STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3707

)

CARRIE FLETCHER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on March 27, 1984, in Quincy, Florida. The parties submitted proposed findings of fact and conclusions of law, and these have been considered. Where not adopted and incorporated herein, they were found to be irrelevant, immaterial, or not supported by the weight of the evidence, and have been rejected.

APPEARANCES

For Petitioner: John L. Pierce, Esquire

2639 North Monroe Street, Suite 200-A Tallahassee, Florida

For Respondent: Conrad C. Bishop, Jr., Esquire

Post Office Box 167 Perry, Florida 32347

By letter dated September 16, 1963, the Department advised the respondent, Carrie Fletcher, of 42 violations which had been found in inspections conducted on September 12, 14, 15 and 16, 1983. On October 13, the Department sent to the respondent a letter stating that her license to operate an Adult Congregate Living Facility would be revoked effective November 18, 1983, due to conditions in the facility which seriously affected the health, safety and welfare of the residents, as demonstrated by the violations listed in its letter of September 16, 1983. The matter was set for a formal administrative hearing on the respondent's request served on November 17, 1983. Thus, the issue is whether the respondent's license to operate an adult congregate living facility should be revoked on the basis of conditions alleged to exist in the Department's letter of September 16, 1983.

The Department presented five witnesses in support of the charges brought, and two exhibits which were received in evidence. The respondent testified in her own behalf and presented one other witness in opposition to the charges.

Two rebuttal witnesses testified for the Department.

FINDINGS OF FACT

1. The respondent was licensed in 1976 as a foster home, and obtained a license to operate an adult congregate living facility on May 31, 1981. This was the first ACLF license issued in Gadsden County.

   
   

2. On September 12, 1983 two representatives of the Department visited the Fletcher Group Home in response to an abuse complaint. Although the abuse complaint was not substantiated, they found unsanitary conditions which led to a concern about the general cleanliness of the facility, and they found that the noon meal was being served around 3:50 in the afternoon. The facility's cleanliness and the late mealtime became a concern because the residents are

   non-verbal or have low verbal skills, and are in the facility because they are unable to care for their basic personal needs.

   
   

3. Because of these conditions, the Department's representatives brought their supervisor to the facility on an unannounced visit at noon on September 14, 1983, to do a complete investigation. When they arrived, the noon meal was just beginning to be prepared, and was not ready until about 1:00 p.m. The conditions of the facility were found to be a potential threat to the health, safety and welfare of the residents in that flies were observed in the kitchen area; the entire kitchen was generally dirty and unsanitary; roaches were found in the refrigerator; food containers in the refrigerator had no covers; there was unwrapped meat stored in the refrigerator; and the refrigerator was generally unclean. The medicine cabinet was unlocked. In the bedroom areas, beds were dirty and unmade; there were roach droppings found in the beds and in the dresser drawers; the ceiling and walls were wet from rain due to the roof leaking; the ceiling sheetrock had fallen out in one of the closets with the clothes still in there, and the clothes were wet because of the leak; the facility had mold and mildew on the walls and ceilings; and generally smelled musty. In the bathroom, the toilet was stopped up and had been used until it was filled with feces; the bathtub was dirty; the sink was dirty; the hot water did not work in the sink; and the cold water tap would not turn off. Outside the facility, the kitchen sink drained into an open pipe which discharged onto the ground. The linoleum in the facility was not tacked down properly, and the metal trim was exposed so that a resident could be injured.

4.. Another visit was made on September 15, at approximately 1:30 p.m. During this investigation, the menus had not been kept on a weekly basis nor corrected with changes in the meals. The records were incomplete or were missing from their folders. There was no indication of any special diets for two of the residents who had diabetes. The contracts between the facility and the residents were out of date. Roaches were still found to be present in the closets and in the refrigerator and the kitchen waste water was still being piped onto the ground behind the facility.

1. On September 16 the Department made another inspection. This revealed that the facility had improper wiring, and did not meet the requirements of the standard building code. Plates were off the wiring receptacles making it possible for residents to come in contact with electrical wiring; exterior wiring was done improperly; interior lighting fixtures were put on the exterior of the building; LP gas heaters were improperly installed; and the beds were too close to the gas heaters. Neither the plumbing, nor the wiring, nor the building itself were in compliance with the applicable building codes.

   
   

2. The-respondent either denied that the conditions found by Department representatives existed, or she contends that those which existed have been

   corrected. However, there was no evidence presented by the respondent to show that the plumbing, electrical wiring or the building itself is in compliance with the applicable building codes. Thus, there is substantial, competent evidence to support a finding that the violations alleged existed on September 12, 14, 15 and 16, 1983.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. Sections 400.401-454, Florida Statutes, control Adult Congregate Living Facilities. Section 400.401(2) states:

   
   

   The purpose of this act is to provide for the health, safety and welfare of residents of adult congregate living facilities in the state. . .

