STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2237

) BARBARA KNIGHT MANORS, INC., )

d/b/a Four Palms, )

)

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 19, 1989, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Barbara Knight, pro se

302 11th Avenue, North East St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

The issue is whether respondent should be fined $3,350 for allegedly violating various agency rules.

PRELIMINARY STATEMENT

This matter began on March 6, 1989, when petitioner, Department of Health and Rehabilitative Services (HRS), issued an administrative complaint charging that respondent, Barbara Knight Manors, Inc., d/b/a Four Palms, a licensed adult congregate living facility, had violated Chapter 10A-5, Florida Administrative Code (1987), in sixteen respects. The complaint provided further that HRS intended to impose a $3,350 administrative fine on respondent. Thereafter, by letter dated March 18, 1989, respondent requested a formal hearing to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on April 28, 1989, with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated May 11, 1989, a final hearing was scheduled on July 18, 1989, in St. Petersburg, Florida. At petitioner's request, the matter was rescheduled to September 19, 1989, at the same location.

At final hearing, petitioner presented the testimony of Diane Cruz and Sharon McCrary, HRS human services program analysts, and Mary Cook, an HRS public health nutrition consultant and registered dietician, and offered petitioner's exhibits 1-13. All exhibits were received in evidence. Respondent presented the testimony of its owner and president, Barbara Knight, who also represented the facility at hearing, and Webster Knight, her husband and administrator of the facility.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on September 28, 1989. 1/ A ruling on each proposed finding is made in the Appendix attached to this order.

FINDINGS OF FACT

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

1. Respondent, Barbara Knight Manors, Inc., d/b/a Four Palms (Four Palms or respondent), operates a licensed adult congregate living facility (ACLF) at

   302 11th Avenue Northeast, St. Petersburg, Florida. The facility is subject to the regulatory jurisdiction of petitioner, Department of Health and Rehabilitative Services (HRS). As such, Four Palms is required to adhere to various HRS rules codified in Chapter 10A-5, Florida Administrative Code (1987).

   
   

2. On December 3, 1987, an HRS program analyst, Diane Cruz, conducted a change of ownership survey of respondent's facility. The survey was prompted by the fact that the facility had just been purchased by its present owner, Barbara Knight. During the course of the survey, Cruz noted the following deficiencies which constituted a violation of applicable portions of Chapter 10A-5, Florida Administrative Code (1987):

   
   

   1. the patient daily medication records were incomplete in that some medications administered to patients had not been documented by the staff (10A-5.024(1)(a)3., FAC);

      (2) two employees did not have medical certificates reflecting they were free from communicable diseases (10A-5.019(5)(g), FAC);

      1. there were no standardized recipes (10A- 5.20(1)(g), FAC)

      2. the facility did not have a one week supply of non-perishable food (fruit and vegetables)(10A-5.20(1)(k), FAC)

      3. two showers did not have grab bars (10A- 5.023(9), FAC); and

      4. there were no screens on the windows (10A-5.023(13), FAC)

         
         

         The deficiencies were noted in a survey report received in evidence as petitioner's exhibit 4. A copy of the survey report was given to the facility's administrator on January 14, 1988. The report advised the licensee that monetary fines could be imposed if the violations were not timely corrected.

         
         

3. At the completion of the December 3 survey, Cruz held an exit interview with Knight and explained the reason why each deficiency was cited and the steps required to correct the same. Also, Cruz advised Knight that all deficiencies

   had to be corrected no later than February 3, 1988 and that she would return for an unannounced follow-up visit to verify whether such deficiencies had been corrected. An "exit letter" confirming this process was furnished to Knight, and Knight signed and acknowledged receiving the letter.

   
   

4. On March 2, 1988, Cruz returned to the facility for an unannounced follow-up visit. The purpose of the visit was to ascertain whether the deficiencies noted on December 3 had been corrected. During the visit, Cruz observed the following deficiencies that had not been corrected:

   
   

   1. The daily medicine records were still not accurately documented (initialed);

   2. one staff member had no medical certi- ficate attesting she was free from communicable diseases;

   3. there were no standardized recipes;

   4. the facility did not have a one week supply of non-perishable food (fruit and vegetables) on hand;

   5. two showers did not have grab bars; and

   6. two bedrooms did not have screens on the windows.

      
      

5. As the result of an unidentified complaint, an HRS analyst, Sharon McCrary, visited respondent's facility on March 28, 1988. McCrary discovered that one resident's records had not been properly documented (initialed) to reflect that the staff had observed the patient receiving medication that morning. This violation was the same type that had been previously noted during the December 3, 1987 survey.

   
   

6. On June 24, 1988, Cruz and a registered dietician, Mary Cook, returned to Four Palms to conduct a routine, annual survey. During the course of their survey, the two noted the following deficiencies that constituted violations of chapter 10A-5:

   
   

   1. there were three employees who had no medical certificate showing they were free from communicable diseases (10A-5.019(5)(g), FAC);

   2. three residents required supervision when given medications, but there was no licensed nurse on the staff to supervise this activity (10A-5.0182(3)(c), FAC)

   3. the facility had no activities calendar (10A-5.0182(7)(a), FAC)

   4. live roaches were observed in the kitchen area (10A-5.020(1)(n)1., FAC);

   5. the facility did not have a one week supply of powdered milk on hand (10A- 5.020(1)(k), FAC)

   6. there were no meal patterns or modified menus at the facility (10A-5.020(1)(e), FAC),

      and

   7. a county sanitation report citing various health deficiencies contained no evidence that such deficiencies had been corrected (10A-5.024(1)(d)2.a., FAC).

