STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINDER HOMES, INC., d/b/a THE ) WHITE HOUSE OF VINDER HOMES, ) PALM HARBOR, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 87-0177

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

The formal administrative hearing in this case was conducted in St.

Petersburg, Florida, on May 18, 1987. Appearing for the parties were: APPEARANCES

For the Petitioner: Warren A. Wilson, III, Esquire

2101 U.S. Highway 19 North, Suite 201 Palm Harbor, Florida 33563

For the Respondent: John Brook, Esquire

695 Central Avenue, Suite 213 St. Petersburg, Florida 33701

At issue in this case is whether on January 29, 1986, the Petitioner was in violation of four statutory and rule requirements pertaining to adult congregate living facilities and failed to correct these asserted violations in the times established by the Respondent.

The Petitioner presented no exhibits and presented the testimony of James

1. Vinson. (The spelling in the transcript conflicts with HRS exhibit 3, and is apparently an error.) The Respondent presented the testimony of Earl T. Wright and three exhibits. Exhibits one and three were admitted, and the objection to exhibit two was taken under advisement. It has been concluded that the objection should be overruled, and thus Respondent's exhibit two is now admitted into evidence.

   
   

   There is a transcript. The parties waived the filing of proposed findings of fact and conclusions of law.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Vinder Homes, Inc., d/b/a The White House of Vinder Homes, Palm Harbor, Florida, is an 8-bed licensed adult congregate living facility.

   2. The Petitioner was licensed on February 5, 1986.

      
      

   3. On January 29, 1986, the Respondent, the Department of Health and Rehabilitative Services, sent an inspection team to the Petitioner's facility to conduct the initial survey.

      
      

   4. Accompanying the team was Earl T. Wright, an employee of the Respondent.

      
      

   5. Present at the Petitioner's facility during the initial survey was Robert A. Jones, and James C. Vinson, the owner and applicant for the license.

      
      

   6. During the survey, the HRS survey team identified several violations of rules or statutes governing an adult congregate living facility.

      
      

   7. At the end of a survey conducted by HRS of adult congregate living facilities, HRS normally follows the procedure of orally describing and explaining the rule violations that have been found to those persons representing the facility who are present during the survey. The representative of the facility is then asked to sign an "exit letter." The "exit letter" is a form that is given to the facility representative to explain the procedures and deadlines that must be followed to correct the violations.

      
      

   8. HRS exhibit 1 is a copy of the "exit letter" given to the representatives of the Petitioner on January 29, 1986, at the conclusion of the survey. The letter was signed by Mr. Jones, who was expressly authorized by Mr. Vinson to sign the letter on that date on behalf of the Petitioner, and to receive a copy on behalf of the Petitioner.

      
      

   9. The Petitioner, through its duly authorized agent, was reminded by HRS exhibit 1 that it had been advised of the deficiencies and had been requested to write them down. It was further advised that a time frame had been established for correction of each deficiency and that it could request additional time, if needed. It was further advised that an unannounced revisit would be conducted after the date of correction to determine if the corrections had taken place.

      It was further advised by the exhibit that it was required to correct each deficiency by the date established, and that failure to do so might result in the assessment of an administrative fine.

      
      

   10. At the conclusion of the survey on January 29, 1986, Mr. Jones, the authorized representative of the Petitioner, was told by the HRS survey team the nature of each of the violations found, and was advised concerning the period of time established for correction of each asserted violation. Mr. Vinson had thee opportunity to learn about the violations as well, but it is unclear whether he availed himself of the opportunity.

       
       

   11. At some time after January 29, 1986, and before April 1, 1986, the Respondent mailed a copy of HRS exhibit 2 to the Petitioner. It was mailed to the Petitioner at the address of the facility. This was the address given to HRS in the license application by Mr. Vinson. HRS exhibit 3. Mr. Vinson had not requested that notices be sent by HRS to any other address. HRS exhibit 2 is a form used by the Respondent to give written follow-up notice to the adult congregate living facility of the violations and correction schedule. It is intended to give written notice of that which had already been orally discussed with the facility representative at the time of the survey. The violations

       listed on HRS exhibit 2 are the same violations which were orally described and explained to the authorized representative of the Petitioner on January 29, 1986.

