STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1658

)

EDITH BARTHOLOMEW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on September 10, 1982, in Dade City, Florida.

APPEARANCES

For Petitioner: Carol M. Wind, Esquire

Assistant District Legal Counsel Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33516

For Respondent: Leonard Holton, Esquire

503 East Meridian Avenue Dade City, Florida 33525

ISSUE PRESENTED

Whether respondent should be administratively fined $500.00 for allegedly operating an Adult Congregate Living Facility without obtaining a license in violation of Section 400.407(1) Florida Statutes (1981).

BACKGROUND

By administrative complaint dated May 3, 1982, petitioner Department of Health and Rehabilitative Services ("Department") charged respondent Edith Bartholomew with operating an Adult Congregate Living Facility without a license in violation of Section 400.407(1) Florida Statutes (1981). As a penalty, the Department sought to administratively levy a $500.00 fine.

Respondent disputed the charge and requested a hearing. On June 11, 1982, the Department granted the request and forwarded this case to the Division of Administrative Hearings.

At hearing, the Department called Dr. Frederick Timmerman and Diane Cruz as witnesses. The respondent called Charles Walley, Louise Wainwright, Rita

Hawkins, and Vera Ashbrook as witnesses and offered Respondent's Exhibit No. 1 1/ into evidence. The parties filed post-hearing proposed findings of fact by September 29, 1982.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. Respondent, Edith Bartholomew is licensed to operate a boarding house in her home located at 201 Gould Road, Dade City, Florida. (Testimony of Cruz, R-1.)

   
   

2. On March 24, 1982, Dr. Frederick Timmerman, Chairman of the Long Term Care Ombudsman Committee, and Diane Cruz, Adult Congregate Living Facility Licensure Specialist, inspected respondent's boarding home. Six residents, unrelated to respondent, were receiving meals, care, and lodging at respondent's home. Five residents were present during the inspection. Dr. Timmerman talked with each patient for the purpose of determining their physical and mental condition and the kind and level of physical services provided them. Only one of the five residents was capable of caring for herself during an emergency, the other four were incapable of taking care of themselves during an emergency and required physical services beyond room and board. (Testimony of Timmerman, Cruz.)

   
   

3. Respondent explained that she kept the residents' medication locked in a kitchen cabinet. At mealtime, she would retrieve their medications from the cabinet and distribute them to the residents making sure they took the correct amount. (Testimony of Timmerman.)

   
   

4. Respondent also admitted that she assisted her residents in bathing. The residents confirmed to Dr. Timmerman that she helped them bathe.

   
   

5. There is conflicting evidence on whether the residents are capable of caring for themselves during emergencies, whether respondent dispenses medications to them, and whether she helps them to bathe. The testimony of Dr. Timmerman is considered the most credible and worthy of belief. He is a professional physician with no discernable bias or interest in the outcome of this proceeding.

   
   

6. Dr. Timmerman told respondent to apply for an Adult Congregate Living Facility License, a request that had previously been made by other Department personnel. Respondent declined, responding that it involved too much paperwork. (Testimony of Timmerman.)

   
   

7. Respondent has consistently operated a home which furnishes excellent care and services to its residents. For a reasonable fee, she provides food, lodging, personal services, and loving care to the elderly people who reside there. Department officials are convinced that she provides a valuable and essential service; they have even recommended that older persons be placed in her facility. She has always been courteous and cooperative with Department personnel. (Testimony of Cruz, Timmerman.)

   CONCLUSIONS OF LAW

   
   

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

8. It is unlawful to operate an Adult Congregate Living Facility without first obtaining a license from the Department. Section 400.407(1) Florida Statutes (1981).

1. Such a facility is defined by Section 400.402:

   
   

   1. "Adult congregate living facility," hereinafter referred to as "facility," means any building or buildings, residence, private home, boarding home, home for the aged, or other place, whether operated for profit or not, which undertakes through its ownership or management to provide, for a period

      exceeding 24 hours, housing, food service, and one or more personal services for four or more adults, not related to the owner or operator by blood or marriage, who requires such services. A facility offering personal services for fewer than four adults shall be within the meaning of this definition if it formally or informally advertises to or solicits the public for residents or referrals and holds itself out to the public to be an establishment which regularly provides such services. (e .s.)

2. "Personal services" includes, but is not limited to the following: [I]ndividual assistance with eating, bathing,

   grooming, dressing, ambulation, and housekeeping; supervision of self-administered medication; arrangement for appropriate medical, dental, nursing, or mental health services; and other similar services which the department may define. (e.s.)

   
   

   Section 400.402(8), Florida Statutes (1981).

3. "Supervision of self-administered medication" means: [R]eminding residents to take medication,

   opening bottle caps for residents, observing residents while they take medication, checking the self-administered dosage against the label of the container, reassuring residents that they have obtained and are taking the correct dosage, keeping daily records of when residents receive supervision pursuant to this subsection, and immediately reporting noticeable effects and side effects of medication to the resident's physician.

   Section 400.402(11), Florida Statutes (1981).

   
   

4. The Department is empowered to implement and enforce the provisions of Part II, Ch. 400, Florida Statutes (1981). Violations are classified according to the nature of the violation and the gravity of its effect on facility residents. Violations which do not directly or indirectly threaten the health and safety of residents may be punished by the imposition of a fine not to exceed $500.00. Section 400.419(3),(4), Florida Statutes (1981).

   
   

5. In a proceeding to impose a penalty, the burden is upon the Department to prove its charges by clear and convincing evidence, by evidence as substantial as the consequences for the licensee. See, Bowling v. Department of Licensures, 394 So.2d 165 (Fla. 1st DCA 1981); Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

   
   

6. Here, the Department has met its burden. The evidence convincingly establishes that on or about March 24, 1982, respondent violated Section 400.407(1) by operating an Adult Congregate Living Facility within the meaning of Section 400.402(1) without first obtaining a Department license.

   
   

7. Despite the Department's repeated requests, respondent has refused to apply for and obtain the required license. Under the facts of this case, her refusal was unjustified. The $500.00 fine sought by the Department is reasonable and appropriate. Such fines are placed in the Adult Congregate Living Facilities Trust Fund and expended for the beneficial purposes authorized by Section 400.418 Florida Statutes (1981).

   
   

8. The proposed findings of fact submitted by the parties have been carefully considered. To the extent they are incorporated herein they are adopted. Otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issues presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent be fined $500.00.

DONE and RECOMMENDED this 10th day of November, 1982, in Tallahassee, Leon County, Florida.

R. L. CALEEN, JR. 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 10th day of November, 1982.

ENDNOTE

1/ Respondent's Exhibit No. 1 will be referred to as "R-1."

COPIES FURNISHED:

Carol M. Wind, Esquire

Assistant District Legal Counsel Department of Health and Rehabilitative

Services

2255 East Bay Drive Clearwater, Florida 33516

Leonard Holton, Esquire

503 East Meridian Avenue Dade City, Florida 33525

David H. Pingree

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-001658

Orders for Case No: 82-001658