STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

)

)

Petitioner, )

)

vs. ) CASE NOS. 90-3792

) 90-6282

SUNSHINE PLAZA )

(Vanguard Ventures, Inc., )

d/b/a Sunshine Plaza), )

)

Respondent. )

)

RECOMMENDED ORDER

On January 17, 1991, a formal administrative hearing was held in these consolidated cases in St. Petersburg, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paula M. Kandel, Esquire

Senior Attorney Department of Health and

Rehabilitative Services Office of Licensure and

Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Lori L. Rutland, Esquire

Baynard, Harrell, Mascara & Ostrow, P.A.

Post Office Box 31687

St. Petersburg, Florida 33732-1687 STATEMENT OF THE ISSUES

The issues for determination in these consolidated cases were framed by two administrative complaints, one in each case, seeking to assess fines against the Respondent for violations of statutes and rules pertaining to adult congregate living facilities (ACLFs). As reflected in the following Preliminary Statement, the parties have agreed to the disposition of some of the charges in the administrative complaints, leaving for determination whether the Respondent should be fined for violating Sections 400.419(3)(c) and 400.428(1)(b), Fla.

Stat. (1989), and F.A.C. Rules 10A-5.023 (8) and (10)(g), involving resident privacy rights in relation to the physical floor plan of an ACLF.

PRELIMINARY STATEMENT

Case No. 90-3792 was initiated when the Petitioner, Department of Health and Rehabilitative Services (HRS), filed an Administrative Complaint, PDRL No. 05-90-094-ACLF, alleging: (1), in paragragph (2)(a), that the Respondent should be fined $250 for failing to have on file reports of sanitation inspections showing correction of deficiencies; (2), in paragraph (2)(b), that the Respondent should be fined $250 for failing to uphold the Resident Bill of Rights in that the residents' rights to privacy were violated when resident units originally designed with living areas were being used as additional bedroom space and that residents sleeping in the living areas had to pass through other resident bedrooms in order to use the bathroom, in violation of Sections 400.319(3)(c) and 400.428(1)(b), Fla. Stat. (1989); and (3), in paragraph (2)(c), that the Respondent should be fined $250 for failing to assure that all resident physical examination reports contained a statement that continuous, 24-hour nursing care is not needed.

On June 29, 1990, HRS filed an Administrative Complaint, PDRL No. 05-90- 164-ACLF, alleging that the Respondent should be fined another $350 for continuing to fail to uphold the Resident Bill of Rights in that the residents' rights to privacy were violated when resident units originally designed with living areas were being used as additional bedroom space and that residents sleeping in the living areas had to pass through other resident bedrooms in order to use the bathroom, in violation of Sections 400.319(3)(c) and 400.428(1)(b), Fla. Stat. (1989). Although the Respondent served a request for formal administrative proceedings on the Administrative Complaint in PDRL No.

05-90-164-ACLF on July 9, 1990, HRS did not timely refer the matter to the Division of Administrative Hearings.

Final hearing in Case No. 90-3792 initially was scheduled for August 23, 1990, but the hearing was continued until October 24, 1990, on an unopposed motion that anticipated the referral of the second Administrative Complaint, PDRL No. 05-90-164-ACLF, to the Division of Administrative Hearings.

In approximately September, 1990, HRS served an Amended Administrative Complaint in Case No. 90-3792, essentially alleging that paragraph (2)(b) also constitutes a violation of F.A.C. Rule 10A-5.023(8) and (10)(g). The Respondent filed an Amended Petition for Formal Hearing requesting a formal administrative proceeding on the Amended Administrative Complaint.

Final hearing in Case No. 90-3792 again was continued on another unopposed motion that anticipated the referral of the second Administrative Complaint, PDRL No. 05-90-164-ACLF, to the Division of Administrative Hearings.

The Administrative Complaint, PDRL No. 05-90-164-ACLF, was not referred to the Division of Administrative Hearings until October 3, 1990. It was assigned DOAH Case No. 90-6282, and the Respondent moved to dismiss on the ground that the referral was untimely. The Motion to Dismiss was denied, and Case No. 90- 6282 was consolidated with Case No. 90-3792. The consolidated cases were scheduled for final hearing on January 17, 1991.

