STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NOS. 89-2966
) 89-4980
SACRED HEART RETIREMENT ) 89-5238
VILLAS, INC., d/b/a ) SACRED HEART RETIREMENT ) VILLAS, )
)
Respondent, )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- captioned case on August 6-7, 1990 in Jacksonville, Florida.
APPEARANCES
For Petitioner: Michael O. Mathis, Esquire
HRS Office of Licensure and Certification
2727 Mahan Drive
Tallahassee, Florida 32308
For Respondent: Kurt Andrew Simpson, Esquire Ocean South
3500 South Third Street Jacksonville, Florida 32250
STATEMENT OF THE ISSUES
Whether a civil penalty should be assessed against the Respondent under the facts and circumstances of Case No. 89-2966.
Whether Respondent should be denied licensure renewal under the facts and circumstances of Case No. 89-4890.
Whether a civil penalty should be assessed against Respondent under the facts and circumstances of Case No. 89-5238.
PRELIMINARY STATEMENT
By a single count Administrative Complaint in Cases No. 89-2966 and 89-5238 filed with the Division of Administrative Hearings on May 30, 1989 and September 26, 1989, respectively, the Petitioner, Department of Health and Rehabilitative
Services (Department), seeks to impose a civil fine against Respondent, Sacred Heart Retirement Villas, Inc. (Sacred Heart). As ground therefor, it is alleged:
In Case No. 89-2966, that Sacred Heart (a) violated Section 400.419(3)(c), Florida Statutes, and Rules 10A-5.023(16)(a) and 4A-40.010(8), Florida Administrative Code, by failing to install automatic or self-closing devices in all resident sleeping rooms that open into a hallway or corridor; (b) violated Section 400.419(3)(c), Florida Statutes, Rule 10A-5.023(16)(a), Florida Administrative Code and Chapter 17-3.1, NFPA Life Safety Code, by failing to install automatic or self-closing devices on all stairwell doors; (c) violated Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes, Rules 10A- 5.023(16)(a) and 4A-40.17, Florida Administrative Code, and Chapter 17-3.4.1 and Chapter 17-3.4.7, 101 NFPA Life Safety Code, by failing to have electric smoke detectors throughout the facility wired into the household electrical current; and (d) violated Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rule 10A-5.022(1)(b), Florida Administrative Code, by failing to have all electric panel boxes coded to identify what area each circuit breaker protects.
In Case No. 89-5238, that Sacred Heart (a) violated Section 400.419(3)(c), Florida Statutes, and Rule 10A-5.022(1)(a) and (d), Florida Administrative Code, by failing to properly maintain the physical plant by not correcting a loose wooden rail on the left side of the entry to the main building; (b) violated Section 400.419(3)(c) and (4), Florida Statutes, and Rule 10A-5.022(1)(d) and (h), Florida Administrative Code, by failing to repair the cracked and peeling paint in room 18-S (bathroom wall) of the main building; and
(c) violated Section 400.419(3)(c) and (4), Florida Statutes and Rule 10A- 5.022(1)(d) and (h), Florida Administrative Code, by failing to repair or replace the stained ceiling panels in rooms 13 and 19 of the main building.
Case No. 89-4890 was initiated by the Department's letter of June 29, 1989 denying Sacred Heart's application for renewal of its license which expired on June 15, 1989 and setting forth the specific basis for denial. By petition filed with the Department on August 11, 1989 Sacred Heart requested an administrative hearing under Chapter 120, Florida Statutes.
These cases were consolidated for hearing and after an unsuccessful and prolonged attempt by the parties to settle these matters the cases were finally heard on August 6-7, 1990.
At the hearing, the Petitioner presented the testimony of Howard T. Chastain, Mark Thacker, O.B. Walton, Lourdes Valasquez, Patricia Reid, Leota Spencer and Robert A. Cunningham. Petitioner's Composite Exhibits 1 through 8 were received into evidence. The transcript of the deposition of Richard H. Kolb was received into evidence in lieu of his testimony as part of Petitioner's Composite Exhibit 4.
Respondent presented the testimony of Pilarito Almojera. Respondent's Composite Exhibits 1, 5-9 and Exhibits 2-4 were received into evidence.
