STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5557

) SUNRISE, A COMMUNITY FOR THE ) RETARDED d/b/a SUNRISE GROUP ) HOME NO. 2, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 29, 1993, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire

Agency for Health Care Administration

401 Northwest Second Avenue, Suite N-526 Miami, Florida 33128

For Respondent: Steven M. Weinger, Esquire

Kurzban, Kurzban and Weigner, P.A.

2650 Southwest 27th Avenue, Second Floor Miami, Florida 33133

STATEMENT OF THE ISSUES

1. Whether the Agency for Health Care Administration has jurisdiction to prosecute the violations allegedly committed by Respondent?

   
   

2. Whether the prosecution is time-barred?

   
   

3. Whether Respondent actually committed the alleged violations?

   
   

4. If so, what penalty should be imposed?

   
   

   PRELIMINARY STATEMENT

   
   

   On June 25, 1992, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department") issued an Administrative Complaint in which it announced its intention "to impose an administrative fine in the amount of Two Hundred and Fifty ($250.00) Dollars" upon Respondent. The first four numbered paragraphs of the Administrative Complaint contained the following allegations:

   1. The Department has jurisdiction over Respondent by virtue of the provisions of Chapter 393, Florida Statutes.

   2. Respondent is licensed to operate at

      15190 S.W. 272nd Street, Naranja, Florida 33032, as an intermediate care facility for the mentally retarded in compliance with Chapter 393, Florida

      Statutes and Chapter 10D-38, Florida Administrative Code.

   3. On or about December 7, 1990, a follow-up conducted by personnel from the Office of Licensure and Certification revealed that Respondent was operating such that:

      (a) The health and life safety of all residents and staff had not been assured as evidenced by the [fact that the] alarm pull station near the main control panel was not functioning on day of follow-up visit. This was cited during the survey conducted on September 12, 1990.

      
      

      This is in violation of Sections 10D-38.028(4) and 10D-29.119(1), Florida Administrative Code.

      $250.00 fine.

      
      

   4. The above referenced violations constitute grounds to levy this administrative fine pursuant to Section 393.067, Florida Statutes, authorizing the imposition of the above fine under Section 393.0673, Florida Statutes, in that Respondent has violated minimum standards, rule[s] and regulations promulgated by the Department under Chapter 393, Florida Statutes.

Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On September 10, 1992, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), acting as the Department's successor, referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

On September 15, 1992, the Agency filed a motion requesting, among other things, that this case "be remanded to the Agency." Inasmuch the Agency conceded in its motion that "Respondent has a meritorious legal defense in that Respondent repaired and monitored the alarm station [which the Administrative Complaint alleged was not functioning on December 7, 1990] between September and December 1990," it appeared to the Hearing Officer that there was no need for a formal hearing in the instant case. Accordingly, on September 21, 1992, he issued an order closing the file of the Division of Administrative Hearings in this case and returning the matter to the Agency for the entry of a final order of dismissal.

On October 9, 1992, the Agency, through its Acting Agency Clerk, issued an order remanding the case to the Division of Administrative Hearings. The order read as follows:

The Hearing Officer returned this case to the agency by an Order of September 21, 1992, because it appeared there were no longer any issues of material disputed fact. By exceptions, counsel for the agency requests remand on the grounds that agency counsel did not intend to imply that the case was resolved when he stated in a pleading that "Respondent has a meritorious legal defense." In his exceptions counsel explains that he only intended to say that Respondent's defense goes to the merits, not that it is dispositive.

Having reviewed the complaint and Respondent's request for an administrative hearing, I conclude that Respondent has raised issues of material disputed fact and has not subsequently conceded those issues; therefore remand to the Division of Administrative Hearings is appropriate.

Based on the foregoing, this case is remanded to the Division of Administrative Hearings.

After receiving the Agency's order of remand, the undersigned Hearing Officer scheduled the final hearing in this case for January 29, 1993.

The final hearing in this case was held as scheduled on January 29, 1993. Only one witness, Harry Fallon, the employee who conducted the September 12 and December 7, 1990, inspections referenced in the Administrative Complaint, testified at the hearing. In addition to Fallon's testimony, a total of five exhibits (Petitioner's Exhibits 1, 2 and 3 and Respondent's Exhibits 1 and 2) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline for the filing of such submittals. On February 17, 1993, Respondent filed a proposed recommended order. On February 18, 1993, the Agency filed a proposed recommended order, accompanied by memoranda of law. The parties' proposed recommended orders contain what are labelled as "findings of fact." These proposed "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The facility that is the subject of the instant Administrative Complaint (hereinafter referred to as "Sunrise") is an intermediate care facility for the mentally retarded located in Dade County, Florida.

