STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 86-3463

)

1. D. VIRICE AND ASSOCIATES, ) INC., d/b/a HILCREST RETIREMENT ) RESIDENCE, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   The final hearing in this case was held on December 8, 1986, in St.

   Petersburg, Florida. Representing the Petitioner was Carol M. Wind, Esquire, and representing the Respondent was Jay Thorpe, Esquire. The Petitioner presented two exhibits which were received into evidence. The Respondent presented no exhibits.

   
   

   FINDINGS OF FACT

   
   

   1. On February 20, 1985, Demaris Hughes, a registered dietician for the office of licensure and certification of the Petitioner, conducted the annual license survey of the Respondent, A. D. Virice and Associates, Inc., d/b/a Hilcrest Retirement Residence. During this inspection, Ms. Hughes observed that milk used for serving for drinking purposes was not from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser of sanitary design, construction, and operation. This was admitted by Maurice Duff and Virginia Duff, who manage and operate the Hilcrest Retirement Residence.

      
      

   2. On February 20, 1985, Ms. Hughes told Ms. Duff that the containers then being used were in violation of state regulations, and that a period of 30 days was allowed for the Respondent to correct this violation by either serving milk in one-half pint cartons or in an approved bulk dispenser.

      
      

   3. The Respondent's Retirement Residence has a license for 13 or more residents.

      
      

   4. The survey conducted on February 20, 1985, noted other deficiencies, all of which were corrected by the time of the resurvey on April 3, 1985.

      
      

   5. On April 3, 1985, Ms. Hughes again visited Hilcrest Retirement Residence and milk used for serving was still not served from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser.

   6. The Respondent had some difficulty arranging for the purchase of milk in one-half pint individual serving containers, and asserted at the hearing that sometime in early April 1985 it finally had an arrangement with a dairy to obtain milk in individual containers. Agents of the Respondent, nonetheless, knew that they had thirty days from February 20, 1985, to correct this violation, and there is no evidence that they sought any extension of time from Ms. Hughes or from the Petitioner. Additionally, although there was testimony as to the fact that the violation was corrected by early April 1985, there was no independent corroborative evidence, such as a written contract with a milk supplier, cancelled checks, or written invoices for purchase of milk in one-half pint containers.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction of this proceeding.

      
      

   8. On February 20, 1985, the Respondent was in violation of rules 10D- 13.23(2) and 10A-5.20(1)(m), Florida Administrative Code, by using milk for drinking purposes not from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser of sanitary design, construction, and operation.

      
      

   9. The Respondent was notified of this violation on February 20, 1985, and given thirty days in which to correct it. The Respondent failed to correct the violation in thirty days.

      
      

   10. The Respondent had some difficulty arranging for the purchase of milk in individual one-half pint containers. However, the Respondent presented no evidence that it attempted to contact the Petitioner to discuss these problems or to obtain more time to correct the violation. Moreover, the Respondent presented no written evidence to corroborate the date that the violation was corrected. Thus, although there is evidence of mitigation, the mitigation is not complete.

       
       

   11. The violation in this case is a class III violation pursuant to section 400.419(3)(c), Fla. Stat. Since it was not corrected within the time specified by the Department, a civil penalty of not less than $100 nor more than

       $500 is appropriate.

       
       

   12. A penalty of $150 is suitable in this case. Although there was some mitigating evidence, the Respondent must bear some responsibility for failing to timely seek an extension of time or to communicate with the Petitioner about its problems of milk supply, or to credibly corroborate the date upon which the violation was corrected.

RECOMMENDED ORDER

It is recommended that the Department of Health and Rehabilitative Services enter its final order finding that the Petitioner, A. D. Virice and Associates, Inc., d/b/a Hilcrest Retirement Residence, violated rules 10D-13.23(2) and 10A- 5.20(1)(m), Florida Administrative Code, and levying a civil penalty of $150 pursuant to section 400.419(3)(c), Fla. Stat.

DONE and ORDERED this 23rd day of December, 1986, in Tallahassee, Florida.

WILLIAM C. SHERRILL, JR.

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 23rd day of December, 1986.

COPIES FURNISHED:

Carol M. Wind, Esquire Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546

Jay Thorpe, Esquire 6551 Central Avenue

St. Petersburg, Florida 33710

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Steven W. Huss, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-003463

Orders for Case No: 86-003463