-5.14(5)(a)-(d), (g), (h), (k), (l), (m) and (n), Florida Administrative Code. One of the grounds

asserted by the Department for the denial of Mr. Francis' license is the failure of his facility to comply with the applicable zoning requirements of North Miami Beach. Section 10A-5.14(5)(1) requires:

The applicant must provide documents of approval signed by local officials indicating that the facility complies with city and county ordinances to include, but

not limited to, business license requirements, zoning, building, and safety codes.

At the final hearing Mr. Francis presented no evidence that his facility complies with local zoning codes. For this reason, and until such time as he provides such evidence, his application for an adult congregate living facility license must be denied.

RECOMMENDATION

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

That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida.

DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982.

COPIES FURNISHED:

Martha F. Barrera, Esquire Long Term Care Office Department of Health and

Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146

Mr. Morton Francis c/o Francis Villa

1398 Northeast 156th Street North Miami Beach, Florida 33162

Docket for Case No: 81-002748

Orders for Case No: 81-002748