STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-3816

)

KEVIN HINCKLEY, d/b/a )

CREATIVE LIVING # 2, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on March 28, 1986, in Clearwater, Florida. The following appearances were entered:

For Petitioner: Carol Wind, Esquire

HRS District V Assistant Legal Counsel

2255 East Bay Street Clearwater, Florida 33518

For Respondent: Jack S. Carey, Esquire

575 2nd Avenue South

St. Petersburg, Florida 33701

The issue at the final hearing was whether the Respondent was guilty of the allegations contained in the Administrative Complaint.

PROCEDURAL BACKGROUND

The Petitioner served the Administrative Complaint by U.S. Mail on July 2, 1985. By letter dated July 15, 1985, the Respondent disputed the factual allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. This cause came on for final hearing on March 28, 1986.

At the final hearing, the Petitioner presented the testimony of three witnesses. In addition, Petitioner's Exhibits 1-3 were

duly offered and admitted into evidence. Two witnesses testified on behalf of Respondent, but no documentary evidence was submitted. The parties have submitted post-hearing proposed findings of fact. A ruling has been made on each proposed findings of fact.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. The Respondent, Kevin Hinckley, at all times relevant to the Administrative Complaint, was licensed to operate Creative Living #2, 225 26th Avenue, Northeast, St. Petersburg, Florida, as an Adult Congregate Living Facility in compliance with Chapter 400, Florida Statutes.

   
   

2. On January 3, 1985, Earl Wright, Demaris Hughes and Bernard Dunagan, personnel from the Department of Health and Rehabilitative Services, Office of Licensure and Certification, conducted a survey of Creative Living #2.

   
   

3. Mr. Wright was primarily responsible for conducting the administrative aspects of the survey, such as paperwork and staffing matters. Ms. Hughes was employed as a public health nutrition consultant and was responsible for surveying the nutritional aspects of the facility. Mr. Dunagan was employed as a fire safety specialist and was responsible for conducting the fire safety aspect of the survey.

   
   

4. During the survey of January 3, 1985, the inspection team determined that various deficiencies existed in Respondent's facility. An exit conference was conducted by the inspection team with a representative of Creative Living #2 upon. completion of the survey wherein the alleged deficiencies were explained. Certain time-frames were established in which the facility was to correct the deficiencies noted in the survey.

   
   

5. The deficiencies noted during the January 3, 1985 survey were as follows:

   
   

   Deficiency Correction Date

   
   

   a. Failure to maintain an admission	February	3,	1985
   and discharge record.
   b. Failure to maintain employee	February	3,	1985
   time-sheets.
   c. Failure to have policies and	February	3,	1985

   procedures to ensure leisure services for residents.

   1. Failure to ensure that supper February 3, 1985 meal and breakfast were no

      more than 14 hours apart.

      e. Failure to keep menus on file	February	3,	1985
      for six months and no
      substitutions were documented.
      f. Failure to keep the kitchen	February	3,	1985
      and equipment in good repair.
      g. Failure to ensure that all	February	3,	1985
      residents' sleeping rooms opened
      directly into a corridor, common
      use area or outside.
      h. Failure to have a grab bar	February	3,	1985
      in the shower.
      i. Failure to keep the building in	February	3,	1985
      good repair and free of hazards
      as evidenced by the following:

      1. the kitchen ceiling needed plastering, and (2) the rear bed- room window was cracked.

         1. Failure to keep all plumbing February 3, 1985 fixtures in good repair, properly

            functioning and satisfactorily protected to prevent contamination from entering the water

            supply as evidenced by two back-flow devices not being installed in order to prevent contamination on outside faucets.

         2. Failure to have an automatic March 3, 1985 sprinkler system in the

         facility. (a two-story unprotected wood-frame building.)

         1.	Failure to maintain a	January 10, 1985
         	fire alarm system that could be
         	shown to work when tested.
         m.	Failure to provide either a	January 10, 1985
         	one hour fire resistant rating
         	or automatic fire protection
         	for storage under the stairs
         	in the facility.

6. A follow-up visit was made by Earl Wright and Demaris Hughes on March 14, 1985 and by Bernard Dunagan on March 20, 1985. The follow-up visits were made by the Department of Health and Rehabilitative Services to determine the status of deficiencies noted during the initial survey of January 3, 1985.

