STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4755

) CANA IV CORPORATION, d/b/a ) THE VERANDAH, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing was held in this case on December 14, 1988, in St. Petersburg, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Edward Haman, Esquire

Office of Licensure and Certification 7827 North Dale Mabry

Tampa, Florida 33614

For Respondent: Delema Rogers, Administrator The Verandah

4301 31st Street South

St. Petersburg, Florida 33712

The issue in this case is whether the Department of Health and Rehabilitative Services (Petitioner) should impose an administrative penalty on Cana IV Corporation, d/b/a The Verandah (Respondent), based upon its alleged failure to maintain minimum standards for an Adult Congregate Living Facility (ACLF). At the hearing, the Petitioner called Loveda Perry, public health nutritionist, and introduced two exhibits. The Respondent called its Administrator, Delema Rogers, who was also accepted as a qualified representative on behalf of the Respondent, and Lillie Mae Stewart, a part time cook at The Verandah. Respondent offered seven exhibits, but four were rejected as irrelevant, and the remaining three were accepted.

No transcript of the hearing was filed. The parties were allowed to file proposed recommended orders within ten days following the final hearing, and the Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. At all times material hereto, the Respondent has been licensed as an ACLF by the Petitioner.

2. During an inspection of Respondent's facility by Loveda Perry, public health nutritionist, on October 29, 1986, Perry observed a large, industrial size can opener which was used during food preparation. The can opener was dirty, and the gears and blade of the opener were filled with food and metal shavings. Perry considered the food to be old since it appeared that the food had built up and caked on the opener. On a revisit to the facility on November 12, 1986, Perry found that the can opener was clean.

   
   

3. During an inspection of Respondent's facility on November 9, 1987, Perry again found the can opener was dirty, with built up food deposits and metal shavings on the blade and gears. There was also a build up of old food on the base of the can opener. On a revisit to the facility on March 21, 1988, Perry found that the can opener was clean.

   
   

4. Metal shavings and a food build up on a can opener is likely to lead to the build up of bacteria, and can lead to food borne illnesses.

   
   

5. According to Respondent's Administrator, it was the policy of the facility to clean the can opener once a week during the time these inspections took place. At the current time, however, employees are instructed to clean the can opener three to five times a day. In order to meet the minimum standards established by the Petitioner for ACLFs, can openers have to be cleaned after each use.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. Since this is a case in which Petitioner is seeking to discipline the license of Respondent to operate as an ACLF, the Petitioner has the burden of establishing the basis of such disciplinary action by clear and convincing evidence. Ferris

   v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

7. The Respondent's Administrator testified that during 1986 and 1987 when these inspections were made, it was the policy of the facility to only clean the can opener once a week. This was insufficient to keep the opener clean, as evidenced by the condition found by Loveda Perry on two visits. The evidence establishes that a weekly cleaning is not sufficient to prevent a build up food and metal shavings on the gears, blade and at the base of the opener. Such build ups can present a danger of the growth of bacteria and food borne illnesses.

   
   

8. Therefore, the evidence presented by the Petitioner clearly and convincingly established that Respondent has failed to insure that all food service standards applicable for ACLFs were met since the can opener used at the facility was dirty on two occasions. This is a violation of Section 400.419(3)(c), Florida Statutes, and Rules 10A-5.020(1)(m) and 10D-13.026(4)(a), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Petitioner enter a Final Order imposing an administrative penalty against the ACLF license of Respondent in the amount of 325.00.

DONE AND ENTERED this 29th day of December, 1988, in Tallahassee, Florida.

DONALD D. CONN

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 29th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4755

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3.

Rulings on the Respondent's Proposed Findings of Fact:

The Respondent filed a letter which summarizes testimony resented at hearing. The letter does not present specific proposed rindings of fact, but is generally contrary to Findings of Fact 2 through 5.

COPIES FURNISHED:

Edward Haman, Esquire Office of Licensure and

Certification

7827 North Dale Mabry Tampa, Florida 33614

Delema Rogers, Administrator The Verandah

4301 31st Street South

St. Petersburg, Florida 3371

Sam Power, Clerk

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, General Counsel 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory Coler, Secretary 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO.: 88-4755

CANA IV CORPORATION d/b/a THE VERANDAH,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for the Hearing Officer's conclusion that the appropriate burden of proof is the clear and convincing standard.

The case relied on by the Hearing Officer, Ferris v. Turlington, 510 So2d

292 (Fla. 1987) pertains to license revocation proceedings. In the present case the department seeks only to impose a fine; thus, the preponderance standard is the appropriate burden of proof.

Based upon the foregoing, it is

ADJUDGED, that a fine of $325.00 be imposed on respondent, Cana IV Corporation d/b/a The Verandah. The fine shall be paid by money order payable to Treasurer, State of Florida and shall be mailed or delivered to Dept. of HRS, Office of Licensure and Certification, Attn: Edward Haman, 7827 North Dale Mabry, Tampa, Florida 33614. The fine shall be paid no later than 30 days from the entry of this Order.

DONE and ORDERED this 20th day of January, 1989, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Programs

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED TO:

Edward A. Haman, Esquire Office of Licensure and

Certification

7827 North Dale Mabry Tampa, Florida 33614

Docket for Case No: 88-004755

Orders for Case No: 88-004755