STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMACO DEVELOPMENT CORP., d/b/a ) PACIFIC HOMES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1136

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on October 18, 1978, in Miami, Florida.

APPEARANCES

For Petitioner: Stuart E. Wilson, Esquire

Franklin International Plaza

255 Alhambra Circle, Suite 100 Coral Gables, Florida 33134

For Respondent: Leonard Helfand, Esquire

Department of Health and Rehabilitative Services

District XI Legal Counsel State Office Building

401 Northwest 2nd Avenue Miami, Florida 33128

The State of Florida, Department of Health and Rehabilitative Services (HRS), on May 22, 1978, denied Petitioner's application for an Adult Congregate Living Facility License. On June 2, 1978, Petitioner filed a request for an administrative hearing pursuant to Section 120.57, Florida Statutes.

Thereafter, in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes, HRS requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by Notice dated September 19, 1978.

HRS denied Petitioner's application for an Adult Congregate Living Facility License on the grounds that deficiencies noted in two sanitary inspections had not been corrected; deficiencies found in two fire inspections had not been corrected; an inspection by a state nutritionist had found the diets served in the facility did not provide proper nutritional care for its residents; and the facility had inadequate and unsupervised staff.

At the final hearing the Petitioner called Alberto Cosio and Olga Cosio as its witnesses, HRS called Martha E. See Martin Blum, Norman Sokoloff, Ethel K. Heiss, and Mary Josephine Duffey as its witnesses. The Petitioner offered Petitioner's Exhibits 1, 2 and 3, and HRS offered Respondent's Exhibits 1 through 7, all of which were received as evidence.

FINDINGS OF FACT

1. On August 10, 1977, Petitioner filed an application for an Adult Congregate Living Facility License. Thereafter, on nine separate occasions Petitioner was visited by representatives of Respondent, the Dade County Fire Department, and the Dade County Health Department. The results of the inspections by these governmental agencies were numerous lists showing deficiencies in Petitioner's staff, physical plant, sanitary practices, and in diets being furnished to the residents of the facility. At the final hearing in this cause, Petitioner's President admitted that the deficiencies noted in the May 22, 1978 letter of Respondent's Supervisor of the Aging and Adult Services Program, which was marked as Petitioner's Exhibit Number 3, were correct as of the date of the letter. Petitioner contends, however, that the deficiencies noted in Petitioner's Exhibit Number 3 have since been corrected. However, the issue in this proceeding is whether there was substantial competent evidence in existence on May 22, 1978, to justify the denial by HRS of Petitioner's application for an Adult Congregate Living Facility License. Corrections made by Petitioner after that date are irrelevant to this proceeding, although Petitioner would not, of course, be estopped to show correction of these deficiencies in a later application.

   
   

2. Inspections conducted by or on behalf of HRS on April 7, 1978, May 12, 1978, and May 16, 1978, showed that staff on duty at Petitioner's facility was inadequate to properly supervise residents in the facility. On the April 7, 1978, visit, there were only one or two staff members on duty to care for thirty-four residents of the facility. The inspection conducted on May 16,

   1978, revealed only one staff member on duty. The Administrator of the facility on both occasions was not in attendance at the facility at the time of the inspections.

   
   

3. Fire inspections on Petitioner's facility were conducted on January 6, 1978, and again on April 20, 1978. The January 6, 1978, inspection resulted in a lengthy list of deficiencies, which included citations for no building evacuation plan, improper fire extinguishers, lack of proper latching devices on doors, improper hanging of doors, improper installation and maintenance of electrical equipment, no emergency lighting, obstruction in facility corridors, lack of exit signs, lack of smoke detectors, insufficient landing size on stairways, improper storage of flammable chemicals, and improper safety precautions in the electrical equipment room. The April 20, 1978, inspection also resulted in a lengthy list of deficiencies, including lack of an evacuation plan, no record of evacuation drills having been held, lack of proper latching devices on stairway fire doors, and lack of exit signs. There is no evidence of record from which to conclude that these deficiencies were corrected prior to the date on which HRS denied Petitioner's application for a license to operate an Adult Congregate Living Facility.

