STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4147

) RONALD J. HOLCK, d/b/a SANCHEZ ) RETIREMENT APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Third Notice of Hearing entered in this case on May 14, 1987 by William R. Dorsey, Jr., H.O., a hearing was held in this case in Miami, Florida on June 24, 1987 before Arnold H. Po1lock, a Hearing Officer with the Division of Administrative Hearings. The issue for consideration is whether a civil penalty should be imposed by Petitioner against Respondent for alleged Life Safety Code violations outlined in the Administrative Complaint filed herein.

APPEARANCES

Petitioner: Leonard T. Helfand, Esquire

Department of Health and Rehabilitative Services

5190 Northwest 167th Street Miami, Florida

Respondent: Ronald J. Holck, pro se

Administrator

Sanchez Retirement Apartments 1400 Southwest 26th Street Ft. Lauderdale, Florida 33315

BACKGROUND INFORMATION

On September 12, 1986, T. L. McGehee, Acting Area Supervisor for the Department of Health and Rehabilitative Services's (DHRS), Office of Licensure and Certification, signed an Administrative Complaint in this case alleging that the Respondent, as Administrator of the Sanchez Retirement Apartments, failed to comply with Section 400.419, Florida Statutes, and Section 17-3.3.1 of the Life Safety Code of 1981 in various particulars as outlined. Thereafter, on September 19, 1986, the Respondents by letter to Mr. McGehee, contested the allegations of misconduct filed against him and requested a withdrawal of the Administrative Complaint. As an alternative thereto, on October 21, 1986, the Agency Clerk forwarded the file to the Division of Administrative Hearings for appointment of a Hearing Officer and the file was assigned to Mr. Dorsey who, on March 6, 1987, set the case for hearing on April 30, 1987. However, due to a

substitution of attorneys for DHRS, a continuance was granted June 24, 1987, when the hearing was held by the undersigned. The original case was styled with Mr. Holck as Petitioner and DHRS as Respondent, but at hearing, through discussion with the parties, it was determined that they should be reversed on the style of the case and it is so ordered.

At the hearing, Petitioner presented the testimony of Mr. James Valinoti, a human services program analyst and fire protection specialist for DHRS and Carlos Bravo, also a human services program analyst for DHRS with experience in ACLF fire inspections. Petitioner also introduced Petitioner's Exhibits 1 through 6. Respondent testified in his own behalf and introduced Respondent's Exhibit A.

Neither party submitted proposed Findings of Fact.

FINDINGS OF FACT

1. During the period November 14 - 16, 1985, DHRS conducted a life safety survey of the Sanchez Retirement Apartments located at 1400 S.W. 26th Street, Ft. Lauderdale, Florida. As a result of that survey, certain deficiencies were discovered which were discussed with Mrs. Sanchez, then the owner and operator of the facility.

   
   

2. Some deficiencies were to be corrected by December 15 and others by January 15, 1986. Those due to be corrected by December 15, 1985 were, in fact, corrected, but because of the impending sale of the property by Mrs. Sanchez to Mr. Holck, Mrs. Sanchez requested an extension of the time for correction of the January 15, 1986 deficiencies until February 15, 1986.

   
   

3. On January 30, 1986, Mr. Leroy C. Dykes, Area Supervisor for DHRS, advised Mrs. Sanchez that a 30 day extension was granted so that the prospective new owners could complete the fire safety deficiencies by February 15, 1986.

   
   

4. Mr. Holck took over ownership and operation of the facility on February 7, 1986. This was somewhat later than had been anticipated and made it impossible for him to rectify the remaining deficiencies by February 15. He requested of DHRS that someone come to the facility to explain to him what exactly had to be done since he was not present during the original inspection. He wanted to know with detailed clarification, what had to be done and how, and consistent with this request, was advised that someone from DHRS would be there, he contends in April, 1986. As a result, he took no additional action to remedy the remaining deficiencies then.

   
   

5. However, before this individual could come, Mr. Bravo of DHRS conducted a follow-up survey on March 18, 1986, and again, wrote up several of the deficiencies that had been cited on the original inspection report. These form the basis of the violations outlined in the Administrative Complaint, and include:

   
   

   1. smoke detectors not powered by the house electric current and interconnected to the fire alarm system,

   2. paneling in the means of egress is not fire rated as Class A or B,

   3. doors in the facility between the resident rooms and common areas are not solid core doors,

   4. doors between resident rooms and common areas are not self-closing, and

   5. the kitchen and storage area is not separated from other parts of the facility with a material having a one hour fire rating including a one hour self-closing fire rated door.