A transcript was filed with the Division of Administrative Hearings on August 30, 1990. The Petitioner requested additional time to file its Proposed Findings of Fact and Conclusions of Law and, without opposition from Respondent, the request was granted and the provisions of Rule 28-5.402, Florida Administrative Code were waived in accordance with Rule 22I-6.021(2), Florida
Administrative Code. The parties timely filed their respective Proposed Findings of Fact and Conclusions of Law within the extended time frame. A ruling on each Proposed Finding of Fact has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
At all times material to these proceedings, Sacred Heart was operating an Adult Congregate Living Facility (ACLF) under either a Standard license or a Conditional license issued by the Department in accordance with Chapter 400, Florida Statutes.
FINDINGS AS TO CASE NOS. 89-2966 AND 89-5238
In DOAH Case No. 86-4065 (OPLC No. 86-474 ACLF) the Department and Sacred Heart entered into a stipulated settlement that was read into the record at the time of the final hearing (Petitioner's Composite Exhibit 1, Tab 6) on September 1, 1987 which provided: (a) that the Department was to perform a full survey (the same as an annual survey) of Sacred Heart beginning on September 1, 1987 and concluding on September 2, 1987; (b) that the parties would review the survey and establish a date for correcting any deficiencies noted; (c) that upon Sacred Heart timely correcting the noted deficiencies the Department would issue a renewal license for a period of one year from the date of issuance; (d) that substantial compliance of the noted deficiencies was a pre-condition to issuance of the renewal license; and (e) that Sacred Heart's failure to timely correct the noted deficiencies would result in the Department denying the renewal license.
In accordance with the above-referenced stipulation the Department conducted a survey of the Sacred Heart facility on September 1 and 2, 1987. The survey was broken down into two parts: (a) operational deficiencies which are dealt with in Case No. 89-5238 and (b) fire safety standards deficiencies which are dealt with in Case No. 89-2966.
That part of the survey concerning operational deficiencies was conducted on September 1 and 2, 1987. The Department noted 15 deficiencies of which 7 were Class III, 3 were part Class III and part Unclassified and 5 were Unclassified. Some of these deficiencies were required to be corrected by September 8, 1987, others to be corrected by October 2, 1987 and November 1, 1987 and the balance to be corrected by November 30, 1987.
That part of the survey concerning fire safety standards deficiencies was conducted on September 2, 1987. The Department noted 18 Class III deficiencies which some were to be corrected by September 15, 1987 and the balance to be corrected by November 1, 1987.
On December 1, 1987 the Department conducted a follow-up survey and noted that all operational deficiencies (Class III and Unclassified) listed on the September 1-2, 1987 survey had been corrected with the exception of the following: (a) ACLF 106 A(1), E(1), I, and J, Class III ; (b) ACLF 108F, Unclassified; (c) ACLF 109 H(18) and (19), Unclassified; (d) ACLF 111 A(1), Unclassified; and (e) ACLF 113(20) and (25), Unclassified.
On December 8, 1987 the Department conducted a follow-up survey and noted that all of the fire safety standards deficiencies (Class III) had been corrected by Sacred Heart or withdrawn by the Department with the exception of ACLF 89, 107 A., B., C., F. and Q all of which had been partially corrected.
Sacred Heart was operating with a conditional license with a termination date of October 7, 1987 at the time of the above-referenced stipulation and survey. This conditional license was extended until December 15, 1987.
After the follow-up survey on December 1, 1987 and December 8, 1987 the Department notified Sacred Heart on January 6, 1988 that it was issuing Sacred Heart a Standard (regular) license with an effective date of December 16, 1987 without any conditions requiring Sacred Heart to correct the operational or fire safety standards deficiencies noted on the follow-up surveys of December 1 and 8, 1987. This standard license had an expiration date of October 7, 1988.
Since the Department was aware of Sacred Heart's less than full compliance with correcting both the operational and fire safety standards deficiencies it can be assumed that the Department considered Sacred Heart in substantial compliance with correcting those deficiencies as required by the stipulation when it issued Sacred Hearth the Standard license without any conditions placed on the license requiring the correction of those deficiencies.