   
   

4. Sanitary inspections of Petitioner's facility were conducted on August 29, 1977, and April 18, 1978. The August 29, 1977 inspection resulted in a lengthy list of deficiencies which is contained in Petitioner's Exhibit Number

1. Among these deficiencies were improper doors, windows and screens in the facility, lack of handrails, improper lighting, improper heating, insufficient

   number of toilets for the existing number of residents in the facility, and numerous electrical code violations. The inspection conducted on April 18, 1978, revealed many of the same deficiencies noted in the earlier inspection. In addition, a serious fly problem was observed in the kitchen area which was caused by improper sanitary procedures in the kitchen and disrepair of windows, screens and doors. In addition, live roaches and roach eggs were observed in the kitchen, also due to improper sanitary procedures. Further, a live rat and significant quantities of rat droppings were also observed in the kitchen area. The April 18, 1978 inspection also revealed cracked ceilings, holes in walls, malfunctioning lights, holes in floors, and use of a common drinking cup at the

   water fountain in the facility. There is insufficient evidence in the record in this cause to appropriately demonstrate that the deficiencies noted in the August 29, 1977 and April 18, 1978 inspections were adequately corrected prior to the denial of Petitioner's request for a license on May 22, 1978.

   
   

   1. On May 12, 1978, the kitchen facilities belonging to Petitioner were inspected by an HRS staff nutritionist. On the day of the inspection, the Administrator was not in attendance at the facility, and the only staff member present was a young woman who had difficulty communicating in English, and who was in charge of both residents of the facility and total food service, including preparation, serving and cleaning. The lunch menu posted for the date of the inspection did not provide one third of established recommended dietary allowances. The menu was also calculated to be deficient in calories, protein, calcium, iron, Vitamin A, Vitamin C, Thiamine, Riboflavin and Niacin. The food on hand in the facility did not correspond to posted menus, and the meal observed together with the food inventory were not sufficient for the age group residing in the facility and could result in malnutrition. The kitchen area was dirty, and food preparation utensils required scrubbing and sanitizing. Dishes were being washed with tepid water which was not sufficient for sterilization, and other sterilization methods being used for kitchen utensils were not sufficient to sterilize them. A serious fly problem existed in the kitchen, at least in part due to poor installation of doors. It was impossible to determine the qualifications of the Food Service Supervisor, no policy manual regarding food preparation was found in the facility, and no job description, work assignment, orientation plan, training record, health exam, or employee evaluation could be located for food service personnel. There were no written menus approved by a qualified consulting dietician, no written procedures for ordering, receiving and storing foodstuffs, and no food preparation or recipe file.

      
      

      CONCLUSIONS OF LAW

      
      

   2. Section 400.407, Florida Statutes, requires that a license be obtained from HRS in order to operate an adult congregate living facility.

      
      

   3. Section 400.414, Florida Statutes, empowers HRS to deny a license for an adult congregate living facility on grounds of intentional or negligent acts materially affecting the health or safety of residents of the facility, or for violation of any of the provisions of Section 400.401, et seq., Florida Statutes, or of any minimum standards or rules promulgated pursuant thereto.

      
      

   4. At all times material to this proceeding, Petitioner was in violation of Rule 10A-5.06, Florida Administrative Code, in that it did not meet the minimum ratio of staff to residents contained in that rule.

      
      

   5. At all times material to this proceeding, Petitioner was in violation of Rule 10A-5.10, Florida Administrative Code, in that diets prepared and served

      to residents of its facility were not prepared in accordance with the requirements of that rule and did not meet the nutritional standards contained therein.

      
      

   6. At all times material to this proceeding, Petitioner was in violation of Rule 10A-5.11, Florida Administrative Code, in that its facility was not maintained in accordance with the standards contained in that rule.

      
      

   7. At all times material to this proceeding, Petitioner was in violation of Rule 10A-5.11(b) and 10A-5.12, Florida Administrative Code, in that fire protection systems contained in its facility were not kept in a safe and functioning condition, and were not established and maintained in accordance with state and local laws.

      
      

   8. At all times material to this proceeding, Petitioner was in violation of Section 400.414(2)(a) and (b), Florida Statutes, in that, based upon the specific Findings of Fact contained herein, it was guilty of an intentional or negligent act materially affecting the health or safety of the residents of its facility.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, denying Petitioner's Application for a License to Operate an Adult Congregate Living Facility.

RECOMMENDED THIS 5th day of January, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Stuart E. Wilson, Esquire Franklin International Plaza

255 Alhambra Circle, Suite 100 Coral Gables, Florida 33134

Leonard Helfand, Esquire

DHRS District XI Legal Counsel State Office Building

401 Northwest 2nd Avenue Miami, Florida 33128

Docket for Case No: 78-001136

Orders for Case No: 78-001136