   
   

2. It is housed in a one-story, split-level building. The two levels of the home are connected by stairs.

   
   

3. At all times material to the instant case, Sunrise had a manual fire alarm system (with one manual fire alarm pull station on each level of the home) and a smoke detection system.

   
   

4. Harry Fallon is a Fire Protection Specialist with the Agency. In his capacity as a Fire Protection Specialist, he surveys facilities such as the one which is the subject of the instant Administrative Complaint to determine compliance with applicable fire safety, protection and prevention requirements. He performed similar duties in 1990 as an employee of the Department.

5. On September 12, 1990, Fallon conducted a survey of Sunrise. Of the two fire alarm pull stations in the building, only one was operational.

   
   

6. This was noted in the written "statement of deficiencies" that Fallon prepared following the survey.

   
   

7. Respondent devised a plan of correction to correct this deficiency.

   The plan, which provided that Respondent would repair the non-operational pull station and, on a monthly basis, monitor both pull stations in the building, was approved by the Department. The Department advised Respondent that the failure to take the corrective action described in the plan "may result in administrative action against your facility."

   
   

8. Respondent fully complied with the plan of correction.

   
   

9. Notwithstanding that Respondent had the non-operational pull station promptly repaired and thereafter monitored the pull station's operation in accordance with the Department-approved plan of correction, when Fallon returned to the facility on December 7, 1990, and tested the pull station, it did not function properly. 1/

   
   

10. Unlike the pull station, the facility's smoke detection system was fully operational at the time of Fallon's December 7, 1990, return visit, as it had been during his previous inspection on September 12, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

11. Since July 1, 1992, by operation of Section 10 of Chapter 92-33, Laws of Florida, which transferred "all powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds of the Assistant Secretary for Regulation and Health Facilities of the Department," as well as all "rules promulgated by or for the Assistant Secretary," 2/ to the Agency, the Agency has had the authority to "deny, revoke, or suspend a license or impose an administrative fine, not to exceed

    $500 per violation per day, for a violation of any provision of s. 393.0655 or

    393.067 or rules promulgated pursuant thereto." Section 393.0673, Fla. Stat. 3/

    
    

12. In the instant Administrative Complaint that the Department issued and which the Agency is now prosecuting as the Department's successor, it is alleged that Respondent violated Rules 10D-38.028(4) and 10D-29.119(1), Florida Administrative Code, by not assuring the "health and life safety of all residents and staff" at Sunrise "as evidenced by the alarm pull station near the main control panel . . . not functioning on [December 7, 1990, the] day of [Fallon's] follow-up visit" to the facility.

    
    

13. Rule 10D-29.119, Florida Administrative Code, [which was subsequently renumbered Rule 59A-4.119, Florid Administrative Code] was not promulgated pursuant to "any provision of s. 393.0655 or 393.067," Florida Statutes." Accordingly, the Agency does not have the authority under Section 383.0673, Florida Statutes, to impose punishment for a violation of Rule 10D-29.119. 4/

    
    

14. Rule 10D-38.028, Florida Administrative Code, on the other hand, was promulgated pursuant to Section 393.067(7), Florida Statutes. Accordingly, the Agency does have the authority under Section 393.0673, Florida Statutes, to impose punishment for a violation of Rule 10D-38.028.

15. On December 7, 1990, the date of the alleged violation in the instant case, Rule 10D-38.028, Florida Administrative Code, provided as follows:

    
    

    1. Standards for fire prevention for the ICF/MR are those set forth in Chapter 4A-38, F.A.C., Uniform Fire Safety Standards for Facilities for Retarded and Other Developmentally Disabled Persons, as applicable to the classifica- tions of occupancy therein and as may be modified in this rule (this may be reviewed at the Office

       of Licensure and Certification, Fort Knox Executive Center, 2727 Mahan Drive, Tallahassee, Florida 32308).

    2. Responsibility for enforcement of these requirements is vested within the Department.

    3. The local fire safety office (Office of Licensure and Certification) shall survey the facility annually. Based upon the survey, a report of deficiencies will be provided to the facility with a specified time frame for correction. If

       the facility is found to be in violation of life safety code requirements, a semi-annual follow up will be conducted.

