STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORNELIUS AND MYRTLE ROBINSON, ) d/b/a FLORIDA HAPPINESS, )

)

Petitioners, )

)

vs. ) CASE NO. 88-1880

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on August 31, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioners: S. Skip Taylor, Esquire

239 North East 20th Street Miami, Florida 33137

For Respondent: Leonard T. Helfand, Esquire

Department of Health and Rehabilitative Services

North Tower, Room 526

401 North West 2nd Avenue Miami, Florida 33128

BACKGROUND

This matter began on February 22, 1988, when Respondent denied Petitioners' application for license renewal and for increased capacity in the adult congregate living facility operated by Petitioners. Petitioners requested a formal administrative hearing and this proceeding ensued.

At hearing, Petitioners presented testimony of no witnesses. Petitioners did offer one exhibit in evidence. Respondent offered the testimony of one witness and eight evidentiary exhibits. Respondent filed a post hearing motion to strike certain of Petitioners' proposed findings of fact. Respondent's motion is denied. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, including the candor and demeanor of the witness who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioners operate an adult congregate living facility, meeting the definition set forth in Part II of Chapter 400, Florida Statutes, for such a facility. The facility is known as "Florida Happiness" and is located at 174

   N.W. Second Avenue, Homestead, Florida.

   
   

2. On February 22, 1988, Respondent notified Petitioners that their application for increased capacity and application for license renewal were denied due to multiple and repeated violations of minimum standards governing the operation of such facilities.

   
   

3. Certain violations with regard to Petitioners' facility were discovered during the course of inspections conducted by Respondent's employees in January, April and August of 1987. Some of the violations found in January, 1987, were related to food service requirements and were uncorrected by Petitioners at the time of subsequent visits by Respondent employees in April and August of that year. The noted deficiencies were determined by Respondent to have been corrected as the result of another survey conducted on October 23, 1987, but Respondent's subsequent inspections conducted on January 11, 15 and 19, 1988, revealed some of those violations were again in existence. Among the violations found were:

   
   

   1. Facility income and expense records were not available for review. Also, resident contracts did not contain a refund policy addressing disposition of resident prepayments in the event of transfer of ownership of Petitioners' facility, closing of the facility or discharge of a resident.

      
      

   2. Petitioners did not provide evidence demonstrating that food service personnel received orientation, training or supervision in regard to their duties, or that such duties were performed in a safe and sanitary manner. Evidence also was not provided that the food service personnel participated in required in service education or possessed requisite knowledge of food and dietary requirements.

      
      

   3. With regard to therapeutic diets, no evidence existed that documentation of meal patterns, including types and amounts to be served, were properly filed, or that diets were served as ordered.

      
      

   4. Petitioners did not demonstrate that regular diets were planned or served to meet the nutritional needs of residents in accordance with current recommended dietary allowances. Existing menus did not depict realistic portion amounts or document availability of basic food groups. Menus presented did not show that the food served supplied sufficient calories or quantities.

      
      

   5. There was no documentation that dietary allowances were met by offering a variety of foods adapted to the food habits, preferences and physical abilities of residents. Petitioners made no showing that substitute foods with comparable nutritive value were planned and offered to residents who refused the normal fare. Menus were not dated and planned one week in advance.

      
      

   6. The required one week's supply of emergency food and water was not maintained at the facility. The fire alarm system was found to be inoperative and laundry rooms did not have self closing doors.

      
      

   7. Live roaches were found on kitchen shelves, thermometers in the refrigeration facilities of the kitchen were not functioning correctly,

      generally refrigeration facilities were soiled and roach infestations were evident. Pots and pans evidenced poor sanitation in that particles of foreign matter were found adhered to many of the containers. Written schedules for cleaning of dietary equipment were not in evidence or supplied to Respondent inspectors.

      
      

4. Repeated food service sanitary code violations were corroborated by a Dade County Health Department inspector who found consistent problems with roaches, cleanliness and refrigeration thermometer equipment malfunctions at Petitioners' facility from later 1986 through the beginning of 1988.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

6. The proof establishes multiple and repeated violations by Petitioners of those minimal standards governing the operation of adult congregate living facilities which are set forth in Chapter 10A-5, Florida Administrative Code. Many of the sanitary violations, particularly the lack cleanliness of cooking utensils and the presence of roach infestations, constitute either intentional or negligent acts of such sufficiency to affect health, safety and welfare of residents of the facility. Such violations constitute a basis for Respondent's denial of relicensure under Section 400.414, Florida Statutes.

   
   

7. Further, Petitioners presented no evidence to support entitlement to an increase in capacity of their facility.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' application

for increased capacity and relicensure.

DONE AND ENTERED this 27th day of September, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 27th day of September, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1880

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS.

1.-2. Addressed in findings 1 and 2.

3.-5. Rejected, not supported by the greater weight of the evidence.

RESPONDENT'S PROPOSED FINDINGS.

1.-2. Addressed in findings 1 and 2.

1. Addressed in finding 3.

2. Addressed in finding 4.

3. Addressed in finding 3.

COPIES FURNISHED:

Leonard T. Helfand, Esquire Department of Health and

Rehabilitative Services North Tower, Room 526

401 North West Second Avenue Miami, Florida 33128

S. Skip Taylor, Esquire

239 North East 20th Street Miami, Florida 33137

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, HRS Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-001880

Orders for Case No: 88-001880