      An exit interview was conducted after the survey, and respondent was advised that it had until July 24, 1988 in which to correct the deficiencies. Also, a copy of the survey report was furnished to respondent.

      
      

7. On September 13, 1988, an unannounced follow-up survey was conducted by Cruz and Cook to determine if the previously noted deficiencies had been corrected. They observed the following deficiencies that were not corrected:

   
   

   1. One staff member had no medical certificate reflecting he was free from communicable diseases;

   2. the facility's records indicated one resident required supervision when given medications but the facility did not employ a licensed nurse;

   3. although an activities calendar had been prepared, it was incomplete;

   4. there were no modified menus in the kitchen;

   5. live roaches were observed in the kitchen area; and

   6. the deficiencies noted on the county health inspection report had not been corrected.

      
      

8. Respondent did not deny that many of the violations occurred. However, its owner and administrator argued that HRS was unfair in filing an administrative complaint more that a year after the first violations were noted. The facility maintained that HRS should have assisted it in remedying the violations since the owner had just purchased the business a few months earlier and was going through a "learning curve." The owner contended that many of the chapter 10A-5 requirements were impractical for a small ACLF and that HRS was simply "nit-picking." Knight also claimed she did not understand what she had to do in order to meet HRS rule requirements. Respondent offered a number of excuses as to why the violations occurred. For example, she contended that (a) the screens were off the windows because the windows were being painted, (b) her employees either would not bring their medical certificates to work or would not see a doctor to obtain one, (c) the quantity of non-perishable foods required to be kept on hand was a judgment call and was not susceptible to precise measurement, (d) roaches can never be totally eradicated in Florida, (e) one of the bathrooms without a grab bar was not being used by the residents, (f) the patient medication records were inaccurate or incomplete due to a misunderstanding by the physician who had prepared some of those records, and

   1. it is impossible to prepare a detailed, accurate activities calendar for ACLF residents. While these matters may serve to mitigate the severity of any penalty to be imposed, they do not excuse or justify the rule violations.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. By clear and convincing evidence, petitioner has established that respondent violated the cited sections of chapter 10A-5 as charged in the administrative complaint. Therefore, the charges have been sustained. In

    reaching this conclusion, the undersigned has considered the explanation given by respondent. As noted in the findings of fact, the reasons cited by respondent do not justify or excuse the rule violations but only constitute circumstances to be considered in determining an appropriate penalty.

    
    

11. Section 400.419, Florida Statutes (1987) sets forth the criteria to be used in assessing an administrative fine on licensees. Subsection (2) provides as follows:

    
    

    1. In determining if a penalty is to be imposed and in fixing the amount of the penalty to be imposed, if any, for a violation, the department shall consider the following factors:

       1. the gravity of the violation, including the probability that death or serious

          physical or emotional harm to a resident will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.

       2. Actions taken by the owner or administrator to correct violations.

       3. Any previous violations.

       4. The financial benefit to the facility of committing or continuing the violation.

    
    

    In addition, violations have been classified into three categories: Classes I, II and III. The latter class is considered the least serious violation and calls for a civil penalty of not less than $100 nor more than $500 for each violation. In this case, all cited violations fall into the Class III category. Finally, subsection (3)(c) of the same statute provides that no civil penalty may be imposed for a Class III violation if the violation is corrected within the specified time period unless it is a repeat violation. Here, the violations were either not corrected in a timely manner or were repeat violations.

    
    

12. Given the absence of any evidence that the violations threatened the physical or emotional well-being of the patients and the fact that respondent had just purchased the business a few months before the first inspection, it is concluded that a fine of $100 per violation for each of the sixteen deficiencies is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the

administrative complaint and that it pay an administrative fine of $1600, or

$100 per violation

DONE and ORDERED this 3rd day of October, 1989, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 3rd day of October, 1989.

ENDNOTE

1/ Respondent filed a letter and attachments on September 28, 1989 containing further explanation as to certain violations.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2237

Petitioner:

1. Covered in finding of fact 1.

2-8. Covered in findings of fact 2 and 4.

1. Covered in finding of fact 3.

2. Covered in finding of fact 5.

3. Rejected as being outside the scope of the complaint. 12-13. Covered in finding of fact 6.

14-15. Covered in finding of fact 7.

1. Covered in finding of fact 6.

2. Covered in finding of fact 7.

18-20. Covered in findings of fact 6 and 7.

21. Covered in finding of fact 6.

COPIES FURNISHED:

Edward A. Haman, Esquire Department of Health and Rehabilitative Services

7827 North Dale Mabry Highway Tampa, Florida 33614

Ms. Barbara Knight,

302 11th Avenue Northeast

St. Petersburg, Florida 33701

R. S. Power, Agency Clerk Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Miller, Jr., Esquire General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-002237

Orders for Case No: 89-002237