   
   

7. During the follow-up survey on March 14, 1985, an argument ensued between Mr. Hinckley and Ms. Hughes. The argument took place in the dining room and shortly thereafter the survey was terminated. Although the majority of the re- inspection was performed, the argument resulted in the survey

   being terminated short of completion. Because the survey was concluded before completion, the inspectors did not verify action taken by Respondent to correct certain deficiencies.

   
   

8. At the time of the follow-up survey on March 14, 1985, the facility had not corrected certain "administrative" deficiencies noted by Mr. Wright. Specifically, the facility:

   1) did not have an admission and discharge record; 2) did not have employee time-sheets; and, 3) did not have established policies and procedures to ensure leisure services for residents. Further, a resident's sleeping room in the house did not open directly into a corridor, common use area or outside, and two back-flow plumbing devices were not installed in order to prevent contamination from entering the water supply.

   
   

9. At the time of the follow-up survey on March 14, 1985, the facility had not corrected certain deficiencies noted by Ms. Hughes which concerned diet and nutrition. Specifically, the facility failed to keep menus on file for six months and note documentation of substitute foods.

   
   

10. At the time of the follow-up survey on March 20, 1985, the facility had not corrected a number of deficiencies noted by Mr. Dunagan which concerned fire safety. In particular, the facility: (1) failed to have an automatic sprinkler system; (2) failed to maintain a fire alarm system that could be shown to work when tested; and (3) failed to provide either a one hour fire resistant rating or automatic fire protection for an area under the stairs in the facility which was used as storage.

    
    

11. Mr. Hinckley ran the facility out of his home and operated it on a "family concept." A resident could eat whenever he or she was hungry. Normally, the evening meal was served at 5:00 P.M. or 6:00 P.M., and a snack was provided at 8:00 P.M. or 9:00 P.M. Breakfast was available from 6:30 A.M. through 7:00

    A.M. for the Respondent's children. The residents could join the family for breakfast, or, if they wished to "sleep-in," could have breakfast later. ~

    
    

12. An upstairs toilet had overflowed and caused the ceiling plaster in the kitchen below to buckle. On March 14, 1985, the plastering was repaired but had not been painted. The cracked bedroom window had been repaired.

    
    

13. Following the initial survey, Mrs. Hinckley called Mr. Wright to talk about the shower grab bar. Mr. Wright told her that she could put adhesive skid grips in the shower. From her conversation with Mr. Wright, Mrs. Hinckley believed that she could substitute adhesive skid grips for the grab bar because

    there was a sit-down commode. Adhesive skid grips were installed in the shower.

    
    

14. Respondents, in a separate action, lost their license as an adult congregate living facility in November, 1985.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and subject of these proceedings. Chapter 120, Florida Statutes.

    
    

16. The Department of Health and Rehabilitative Services has jurisdiction over the Respondent by virtue of the provisions of the "Adult Congregate Living Facilities Act," Chapter 400, Part 2, Florida Statutes. The purpose of the act is ". . .to provide for the health, safety and welfare of residents of adult congregate living facilities in the state, to promote the growth and continued improvements of such facilities, to ensure that all agencies of the state cooperate in the protection of such residents, and to ensure that needed economic, social, mental health, health and leisure services are made available to residents of such facilities. . ." Section 400.401(2), Florida Statutes. In furtherance of the stated purposes of the act, if the Department of Health and Rehabilitative Services determines a facility is not in compliance with certain standards promulgated pursuant to the provisions of Section 400.419, Florida Statutes, the facility may be subject to an administrative fine. The Administrative Complaint charges that Respondent violated the provisions of Chapter 400, Part 2, Florida Statutes, and Chapter lOA-5, F.A.C., in that the facility failed to correct, within the mandated time-frames, certain deficiencies cited during a survey which occurred on January 3, 1985.