Notwithstanding that it had issued a Standard license without any condition requiring Sacred Heart to correct any outstanding deficiencies, the Department conducted a follow-up survey on the operational and fire safety standards deficiencies on March 18, 1988 and March 25, 1988, respectively.
On March 18, 1988 the Department conducted a follow-up visit of the annual survey conducted on September 1-2, 1987 and the follow-up visit of December 8, 1987 and found the following operational deficiencies that were noted in the September 1987 annual survey that had not been corrected: (a) ACLF 106(H) - Loose iron railing on entry of main building, Class III; (b) ACLF 109H
(18) - cracked or peeling paint on wall in shower in room 18 of the main building, Unclassified; and (c) ACLF 113A (20) and (25) - stained or dirty ceiling panels in room 20 and 25 in the main building, Unclassified.
Based on the follow-up survey of March 18, 1988 sanctions were recommended and approved for the uncorrected operational deficiencies. An administrative complaint was issued on March 16, 1989 and filed with the Division of Administrative Hearings on September 26, 1989 in Case No. 89-5238 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation.
On March 25, 1988 the Department conducted a follow-up visit on the September 1987 annual survey and the December 1987 follow-up visit and found the following fire safety standards deficiencies that had been noted in the September 1988 annual survey that had not been corrected: ACLF 89, 107 - A. all resident sleeping rooms that open into corridors did not have self-closing or automatic closing devices installed - this deficiency had been partially corrected in December 1987 and remained partially corrected in March 1988; B. all stair well doors (2-story building) did not have self-closing or automatic closing devices installed - partially corrected in December 1987 but neither door operational in March 1988; C. - all sleeping rooms, common areas, hallways, corridors, sitting or lounge areas, T.V. rooms, dining room, kitchen areas,
laundry rooms, furnace rooms, Chapel and office areas adjoining the resident use areas did not have electronic smoke detectors wired into household electrical current (heat detector acceptable in kitchen) - this was only partially corrected on December 1987 as it was in March 1988; and F. all electrical panel boxes did not have each circuit breaker identified and labeled showing the area each circuit breaker protected - all corrected except in cottage #8 which was not corrected in March 1988.
Based on the follow-up survey of March 25, 1988 sanctions were recommended and approved for the uncorrected fire safety standards deficiencies. An administrative complaint was issued on March 31, 1989 in Case No. 89-2966 and filed with the Division of Administrative Hearings on May 30, 1989 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation.
While the administrative complaint in Case No. 89-5238 indicates that deficiencies ACLF 109 and ACLF 113 are Class III deficiencies, both of the surveys and the Recommendation For Sanctions list these deficiencies as Unclassified .
The operational and fire safety standards deficiencies noted by the Department in its September 1987 annual survey did exist. Furthermore, those operational and fire safety standards deficiencies noted in the follow-up visits of December 8, 1987 and March 18 and 25, 1988 as not being corrected, were uncorrected on the dates of the follow-up visits.
FINDINGS AS TO CASE NO. 89-4980
On June 10 and 14, 1988 the Department conducted an annual survey of the Sacred Heart facility and noted the following deficiencies: (a) ACLF 63, 64,
66 - Unclassified; (b) ACLF 67, 71, 96A, 97A, Class III; (c) ACLF 106, 109, 89 (1-14) (maintenance problems) Unclassified; (d) ACLF 107A and B, 108 A-E, Class III; (e) ACLF 110A and B, 111 and 113, Unclassified; and (f) ACLF 26 and 42, Class III.
