STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0135

)

TREVOR JONES, d/b/a ) BRER FOX RETIREMENT HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Division of Administrative Hearings Hearing Officer K.

1. Ayers held a formal hearing in the above- styled cause on March 24, 1986 in Clearwater, Florida.

   
   

   APPEARANCES

   
   

   FOR PETITIONER: Carol M. Wind, Esquire

   2255 E. Bay Drive Clearwater, Florida 33518

   
   

   FOR RESPONDENT: Trevor Jones, pro se

   9675 94th Avenue North Sarasota, Florida 33543

   
   

   By Administrative Complaint dated November 21, 1985, Department of Health and Rehabilitative Services, Petitioner, seeks to impose a civil penalty in the amount of five hundred fifty ($550.00) dollars against Trevor Jones, d/b/a Brer Fox Retirement Home, Inc., Respondent. As grounds therefor, it is alleged that Respondent failed to timely correct four class III deficiencies cited in a survey conducted April 5, 1985.

   
   

   At the hearing, Petitioner called one witness; Respondent called one witness; and one exhibit was admitted into evidence. There is no basic dispute regarding the facts here involved.

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF) and operated a home with thirteen residents.

      
      

   2. At a survey conducted April 25, 1985 some seventeen (17) class III deficiencies were noted by the survey team and these discrepancies were brought to the attention of the ACLF administrator at the exit interview held. Respondent was given thirty (30) days to correct these discrepancies.

   3. A follow-up inspection on Respondent's ACLF was conducted July 9, 1985. At this inspection the following discrepancies remained uncorrected:

      
      

      1. there was no assurance that staff providing assistance with personal hygiene have inservice or other training in personal hygiene care from a qualified instructor;

         
         

      2. four residents' files did not contain a completed Health Assurance

         form;

         
         

      3. physical examinations of three (3) of thirteen (13) residents did

         not include a statement that on the day of the examination the individual was free of communicable disease; and

         
         

      4. there was no three-compartment sink or other approved system available to sanitize kitchen utensils.

         
         

   4. Respondent acknowledged the deficiencies above-noted had not been corrected at the time of the reinspection. In mitigation, Respondent presented evidence that requests had been made of the doctors for the missing evidence in the residents' files and the doctors were inordinately slow in forwarding such information. With respect to staff training in personal hygiene, Respondent attempted to enroll its staff in the required training but ran into delays of a month or so in getting its personnel in these classes. With respect to the three-compartment sink, Respondent ordered the first replacement sink from a plumber who went out of business before installing the sink; a second sink was ordered but the sink was too small; and finally, Respondent replaced the deficient sink with the proper type.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

      
      

   6. Section 400.419(3)(c), Florida Statutes, provides:

      
      

      Class "III" are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the Department determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents other than class I or II violations. A class III violation is subject to a civil penalty of not less than $100 and not exceed- ing $500 for each violation. A citation for

      a class III violation shall specify the time within which the violation is required to be corrected. If a class III deficiency is cor- rected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

      
      

   7. The evidence is uncontradicted that Respondent failed to correct the deficiencies within the time specified for correction and no valid basis for failure to do so was presented. Although in the survey report Respondent was given only thirty days in which to correct the deficiencies, the reinspection

      did not occur until some 74 days after the initial inspection thereby effectively allowing Respondent that much time to correct the deficiencies.

      
      

   8. The penalties assessed are authorized by the above- quoted statements and in compliance with the rules of the Department.

RECOMMENDATION

It is recommended that a final order be entered assessing an administrative fine of $550 against Trevor Jones, d/b/a Brer Fox Retirement Home, Inc., with interest as provided by Section 687.01, Florida Statutes.

DONE AND ORDERED this 10th day of April 1986 in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1986.

COPIES FURNISHED:

Mr. William Page, Jr. Secretary

Department of HRS 1323 Winewood Blvd.

Tallahassee, Florida 32301

Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd.

Tallahassee, Florida 32301

Carol M. Wind, Esquire 2255 East Bay Drive Clearwater, Florida 33518

Mr. Trevor Jones

9675 94th Avenue North Sarasota, Florida 33546

Docket for Case No: 86-000135

Orders for Case No: 86-000135