STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3027

) HUGENNA D. OUTAR d/b/a MOOREHEAD ) HOUSE RETIREMENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 27, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire

North Tower, Room 526

401 Northwest Second Avenue Miami, Florida 33128

For Respondent: Hugenna D. Outar, pro se

1405 Northeast Eighth Street Homestead, Florida 33030

BACKGROUND

By administrative complaint dated May 17, 1988, petitioner, Department of Health and Rehabilitative Services, charged that respondent, Hugenna D. Outar, d/b/a Moorehead House Retirement Center, had violated Section 400.419, Florida Statutes (1985), by having failed to timely correct three Class III deficiencies in her adult congregate living facility after an agency inspection on August 15, 1987. For these infractions, the agency proposed to assess a $550 civil penalty. Thereafter, respondent requested a formal hearing to contest the allegations. The matter was referred to the Division of Administrative Hearings by petitioner on June 20, 1988 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated August 25, 1988, a final hearing was scheduled on September 27, 1988 in Miami, Florida. On September 16, 1988 the case was transferred from Hearing Officer James E. Bradwell to the undersigned.

At final hearing, petitioner presented the testimony of Paul Grassi, an HRS fire inspector, and offered petitioner's exhibits 1-5. All exhibits were received in evidence. Respondent testified on her own behalf.

There is no transcript of hearing. Neither party submitted proposed findings of fact and conclusions of law.

At issue is whether respondent should have a $550 civil penalty imposed for the alleged violations set forth in the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Hugenna D. Outar, operates a twelve-bed adult congregate living facility (ACLF) under the name of Moorehead House Retirement Center at 1405 Northeast Eighth Street, Homestead, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. Outar serves as administrator of the facility.

   
   

2. On or about August 15, 1987, Paul Grassi, an HRS fire inspector, conducted a routine annual inspection of respondent's facility. The purpose of the inspection was to determine if the facility was in compliance with the fire safety requirements of Chapter 10A-5, Florida Administrative Code (1987). The inspec- tion was made in the presence of Outar's mother since Outar was not at the facility that day.

   
   

3. Grassi requested documentation showing that all facility fire alarms and smoke detectors had been checked by facility personnel on a quarterly basis. Also, he requested documentation to evidence that all employees had been given monthly training in procedures to be followed in the event of a fire. The former set of records is required by Department of Insurance Rule 4A-40.017, which has been adopted by reference by HRS. The latter requirement is imposed by Rule 10A-5.023(15)(b) and pertains to ACLF's having thirteen or more licensed beds. Because Outar's mother did not know where such documentation was kept, she was unable to comply with Grassi's request. Next, Grassi observed that Room D had a "pocket type" door with no hinges. According to Grassi, a state fire marshal regulation prohibits the use of this type of door in a resident's room and requires instead that a resident's room located by an exit have a door mounted on a hinge that swings outwardly to the corridor. The Classification of Deficiencies refers to the regulation imposing this requirement as "L.S.C. 85, 17-3.6.2" but the regulation itself is not of record or officially noticed. Finally, Grassi observed two residents' rooms with no door closures. According to Grassi, such closures are required on all residents' rooms, pursuant to a state fire marshal regulation, for the purpose of containing and confining a fire in the event of a fire in a room. The regulation was not identified at hearing nor made a part of the record but is referred to in the Classification of Deficiencies as "N.F.P.A. 101-85, 17.3.6.3." After noting these violations, Grassi explained them to the mother and gave her a brief explanation as to how they might be corrected.

   
   

4. Each of the three deficiencies were categorized as Class III deficiencies. By letter dated September 24, 1987, HRS advised Outar in writing of the nature of the violations. Although the letter was not prepared until September 24, it instructed Outar to correct the deficiencies by September 14, 1987, or ten days earlier. Attached to the letter was a copy of the Classification of Deficiencies which identified the deficiencies, their class and the date by which they had to be corrected.

5. On October 29, 1987 Grassi made a follow-up survey of respondent's facility. Since Outar was not at the facility that day, the survey was conducted in the presence of Outar's mother. Grassi found none of the deficiencies had been corrected. Accordingly, Outar was sent a letter by HRS on November 6, 1987 advising her that a second follow-up visit would be made.

   
   

6. On December 14, 1987 Grassi returned for a third visit. This time Outar was present. Again, Grassi found none of the deficiencies corrected to his satisfaction. However, he conceded that the documentation pertaining to monthly fire drills and quarterly checks of fire alarms and smoke detectors was available for inspection but maintained it was unsatisfactory because all reports were identical and did not vary from month to month. He reasoned that this was contrary to the "intent" of the rule. During the inspection, Outar requested specific advice as to how to comply with the door regulations for which she had been cited. After receiving advice, these changes were made, and her doors now meet all fire safety requirements.

