STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH ) AND REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-3820

)

BOLEY MANOR, INC., )

)

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 Drive Clearwater, Florida 33546

For Respondent: Donna Varnadoe

Corporate Representative Director of Residential Services 1236 Ninth Street North

St. Petersburg, Florida 33705

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 June 21, 1985. By letter dated June 17, 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 one witness, Mr. Bernard Dunagan. In addition, Petitioner's Exhibits 1-3 were duly offered and admitted into evidence. Three witnesses testified on behalf of Respondent: Ms. Donna Varnadoe; Ms. Kathy Moulton; and, Ms. Murphy. No documentary evidence was submitted on behalf of Respondent. The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

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

1. The Respondent, Boley Manor, Incorporated, is licensed to operate Boley Manor Group Home #1, 214 Fourth Avenue South, St. Petersburg, Florida, as an Adult Congregate Living Facility in compliance with Chapter 400, Florida Statutes.

   
   

2. On August 13, 1984, Mr. Mike Morris, a Fire Protection Specialist from the Department of Health and Rehabilitative Services, Office of Licensure and Certification, conducted a survey of Boley Manor Group #1.

   
   

3. During the survey, Mr. Norris observed that the facility was using an area below the stairway as a storage space for several items, including linens, boxes and a metal trunk.

   
   

4. An exit conference was conducted by Mr. Morris with two representatives of the facility, Ms. Moulton and Ms. Murphy. Mr. Morris told Ms. Murphy and Ms. Moulton that the combustible items under the stairway had to removed.

   
   

5. A deadline of October 1, 1984, was established in conjunction with the facility by which time the space under the stairway would no longer be used for storage of combustible items. The representatives of the facility were told that the metal trunk was not a combustible item and could remain under the stairway.

   
   

6. Subsequent to the initial survey and exit conference, the Respondent was mailed a list of the deficiencies noted during the survey and suggested action required for correction. The list contained other deficiencies not related to the fire safety aspect of the survey. In regard to the deficiency concerning stairway storage, the document read as follows:

   "A. Space under stairway used for storage. (Action to correct: Remove storage from under stairway)."

   
   

7. On March 14, 1985, Mr. Bernard Dunagan, Fire Protection Specialist with the office of Licensure and Certification, conducted a follow-up survey of Boley Manor Group #1 and observed that the metal trunk was still stored under the stairway. Thereafter, the Respondent was cited with the alleged deficiency set forth in the Administrative Complaint.

   
   

8. When the nature of the deficiency was clarified in March of 1985, the Respondent removed the trunk from under the stairway. All of the other deficiencies, not related to the fire safety aspect of the survey, had been corrected or were being corrected by Respondent.

   
   

9. Mr. Mike Morris is no longer employed as a Fire Protection Specialist with the office of Licensure and Certification.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and subject of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

11. 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.

    
    

12. The burden of proof in this case is on the Petitioner. The Administrative Complaint charges that Respondent violated the provisions of Chapter 400, Part II, Florida Statutes and Chapter lOA-5, F.A.C., in that the facility failed to correct, within the mandated time frame, a certain alleged deficiency cited during a survey which occurred on August 13, 1984. The complaint alleges

    that at the March 14, 1985 follow-up survey, the Respondent continued to use the area below the stairway as a storage space and thus, had failed to correct the alleged deficiency. The complaint charges that the alleged violation was a Class III deficiency. A Class III deficiency is defined as "those conditions or occurrences related to the operation and maintenance of a facility . . . which the department determines indirectly or potentially threatens the . . . safety . . . of facility residents." Section 400.419(3)(c), Florida Statutes.

    The Petitioner suggests a civil penalty of $200.00. The Petitioner has failed to meet its burden of proof. The record fails to show that the Respondent was made fully aware of the nature of the deficiency that required correction. The facility representatives testified that Mr. Morris told them that they were required to remove the combustible items from beneath the stairway. In compliance with their understanding of Mr. Morris' directions, the linens and boxes were removed. At the follow-up survey, the combustible items had been removed, but the metal trunk was still there.

13. Two factors become very important in this case: (1) A different inspector performed the follow-up survey than performed the initial survey and (2) the inspector that performed the initial survey, without any explanation of possible unavailability, did not testify at the hearing. Subsequent to the initial survey and exit conference, the Respondent was mailed a list of the deficiencies noted and action required for correction. The facility representatives that were present at the exit conference believed that the written instruction to "remove storage from under stairway" was meant to be consistent with Mr. Morris' oral directions that only combustible items needed to be removed.

    
    

14. The good faith efforts of the facility to comply with requirements was amply established in the record. The Respondent corrected other deficiencies which were cited during the survey, removed the combustible items when it believed that only combustible items needed to be removed and promptly removed the metal trunk after it learned, at the March 1985 follow-up survey, that the area beneath the stairway needed to be completely clear of all items.

RECOMMENDATIONS

Based on the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED that a final order be issued dismissing the Administrative Complaint.

DONE and ORDERED this 29th day of April, 1986 in Tallahassee, Leon County, 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 29th day April, 1986.

COPIES FURNISHED:

Carol Wind, Esquire HRS District V Asst. Legal Counsel 2255 East Bay Drive

Clearwater, Florida 33546

Donna Varnadoe Residential Program Boley, Inc.

1236 Ninth Street North

St. Petersburg, Florida 33705

William "Pete" Page, Jr. Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Steve Huss, Esquire 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 Fact Submitted by the Petitioner

1. Adopted in Finding of Fact 1.

   
   

2. Addressed in Conclusions of Law Section of R.O.

   
   

3. Adopted in Finding of Fact 2.

   
   

4. Adopted in Finding of Fact 3.

   
   

5. Partially adopted in Findings of Fact 4 and 5. Matters not contained therein are rejected as not supported by competent substantial evidence.

   
   

6. Partially adopted in Findings of Fact 5. Matters not contained therein are rejected as not supported by competent substantial evidence.

   
   

7. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as not supported by competent substantial evidence.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Salutatory remarks and not a finding of fact.

   
   

2. Adopted in findings of fact 2-8.

   
   

3. Addressed in Recommendations Section of R.O.

Docket for Case No: 85-003820

Orders for Case No: 85-003820