STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEATH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1694

)

RIVERVIEW REST HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a public hearing in this matter on December 4, 1980, in Daytona Beach, Florida. The parties were represented by:

APPEARANCES

For Petitioner: Leo J. Stellwagen Esq.

P.O. Box 2417-F Jacksonville, Florida 32231

For Respondent: Leo Siroky, Owner in Pro per

Riverview Rest Home 700 Daytona Avenue

Holly Hill, Florida 32017

By letter to the Respondent dated August 27, 1980, the Petitioner advised that it intended to impose an administrative fine of $300 upon Riverview Rest Home for enumerated violations of Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. The matter proceeded to a hearing upon the Respondents request of September 2, 1980, pursuant to Chapter 120, Florida Statutes.

ISSUE

The issue is whether the Petitioner's imposition of an administrative fine of $300 upon the Respondent should be upheld.

FINDINGS OF FACT

1. Riverview Rest Home is an adult congregate living facility which is subject to licensing by the Petitioner. This facility was so licensed on the dates in question, and remains licensed to the present time.

   
   

2. On July 23, 1980, members of the professional staff of the Petitioner inspected the Respondent. Based upon this inspection the Respondent was issued a list of violations and deficiencies. In addition to those which were

   subsequently corrected, the violations in issue are: (1) screens in the kitchen area in need of repair, (2) a toilet which could not be flushed, and was full of human waste, (3) dust and dirt accumulated in the bed frames, and window sills cluttered with dust, lint, cigarette butts, paper and cobwebs, and (4) dirt on the floor under beds.

   
   

3. A reinspection of Riverview Rest Home was conducted on August 15, 1980, which revealed the following:

   
   

   A toilet accommodating 4 residents was semi-full of toilet paper, human urine and feces, and emitting a strong odor. Two residents were sitting or lying in rooms in close proximity to this toilet.

   
   

   An attempt to flush this toilet disclosed the tank to be empty and the water to have been cut off. When the water was turned on, the toilet began to leak in a large stream. The toilet seat was loose, broken, and not attached to the base.

   
   

   Heavy accumulations of lint, dust and dirt on

   bed frames, and window sills cluttered with dust, lint, cigarette butts, bits of paper and cobwebs.

   
   

   The outside screen door adjacent to the kitchen area was torn and in need of repair.

   
   

   Dirty and stained mattresses in resident rooms, dirty, urine stained, and soiled sheets on resident beds.

   
   

   Bathroom fixtures were dirty, stained, in need of cleaning, and the floor around toilets was dirty and wet. The table in the cottage where residents eat was dirty, and showed the residue of a previous meal or meals.

   
   

   Other violations or deficiencies were observed during reinspection, but the above are repeat occurrences of those first noticed on July 23, 1980.

   
   

4. In addition, a fire marshall of the City of Holly Hills conducted a fire safety inspection of the Respondent facility on August 4, 1980, and found 5 violations of the City Fire Code. A reinspection was done on August 13, 1980, to verify corrections, and the gas hot water heater which had been found improperly vented, had not been corrected. A second reinspection on August 21, 1980, found the gas hot water heater then properly vented, but the emergency lighting system was not working.

   
   

5. The Respondent, while not admitting the violations and deficiencies described above, presented no evidence to controvert the testimony of the Petitioners witnesses relative to the results of inspections of the Respondent facility. Essentially, the Respondents position is that all of the alleged deficiencies are first-time violations not subject to fine or penalty. However, there is adequate evidence in the record to support a finding that the

   violations for which a penalty was assessed were recurring deficiencies not corrected after the Respondent had been advised of their existence.

   
   

   CONCLUSIONS OF LAW

   
   

6. The authority of the petitioner to impose the fines which are the subject of this proceeding is derived from Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. Specifically, Section 400.414, F.S., provides in part:

   
   

   1. The department may deny, revoke, or suspend a license or impose an administrative fine in the manner provided in Chapter 120.

   2. Any of the following actions by a facility or its employee shall be grounds for action by the department against a facility:

      1. An intentional or negligent act materially affecting the health or safety of a resident of the facility.

      2. Violation of the provisions of this act or of any minimum standards or rules promulgated hereunder.

         
         

7. Pursuant to the foregoing statutory authority, the Petitioner promulgated rules set forth in Chapter 10A-5 F.A.C., setting forth standards governing the deficiencies which are the subject of this proceeding, specifically, rule 10A-5.11(7), F.A.C., (screening in kitchen area), rule 10A- 5.11(9) (c), F.A.C., (maintenance and function of plumbing fixtures), rule 10A- 5.11(9)(e), F.A.C., (housekeeping, cleanliness of furniture and furnishings), and rule 10A-5.11(10)(b), F.A.C. (safety, cleanliness of rooms, floors, etc). The violations and deficiencies set forth above were not timely corrected, and existed upon reinspection. Accordingly, the fines assessed were proper, and in view of the seriousness of the improperly vented gas heater, being a fire hazard, the amount of $300 is not unreasonable or improper.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's imposition of an administrative fine in

the amount of $300 be upheld.

THIS RECOMMENDED ORDER entered on this 12th day of January, 1981.

WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1981.

COPIES FURNISHED:

Leo J. Stellwagaen, Esq. Assistant District IV Counsel

P.O. Box 2417 F Jacksonville, Florida 32231

Leo Siroky Riverview Rest Home 700 Daytona Avenue

Holly Hill, Florida 32017

Docket for Case No: 80-001694

Orders for Case No: 80-001694