    4. Fire prevention, fire protection and safety practices shall be the responsibility of the administrator or director. All fires or explosions shall be reported immediately to the local fire department, the Office of Licensure and Certification, and the District and State Developmental Services Program Office, with a copy to the county health officer in case of fire.

       
       

16. On December 7, 1990, Rule 4A-38.028, Florida Administrative Code, provided as follows:

    
    

    The standards of the National Fire Protection Association for life safety from fire, as

    provided in NFPA 101, Life Safety Code, as adopted in Rule 4A-3.012, Florida Administrative Code, shall be the uniform fire safety standards required for this state with respect to Intermediate Care Facilities for Persons with Developmental Disabilities. Chapter 21, "Residential Board

    and Care Occupancies" shall be the uniform standard.

    
    

17. On December 7, 1990, Rule 4A-3.012, Florida Administrative Code, provided that "NFPA 101, Life Safety Code, 1988 edition, is hereby adopted and incorporated by reference as a part of the uniform safety standards adopted by rule by the State Fire Marshal."

    
    

18. Section 21-2.3.4.1 of the NFPA 101, Life Safety Code, 1988 edition (hereinafter referred to as the "Code"), provided that, with two exceptions, "[a] manual fire alarm system shall be provided [in a residential care facility providing sleeping accommodations for not more than 16 residents] in accordance with Section 7-6" of the Code. The two exceptions were as follows:

    Exception No. 1: If there are interconnected smoke detectors meeting the requirements of 21-2.3.4.2, and there is at least one manual fire alarm station per floor arranged to continuously sound the smoke detector alarms.

    
    

    Exception No. 2: Other manually activated continuously sounding alarms acceptable to the authority having jurisdiction.

    
    

19. Section 7-6 of the Code, specifically Section 7-6.1.3, provided as follows:

    
    

    A fire alarm system required for life safety be installed, tested and maintained in accordance with applicable requirements of the following:

    
    

    NFPA 70, National Electrical Code;

    
    

    NFPA 71, Standard for the Installation, Maintenance and Use of Central Station Signaling Systems;

    
    

    NFPA 72A, Standard for the Installation, Maintenance and Use of Local Protective Signaling Systems for Guard's Tour, Fire Alarm, and Supervisory Service;

    
    

    NFPA 72B, Standard for the Installation, Maintenance and Use of Auxiliary Protective Signaling Systems for Fire Alarm Service; NFPA 72C, Standard for the Installation, Maintenance and Use of Remote Station Protective Signaling Systems;

    
    

    NFPA 72D, Standard for the Installation, Maintenance and Use of Proprietary Protective Signaling Systems;

    
    

    NFPA 72E, Standard on Automatic Fire Detectors;

    
    

    NFPA 74, Standard for the Installation, Maintenance, and Use of Household Fire Warning Equipment; and

    
    

    NFPA 1221, Standard for the Installation, Maintenance and Use of Public Fire Service Communication System.

    
    

20. Section 7-6.1.5 of the Code provided that "[f]ire alarm system installation wiring or other transmission paths shall be monitored for integrity in accordance with Section 7-6.1.3."

    
    

21. Section 7-6.1.6 of the Code provided that "[t]o assure operational integrity, the fire alarm system shall have an approved maintenance and testing program complying with the requirements of the applicable documents specified in 7-6.1.3."

    
    

22. In the instant case, Sunrise did have a manual fire alarm system on December 7, 1990. Moreover, there has been no showing that Respondent failed to monitor, test or maintain the system in accordance with the requirements of the Code. While one of the components of the system, the pull station near the main control panel, did not function properly on December 7, 1990, the evidence is

insufficient to establish that this was in any way Respondent's fault or was something that could have been prevented by Respondent through the exercise of due diligence. Given the Agency's failure to prove by even a preponderance of the evidence that there was any intentional wrongdoing, negligence or lack of due diligence on Respondent's part in connection with the installation, monitoring, testing, maintenance or repair of the pull station, 5/ the allegation in the Administrative Complaint that Respondent violated Rule 10D- 38.028, Florida Administrative Code, should be dismissed. 6/ Cf. Cohen v.

