STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6380

)

JOHN A. GREEN, SR., d/b/a )

SUNSHINE HAVEN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on March 9, 1989 before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent's license to operate an Adult Congregate Living Facility in Florida should be disciplined because of the deficiencies cited in the Administrative Ccmplaint filed herein.

APPEARANCES

Petitioner: Edward A. Haman, Esquire

Staff Attorney

DHRS, Office of Licensure and Certification 7827 North Dale-Mabry Highway

Tampa, Florida 33614

Respondent: John A. Green, Sr., pro se

920 66th Street East Bradenton, Florida 33508, or 1605 10th Avenue West Palmetto, Florida 33561

BACKGROUND INFORMATION

On May 4, 1988, Carol E. King, for Connie E. Cherin, Director of the Department of Health and Rehabilitative Service's (Department) Office of Licensure and Certification (OLC), issued an Administrative Complaint in this case against the Respondent seeking to asses a civil penalty against him for his operation of the Sunshine Haven Adult Congregate Living Facility, (ACLF) in Bradenton, Florida because of several Class III deficiencies cited in surveys conducted on May 12, 1986 and May 11, 1987. Thereafter, by letter dated June 1, 1988, Respondent denied fault in the matter and requested formal hearing. On December 23, 1988, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. On January 10, 1989, the undersigned set the case for hearing and it was heard on March 9, 1989 as scheduled.

At hearing, Petitioner presented the testimony of Loveda Cayson Perry, formerly a senior public health nutritionist for the Department's OLC and introduced Petitioner's Exhibits 1 and 2. Respondent testified in his own behalf and presented the testimony of Laverna Sue Green, his wife and manager of Sunshine Haven. Respondent also offered Respondent's Exhibit A for Identification which was not accepted because it was not relevant to the proceedings.

Subsequent to the hearing, no transcript was provided. Neither party submitted proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, John A. Green, Sr., operated the Sunshine Haven ACLF at 920 66th Street East, in Bradenton, Florida. His license authorized him to provide living facilities for 12 residents.

   
   

2. On May 12, 1986, representatives of the Department's OLC visited Sunshine Haven for the purpose of conducting an annual survey for compliance with ACLF licensure requirements. A formal classification of deficiencies form (HRS-AA form 1806) was furnished and discussed with Mr. Green on June 23, 1986. Mr. Green's signature appears on the form.

   
   

3. Among the discrepancies noted pertinent to this hearing were deficiencies in the food service area. They included:

   
   

   1. Garbage was not placed in covered, leakproof containers until properly disposed of.

   2. The wall by the stove was splashed with grease and dirt and was in need of a thorough cleaning, and

   3. Certain items, including cabinets and the gold freezer in the kitchen were

      dirty and in need of a thorough cleaning.

      
      

      All three discrepancies were classified as Class III deficiencies and were required to be corrected immediately.

      
      

   4. In mid-May, 1987, Loveda Cason Perry, then a senior public health nutritionist with the Department's OLC conducted another survey of the Respondent's facility. A report of discrepancies was prepared which reflects certain deficiencies in the food service area. These included:

      
      

      1. Litter and wastes were not kept in suitable covered receptacles until properly disposed of, and

      2. Certain equipment, including the refrigerator in the kitchen, and the walls, and the cabinets (both the outside doors and shelves), were dirty and in need of a thorough cleaning.

         
         

         Both were classified as repeat Class III deficiencies.

   5. Ms. Perry indicated that the discrepancies identified during the first survey in 1986 had been corrected after that inspection, but were again out of compliance at the time of the second report.

      
      

   6. There were spilled food items on the cabinet shelves which had not been cleaned up. These appeared not to be fresh spills which could easily be removed, but were, instead, dried on the shelf and obviously of long standing.

      
      

   7. The wall behind the stove was heavily grease-laden and appeared not to have been cleaned in a long time. The grease had attracted dirt which had adhered to it.

      
      

   8. She observed that garbage was kept in paper bags within the kitchen instead of in a closed can. There was no suitable receptacle for the storage of garbage in the kitchen - merely bags, and she noted that the outside of the facility, where the garbage cans were kept, was also out of compliance. There were no particulars given as to the outside storage nor was this charged.

      
      

   9. In inspections of licensed facilities, Ms. Perry utilizes a common sense approach. If a spill, for example, is obviously fresh, indicating there was insufficient time from time of spill to inspection to clean it, it would not be cited. Department inspectors do not attempt to create problems for licensees but merely to insure that facilities utilized for the care of the elderly and the infirm are properly maintained. In the instant case, there is no doubt in Ms. Perry's mind that spills appearing on the shelves in the closet and elsewhere in the kitchen were not fresh but old. The same can be said for the spills in the refrigerator.

      
      

   10. All of the cited discrepancies, in Ms. Perry's opinion, constituted a health hazard due to the possible attraction of vermin and roaches, and the resultant possibility of contamination of foodstuffs.

       
       

   11. When an inspection is done, the inspectors go over the deficiencies with the operator immediately and advise him or her to write down the discrepancies. The Department does not issue a handwritten list of deficiencies at the time of inspection because experience has shown that often the operator will attempt to excuse himself from compliance by claiming he cannot read the inspector's handwriting. Consequently, if the deficiencies are dictated by the inspector to the licensee, who thereafter writes them down, there can be no possibility of misunderstanding.

