STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1103

)

FORT LAUDERDALE RETIREMENT )

HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on April 29, 1987 in Fort Lauderdale, Florida. The parties were afforded leave to submit post-hearing momoranda supportive of their respective positions. The parties submitted proposed memoranda which were considered by me in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix to the Recommended Order herein.

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire

Office of Licensure and Certification 5190 Northwest 167th Street, Suite 210

Miami, Florida 33014

For Respondent: Jacqueline H. Kidwell, Administrator

Fort Lauderdale Retirement Home

401 Southeast 12th Street

Fort Lauderdale, Florida 33316 ISSUE PRESENTED

The issue presented for decision herein is whether or not Respondent, Jacqueline H. Kidwell, unlawfully failed and refused to allow Petitioner's agents to inspect the licensed facility.

FINDINGS OF FACT

1. Fort Lauderdale Retirement Home is an Adult Congregate Living Facility (ACLF) situated at 401 Southeast 12th Court, Fort Lauderdale, Florida 33316 and was licensed as such during times material herein.

   
   

2. On July 19, 1985, an appraisal visit was conducted by personnel from Petitioner's Miami Office of Licensure and Certification to determine compliance with applicable rules and regulations for ACLF's.

3. Petitioner's appraisal and survey team made two requests to the facility's administrator, Jacqueline Kidwell, to examine the contents of a medication cabinet on the premises and was denied permission to do so.

   
   

4. One of Petitioner's appraisal team surveyors, Jane Bavetta, observed what appeared to be medication in two amber colored jugs located in the bottom of a cabinet in the administrator's office, which appeared to be the type container medication is usually stored. (Petitioner's Exhibit 1).

   
   

5. Petitioner has advised Respondent that it intends to levy an administrative fine in the amount of three hundred dollars ($300).

   
   

6. Another of Petitioner's appraisal surveyors, who is no longer employed by Petitioner Elizabeth Mazlin, also made a request of Ms. Kidwell to inspect the cabinet in the administrator's office which she suspected to contain medication and was denied permission to do so by Ms. Kidwell.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

9. The authority of the Petitioner is derived from Chapter 400, Part II, Florida Statutes.

   
   

10. Respondent, a licensed ACLF, must maintain compliance with Petitioner's rules and regulations concerning the operation of ACLF's.

    
    

11. Chapter 400.434, Florida Statutes, authorizes duly designated officers or employees of the Department to enter, unannounced upon and into the premises of any facility licensed (by the Department to determine the state of compliance with provisions and rules or standards in force.

    
    

12. Section 400.419(1)(b), Florida Statutes, authorizes the Department to set and levy an administrative fine against any facility found to be in violation of Chapter 400, Florida Statutes.

    
    

13. Competent and substantial evidence was offered herein to establish that Respondent failed to allow the Petitioner's employees an opportunity to fully inspect its licensed facility on July 19, 1985 while making an unannounced visit to conduct an appraisal of Respondent's facility pursuant to Section 400.434, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Petitioner, Department of Health and Rehabilitative Services, Office of Licensure and Certification, enter a Final Order imposing a three hundred dollar ($300) fine against Respondent, Fort Lauderdale Retirement Home, Inc. payable to Petitioner within thirty (30) days after entry of Petitioner's Final Order.

RECOMMENDED this 3rd day of August, 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

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 3rd day of August, 1987.

APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 86-1103

Rulings on Petitioner's Proposed Findings of Fact

1. Paragraph 2 first sentence rejected as irrelevant to the issues posed.

2. Paragraph 4 rejected as argument and not a finding of fact.

3. Paragraph 5 rejected, irrelevant in view of the finding that Respondent's agents did not allow Petitioner's surveyor an opportunity to inspect the premises and the administrative fine was levied on that basis.

Rulings on Respondent's Proposed Recommended Order

1. Respondent's position is set forth in a letter dated may 11, 1987. Inasmuch as Respondent's position is in the form of legal argument including their feelings, position on the credibility of witnesses and a concluding recommendation that the charges herein be dismissed, Respondent's Proposed Recommendation, while considered by the undersigned in preparation of the Recommended Order, is not ruled upon point by point in the Appendix herein.

COPIES FURNISHED:

Leonard T. Helfand Esquire Office of Licensure and Certification

Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014

Jacqueline H. Kidwell Administrator

Fort Lauderdale Retirement Home

401 Southeast 12th Court

Fort Lauderdale, Florida 33316

Docket for Case No: 86-001103

Orders for Case No: 86-001103