At final hearing, the parties submitted a Pre-Hearing Stipulation. In the Pre-Hearing Stipulation, the parties agreed to the dismissal of paragraph (2)(a), and the Respondent admitted the allegations of paragraph (2)(c), of the Amended Administrative Complaint in Case No. 90-3792, leaving for determination at final hearing paragraph (2)(b) of the Amended Administrative Complaint in Case No. 90-3792 and the Administrative Complaint in Case No. 90-6282. The

parties also agreed on the record at final hearing that the Administrative Complaint in Case No. 90-6282 be amended to also allege a violation of F.A.C. Rule 10A-5.023(8) and (10)(g).

At final hearing, HRS presented the testimony of the its inspector who surveyed the Respondent's facility and had the October 30, 1989, survey report admitted in evidence as Petitioner's Exhibit 1. The Respondent, a limited partnership, presented the testimony of the executive vice-president of its general partner, who was the administrator of Sunshine Plaza in 1987, 1988 and 1989, and the testimony of a resident of Sunshine Plaza. The Respondent also had admitted in evidence: as Respondent's 1 through 3, the October 6, 1988, survey report and two handwritten drafts of survey reports; as Respondent's Exhibits 4 and 5, sketches of one- and two-bedroom resident quarters at Sunshine Plaza; and, as Respondent's 6 through 9, affidavits of residents of Sunshine Plaza.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case Nos. 90-3792 and 90-6282.

FINDINGS OF FACT

1. The Respondent, Sunshine Plaza (Vanguard Ventures, Inc., d/b/a Sunshine Plaza), is a limited partnership that operates an adult congregate living facility (ACLF) known as Sunshine Plaza, located at 701 Madison Avenue South, St. Petersburg, Florida.

   
   

2. Sunshine Plaza includes some resident living quarters for two residents that have been converted from one-bedroom apartments.

   
   

   Previously, the one-bedroom apartments (depicted in Respondent's Exhibit 4) consisted of a bedroom, bath and closet in one half of the unit, separated by a full wall and door from the rest of the unit. The rest of the unit consisted of a living room of approximately the same size as the bedroom area, and a kitchen and dining area. The door to the common hallway opened into the kitchen and dining area; no wall or door separated the kitchen and dining area from the living room.

   
   

   Under the converted living quarters, called "two-bedroom suites" (depicted in Respondent's Exhibit 5), essentially, the living room of the one-bedroom apartment is converted into a second bedroom. The second bedroom, like the living room of the one-bedroom apartment, continues to be open to the kitchen and dining area; the door to the common hallway continues to be off the kitchen and dining area.

   
   

3. In the converted "two-bedroom suites," the second bedroom is visible from the door that opens onto the common hallway.

   
   

4. Although there was evidence that some of the residents of Sunshine Plaza utilize bedside potty commodes, the evidence did not prove that residents living in the converted "two-bedroom suites" utilize potty commodes.

   
   

5. As a result of the conversion, the occupant of the second bedroom in the "two-bedroom suites" must pass through the bedroom of the other resident to get to the bathroom.

6. The Amended Administrative Complaint in Case No. 90-3792 (PDRL No. 05- 90-094-ACLF) is based on an October 6, 1988, inspection survey, a follow-up inspection on October 4, 1989, and the reports generated as a result. The evidence did not prove that HRS ever notified the Respondent, before the next annual inspection on October 30, 1989, that HRS considered the Respondent to be in violation of the residents' privacy rights under Section 400.428, Fla. Stat. (1989), or in violation of F.A.C. Rule 10A-5.023(8) in that the facility included resident sleeping rooms that did not open directly into a corridor, common use area or outside, or in violation of F.A.C. Rule 10A-5.023(10)(g), in that, in some cases, sole access to resident toilet or bathing facilities was through another resident's sleeping room. 1/

   
   

7. Based on the October 30, 1989, inspection and survey report, HRS put the Respondent on notice that HRS considered the Respondent to be in violation of the residents' privacy rights under Section 400.428, Fla. Stat. (1989), in that the facility included resident sleeping rooms that did not open directly into a corridor, common use area or outside, and in that, in some cases, sole access to resident toilet or bathing facilities was through another resident's sleeping room. Later, HRS gave the Respondent notice that it considered these conditions also to be in violation of F.A.C. Rule 10A-5.023(8) and (10)(g).