On June 16, 1988 the Department conducted a follow-up of the annual survey conducted on September 2, 1987 and found the following fire safety standards deficiencies noted in the 1987 annual survey and the March 25, 1988 follow- up survey that had not been corrected: (a) ACLF 89, 107A - had not installed automatic or self-closing devices on all doors of residents' rooms that open into hallway or corridor; (b) ACLF 89, 107B - failed to install automatic or self-closing devices on all stairwell doors; and (c) ACLF 89 107C - failed to have electric smoke detectors wired into household electric current in furnace room, others noted in earlier annual survey and follow-up survey had been corrected. Additionally, the Department conducted an annual survey of the fire safety standards on June 16, 1988 and noted several deficiencies which were corrected at the follow-up survey of August 16, 1988 with the exception of: (a) having improper ashtrays in use in various areas of the main building and cottages; and (b) failure to install automatic fire extinguishing (sprinkler) system in the 2-story (main) building in accordance with Rule 4A-40.007(1), Florida Administrative Code. The August 16, 1988 survey also noted the following new fire safety standards deficiencies: (a) the failure to encase alarm wires in protective casings in north and south cottages; (b) failure to install additional alarm bells and switches or pull boxes in north cottages; (c) failure to have additional fire alarm bells installed on the first floor of 2-
story main building; and (d) the failure to have pull box alarm systems properly installed according to Rule 4A-40.004, Florida Administrative Code.
By letter dated August 9, 1988 the Department imposed a moratorium on admissions at the Sacred Heart facility effective August 8, 1988 in accordance with Section 400.415, Florida Statutes, for severe deficiencies including, but not limited to, inappropriate placement and retention of residents, substandard cleanliness of residents and substantial cleanliness of the facility.
On August 16, 1988 the Department conducted another follow-up survey on the Sacred Heart facility and noted the following operational deficiencies: (a) ACLF 26, 27, 41 (1-6), 51, 52, 53, 58, 67, 71 (2-8), 96 (a-s), 98, 104, 105,
106 (a-o), 107 A-C, 109 A-H, 110 A-V and 111 (a-c), Unclassified; and (b) 71 (1), 93 A (1-7) and B (1-4), 97 A-E, 108 A-N, 112-115, 117 and 89 (a-m), Class
III. On the follow-up survey of August 16, 1988 it was noted that the following operational deficiencies noted in the annual survey of June 10 and 14, 1988 had not been corrected: (a) ACLF 67; (b) ACLF 96 A & B (partially corrected); (c) ACLF 106, 109, 89 (1-6 partially corrected and 9 not corrected); (d) ACLF 107 A partially corrected; (e) ACLF 110 A-B; and (f) ACLF 111.
On September 6, 1988 the Department notified Sacred Heart that its application for renewal of its license was being denied pursuant to Section 400.414(1)(2)(a)(b) and (d), Florida Statutes, because Sacred Heart did not comply with the standards for operation of an ACLF pursuant to Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code. The specific reasons given by the Department were the inappropriate placement and retention of residents and substandard cleanliness of the facility and, "the failure to: provide adequate resident care; meet life safety standards; provide social, leisure and recreational activities and to correct numerous physical plant deficiencies" as demonstrated by the March 18, 1988, June 10, 14, 1988 and August 16, 1988 area office visits and surveys.
As a result of this denial letter Sacred Heart filed a petition with the Department requesting an administrative hearing which was assigned PDRL No. I 88-899 and referred to the Division of Administrative Hearings which assigned Case No. 88-5177 to this request.
On October 13, 1988 the Department conducted a survey of the Sacred Heart facility for the purpose of reconsidering the moratorium issued on August 8, 1988. The October 13, 1988 fire safety standards survey noted the same deficiencies as were noted on the August 16, 1988 survey, none had been corrected. The operational deficiencies survey noted that some of the operational deficiencies noted on the August 16, 1988 survey had been corrected but that a good number had not been corrected. Additionally, the operational deficiency survey of October 13, 1988 noted a large number of new deficiencies.
On February 8, 1989, the Department conducted another follow-up survey on both the operational deficiencies and the fire safety standards deficiencies. This survey noted that all fire safety standards deficiencies noted on October 13, 1988 had been corrected with the exception of installing an automatic fire extinguishing system. This survey also noted that a large number of the operational deficiencies noted on the October 13, 1988 survey had not been corrected and also noted several new deficiencies.
Sometime before May 25, 1989 the Department and Sacred Heart entered into a Joint Stipulation wherein the Department would again place Sacred Heart on a 60 day conditional license upon the execution and return of the Joint
Stipulation and lift the moratorium imposed on August 8, 1988. In return, Sacred Heart agreed to: (a) correct all remaining deficiencies arising out of the surveys of March 18, June 10 and 14, August 16, 1988 and February 8, 1989;
(b) a full and complete survey utilizing the new survey manual; and (c) the results of this new survey being used to determine whether the license would be denied and the matter referred to the Division of Administrative Hearings for licensure denial proceedings de novo.