   
   

5. Section 400.407, Florida Statutes, requires that a license be obtained and be in effect in operating an adult congregate living facility. Section 400.414, Florida Statutes, grants the Department authority to deny, suspend or revoke a license on three grounds. The first is an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. Second, a determination by the Department that the facility owner or administrator is not of suitable character and competency, or that the owner lacks the financial ability to provide continuing adequate care to residents. Third, is the misappropriation or conversion of property of residents.

   
   

6. Section 400.428, Florida Statutes, is the resident bill of rights, and states that each resident of a facility shall have the right to:

   
   

   1. Live in a safe and decent living environment, free from abuse and neglect.

      (f) Manage his own financial affairs unless he or his guardian authorizes the administrator of the facility to provide safekeeping for funds as provided in s.400.427.

      (j) Access to adequate and appropriate health care consistent with established and

      recognized standards within the community.

      
      

7. Section 400.434, Florida Statutes, gives the Department and others the right to make unannounced visits to facilities in order to determine the state of compliance with the provisions of the statutes and rules.

   
   

8. Section 400.441, Florida Statutes, gives the Department the right to establish rules for minimum standards in ACLFs. Subsection (1)(a) of this statute, provides that these standards must not conflict with "Chapter 553 relating to plumbing, heating, lighting, ventilation and other housing conditions, which will ensure the health, safety, and comfort of residents and protection from fire hazard, including adequate provisions for fire alarm and other fire protection suitable to the size of the structure." Subsection (c) of this statute requires that rules be promulgated as to "sanitary conditions within the facility and its surroundings, including water supply, sewage

   disposal, food handling and general hygiene, and maintenance thereof, which will ensure the health and comfort of the residents."

   
   

9. The rules governing adult congregate living facilities are found in Sections 10A-5.13-17, Florida Administrative Code. Section 10A-5.14 concerns license application, and provides in Subsection (5)(m) that:

   
   

   All facilities must comply with the standards set forth in parts V and VI of Chapter 553 of the F.S., unless exempt by Chapter 553, F.S.

   
   

   Part VI of this statute is the state minimum building code.

   
   

10. Section 10A-5.18, Florida Administrative Code, provides in Subsection

    1. that:

       
       

       Facilities shall offer close supervision and living conditions as appropriate for residents. Appropriate supervision shall include, but shall not be limited to:

       1. Supervision of diets as to quality and quantity;

       2. Daily awareness of the general health, safety, and well-being of the individual by designated staff;

    
    

    Subsection (6) of this rule states;

    
    

    (a) Storage:

    1. Centrally stored medications shall be;

       1. kept in a locked cabinet or container.

    
    

11. Section 10A-5.20, Florida Administrative Code provides in part in Subsection (1)(a) that:

    
    

    The operator or a person designated by the operator shall be responsible for the total food service and the day-to-day supervision of food services staff.

    (h) For facilities serving three meals a day, no more than 14 hours shall elapse between the end of an evening meal and the beginning of a morning meal containing a protein food.

    Intervals between other meals shall be not

    (j) Dated menus shall be planned at least one week in advance for regular and therapeutic diets; posted where easily viewed by residents; and corrected as served and kept on file for six months.

    (n) For facilities with a licensed capacity of twelve or fewer residents, all matters pertaining to food service shall comply with

    the following provisions:

    1. All rooms where food or drink is stored, prepared, or served or where utensils are washed shall be protected from dust, flies, vermin,

       rodents, and other contamination

    2. The floors, walls, shelves, tables, utensils and equipment in all rooms where food and drink is

    stored, prepared, or served or where utensils are washed shall be kept clean and in repair. Stored food shall be placed in such a manner as

    to be free from dust, dirt, and splash.

    1. All litter, wastes and rubbish shall be placed in suitable covered

       receptacles until properly disposed.

    2. Garbage shall be placed in covered, leakproof, nonabsorbent

    containers until properly disposed.

    
    

12. Section 10A-5.22, Florida Administrative Code, provides in part as follows:

    
    

    1. Every facility shall comply with the following:

       1. Keep the building in good repair and free of such hazards as cracks in the floors, walls, or ceilings; warped or loose boards, tile, linoleum, handrails or railings; broken window panes, missing window screens, and similar conditions.

       2. Keep all heating, air conditioning, electrical, mechanical, water supply, fire protection and sewage disposal systems in a safe and functional condition. Electrical wiring, cords, and appliances shall be maintained in a safe condition. Emergency generators, where existing, shall be tested monthly.

       3. Keep all plumbing fixtures in good repair, properly functioning and satisfactorily protected to prevent contamination entering

    the water supply.

    1. Keep all furniture and furnishings clean, in good repair and reasonably attractive.

    2. Keep grounds and buildings in a safe, sanitary and presentable condition. Grounds and buildings shall be kept free from refuse, litter and insect or rodent breeding areas.