       
       

   12. At the time of the survey, a correction date is given for each deficiency. Often the written report of deficiencies does not arrive at the facility until after the scheduled correction date. However, no reinspection is accomplished until such time as the operator has received the written classification of deficiencies form and been given a reasonable opportunity to make corrections.

       
       

   13. Respondent denied there was dirt on the walls, in the cupboards, or on the counters. Mrs. Green, manager of the facility, contends that she has had the walls scrubbed down several times, to the point where, at the time of the inspection, Ms. Perry commented that the walls had been scrubbed so often the paint was coming off. Ms. Perry does not dispute the fact that the majority of the walls were clean. She contends merely, and the evidence of this is not controverted, that that portion of the wall behind the stove, the portion which was cited in the classification of deficiency, had an accumulation of grease and

       dirt on it and there is no evidence, save Mrs. Green's denial, that this was not so.

       
       

   14. Mrs. Green also contends that the cupboards had been painted and cleaned shortly before the inspection and that there was only minimal spillage if any.

       
       

   15. Mrs. Green also asserts that the refrigerators in the kitchen were cleaned daily around the sides and front and weekly in the back. On the day of inspection, she admits, there was spilled berry juice and spilled iced-tea in the kitchen refrigerator. This was, she contends, due to the fact that the prior day, she and her husband had picked 50 pounds of fresh strawberries which were stored in the refrigerator and which leaked slightly on the equipment. There is no evidence to show how the berries were stored, but the evidence clearly indicates, and the Greens admit, that spills existed as a result of the berries and as a result of their 10 year old son pouring himself some tea and failing to wipe up his spill.

       
       

   16. Mrs. Green strongly contends that there is and always has been a covered trash container meeting Department requirements in the kitchen and this container was present on the date of inspection. She admits there were three paper bags full of other paper bags there as well, but, she claims, there was no garbage in any of them. The day before, she had done a large amount of grocery shopping for the facility and stored the empty bags in other bags prior to disposition. The inspector came early in the morning of the following day before she could remove the bags.

       
       

   17. Ms. Perry admits she did not stick her hand into the paper bags to see what was in there but is sure she looked into them and observed garbage, not merely other bags. On balance, and considering the relative probabilities of the testimony, it is found that Ms. Perry's observation is the more credible.

       
       

   18. Mr. Green contends that the issue of cleanliness is subjective. He is adamant in his contention that there was no accumulation of dirt any place in the Sunshine Haven kitchen at the time of Ms. Perry's inspection. Anyone who wishes to do so can find superficial dust at any given time. Superficial dust, however, according to Ms. Perry, would not result in a write-up.

       
       

   19. There was substantial dispute between the parties as to whether or not the Greens were living, as a family, in the facility in May, 1987, at the time of the second inspection. Ms. Perry contends they were not but Mr. Green indicates he fired the former staff person residing there in 1986 and moved in with his family in June of that year. The Green family, including three boys, ages 19, 17, and 10, lived in the house until January 17, 1989. It is during this time the second survey was done.

       
       

   20. Whether the Greens lived in the house or not is irrelevant, however. The issue is whether, at the time of Ms. Perry's inspection, the deficiencies she noted on the survey form existed. It is found they did.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   22. In the Administrative Complaint, Petitioner charges Respondent with several violations of Section 400.419, Florida Statutes, by failing to be in

       compliance with the requirements of Rule 10A-5.020, F.A.C., dealing with food service procedures in ACLFs.

       
       

   23. In pertinent part, this rule, 10A-5.020(1)(n), provides:

       
       

       For facilities with a licensed capacity of twelve or fewer residents, all matters pertaining to food service shall comply with the following provisions:

       2. The floors, walls, shelves, tables, utensils and equipment in all rooms where food or drink is stored, prepared, or served or where utensils are washed shall be kept clean and in good repair. Stored food shall be placed in such a manner as to be kept from dust, and splash contamination.

       7. All garbage, trash and rubbish shall be collected daily and taken to storage facilities. Garbage shall be removed

       from storage facilities frequently enough to prevent a potential health hazard or at least twice a week. Wet garbage shall be collected and stored in impervious, leakproof, fly tight containers pending disposal. All containers, storage areas and surrounding premises shall be kept clean and free of vermin.

       
       

   24. Petitioner has proven all of the material allegations of the Administrative Complaint. Respondent has introduced no evidence, beyond denial of allegations, that the conditions described by Ms. Perry did not exist.

RECOMMENDATION

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

RECOMMENDED that the Secretary, Department of Health and Rehabilitative Services, enter a Final Order imposing an administrative fine against the licensee in the total amount of $500.00.

RECOMMENDED this 11th day of April, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1989.

COPIES FURNISHED:

Edward A. Haman, Esquire DHRS. Office of Licensure and

Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

John A. Green, Sr.

920 - 66th Street East Bradenton, Florida 33508

John A. Green, Sr. 1605 10th Avenue West

Palmetto, Florida 33561

John Miller, Esquire General Counsel

DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 88-006380

Orders for Case No: 88-006380