   
   

8. On HRS' subsequent follow-up inspections on December 22, 1989, and March 29, 1990, the Respondent still was utilizing the "two-bedroom suites" at Sunshine Plaza.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 400.419(3)(c), Fla. Stat. (1989), provides:

   
   

   (c) Class "III" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the department determines indirectly or potentially threaten the physical or emotional health, safety, or securitiy of facility residents, other than class I or II violations. A class III violation is subject to a civil penalty of not less than $100 and not exceeding $500 for each violation. A citation for a class III violation shall specify the time within which the violation

   is required to be corrected. If a class III violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

   
   

10. Section 400.428, Fla. Stat. (1989), states in pertinent part:

    
    

    1. No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States solely

       by reason of status as a resident of a facility. Every resident of a facility shall have the right to:

       * * *

       (b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy.

       * * *

       (3) In order to determine whether the facility is adequately protecting residents' rights, the annual inspection of the facility shall include private informal conversations with a sample of residents and consultation with the ombudsman committee in the district in which the facility is located to discuss residents' experiences within the facility with respect to rights specified in this section and general compliance with standards.

       
       

11. F.A.C. Rule 10A-5.023 provides in pertinent part:

    
    

    (8) All resident sleeping rooms shall open directly into a corridor, common use area or outside, except in those facilities comprised of apartments.

    * * *

    (10) Bathrooms shall be ventilated, adequately lighted, and have hot and cold running water.

    * * *

    (g) Sole access to toilet or bathing facilities shall not be through another resident's sleeping room, except in apartments within a facility.

    
    

12. F.A.C. Rule 10A-5.013 provides in pertinent part:

    
    

    (2) Definitions; Definitions as they appear in Part II of Chapter 400, Florida Statutes, and those contained herein shall apply.

    * * *

    (c) Apartment. A self-contained dwelling unit with kitchen and bathing facilities, and living, dining, and sleeping space that is contracted for use as a residence by one or more persons who maintain a common household.

    
    

13. The Sunshine Plaza "two-bedroom suites" are not "apartments" under

    F.A.C. Rule 10A-5.013(2)(c). There is no "living space" distinct from the "dining space" and "sleeping space." In addition, the "two-bedroom suites" are not "contracted for use as a residence by one or more persons who maintain a common household." Rather, the Respondent contracts separately with each resident of the "two-bedroom suites."

14. The Sunshine Plaza "two-bedroom suites" violate F.A.C Rule 10A- 5.023(8) and (10)(g). They are not "apartments," yet all resident sleeping rooms do not open directly into a corridor, common use area or outside, and sole access of the second resident to toilet or bathing facilities is through the other resident's sleeping room.

    
    

15. Whether the residents who choose the "two-bedroom suite" are satisfied with the living arrangement may be relevant to some privacy issues but not to privacy issues based on alleged violations of pertinent HRS rules. In that case, the only issue is whether the rule has been violated and allowed to remain uncorrected.

    
    

16. It is irrelevant that, in order to further convert the current "two- bedroom suite" to provide access to the bathroom through a common area, rather than one of the bedrooms, and to separate the second bedroom from the rest of the living quarters by a full wall and door, the Respondent would have to move residents during the conversion.

    
    

17. It is irrelevant that the cost to the Respondent associated with further conversion to provide access to the bathroom through a common area, rather than one of the bedrooms, and to separate the second bedroom from the rest of the living quarters by a full wall and door, could result in a higher monthly charge to the residents.