    3. Maintain building in a clean, safe and orderly condition.

    1. Keep all floors clean and as skid-free as possible.

    2. Control odors within the housekeeping area of responsibility by cleanliness and proper ventilation. Deodorants shall not be used to cover up persistent odors caused by unsanitary conditions or poor housekeeping practices.

    3. Keep storage areas in a safe and neat condition.

13. Section 10A-5.23, Florida Administrative Code, provides in part:

    
    

    (1) The facility shall provide uncrowded, safe and sanitary housing appropriate for services provided and needs of the residents.

    
    

    1. Each resident bedroom where furnishings are supplied by the facility shall be

       furnished with the following minimum equipment:

       1. Adequate space for changing clothes.

       2. A clean, comfortable bed shall be placed in a designated bedroom, . . .

       
       

    2. Bathrooms shall be ventilated; adequately lighted; and have hot and cold running water.

    
    

    1. Safety and Fire Protection.

       1. Fire safety protection shall be governed by the applicable local fire code for facilities. In areas where no local fire code applies to facilities, the minimum standards in HRS publication BRSM 140-3, Fire Safety standards for Adult Congregate Living Facility effective February 15, 1980, as incorporated by reference, shall be used to determine compliance with fire safety standards. . .

    
    

14. Section 10A-5.24, Florida Administrative Code, requires the operator of an ACLF to maintain written records which shall be accessible to Department personnel. Subsections 1, 3, 4, 5 and (7) require the following:

    
    

    1. An admission and discharge register listing names of each resident with date admitted, the place from which the resident was admitted, the date and reason for discharge, adequate identification of the facility to which the resident is discharged or transferred.

    
    

    1. A contract in the resident's personnel file of all services to be provided and of financial arrangements (e.g., daily, weekly, or monthly rate and refund provision for unused portions thereof) with the resident, his next of kin, or sponsor, with copies executed by and furnished to each party. This shall include detailed records of any funds or property held for the resident for safe keeping in accordance with Chapter 400, Part II, F.S.

       
       

    2. Written agreements between the facility and each resident which shall provide that, upon certification by a physician or nurse practitioner that the resident needs services beyond those the facility provides, the

       resident of the next of kin, legal representative or agency acting on the resident's behalf, shall be notified that the resident must make arrangements for immediate transfer to an appropriate care setting. In the event a resident has no person to represent him, the facility shall be responsible for making referral to an appropriate social service agency for placement.

       
       

    3. Demographic data as follows: name; sex; race; date of birth; state of birth; marital status; name of spouse, if married; date of birth; next of kin; parents' names; occupation; social security number; medicaid and medicare number; and details of referral and admission.

    Missing data requirements shall be evaluated to determine whether the operator made a good faith attempt to obtain the information. If so, the missing data shall not be considered a deficiency.

    
    

    7. Health-information as follows:

    g. Daily records shall be kept on file in the facility for residents who receive supervision of self-administered medications or

    administered medications, . . .

    
    

    (c) Food Service

    
    

    2. All facilities shall maintain:

    b. Dated menus for regular and therapeutic diets corrected as served for six months.

    
    

15. Between the dates of September 12, 1983, and September 16, 1983, the respondent violated the statutes and rules cited above in that the building was dirty, flies were present, and roaches or roach droppings were found throughout the building in beds, dresser drawers, and the refrigerator. The building was in poor repair with leaks in the roof and water damage to the walls, ceiling and closets; water faucets would not turn off; there was no hot water to the sink; the toilet was stopped up but being used; musty mildew odors were present in the building; and the kitchen sink water emptied onto the ground. On one day lunch was not served until 3:50 p.m.; prescription medication was not locked up; beds and sheets were dirty; wet clothes from a leak in the closet remained there for five days; emergency exits were cluttered; electrical wiring was unsafe; records were not kept; beds were too close to open gas heaters; metal trim on linoleum was exposed and sharp; contracts with residents were not up to date; and menus had not been kept for six months to show what residents had been fed. Also on these dates, the building failed to meet the building, electrical, plumbing or gas codes.

    
    

16. From the evidence presented in this case, the conclusion is warranted that conditions in the respondent's facility on the dates when the inspections were made seriously affected the health, safety and welfare of the residents, and that these conditions were the result of the respondent's negligence. Thus,

in accordance with Section 400.414, Florida Statutes, revocation of the respondent's ACLF license is warranted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license of Carrie Fletcher to operate the adult

congregate living facility known as the Fletcher Group Home, be revoked.

THIS Recommended Order entered this 4 day of June, 1984, in Tallahassee, Florida.

WILLIAM B. THOMAS

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 4 day of June, 1984.

COPIES FURNISHED:

John L. Pierce, Esquire 2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32303

Conrad C. Bishop, Jr., Esquire Post Office Box 167

Perry, Florida 32347

Docket for Case No: 83-003707

Orders for Case No: 83-003707