STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-614

)

LARRY E. DRAIN, d/b/a )

ONE SUN, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on June 15, 1983, at Tampa, Florida.

APPEARANCES

For Petitioner: Carol Wind, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33518

For Respondent: Barry M. Steagall, Esquire

6500 Central Avenue

St. Petersburg, Florida 33707

By Administrative Complaint dated January 14, 1983, the Department of Health and Rehabilitative Services, Petitioner, seeks to assess an administrative fine against Larry E. Drain, d/b/a One Sun, Inc., Respondent. As grounds therefor it is alleged that Respondent is operating facilities as adult congregate living facilities (ACLF) without being so licensed.

At the hearing four witnesses were called by Petitioner, three witnesses were called by Respondent, and ten exhibits were admitted into evidence.

Proposed findings submitted by the parties and not included below were not supported by the evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Larry Drain is the president and major shareholder of One Sun, Inc. One Sun, Inc., owns Larry's Place and partially owns and/or administers Heritage House and the Admiral Hotel. All of these facilities provide room and board to residents and are licensed by the Division of Hotels and Restaurants Department of Business Regulation.

2. In November of 1982 Drain wrote an article in the Senior Voice, a local paper, indicating the above facilities offered personal services to residents. He also published brochures indicating personal services were provided and visited the Director of Social Services at various hospitals in the vicinity to solicit patients released from these hospitals to be admitted into adult congregate living facilities. Drain also employed a representative to solicit business for his facilities.

   
   

3. When advised by Petitioner that his facilities require licensing by Petitioner if personal services, as advertised, were provided by Respondent, Drain stated he had zoning problems for such licensing and would change his advertising.

   
   

4. Petitioner's ACLF licensing specialist visited the three facilities early in 1983 and concluded the Admiral Hotel was not providing personal services, but that Heritage House and Larry's Place were providing such services. This conclusion was largely predicated upon statements made to Petitioner by the resident manager at these two facilities that each had a person under guardianship living at the facility and they kept the medications for some of their residents locked up and gave the medications to them when needed.

   
   

5. Jim C. was placed under the supervision of a professional guardian who moved Jim C. to Heritage House after conferring with Drain regarding the services available. Jim C. is 40-odd years old, mentally retarded, and has suffered from epilepsy for many years. Medication controls his seizures and he is diligent about taking his medication.

   
   

6. Jack C. is a 54-year-old male who was also placed under the supervision of a professional guardian who placed Jack C. at at Larry's Place after conferring with Respondent. Jack C. has behavioral problems but generally does not need assistance except for the handling of money. The guardian gives $40 per month to Respondent to give to Jack C. weekly as spending money. The guardian gives Jack C. an additional $10 per month if he presents no behavioral problems the prior month.

   
   

7. Both of these individuals are capable of taking care of their personal needs such as bathing and dressing, both leave the facility at which they board, and take public transportation to the movies, shopping mall, or to visit friends. Both take medications which are kept by the manager of the facility and given to them when they request same.

   
   

8. The guardians of both Jim C. and Jack C. testified in these proceedings. Their wards were placed at Larry's Place and Heritage House with full knowledge that only room, board, and general supervision would be provided by the managers of these facilities to encourage these wards to keep their person and rooms clean. The guardians were also assured they would be called if their wards got sick, injured, lost or failed to take their medications. Both Jim C. and Jack C. left the facilities at will during the day, but were provided three meals per day at the facilities. These facilities had an employee who lived on the premises and was available for security purposes 24 hours per day. These facilities are locked at 11:00 p.m. each night. Both guardians testified their wards are happier, cleaner, and doing better at the present location than they did formerly while residing in adult congregate living facilities.

9. None of Respondent's facilities provides hobby shops, bingo games, supervised activities, or plan any special activities for their residents. A television set is maintained in the lobby where it can be seen by those residents Those desiring to watch.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 400.402, Florida Statutes, defines adult congregate living facility as any place which undertakes to provide housing, food, service, and one or more personal services. "Personal services" includes: individual assistances with eating, bathing, grooming, ambulation, and housekeeping; supervision of self-administered medications; arrangement for or provision of social and leisure services; arrangement for appropriate medical, dental, nursing, or mental health services; and other similar services.

    
    

12. "Supervision of self-administered medications" is defined to mean "reminding residents to take medication, opening bottle caps for residents, reading the medication label to residents, observing residents while they take medication, checking the administration dosage against the label on 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 section and immediately reporting noticeable effects and side effects to the resident's physician."

    
    

13. The issue in these proceedings is whether Respondent is providing personal services as above defined. If so, these facilities are being operated as an ACLF and Respondent is subject to the fine as alleged in the Administrative Complaint.

    
    

14. The principal factor relied upon by Petitioner to show personal services are provided by Respondent involves the handling of the medication of two residents. Respondent testified that all of the medicines prescribed for all of the residents are kept in locked cabinets-by the manager, who gives the medication to the resident when asked to do so. No evidence was presented that the manager did more. Testimony that the managers at Larry's Place and Heritage House told Petitioner's investigator that they provided 24-hour supervision and supervised the medication given to two residents is in conflict with testimony of the guardians of the two male residents, about whom most of the issues of supervision arose, and with the testimony of Respondent. Both of these male residents are sufficiently retarded that a guardian has been appointed for each of them. Both guardians described their wards as capable of taking care of their bathing, dressing, personal needs, and of taking their medications without supervision.

    
    

15. Here, the burden is on Petitioner to prove, by a preponderance of the evidence, that Respondent is providing personal services to residents at its facilities. Balino v. Department of Health and Rehabilitative Services 348 So.2d 349 (Fla. 1st DCA 1977) , in order for the administrative fine to be authorized. This burden Petitioner has not met. It is

RECOMMENDED that Respondent's facilities known as Larry's Place and Heritage House be found not to be adult congregate living facilities and the Administrative Complaint dismissed.

DONE AND ENTERED this 6th day of July, 1983, at Tallahassee, Florida.

K. N. AYERS, 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 6th day of July, 1983.

COPIES FURNISHED:

Carol M. Wind, Esquire Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33518

Barry M. Steagall, Esquire 6500 Central Avenue

St. Petersburg, Florida 33707

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-000614

Orders for Case No: 83-000614