On May 25, 1989 in accordance with the stipulation the Department lifted the August 8, 1988 moratorium that it had imposed on the Sacred Heart facility and issued Sacred Heart a 60-day Conditional license effective April 16, 1989 with an expiration date of June 15, 1989
In accordance with the stipulation and, the need to conduct an annual survey for licensure, the Department conducted an annual survey of the Sacred Heart facility on June 13-14, 1989.
There were no repeat fire safety standards deficiencies noted in the June 1989 annual survey. However, the following new fire safety standards deficiencies were noted in the June 1989 survey: (a) ACLF 700-801A kitchen -
cooking range and fry grill needs to be certified as to their safety, and
cooking range and fry grill need thorough cleaning, removing flammable burnt and crusted food and grease from burners, well and cooking surface, and (b) ACLF 700-901B, main building - (1) sprinkler alarm bell not connected, (2) holes in ceiling and walls left by sprinkler contractor need to be sealed to prevent passage of toxic gases to other areas, (3) exit door (ground floor, south wing) does not swing outwardly in direction of escape travel, and (4) fire alarm "Pull Station" not loud enough to be heard throughout building on outside of building. These fire safety standard deficiencies are Class III deficiencies.
The June 13-14, 1989 survey noted the following Class III operational deficiencies: ACLF 302 (ANC), ACLF 404-1001-1010, ACLF 504-507(4)-508 (a repeat deficiency), ACLF 602; ACLF 613, ACLF 617 (1-10), ACLF 700, ACLF 708, ACLF 800- 1010 (A-G, with G being a repeat deficiency), ACLF 803-806-808-1010 (A-F, with F being a repeat deficiency), ACLF 804-1010 (A-H, with H being a repeat deficiency), ACLF 810-811-1010 (A-B, with B being a repeat deficiency), ACLF 1002-1010, ACLF 1003-1010, ACLF 1005 and, ACLF 1105-1106 (A-B, with B being a repeat deficiency). Although several of the above operational deficiencies are listed as "repeat deficiencies", there is insufficient evidence to show that these exact deficiencies had been noted in an earlier annual survey or the earlier follow-up visits as deficiencies.
The date for correcting the new fire safety standard deficiencies was July 14, 1989 and the date for correcting the operational deficiencies varied from June 14, 1989 thru August 14, 1989.
The Department made no further visits to the Sacred Heart facility subsequent to the June 13-14, 1989 annual survey in an attempt to determine if Sacred Heart had corrected those deficiencies noted in the June 13-14, 1989 annual survey, notwithstanding that the Department had allowed Sacred Heart a period of time to correct these deficiencies.
All of the deficiencies noted in the June 1989 annual survey were subsequently corrected within the time period prescribed in June 1989 annual survey report.
All of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits conducted subsequent to March 25, 1988 did exist. Furthermore, all of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits beginning with the September 1987 annual survey and ending with the February 8, 1989 follow-up visit had been corrected before the June 1989 annual survey in accordance with the stipulation.
On June 22, 1989 the Department entered a Final Order adopting the stipulation and ordering the parties to comply with its terms. Based on this Final Order the Department filed a Voluntary Dismissal in DOAH Case No. 88-5177 on July 10, 1989 and the file of the Division of Administrative Hearings closed on July 13, 1989.
By letter dated June 29, 1989 the Department advised Sacred Heart that its application for renewal of its license which had expired on June 15, 1989 was denied pursuant to Section 415.103, Florida Statutes; Section 415.107(5)(b), Florida Statutes; Section 400.414(1)(2)(a)(b)(d) and 3, Florida Statutes and; Chapter 10A-5, Florida Administrative Code. The specific basis for the denial included but was not limited to: (a) the deficiencies cited during area surveys and follow-up with a September 2, 1987, March 18, June 10, June 14, June 16, August 12, October 13, 1988 and February 8, March 8, June 13 and June 14, 1989 which demonstrates continued non-compliance in correcting deficiencies (Section 400.414(d), Florida Statutes; (b) the August 8, 1988 moratorium imposed on admissions to the facility (Section 400.414(3), Florida Statutes; (c) failure to comply with the provisions of the joint stipulation in the DOAH Case No. 88- 5177, PDRL No. I-88-899 ACLF (Section 400.414(2)(d), Florida Statutes; and (d) the confirmed neglect of resident C. C. that occurred on September 15, 1988 (Section 400.414(2)(a), Florida Statutes).