       
       

   12. On April 1, 1986, Mr. Wright conducted an unannounced reinspection of the Petitioner's facility.

       
       

   13. A copy of HRS exhibit 2 was present at the facility on April 1, 1986, when Mr. Wright conducted his unannounced reinspection. By April 1, 1986, the Petitioner had corrected some of the rule violations listed on HRS exhibit 2.

       
       

   14. The Petitioner, through its authorized representatives present at the facility, in fact received a copy of HRS exhibit 2 before April 1, 1986. The Petitioner presented no evidence that HRS exhibit 2 was received by its authorized representative in an untimely manner, i.e., at some time after the deadline had passed for correction of violations. Mr. Vinson testified that he never received a copy of the exhibit, but his authorized representative, at the address he had given to HRS as the address of the licensed facility, did receive it.

       
       

   15. The following are the four violations contained in HRS exhibit 2 that are in dispute in this case. Each is alleged to have occurred on January 29, 1986, and to still to have not been corrected on April 1, 1986:

       
       

       1. A copy of the Resident Bill of Rights was not posted in the facility.

       2. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department.

       3. The facility did not have back-flow devices to prevent contamination from entering the water supply.

       4. The fire alarm system was not continuously maintained in reliable operating condition.

          
          

   16. A copy of the Resident Bill of Rights was not posted in the facility on January 29, 1986, or on April 1, 1986. Mr. Vinson's testimony that he "thought" it was posted is insufficient to overcome the proof presented by the Respondent.

       
       

   17. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department on either January 29, 1986, or April 1, 1986. Mr. Vinson's testimony that he thought Mr. Jones would have completed the course is not sufficient. Mr. Vinson did not produce Mr. Jones to testify, nor did he produce any record of completion of the course.

       
       

   18. The facility did have back-flow devices to prevent contamination from entering the water supply on January 29, 1986, or on April 1, 1986. The testimony of Mr. Vinson is credited over the contrary testimony of Mr. Wright. Mr. Wright did not explain how he conducted the inspection of the back-flow devices, and did not explain what he found and how that resulted in the conclusion that back-flow devices were not present. Mr. Vinson, on the other hand, stated that he built the building himself, that he installed back-flow devices, that such devices were required by his building permit, and that he

       obtained a certificate of occupancy following construction. The Department has not proved the point by a preponderance of the evidence.

       
       

   19. The proof that the facility did not have a fire alarm system that was continuously maintained in reliable operating condition on January 29, 1986, was not adequate to prove this fact by a preponderance of the evidence. Mr. Wright acknowledged that a fire inspector (who did not testify) accompanied him on the survey and conducted that portion of the initial survey. Although Mr. Wright testified that he heard the fire inspector attempting to work the fire alarm system, this second hand evidence is not sufficient to prove that the system was not in good and operable mechanical order on January 29, 1986.

       
       

   20. Moreover, the proof is not adequate that the system was not mechanically operable on April 1, 1986. Mr. Wright asked the young woman present during the revisit to work the system, and she was not able to do so because she did not know how to operate it. Mr. Wright did not try to work it either. Thus, no one conducted a test of the system, and there is, therefore, no evidence in the record to show that the deficiency that existed on January 29, 1986, had not been corrected. It must be remembered that the deficiency that existed on January 29, 1986, was not that the manager or administrator of the facility could not operate the fire alarm system, but that the system was mechanically inoperable.

       
       

   21. There were no elderly persons present in the Petitioner's facility during the initial survey on January 29, 1986, but on April 1, 1986, the young woman in charge of the facility was serving breakfast to four elderly persons.

       
       

   22. None of the violations discussed above were considered by HRS to be of sufficient gravity to deny issuance of the license.

       
       

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction of this case.

