STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1801

)

THE AMBROSIA HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 1:00

1. on August 25, 1983, in Tampa Florida. The issue for determination at the hearing was whether a $375.00 administrative fine should be imposed against the respondent for violations of Chapter 400, Florida Statutes and Chapter 10D-29, Florida Administrative Code.

   
   

   APPEARANCES

   
   

   For Petitioner: Amelia M. Park

   District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614

   
   

   For Respondent: Albert Shepard, Administrator

   1709 Taliaferro Avenue

   Tampa, Florida 33602 INTRODUCTION

   By an Administrative Complaint dated May 9, 1983, The Ambrosia Home was charged with failing to provide sufficient nursing service personnel to meet minimum staffing requirements, in violation of Sections 400.022(1)(g) and 400.141, Florida Statutes, and Rules 10D-29.108(4)(a), (d) and 10D-29.104(1)(a), Florida Administrative Code, and failing to maintain all mechanical and electrical equipment in working order, in violation of Section 400.141, Florida Statutes, and Rule 10D-29.122(1)(d), Florida Administrative Code. Petitioner seeks to impose fines in the amount of $75.00 for the first offense and $300.00 for the second offense.

   
   

   In support of the charges, petitioner presented the testimony of David Baudo, a Medical Facilities Architect with the petitioner's Office of Licensure and Certification. Petitioner's Exhibits 1 and 2 were received into evidence. The respondent's Administrator, Albert Shepard, testified on behalf of the respondent, and respondent's Exhibit 1 was received into evidence. Neither party submitted proposed findings of fact subsequent to the hearing.

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

   
   

   1. During the night shift on March 28, 1983, respondent had only one licensed nurse on duty. Two licensed nurses were required by the petitioner's rules governing nursing home facilities. These facts were admitted by the respondent's Administrator.

      
      

   2. On or about 4:30 A.M. on April 7, 1983, a male intruder entered the respondent's facility and sexually assaulted two female residents. The respondent's facility was inspected on April 8, 1983. It was discovered that an alarm on an exit door adjacent to the rooms of the victims was not functioning properly. The alarm is designed to visually and audibly alert persons at the nursing station. On April 8th, the alarm would not sound at the nurses station. As soon as the respondent became aware of the defective alarm, it was replaced temporarily by a local alarm, and then was repaired to function as designed.

      
      

   3. A door closer on another exit door was found to be defective in that the door would not latch properly. Respondent immediately adjusted this door to work properly upon notice of the defect.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The petitioner is authorized to impose an administrative fine not exceeding $500.00 per violation per day against a licensed nursing home facility for a violation of the minimum standards, rules or regulations of the Department of Health and Rehabilitative Services. sections 400.121 and 400.102, Florida Statutes.

      
      

   5. The respondent has not disputed the charge that it maintained and provided only one licensed nurse on duty when two were required by Rule 10D- 29.108(4), Florida Administrative Code. This constitutes a violation of that Rule, as well as Rule 10D-29.104(1)(a), Florida Administrative Code, for which a

      $75.00 fine is justified and authorized.

      
      

   6. A nursing home facility is required to maintain in working order all mechanical and electrical equipment in accordance with a preventative maintenance program. Rule 10D-29.122, Florida Administrative Code. The facts adduced at the hearing clearly demonstrate that two of the exit doors in respondent's facility were not functioning properly. One door had a faulty alarm system and another door did not close and latch properly. While it is recognized that mechanical and electrical failures or break-downs will occur, respondent presented no evidence to illustrate that a regular program was in existence to prevent or detect such defects. Instead, it took a tragic event which lead to an inspection to discover these defects, whereupon they were immediately corrected. It is concluded that an administrative fine in the amount of $300.00 is justified and authorized.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED:

That respondent be found guilty of violating Rules 10D-29.108(4) and 10D- 29.122, Florida Administrative Code, and that an administrative fine in the total amount of $375.00 be imposed against the respondent.

Respectfully submitted and entered this 22nd day of September, 1983, in Tallahassee, Florida.

DIANE D. TREMOR

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 22nd day of September, 1983.

COPIES FURNISHED:

Amelia Park

District VI Legal Counsel Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

Mr. Albert Shepard Administrator

The Ambrosia Home

1709 Taliaferro Avenue

Tampa, Florida 33602

Jay Kassack, Director Department of Health and

Rehabilitative Services Office of Licensure and

Certification Post Office Box 210

Jacksonville, Florida 32231

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-001801

Orders for Case No: 83-001801