STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2490

) WASHINGTON MANOR NURSING AND ) REHABILITATION CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 28, 1980, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint filed by the Petitioner, Department of Health and Rehabilitative Services, alleging that the Respondent, Washington Manor Nursing and Rehabilitation Center, was in violation of Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, and seeking to assess a civil penalty of $5,000.

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

Department of HRS

800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311

For Respondent: Myron J. Sponder, Esquire

Washington Manor Nursing and Rehabilitation Center

4200 Washington Street

Hollywood, Florida 33021

ISSUE

The issues in this case are whether the violations alleged in the Administrative Complaint occurred, and whether the Respondent should be fined

$5,000.

FINDINGS OF FACT

1. Washington Manor is a skilled nursing home licensed by the Department of Health and Rehabilitative Services. It expanded its existing facility by the construction of a new wing with 15 additional beds. Approval of the construction of the addition was granted by the Petitioner Department as indicated by Exhibit 5.

2. The addition was inspected by the Department's Medical Facility Architect on October 4, 1979. At that time the Department's architect discovered that several of the beds in the new facility were being used. In addition the architect discovered several construction deficiencies.

   
   

3. The architect discovered that the partitions designed to be fire resistant and smoke proof had many holes in them which would have permitted smoke to penetrate these walls, which were to be constructed as barriers.

   
   

4. The architect discovered that smoke dampers on the ducts were not properly secured. Unsecured, such dampers can be knocked aside by the forces generated in a fire.

   
   

5. The architect discovered that "tents" (ventilated and insulated enclosures) had not been constructed over recessed lighting fixtures in a manner to prevent fire from penetrating the fire resistant ceiling tile.

   
   

6. In addition to these major deficiencies listed above, the bathrooms did not have bedpan flushing devices, the tamper switch on the fire alarm was not functioning properly, double doors did not have magnetic door closures, and the air conditioners in the patients' rooms did not have their vents locked in the open position.

   
   

7. The Department's architect offered uncontroverted and unrebutted testimony that the conditions in the foregoing Paragraphs 3, 4, 5 and 6 violated the provisions of the Southern Standard Building Code. The deficiencies described in Paragraphs 3, 4 and 5 directly related to the safety of the residents notwithstanding the prohibitions of these conditions by the code.

   
   

8. An October 8, 1979, a second inspection was conducted by a Department administrative inspector based on the architect's report of premature occupancy. This inspection revealed that ten of the 15 new beds were occupied and had been occupied for a total of more than 55 patient days without proper licensure, which includes the period the safety deficiencies existed.

   
   

   CONCLUSIONS OF LAW

   
   

9. The issues are: Whether the Respondent committed the violations alleged in the Administrative Complaint; and whether a fine of $5,000 should be levied against the Respondent.

   
   

10. The facts show that there were deficiencies in the construction of the addition. Rule 10D-29.52, Florida Administrative Code, states that the new portion of the facility must be constructed to the standards of the Southern Standard Building Code. Unrebutted testimony was received that the deficiencies noted were violations of that code. The nature of the primary deficiencies directly related to fire safety. Placing residents in the addition while these deficiencies existed and prior to inspection was an act materially affecting the safety of the residents of the facility, contrary to Section 400.102(1)(a), Florida Statutes.

    
    

11. Placing residents in the new addition prior to having the additional beds licensed is a violation of Rules 10D-29.34 and 10D-29.35, Florida Administrative Code, and Section 400.062, Florida Statutes. However, Section 400.121, Florida Statutes, limits the authority to levy fines to violations of Section 400.102(1)(a), (b) and (d). Conversion of a resident's property contrary to Section 400.102(1)(b) is clearly not at issue. Section

    400.102(1)(d) provides that any grounds for denial of licensure shall be a grounds for action. The only provision in Chapter 400 which references denial of a license is Section 400.121, Florida Statutes. The portion of Section

    400.121 which references license denial is exactly the same portion which authorizes civil fines and references Section 400.102(1)(d). Such a bootstrap application of these sections is inappropriate. Clearly, this leaves one with only that conduct defined in Section 400.102(1)(a) , Florida Statutes, for which the fine could be levied.

    
    

12. Section 400.102(1)(a), Florida Statutes, prohibits acts materially affecting the health and safety of residents. This provision was violated because of the Respondent's failure to maintain fire safety for occupants. There were 55 patient days of occupancy during which these violations existed. Section 400.121 Florida Statutes, permits up to a $500 fine per violation per day. The $5,000 fine levied is limited only by the aggregate fine limit of Section 400.121(2), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the $5,000 fine be levied against the Respondent, Washington Manor Nursing and Rehabilitation Center.

DONE and ORDERED this 2nd day of July, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Harold L. Braynon, Esquire Department of HRS

800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311

Myron J. Sponder, Esquire Washington Manor Nursing and

Rehabilitation Center 4200 Washington Street

Hollywood, Florida 33021

Docket for Case No: 79-002490

Orders for Case No: 79-002490