   
   

7. Outar operates a small facility with only twelve beds. She pointed out that she had difficulty in installing closures on the two doors in question since two residents used walkers and had placed door "jams" on the doors to give them easy access through the doorway. As to the other door violation, the building was purchased with an archway leading into Room D which made it difficult to install a door mounted on hinges. Outar attempted to comply with Grassi's instructions but her carpenter was unable to make the necessary changes until Outar received specific advice from Grassi on December 14. Finally, Outar stated that the fire drill documentation was available for inspection on August

   15 and October 29 but her mother did not know where it was. Outar did not learn it was filled out improperly until she personally spoke with Grassi on his third visit. She now has satisfactory records.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

9. The administrative complaint charges respondent with violating Subsection 400.419(3)(c), Florida Statutes (1987), by failing to be in compliance with Rule 10A-5.023(15), Florida Administrative Code (1987), in three respects. 1/ This rule provides as follows:

   
   

   1. Safety and Fire Protection.

      1. Fire safety protection shall be governed by Ch. 4A-40, F.A.C., Minimum Fire Safety Standards for Adult Congregate Living Facilities, 7/25/84, incorporated by reference. Compliance with fire safety standards shall be determined by the Office of Licensure and Certification. In every instance, a facility shall have an approved fire inspection report which shall comply with state standards before a license may be issued. A copy of Ch. 4A-40, F.A.C., shall be available at no cost by writing to the Office of Licensure and Certification, Post Office Box 210, Jacksonville, Florida 32231.

      2. Documented monthly fire drills or resident review of evacuation plans shall be conducted by all facilities with a licensed capacity of thirteen or more residents. (Emphasis added)

         
         

10. After finding a licensee in violation of standards prescribed in Chapter 10A-5, Florida Administrative Code (1987), Section 400.419, Florida Statutes (1987), requires HRS to fix a date certain by which the licensee must correct the deficiencies or require the licensee to submit a plan of corrective action. In this case, a date certain of September 14, 1987 was established, thereby giving the licensee thirty days after the inspection to correct the deficiencies. However, Outar was not given written notice of this due date until several weeks after September 14. Even so, she was not reinspected until October 29, 1987 which gave her adequate time to make any needed changes.

    
    

11. Initially, it is noted that Outar's facility is licensed for only twelve beds, and the requirement for monthly documentation concerning fire drill procedures does not apply to her facility. See Rule 10A-5.023(15)(b), F.A.C. (1987). Therefore, this portion of the charges should not lie. As to the allegation that she did not have documentation evidencing quarterly checks of smoke detectors and fire alarms in violation of Rule 4A-40.017(3), Florida Administrative Code (1987), the evidence reflects Outar had documentation available on the first two inspections but it was not produced due to her absence. On the third inspection, it was produced but was found by the inspector to be inconsistent with the "intent" of the rule. However, the rule has no prohibition against a licensee making identical entries every three months as long as the necessary information is recorded. Indeed, the rule simply provides in relevant part that "written documentation of each test (of fire alarm and detection devices) shall be maintained and made available for inspection." Because the manner in which Outar kept her records was not predictably objectionable from reading the rule, it can be proscribed only after the agency makes an adequate foundation for the policy it seeks to establish. Cf. Department of Health and Rehabilitative Services v. Shalom Manor, Inc., 9 FALR 3211 (DHRS, September 26, 1986). There being an inadequate record basis to support this policy, the charge of having no documentation must fail.

    
    

12. The next two violations are premised on regulations not codified in the Florida Administrative Code and which are neither of record or officially noticed. Further, there is no record citation of any rule that adopts these standards. As such, there is no basis by which to determine whether the regulations prohibit the type of doors found in respondent's facility, or if they do, whether HRS has adopted such a regulation that applies to respondent. Cf. Poirier v. Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977). This being so, the final two charges must be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against respondent be

dismissed with prejudice.

DONE AND ORDERED this 30th day of September, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 30th day of September, 1988.

ENDNOTE

1/ Paragraph (15) of Rule I0A-5.023 was amended substantively effective June 21, 1988 and has been renumbered as paragraph (16). However, the "old" rule applies to this proceeding and is set forth above.

COPIES FURNISHED:

Leonard T. Helfand, Esquire North Tower, Room 526

401 Northwest Second Avenue Miami, Florida 33128

Hugenna D. Outar

1405 Northeast Eighth Street Homestead, Florida 33030

R. S. Power, Esquire Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-003027

Orders for Case No: 88-003027