STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-2342

)

MILDRED LAUCHNER, d/b/a )

LAUCHNER ACLF, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 17, 1985 in St. Petersburg, Florida by Stephen F. Dean, assigned hearing officer of the Division of Administrative Hearings. This case arose from an inspection of an Adult Congregate Living Facility (ACLF) by the Department of Health and Rehabilitative Services (DHRS). The DHRS cited Mildred Lauchner, the Respondent, with several violations which Lauchner had time to correct pursuant to rule before a fine was levied. On reinspection four of the violations were found to be uncorrected and a civil penalty of $700.00 was levied against Lauchner.

Lauchner filed a timely request for hearing and DHRS referred the case to the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carol Wind, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33518

For Respondent: Mildred Lauchner, pro se

ISSUES

There were four cited violations:

1. Failure to keep daily medical administration records.

   
   

2. Failure to document monthly fire drills.

3. Violation of fire code by having bolts and chains on front and back door.

   
   

4. Violation of fire code by having a door in a resident's room blocked by the resident's bed.

Lauchner admitted these facts and DHRS proved the facts of allegations. However, there is an issue of law regarding

whether all or part of the fire code violations apply to an ACLF which has less than three residents.

Neither party filed proposed findings although DHRS filed copies of the applicable rules as a late filed exhibit and Ms. Lauchner filed a letter which contained her arguments but no proposed facts.

FINDINGS OF FACT

1. Mildred Lauchner is licensed by DHRS to operate Lauchner ACLF. This facility is licensed for three residents but it has never had more than two residents at one time.

   
   

2. Mildred Lauchner is a mature white female who has worked at hospitals and nursing homes as an aide. She has operated an ACLF for several years and has a good general reputation with DHRS. She does this primarily alone with the assistance of a cleaning person who comes several times per week. Ms. Lauchner exhibited confusion about the sequence of events which lead to these fines being levied.

   
   

3. Residents at the Lauchner ACLF are primarily elderly bed-ridden persons who do not need nursing care.

   
   

4. On January 29, 1985 an inspection was conducted of Lauchner ACLF by DHRS. A copy of the inspection report was introduced as PEX 1. This inspection revealed various Class III deficiencies. A copy of this report was presented to Mildred Lauchner on February 23, 1985. She had 30 days to correct the deficiencies from the date of the deficiencies.

   
   

5. On March 22, 1985 Lauchner ACLF was inspected. Four of the deficiencies were not corrected. Daily medication records were not being kept as required, there was no documentation of monthly fire drills, locks were on exit doors and a bed in a bedroom blocked an outside door.

   
   

6. On May 22, 1985 the Lauchner ACLF was reinspected. Of the deficiencies previously noted in paragraph 5 above, the

   monthly fire drills had been documented and one of the exit doors had been brought into compliance with the life safety code.

   
   

7. Lauchner ACLF had at least three exterior doors: a front door, a back door and door to the outside of the house in a bedroom.

   
   

8. On June 4, 1985 the DHRS served an administrative complaint on Mildred Lauchner seeking to impose a total fine of

   $700.00 broken down as follows:

   
   

   1. $150.00 failure to keep daily medical administration records.

      
      

   2. $100.00 failure to document fire drills.

      
      

   3. $250.00 failure to have only simple locks on exit doors and having bolts or chains on such doors.

      
      

   4. $200.00 blocking an "exit" door in a bedroom.

      
      

      CONCLUSIONS OF LAW

      
      

9. The DHRS has jurisdiction to administer ACLF pursuant to Chapter 400, Florida Statutes, and to levy fines against licensees for violations of the statutes and rules pursuant to Section 400.419(1)(b), Florida Statutes. This order is entered pursuant to Section 120.57(1), Florida Statutes.

   
   

10. The first violation charged was that the Respondent, Mildred Lauchner, had failed to maintain the records for supervision of self-administration of medication. Upon reinspection the records were found to have been completed in advance. This constitutes a violation of Rule 10A-5.24(1)(a)(3), Florida Administrative Code.

    
    

11. The second violation charged was that monthly fire drills were not documented contrary to Rule 4A-40.13(1), Florida Administrative Code. The controversy here is legal involving interpretation of the rules of the Department of Insurance (4A- 40.04, Florida Administrative Code). Rule 4A-40.04, Florida Administrative Code, provides that there must be one fire drill per month at any ACLF and it must be documented. It also provides that "the authority having jurisdiction," in this case DHRS, may modify the rules. DHRS by its Rule 10A-5.23(15)(a) provides for documented fire drills for facilities with 13 or more beds. It appears that DHRS as "the authority having jurisdiction," has modified Rule 4A-40.04, Florida Administrative

    Code, and that Lauchner ACLF with 3 beds is not required to document its fire drills. There was no violation of the rule as alleged.

    
    

12. The third violation charged was that-the exit doors had locks other than simple release-type locking devices contrary to 4A-40.05 and the Life Safety Codes 5-2.1.2.1. Testimony revealed that the facility had a front door, a back door, and a door in a bedroom to the outside. The front door had a simple bolt lock and the back door a security chain. The front and back doors are deemed exits. According to the-Life Safety Code, exit doors must have a simple knob, handle, panic bar or simple release mechanism, the method of operation which is obvious in darkness. See Section 5-2.1.2.2. The devices on the doors are such simple devices. The Life Safety Code only prohibits locks, chains, etc., on doors which are required to have panic hardware. See Section 5-2.1.2.1.4. Panic hardware is necessary only on exits of places of public assembly for more than 100 people. The doors at the front and back of the house are not required to have panic hardware. Therefore, the use of a simple dead bolt or a security chain does not appear to violate Section 5-2.1.2.1 or 5-1.2.1.4, Life Safety Code.

13. Similarly, the fourth alleged violation also depends upon whether a door to the outside of the facility, not normally used because it is blocked by a bed and which is not marked as an exit, must meet the requirements of an exit. An ACLF is only required to have two doors at ground level. See 4A-40.11(2), Florida Administrative Code. According to the rules a third exit is not required. The Lauchner ACLF had two exits, one at the front and at the back of the facility excluding the blocked door. Not all doors are "exits," and only exits are subject to regulation. The third door could have been boarded up. Unless it could cause confusion, it would not have to be indicated as a non-exit. Clearly, the occupants and the staff were aware the door blocked by the bed was not an exit. The fourth allegation is not proven.

RECOMMENDATION

Having found that Lauchner ACLF was in violation of 10A- 5.24(1)(a)(3), Florida Administrative Code, it is recommended that the civil penalty of $150.00 be levied against Mildred Lauchner, the licensed operator.

DONE AND ORDERED this 14th day of February 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of February 1986.

COPIES FURNISHED:

David Pingree, Secretary Department of HRS

1323 Winewood Blvd.

Carol Wind, Esquire District V Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518

Mildred Lauchner Lauchner ACLF

404 Madison Avenue North Clearwater, Florida 33515

Docket for Case No: 85-002342

Orders for Case No: 85-002342