STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

ELVIRA DEMDAM, d/b/a SAN JUAN RETIREMENT HOME,

Respondent.

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) Case No. 04-2145

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on September 23, 2004, in Jacksonville, Florida before the Honorable Diane Cleavinger, Administrative Law Judge with the Division of Administrative Hearings, presiding.

APPEARANCES

For Petitioner: Michael Mathis, Esquire

Agency For Health Care Administration 2727 Mahan Drive

Building 3, Suite 3408D Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Elvira C. Demdam, pro se

San Juan Retirement Home 6561 San Juan Avenue Jacksonville, Florida 32210

STATEMENT OF THE ISSUE

The issue for consideration in this proceeding is whether the Respondent’s license as an adult living facility should be subject to an administrative fine in the amount of five hundred dollars ($500.00) for repeated class III deficiencies.

PRELIMINARY MATTERS

On May 13, 2004, the Agency for Health Care Administration (AHCA) filed an Administrative Complaint against Respondent, Elviar Demdam (Respondent), alleging that Respondent failed to have a satisfactory fire safety inspection report of the facility completed within 365 days of the last such report. The Administrative Complaint also requested that a $500.00 fine be imposed for the alleged repeat violation.

At the hearing, AHCA presented the testimony of two witness and offered one composite exhibit consisting of 15 items into evidence. Respondent testified in her own behalf and offered two exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommended Order on October 29, 2004. Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. The Respondent is the owner/operator of San Juan Retirement Home. The home is licensed to operate a 6-bed assisted living facility in Jacksonville, Florida.

2. On March 5, 2003, AHCA conducted a survey of Respondent's facility. During that survey, Respondent did not have a fire safety inspection report within 365 days from an earlier fire safety inspection report. Because of the lack of a timely report the facility was cited for violating Tag A209, a Class III deficiency.

3. Tag A209 requires that all licensed facilities have an annual fire inspection conducted by the local fire marshal or authorities having jurisdiction. In this instance the Agency interprets the word annual to mean 365 days from the last inspection report.

4. Respondent had the facility inspected by the Fire Marshal on March 12, 2003. She received the report the same day.

5. A follow-up survey was conducted on April 15, 2003.

   
   

   Tag A209 was noted as corrected in a timely manner by Respondent. Since this was the first Class III deficiency regarding the timeliness of the inspection report, no penalties were imposed by Petitioner on Respondent.

6. On April 23, 2004, AHCA again inspected Respondent's facility. During the inspection, Respondent again did not have a fire safety inspection report completed within 365 days of the earlier inspection report of March 12, 2003. Because of the

   lack of the report, the facility was cited for a class III deficiency under Tag A209.

7. Respondent admitted that she twice did not have a timely fire safety inspection report completed for her facility. The evidence demonstrated that, prior to the April 2004 inspection by AHCA, Respondent had called the Fire Marshal’s office to schedule an inspection for the facility. However, the call was not made until the expiration of the March 12, 2003, fire safety inspection report. For some unknown reason the Fire Marshal’s office did not schedule the fire safety inspection until after the April 2004 inspection. However, the Fire Marshal’s failure to schedule the inspection does not excuse Respondent’s lack of a timely inspection and report since Respondent remains responsible for obtaining the inspection and report in a timely manner and did not call the Fire Marshal’s office until the expiration of the earlier report.

8. To her credit, Respondent obtained a new fire safety inspection report on May 4 or 5, 2004, after AHCA had inspected

   the facility.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat.

10. Section 400.419(1)(c), Florida Statutes (2003), states, in part:

    Class III violations are those conditions or occurrences related to the operation and maintance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class II violations.

    The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500.00 and not exceeding $1,000 for each violation. A citation for a class III violation must specify the time within which the violation is required to be corrected. If a class III violation is corrected with the time specified, no fine may be imposed, unless it is a repeated offense.

    
    

11. Section 400.441, Florida Statutes, requires that all licensed facilities have an annual fire inspection conducted by the local fire marshal or authorities having jurisdiction.

12. Florida Administrative Code Rule 58A.5.015(1)(a)(3) requires that the annual fire safety inspection be conducted by the local authority having jurisdiction over fire safety or the state Fire Marshal, and that documentation of a satisfactory fire safety inspection shall be provided at the time of the Agency's biennial survey.

13. In this case, the undisputed evidence establishes that Respondent did not obtain fire safety inspections or reports within 365 days of an earlier inspection report on March 5,

2003, and April 23, 2004. The April 23 deficiency was a repeat of the March 5 Class III deficiency from the year before. Since this violation was repeated, the agency must impose a fine between $500.00 and $1,000.00 for the repeat Class III violation. § 400.419(1)(c), Fla. Stat. The evidence did not demonstrate that the maximum fine was warranted in this case.

Petitioner made some effort to obtain a timely report and neither years’ report was over a two-months late. Given these facts a $500.00 fine is appropriate.

RECOMMENDATION

Based on the foregoing Finding of Facts and Conclusions of Law, it is

RECOMMENDED:

That AHCA enter a final order imposing a $500.00 administrative fine for repeatedly failing to timely conduct or obtain an annual fire safety inspection report.

DONE AND ENTERED this 9th day of November, 2004, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2004.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building 3, Suite 3408D Mail Stop 3

Tallahassee, Florida 32308

Elvira C. Demdam

San Juan Retirement home 6561 San Juan Avenue Jacksonville, Florida 32210

Alan Levine, Secretary

Agency for Health Care Administration Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 04-002145

Orders for Case No: 04-002145