STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-470

) LAKE COUNTY BOARD OF COUNTY ) COMMISSIONERS, d/b/a LAKE )

MEMORIAL NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on June 21, 1983, in Leesburg, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This cause was presented on a Notice to Show Cause issued by the Department of Health and Rehabilitative Services assessing an administrative fine of $300 against the Respondent for failure to timely correct a deficiency discovered during an annual licensing inspection. This failure was alleged to be a violation of Rules 10D-29.104(1)(e) and 10D-29.122(1)(a), Florida Administrative Code, and Section 400.141(4), Florida Statutes.

APPEARANCES

For Petitioner: James Sawyer, Esquire

Department of Health and Rehabilitative Services 2002 NW 13th Street Gainesville, Florida 32601

For Respondent: Sanford A. Minkoff, Esquire

101 East Maud Street Tavares, Florida 32778

ISSUES

The issue presented in this cause is whether the failure by the Respondent to correct the deficiency identified by the Department' s inspectors in their annual inspection constitutes a violation of the cited rules and statutes.

FINDINGS OF FACT

1. The Lake County Board of County Commissioners, the Respondent in this cause, had a license to operate Lake Memorial Nursing Home, the facility in question in the instant proceedings.

   
   

2. On September 2 and 3, 1981, during an annual licensing survey, the inspection team of the Department of Health and Rehabilitative Services

   discovered that the soffits under the eaves of the roof of the Lake Memorial Nursing Home were sagging in some places. This deficiency was pointed out both orally and in writing to the nursing home's administrator by the team at the conclusion of the annual inspection in 1981. On October 18 through 20, 1982, during the annual licensing survey, the Department's team discovered that the aforestated condition of the soffits had not been repaired.

   
   

3. Between the two inspections, the director of the nursing home had commenced the procedure for having this deficiency corrected. Because the licensee is a governmental body, a work order had to be processed in accordance with the County's rules and the expenditure approved by the appropriate authorities. This approval was obtained, and the contract was ready to be let to repair this item, together with others, when the County Commission made the decision to close the nursing home. Although work directly related to the safety and comfort of the patients was performed, the soffits were not repaired.

   
   

4. In February 1983, the nursing home was closed by the Board of County Commissioners.

   
   

5. The Department's inspectors were aware of the County's decision to close the nursing home when it was cited for this deficiency in 1982.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Department of Health and Rehabilitative Services has authority to discipline those whom it has licensed to operate nursing home facilities pursuant to section 400.141(4), Florida Statutes. This authority extends to levying administrative fines. This Recommended Order is entered pursuant to Section 120.57(1), Florida Statutes.

   
   

7. The evidence shows that the soffits were in need of repair in September 1981 when the nursing home was inspected and that they had not been repaired in 1982 when the nursing home was reinspected. The Department asserts that this is a violation of Rule 10D-29.104(1)(e), Florida Administrative Code, insuring that a facility is in compliance with applicable statutes and rules; 10D- 29.122(1)(a), Florida Administrative Code, Standard Building Code, 1976 edition; and Section 400.141(4), Florida Statutes, failure to maintain its premises and equipment and to conduct its operations in a safe and sanitary manner.

   
   

8. No evidence was introduced of any specific portion of the building code alleged to have been violated. Rule 10D-29.104 (1)(e), Florida Administrative Code, incorporates by reference violations of other rules and statutes. No other rule has been demonstrated to have been violated, therefore, the only question is whether the facts constitute a violation of Section 400.141(4), Florida Statutes.

   
   

9. Section 400.141(4), Florida Statutes, provides:

   
   

   Every facility shall comply with all applicable standards, rules, and regula- tions 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.

10. Although the statute quoted above requires nursing home premises to be maintained in a safe and sanitary condition, the statute does not address items which are simply cosmetic in nature. No evidence was received that the sagging soffits were a safety or sanitary hazard. In this instance, where the Lake County Board of County Commissioners, the operator of the nursing home, had made a determination to close the facility, a question arises whether it is in the public interest for matters not related to safety or sanitation to be repaired at public expense. No evidence was received that failure to correct this deficiency constituted a safety or sanitary hazard. The evidence reflects that the Respondent had repaired those deficiencies which impacted upon the safety, health, welfare and comfort of the patients. In this specific instance, there was a failure to maintain the premises by what may be viewed as a cosmetic repair. Because this deficiency was not shown to relate to the health or safety of the patients, it is determined that there is no violation of Section 400.141(4), Florida Statutes, and that the civil fine should not be levied.

RECOMMENDATION

Having found that there is no violation of the rules and statutes as alleged in the Notice to Show Cause, it is recommended that the administrative penalty of $300 not be assessed.

DONE and RECOMMENDED this 28th day of July, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 28th day of July, 1983.

COPIES FURNISHED:

James Sawyer, Esquire Department of Health and

Rehabilitative Services 2002 NW 13th Street Gainesville, Florida 32601

Sanford A. Minkoff, Esquire

101 East Maud Street Tavares, Florida 32778

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Docket for Case No: 83-000470

Orders for Case No: 83-000470