       
       

   24. The Petitioner's authorized agent received HRS exhibit 2 in sufficient time to have corrected some of the violations by April 1, 1986, and these violations are not in dispute in this case. HRS properly mailed the written list of violations to the address of the facility itself, which was the address given by the owner, Mr. Vinson, in his application. There is no evidence that Mr. Vinson ever requested HRS to send notices to any other address. The Petitioner was in the best position to prove that its authorized agent received the written notice untimely, but it did not present any evidence that the written notice was received by its authorized representative after the time for corrections had passed, or that it ever sought an extension of time based upon untimely notice. More important, the Petitioner's authorized agent was orally told about the violations and the time established for correction on January 29, 1986. Thus, the Petitioner received adequate notice of the violations cited and of the time in which to correct the violations.

       
       

   25. A copy of the Resident Bill of Rights was not posted in the Petitioner's facility on January 29, 1986, or on April 1, 1986. Mr. Vinson's testimony that he "thought" it was posted is insufficient to overcome the proof offered by the Respondent. This is a violation of section 400.428(2), Fla. Stat. (1986)

       
       

   26. A management person in the Petitioner's facility had not completed the Food Service Management Training Course given by the Respondent at the County

       Health Department on either January 29, 1986, or April 1, 1986. This is a violation of rule 10A-5.020(1)(n)16, Florida Administrative Code.

       
       

   27. The Petitioner's facility did have back-flow devices to prevent contamination from entering the water supply on January 29, 1986, or on April 1, 1986.

       
       

   28. The Respondent failed to prove the fourth violation concerning the operation of the fire alarm system. Thus, there is no need to discuss the legal issue of whether an adult congregate living facility having less than 9 licensed beds can be required to have a fire alarm system other than battery-powered, single station smoke detectors. Compare subparagraphs (1) and (2) of Rule 4A- 40.017, Florida Administrative Code.

29. Section 400.402(2), Fla. Stat. (1986) and Rule 10A-5.013(2)(s), Florida Administrative Code, both define an adult congregate living facility as a building, structure, or other place "which undertakes through its ownership or management to provide, for a period exceeding 24 hours, housing, food service, and one or more personal services for four or more adults . . ." (E.S.) The Petitioner argues that it was not subject to regulation as an adult congregate living facility until it was licensed and in operation, having residents and actually providing the services specified in the definition. But the definition contemplates the "undertaking" of the definitional services. To undertake to do something means to agree to do it, to become responsible for doing it. To undertake to do something does not necessarily require commencement of the activity undertaken. Moreover, section 400.404(1), Fla. Stat. (1986) provides that facilities to be licensed by the department shall include all adult congregate living facilities as defined by this part." (E.S.) In other words, an adult congregate living facility is expected to exist, for definitional purposes, before a license is issued. The Petitioner's argument thus is incorrect as a matter of law.

1. The two violations discussed above are each class III violations pursuant to section 400.419(3)(c), Fla. Stat. (1986), and for each that statute provides that the Department may levy a civil penalty of not less than $100 nor more than $500.

   
   

2. Failure to post the Resident Bill of Rights at the beginning of operations of a new facility, as a first offense, is a relatively minor infraction, and justifies only the minimum penalty of $100.

   
   

3. Failure to have at least one management person complete the food service course is also relatively minor as a first offense for a new facility. It should be noted that this is not a case where there were other uncorrected food violations evidencing actual health hazards to elderly residents. Therefore, the minimum penalty of $100 is justified.

RECOMMENDATION

It is therefore recommended that the Department of Health and Rehabilitative Services enter its final order finding that Vinder Homes, Inc., d/b/a the White House of Vinder Homes, Palm Harbor, Florida, has failed to correct the first two violations described above in the time established by the Department, and assessing a total civil penalty of two hundred dollars ($200).

DONE and ENTERED this 21st day of July, 1987.

WILLIAM C. SHERRILL, JR.

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 21st day of July 1987.

COPIES FURNISHED:

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary 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

Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North

Suite 201

Palm Harbor, Florida 33563

John Brook, Esquire 695 Central Avenue

Suite 213

St. Petersburg, Florida 33701

Docket for Case No: 87-000177

Orders for Case No: 87-000177