Schott, 48 So.2d 154, 155 (Fla. 1950)("[t]he law places the responsibility on the licensee [authorized to sell alcoholic beverages] to determine who are under the age of twenty-one, but to ascertain this there must be some reasonable standard of diligence to bound his inquiry;" "[i]t would seem that when one operates a cocktail bar or lounge, makes it generally known that minors are not admitted for drinking purposes, frequently instructs his employees to challenge those who appear to be within the prohibited age, they are in fact challenged in the manner shown here, and assert that they are twenty-one, which is by all outward appearances true, he has made such efforts as the law contemplates to comply with its requirements"); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 118 (Fla. 1st DCA 1989)(licensed citrus fruit dealer "should not be held liable as a matter of law for adulteration of a product not caused by it in the absence of some available means to test for or otherwise prevent such adulteration;" dealer may not be disciplined for adulteration where it "had no way of knowing that it had violated the statute, and could not have prevented or detected the violation through the exercise of due diligence"); Surf Attractions, Inc. v. Department of Business Regulation, 480 So.2d 1354, 1355-56 (Fla. 1st DCA 1985)("the agency must show a lack of due diligence on the part of the beverage licensee before [a fine] may be imposed" for violating the law prohibiting the sale of alcoholic beverages to underaged persons); Woodbury v. State Beverage Department, 219 So.2d 47, 48 (Fla. 1st DCA 1969)("[b]efore [a beverage] license can be suspended or revoked, the licensee should be found by the Director to have been culpably responsible for such violation as a result of his own negligence, intentional wrongdoing or lack of diligence").

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Agency enter a final order dismissing the instant Administrative Complaint in its entirety.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April, 1993.

STUART M. LERNER

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 15th day of April, 1993.

ENDNOTES

1/ Fallon enlisted the assistance of a maintenance employee at the facility to conduct this test. At Fallon's request, the employee attempted to activate the alarm, but was unable to do so. Another employee of Respondent, the building manager, was present, but she did not actively participate in the testing.

2/ Pursuant to Section 20.19(5)(c), Florida Statutes (1991), the Department's Assistant Secretary for Regulation and Health Facilities was responsible for, among other things, "licensure and certification of programs external to the department for which the department ha[d] a major regulatory responsibility."

3/ While Section 393.0673, Florida Statutes, was not amended to reflect this transfer of authority to the Agency, it appears that the Legislature's failure to do so was inadvertent given the provisions of Section 10 of Chapter 92-33, Laws of Florida.

4/ The Agency apparently recognizes the inapplicability of Rule 10D-29.119, Florida Administrative Code, to the instant case. Its proposed recommended order makes no mention of this rule provision.

5/ If anything, the record affirmatively establishes that Respondent did exercise due diligence in an effort to prevent a reoccurrence of what had happened during Fallon's first visit to the facility on September 12, 1990, by following the plan of correction that the Department had approved.

6/ It is therefore unnecessary to, and thus the Hearing Officer will not, address the other issues raised by Respondent in its defense.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-5557

The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in the parties' proposed recommended orders:

The Agency's Proposed Findings of Fact

1-2. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

3. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case.

4-5. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as findings of fact because they are more in the nature of argument regarding the state of the evidentiary record.

2. Accepted and incorporated in substance.

3. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

4. Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record.

Respondent's Proposed Findings of Fact

1-3. Accepted and incorporated in substance.

4. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding states that the other pull station was fully operational on both September 12 and December 7, 1990, it has been rejected because it not supported by persuasive competent substantial evidence.

5-8. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

2. Accepted and incorporated in substance.

11-14. Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.

1. Rejected as a finding of fact because it is more in the nature of a statement of what transpired at the final hearing in this matter.

2. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

3. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

18-22. Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.

1. First sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case.

2. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

3. First sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the state of the evidentiary record; Second sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case.

26-29. Rejected as findings of fact because they are more in the nature of legal argument.

30. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

31-35. Rejected as findings of fact because they are more in the nature of legal argument.

1. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the credibility of a witness' testimony.

2. Accepted and incorporated in substance.

3. Rejected as a finding of fact because it is more in the nature of legal argument.

39-40. Rejected because, even if true, they would not change the outcome of the instant case.

41. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer in the instant case; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument.

COPIES FURNISHED:

Leonard T. Helfand, Esquire Senior Attorney

Agency for Health Care Administration

401 Northwest Second Avenue Suite N-526

Miami, Florida 33128

Steven M. Weinger, Esquire Kurzban, Kurzban and Weigner, P.A. 2650 Southwest 27th Avenue

Second Floor

Miami, Florida 33133

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium

Suite 301

325 John Knox Road Tallahassee, Florida 32303

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 of time 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.

Docket for Case No: 92-005557

Orders for Case No: 92-005557