By letter dated August 7, 1989 Sacred Heart filed a petition with the Department requesting a formal hearing pursuant to Chapter 120, Florida Statutes. The petition, with attachments was referred to the Division of Administrative Hearings and assigned Case No. 89-4890.
On August 11, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. C. N., Case No. 88-6455C wherein the Department denied the request of C. N. for expunction of the confirmed report of neglect involving C. C., a resident of the Sacred Heart facility at the time the incident of neglect occurred on September 15, 1988. Upon entry of the Final Order in this case Sacred Heart discharged C. N. and C.
N. is no longer employed by Sacred Heart.
On December 13, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. B. B. A., Case No. 88-6258C wherein the Department denied the request of B. B. A. for expunction of the confirmed report of neglect involving C. C., a resident of Sacred Heart at the time the incident of neglect occurred on September 15, 1988. B. B. A. at the time the incident of neglect occurred was a co-owner and was still a co-owner on the day of this hearing on August 6-7, 1990. The final order was on appeal to the District Court of Appeal on the day of hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Sacred Heart must have a license to operate an ACLF. Sections 400.402(2), 400.404(1) and 400.407(1)(a), Florida Statutes. Licenses issued for the operation of a facility normally expire automatically one year from the date of issuance and the facility must file an application for renewal. Section 400.417(1), Florida Statutes. There is also provisions for a conditional license when revocation or suspension proceedings are pending or where the applicant has failed to meet all standards and requirements for licensure. Section 400.417(2)(3), Florida Statutes.
Section 400.414, Florida Statutes, empowers the Department to deny, revoke, suspend or impose an administrative fine and provides for proof by a preponderance of evidence that its actions are warranted. Section 400.414(2)(a-
f) and 3, Florida Statutes, enumerates the grounds for which the Department may take action against a license.
CASE NO. 89-4890
The Department's denial of Sacred Heart's license renewal application which resulted in the petition for administrative hearings in DOAH Case No. 89- 4890 by Sacred Heart had as its basis for denial the grounds enumerated in Section 400.414(2)(a)(d)(e) and (3), Florida Statutes, which provides as follows:
Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee:
An intentional or negligent act seriously affecting the health, safety, or welfare of the facility.
* * *
Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part.
A confirmed report of abuse, neglect, or exploitation, as defined in s. 415.102, which has been upheld following a chapter 120 hearing or a waiver of such proceedings where the perpetrator is an employee, volunteer, administrator, or owner, or otherwise has access to the residents of a facility, and the administrator has not taken action to remove the perpetrator. A perpetrator may seek an exemption from disqualification through the procedures provided in s. 415.107(5)(b). No administrative action may be taken against the facility if the perpetrator is granted an exemption.
* * *
In addition to the reasons in subsection (2), the department may deny a license to an applicant who owns or operates a facility which, during the 12 months prior to the application for a license, has had a license revoked pursuant to subsection (2), had a
moratorium imposed on admissions, had injunction proceedings initiated against it, or had a receiver appointed.
The Department failed to meet its burden of proof to show that Sacred Heart failed to comply with the provisions of the joint stipulation in DOAH Case No. 88-5177 (PDRL I-88-899 ACLF) and thereby establish a ground for a denial of licensure under Section 400.414(2)(a), Florida Statutes. However, the Department did meet its burden of proof that Sacred Heart (a) had multiple and repeated violation (deficiencies) of Chapter 400, Part II, Florida Statutes, and the standards or rules promulgated thereunder as evidenced by the annual surveys and follow-up visits conducted during the period from September 1-2, 1987 until June 13-14, 1989; (b) had a moratorium imposed on admission to the facility during the 12 months prior to its application for license renewal; and (c) had a confirmed report of neglect upheld against a co-owner of the facility, who is still co-owner, by Final Order of the Department after a Chapter 120.57(1), Florida Statutes, hearing. Based on the above, the Department has established grounds under Section 400.414(2)(a)(d)(e) and (3), Florida Statutes which warrant the Department's action of denying Sacred Heart's application for license renewal.