    
    

18. Although the evidence proved violations of F.A.C. Rule 10A-5.023(8) and (10)(g), the evidence did not prove all of the necessary allegations for imposition of a civil penalty under paragraph (2)(b) of the Amended Administrative Complaint in Case No. 90-3792 (PDRL No. 05-90-094-ACLF). The Amended Administrative Complaint in Case No. 90-3792 (PDRL No. 05-90-094-ACLF) is based on an October 6, 1988, inspection survey, a follow-up inspection on October 4, 1989, and the reports generated as a result. The evidence did not prove that HRS ever notified the Respondent, before the next annual inspection on October 30, 1989, that HRS considered the Respondent to be in violation of the residents' privacy rights under Section 400.428, Fla. Stat. (1989), or in violation of F.A.C. Rule 10A-5.023(8) in that the facility included resident sleeping rooms that did not open directly into a corridor, common use area or outside, or in violation of F.A.C. Rule 10A-5.023(10)(g), in that, in some cases, sole access to resident toilet or bathing facilities was through another resident's sleeping room. As referenced above, Section 400.419(3)(c) provides in part:

A citation for a class III violation shall specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense. 2/

RECOMMENDATION

Based on the foregoing Preliminary Statement, Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services, enter a final order finding the Respondent guilty of violations under paragraphs (2)(c) of the Amended Administrative Complaint in Case No. 90-3792, and under the Administrative Complaint in Case No. 90-6282, and imposing a fine in the amount of $600.

RECOMMENDED this 19th day of February, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 19th day of February, 1991.

ENDNOTES

1/ The October 30, 1989, survey report in evidence as Petitioner's Exhibit 1 states, in reference to the "privacy" deficiency: "Uncorrected Repeat Deficiency - Transferred from HRS-AA Form 1806 A of 2/23/89." But there was no adequate explanation as to either the meaning or accuracy of this statement.

2/ As referenced in footnote 1, above, the offense arising out of the October 30, 1989, survey report is purported to be a repeat offense, but the offense arising out of the October 6, 1988, survey report is not.

APPENDIX TO RECOMMENDED ORDER

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2.-5. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected in that it was not proven that any residents of the "second bedroom" of a "two-bedroom suite" had or used a potty commode.

2. Accepted and subordinate to facts found.

8.-10. Accepted but irrelevant. See Conclusion of Law 7.

Respondent's Proposed Findings of Fact.

1.-2. Accepted but subordinate. (Covered in the Preliminary Statement.) 3.-4. Accepted and incorporated.

5.-8. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as contrary to the greater weight of the evidence. The HRS witness testified that the earlier inspection reports "missed" the violations and that the handwritten October 30, 1989, report did not list the F.A.C. Rule 10A- 5.023(8) and (10)(g) violations because they were considered to be covered by the alleged "privacy" violations.

2. Accepted and incorporated.

11.-13. Accepted but irrelevant. See Conclusion of Law 7.

1. Accepted but irrelevant in the absence of any alleged estoppel defense.

2. Accepted that the testimony was elicited and the affidavits were filed, but rejected as conclusion of law that there was no privacy violation, and irrelevant that residents who chose the "two-bedroom suites" were satisfied.

See Conclusion of Law 7.

16-17. Accepted but irrelevant. See Conclusion of Law 7.

1. Accepted but irrelevant. See Conclusions of Law 7 and 9.

2. Accepted but irrelevant. See Conclusion of Law 8.

3. Rejected as contrary to facts found that the modifications would cause a rent increase; accepted only that they might cause a rent increase. Also, irrelevant. See Conclusion of Law 9.

4. Accepted but irrelevant. See Conclusion of Law 8.

5. Rejected that it was the decision of only one HRS employee or that there was inadequate "verification or foundation." The rest is accepted. All of it is irrelevant. See Conclusion of Law 7.

COPIES FURNISHED:

Paula M. Kandel, Esquire Senior Attorney Department of Health and

Rehabilitative Services Office of Licensure and

Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

Lori L. Rutland, Esquire Baynard, Harrell, Mascara

& Ostrow, P.A.

Post Office Box 31687

St. Petersburg, Florida 33732-1687

R. S. Power, Esquire Assistant General Counsel Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris, Esquire Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-003792

Orders for Case No: 90-003792