STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-176

)

MONTICELLO MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 7, 1980, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

Department of Health and Rehabilitative Services

Fort Lauderdale, Florida

After qualification by the undersigned, the Respondent, Monticello Manor, was represented by its Administrator, Carolyn Rhoades.

By Administrative Complaint dated December 27, 1979, Petitioner notified Respondent of its intention to impose a civil penalty in the amount of one hundred dollars for failing to correct a Class III deficiency within the mandated time frame. Respondent admits the deficiency, but asserts that insufficient time was afforded for correction of the deficiency and, therefore, no penalty should be imposed.

The Petitioner presented the testimony of Lester Nelson and Ms. Rhoades.

FINDINGS OF FACT

1. On September 19, 1979, Lester Nelson, Hospital Consultant for the Petitioner, conducted a survey of Monticello Manor and discovered certain Class III deficiencies, one of which was roach infestation in the cabinets beneath the kitchen sink. Ms. Rhoades was present on that date and was aware of the deficiencies to be cited. The facility was notified by letter dated October 22, 1979, that the deficiencies cited were to be corrected by November 1, 1979.

   
   

2. A revisit of the nursing home was made by Mr. Nelson on November 27, 1979, by which time all deficiencies had been corrected with the exception of the roach infestation. On that date, roaches were observed in three of the five cabinets inspected.

3. At the time of the September 19 survey, Monticello Manor had in effect a Service Agreement with Truly Nolen for pest control services. In addition, a maintenance man was spraying the premises twice a week. On December 1, 1979, Respondent entered into a contract with a different exterminating company after cancelling its contract with Truly Nolen.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57, Florida Statutes (1979).

   
   

5. Section 400.141, Florida Statutes (1979), requires nursing homes to comply with all applicable standards established by the Petitioner, including maintenance of the premises in a sanitary manner. Section 10D-29.49(1)(f), Florida Administrative Code, sets forth that a nursing home facility ". . . shall1 be kept free from . . . insect breeding areas . . ."; and Section 10D- 29.44, Florida Administrative Code, requires that all matters pertaining to food service in a nursing home comply with the Florida Sanitary Code, Chapter 10D-13, Florida Administrative Code. That Code provides that: "Effective control measures shall be taken to protect against the entrance into the food establishment, and the breeding or presence on the premises of . . . roaches .

   . . ." (e.s.) Section 10D-13.27(8), Florida Administrative Code.

   
   

6. Respondent herein has admitted the presence of roaches in its kitchen from at least September 19, 1979, the survey date, through at least November 27, 1979, the revisit date. Roach infestation in a nursing home has bean determined by Petitioner to be a Class III deficiency, which carries a statutory civil penalty of not less than 100 and not more than $500 if not corrected within the time specified. Section 400.23 (4)(c) , Florida Statutes (1979). The time specified by the Petitioner for correction of the deficiency (43 days from the survey date when Respondent, through its Administrator, was orally advised of the deficiency) was reasonable. Yet, well over two months after the survey date, the infestation was still present.

   
   

7. The fact that Respondent unsuccessfully attempted to correct the deficiency within the time specified does not prevent the statutorily required penalty from being assessed. Rather, Respondent's efforts to correct the violation should be considered in determining the amount of penalty to be assessed. In the instant cause, the assessment of the minimum statutory penalty is equitable in view of Respondent's efforts to correct the infestation.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT:

The Department of Health and Rehabilitative Services enter its final order imposing a civil penalty in the amount of one hundred dollars against the Respondent.

RECOMMENDED this 3rd day of June, 1980, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the clerk of the Division of Administrative Hearings this 3rd day of June, 1980.

COPIES FURNISHED:

Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services

91 West Broward Boulevard

Fort Lauderdale, Florida 33301

Ms. Carolyn Rhoades Administrator Monticello Manor

1701 North Federal Highway

Fort Lauderdale, Florida 33308

Steven W. Huss, Esquire Staff Attorney

Central Operations Services Department of Health and Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

Mr. David H. Pingree, Secretary Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 80-000176

Orders for Case No: 80-000176