CASE NOS. 89-2966 AND 5238
The Department has shown by a preponderance of the evidence that certain operational and fire safety standards violations as charged in the Administrative Complaints filed in DOAH Case Nos. 89-2966 and 89-5238 did exist at the time the Department made the follow-up visits of March 18 and 25, 1988. However, the Department was aware that these same violations existed at the time it issued Sacred Heart a Standard license based on Sacred Heart's substantial compliance with the Joint Stipulation in DOAH Case No. 86-4065 (OPLC No. 86-474 ACLF). Since the Department could have under the stipulation denied Sacred Heart a Standard license for failure to correct the violations but, instead, elected to issue Sacred Heart a Standard license, it cannot come back within the licensure period, particularly within approximately three months, and exact an administrative fine for those same violations. See: Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 182 (1 DCA Fla. 1986).
Having considered the foregoing Findings of Fact and Conclusions of Law, it
is
RECOMMENDED:
That the Department enter a Final Order in Case No. 89-4890 denying renewal
of the ACLF license of Sacred Heart Retirement Villa, Inc. It is further recommended that the Administrative Complaints in Case Nos. 89-2966 and 89-5238 be dismissed.
DONE and ORDERED this 15th day of February, 1991, in Tallahassee, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991.
APPENDIX TO THE RECOMMENDED ORDER
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner
1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the finding of fact which so adopts the proposed finding of fact: 2 (3, 14, 17); 3 (6, 17); 4 (12, 17); 6-7 (28-30, 34); 9 (5, 17); 10 (6, 17); 11 (14, 17); 12 (19, 34); 15 (21, 34); 16 (24, 34); 18 (19, 34); 19 (24, 34); 22 (12, 13, 17);
24 (28-31, 34); 26 (25, 34); 28 (28-31, 34); 31 | (24, 34); 32 (25, 34); 35 (28- | |
31, 34); 38 (20); 39 (29); 40 (35); 43 (36); 46 | (38); 47 (39) and 48 (19). | |
2. | Proposed findings of fact 1, 5, 8, 13, | 14, 17, 21, 25, 29, 30, 34-37, |
42, 44, | 45 and 49 are unnecessary. | |
3. Proposed findings of fact 20, 23, 27 and 41 are not material or relevant.
Specific Rulings of Proposed Findings of Fact Submitted by Respondent
1. Adopted in findings of fact 26 and 35 but modified.
2. Adopted in findings of fact 3, 4, 6, 12, 13, 14, 17-21, 24, 25, 28-34 but modified.
Although the alleged deficiencies, moratorium and confirmed neglect report arose prior to the June 22, 1989 Final Order, there is no substantial competent evidence in the report to support the position that this resolved all matters before the Department at that time.
Not necessary.
5.-6. Not supported by substantial competent evidence in the record.
Not necessary
Not supported by substantial competent evidence in the record.
Adopted in findings of fact 33 and 34 but modified.
Adopted in findings of fact 32 and 33 but modified.
Adopted in finding of fact 29, but modified.
Not material or relevant.
A restatement of testimony and not a finding of fact. However, if considered a finding of fact it is not supported by substantial competent evidence in the record.
COPIES FURNISHED:
Michael O. Mathis, Esquire HRS Office of Licensure
and Certification 2727 Mahan Drive
Tallahassee, FL 32308
Kurt Andrew Simpson, Esquire Ocean South
3500 South Third Street Jacksonville, FL 32250
Sam Power, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Blvd.
Tallahassee, FL 32399-0700
Linda Harris, General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Blvd.
Tallahassee, FL 32399-0700
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
| Issue Date | Proceedings |
|---|---|
| Feb. 15, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 16, 1991 | Agency Final Order | |
| Feb. 15, 1991 | Recommended Order | Where HRS was aware of noncomp. w/stip at time of renewal of lic. HRS could not extract admin fine during that lic. period for noncom. w/stipulation |