      
      

6. Mr. Bravo recommended sanctions to include a $250.00 fine for each of the five deficiencies with the exception of (c) for which he recommended a

   $200.00 fine. This recommendation was approved by the area supervisor, Mr. Dykes; the Human Services Program Director, Mr. Chastain; and by Amy Jones, Director of the Office of Licensure and Certification. All of the violations were classified as Class III violations and all were ultimately corrected before the final follow-up inspection on July 15, 1986.

   
   

7. Respondent contends that he did not take immediate corrective action when he took over the property because, due to his prior experience dealing with DHRS as the operator of an adult congregate living facility, he had come to the conclusion that when there was any question as to the exact meaning of a DHRS write-up, it was best to have clarification from the agency in detail prior to commencing any corrective action. He requested an explanation visit from DHRS and, he claims, was visited by a Mr. Grassi in April, 1986, who, answered his questions. Thien Grassi returned for a follow-up in June, he found all the deficiencies to be corrected. This latter Grassi visit is subsequent to Mr. Bravo's follow-up inspection in March, 1986.

   
   

8. Petitioner contends, on the other hand, that it is Respondent's responsibility to get the work done. If he could not get the previous owner to make the corrections prior to the transfer of the property, it was his responsibility to have requested clarification earlier on and that if he did not get an answer that would satisfy him and answer his questions, he should have gone higher up in DHRS to get one. The agency claims, "He should have shaken DHRS up," and tried to negotiate more time. It is DHRS policy to grant an extension if there is a showing that Respondent has already taken some affirmative step to effect corrective action. Here Respondent had not done so but was apparently waiting until he got clarification from the agency before even beginning to solicit bids for corrective construction or before issuing any purchase or work orders to acquire the materials necessary to do so.

   
   

9. The majority of deficiencies identified on the original write-up were corrected by either Mrs. Sanchez prior to transfer of the property or by the Respondent after transfer but before the follow-up visit by Mr. Bravo. It, therefore, cannot be said that Respondent had not made some substantial effort to correct the deficiencies. If Respondent's allegation is correct, and there is no reason to believe it is not, based on his prior experience, it was to his benefit to not proceed with the remaining corrective action until such time as DHRS had given a definitive clarification of the actual work that needed to be done. DHRS contends that no additional clarification was required since the violations are violations of the standard safety code and anyone familiar with the code, including the fire department, could have given the Respondent the information he needed. DHRS, therefore, contends it was not necessary for Respondent to wait for its agent to come out and give the clarification requested. This is specious reasoning since the citation was issued by DHRS and it is not at all unreasonable for Respondent to request clarification from the agency writing up the alleged violation in the first place.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

11. Under the provisions of Section 400.419, Florida Statutes, the department is authorized to promulgate standards for the operation of nursing homes and related health care facilities and to take disciplinary action against such facilities and their operators when the facility is not in compliance.with those standards.

    
    

12. Violations are classified by statute according to their nature and the gravity of their probable effect on the facility residents and the classifications run from Class I, the most serious, to Class III, the least serious. Each carries a civil penalty ranging from up to $5,000.00 for a Class I violation to as little as $100.00 for certain class III violations.

    
    

13. In the Administrative Complaint, Petitioner alleges five separate Class III violations by Respondent, all of which are life safety violations as outlined in the Life Safety Code of 1981 promulgated by the National Fire Protection Association, (N.F.P.A.).

    
    

14. There is no question that at the time of the original and follow-up inspections, the cited violations existed. Respondent does not deny that but contends that having just purchased the facility, having had considerable experience with the department concerning other facilities he had operated previously, and having requested a delay in re-inspection so that someone from the department could come out and clarify exactly what had to be done to bring the facility into compliance, a visit scheduled for April, 1986, and made subsequent to the follow-up visit, he should not be held liable for his failure to make the needed corrections on time.

    
    

15. There is no evidence to counter Respondent's claim that he was told by a representative of the department that someone would come out and outline for him exactly what had to be done to correct the facility's deficiencies. If, as it appears, Respondent was led to believe he would be receiving official help, he should not be penalized for a delay occasioned by the department. The department's argument that Respondent should have "shaken" it up is not persuasive.

    
    

16. Once Respondent was advised of exactly what needed to be done and how it was to be accomplished to satisfy the department, the corrections were made promptly and properly. The other corrections identified in the original inspection had already been made. Here, it is clear that while the violations existed at the time of the inspection and follow-up, due to the circumstances shown here, any civil penalty should be waived.

RECOMMENDATION

Rased on the foregoing Findings of Fact and Conclusions of Law, it is, therefore

RECOMMENDED that the citations be upheld but that the civil penalties be waived.

RECOMMENDED this 5th day of August, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 5th day of August, 1987.

COPIES FURNISHED:

Ronald J. Holck, Administrator Sanchez Retirement Apartments 1400 Southwest 26th Street Fort Lauderdale, Florida 33315

Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-004147

Orders for Case No: 86-004147