17. The burden of proof in this case is on the Petitioner. The Petitioner established by a preponderance of the competent and substantial evidence that on the date of the follow-up survey, the facility: (1) failed to maintain an admission and discharge record, in violation of Rule lOA-5.24(1)(a)b, F.A.C.;

    1. failed to have employee time-sheets, in violation of Rule lOA-5.24(1)(a)7, F.A.C. (3) failed to have established policies and procedures to ensure leisure services for residents in violation of Rule lOA-5.182(7)(a), F.A.C.; (4) failed to keep menus on file for six months and to note documentation of substitute foods, in violation of Rule lOA-5.20(1)(j), F.A.C.;

    (5) maintained a resident's sleeping room in the facility which did not open directly into a corridor, common use area, or outside, in violation of Rule lOA-5.23(7) F.A.C.; (6) failed to keep all plumbing fixtures satisfactorily protected to prevent contamination from entering the water supply, as evidenced by two back-flow devices not being installed in order to prevent contamination on outside faucets, in violation of Rule lOA- 5.22(1)(c), F.A.C.; (7) failed to have an automatic sprinkler system in the facility, in violation of Chapter 4A-40.7(1), F.A.C.; (8) failed to maintain a fire alarm system that could shown to work when tested, in violation of Rule Chapter 4A-40,

    F.A.C.; and (9) failed to provide either a one hour fire resistant rating or automatic fire protection for an area under the stairs in the facility which was used as storage, in violation of the minimum fire safety standards for adult congregate living facilities, Rule Chapter 4A-40, F.A.C.

    
    

18. The Petitioner failed to show, by a preponderance of the evidence, that: (1) the facility failed to ensure that supper meals and breakfast meals were no more than 14 hours apart; (2) that the kitchen of the facility did not contain clean equipment in good repair; and (3) that the Respondent failed to keep the building in good repair and free of hazards as evidenced by the kitchen ceiling continuing to need repair and a rear bedroom window being cracked. Further, the Respondent is not guilty of failing to install a grab bar in the shower where Respondent reasonably believed, based on conversations with Mr. Wright, that adhesive skid grips could correct the deficiency.

    
    

19. All of the violations which were proven constitute grounds for an administrative fine pursuant to Section 400.419(4), Florida Statutes which provides that "the Department may set and levy a fine not to exceed $500 for each violation which cannot be classified according to Subsection (3)." Because the Petitioner failed to present evidence establishing that the violations were Class I, II or Class III violations in accordance with Subsection 3 of Section 400.419, Florida Statutes, the violations are unclassified violations pursuant to Subsection 4 of Section 400.419, Florida Statutes. Section 400.419(2) provides in pertinent part that:

    
    

    "(2) In determining if a penalty is to be imposed and in fixing the amount of the penalty to be imposed, if any, for a violation, the department shall consider the following:

    
    

    1. The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes were violated.

       
       

    2. Actions taken by the owner or administrator to correct violations.

       
       

    3. Any previous violations.

    4. The financial benefit to the facility of committing or continuing the violation.

In view of the above guidelines, an administrative fine of $100 for each fire safety violation and $50.00 each for all other violations should be assessed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a fine in the amount of $600 be imposed upon Kevin Hinckley d/b/a Creative Living #2.

DONE and ORDERED this 6th day of May, 1986, in Tallahassee, Florida.

W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1986.

COPIES FURNISHED:

Carol Wind, Esquire

HRS District V Assistant Legal Counsel

2255 East Bay Street Clearwater, Florida 33518

Jack S. Carey, Esquire

575 2nd Avenue South

St. Petersburg, Florida 33701

William J. "Pete" Page, Jr. Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Steve Huss, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case.

Rulings on Proposed Findings of Facts Submitted by the Petitioner:

1. Adopted in Finding of Fact 1.

2. Addressed in Conclusions of Law.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 4.

5. Adopted in Finding of Fact 4.

6. Adopted in Finding of Fact 4.

7. Adopted in Finding of Fact 6.

8. Adopted in Finding of Fact 8.

9. Adopted in Finding of Fact 8.

10. Adopted in Finding of Fact 8.

11. Rejected as contrary to the weight of the evidence.

12. Adopted in Finding of Fact.

13. Rejected as contrary to the weight of the evidence.

14. Adopted in Finding of Fact 8.

15. Rejected as unnecessary in view of Finding of Fact 13.

16. Rejected as contrary to the weight of the evidence.

17. Adopted in Finding of Fact 8.

18. Adopted in Finding of Fact 10.

19. Adopted in Finding of Fact 10.

20. Adopted in Finding of Fact 10.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 4.

4. Adopted in Finding of Fact 6.

5. Rejected as subordinate.

6. Rejected as a recitation of testimony.

7. Rejected as a conclusion of law.

8. Adopted in Finding of Fact 14.

9. Addressed in Conclusions of Law section of Recommended Order.

Docket for Case No: 85-003816

Orders for Case No: 85-003816