STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2593

)

R & R GUEST HOME, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on February 2, 1983, in Fort Lauderdale, Florida. The transcript was filed on February 23, 1983, closing the record of this proceeding.

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

For Respondent: Jesse H. Diner, Esquire

Post Office Drawer 2088 Hollywood, Florida 33022-2088

By Administrative Complaint served by mail on the Respondent on September 2, 1982, the Petitioner charged R & R Guest Home, Inc., with violations of Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code, by having resident beds in use in excess of the licensed capacity of the facility. The Complaint alleged that the violations constituted a repeat offense since they were observed on three separate occasions, and the Respondent was advised of the Petitioner's intent to levy an administrative fine of $1,000.

By Answer served on September 8, 1982, the Respondent denied the charges in the Administrative Complaint, and the matter was ultimately set for final hearing.

The Petitioner presented its local licensing specialist who visited the facility of the Respondent for survey purposes, and five exhibits which were received in evidence. The administrator and owner of R & R Guest Home, Inc., testified on behalf of the facility, and presented one exhibit which was received in evidence.

FINDINGS OF FACT

1. The Respondent, R & R Guest Home, Inc., is located at 720 S. W. 5th Street in Dania, Florida, and consists of four apartments which are designated as A building, B building, C building, and D building. Buildings A, B and C are contiguous. Building D is located east of the main complex.

   
   

2. The Respondent facility received license number 10-06-0046 on December 2, 1981, allowing a capacity of 21 beds. This license had an expiration date of September 9, 1982. On March 31, 1982, the Respondent was advised that the allowable capacity had been increased to 37 beds, and on November 8, 1982, license number 10-06-0046 was reissued to show a capacity of 37.

   
   

3. The capacity set by HRS was based on its regulations which require a usable floor space of 60 square feet per bed in rooms designated for multiple occupancy.

   
   

4. A representative of HRS visited the R & R Guest Home on February 9, 1982, and on July 6, 1982, and found resident beds in use in excess of the licensed capacity of the facility. By notice dated July 7, 1982, HRS advised the Respondent that corrective action must be taken by July 21, 1982. Specifically, the HRS representative found 53 beds in place.

   
   

5. The HRS representative again visited the R & R Guest Home on August 24 and on August 26, 1982, and once again found beds in the facility in excess of the licensed capacity of 37.

   
   

6. In November of 1982 the HRS representative visited the Respondent, R & R Guest Home, and the excess beds found on the August visits were still in place.

   
   

7. Respondents facility had been cited previously, in July of 1981 and in February of 1982, for having beds in excess of the licensed capacity, but these violations had been corrected.

   
   

8. The Respondent's owner admits that on July 6, 1982, there were 43 beds on the licensed premises, and that on this date the authorized capacity was 37.

   
   

9. The excess beds in the Respondent's facility were situated across doorways in the A building and in the B building, creating a situation that presented potential danger to the residents, in that they might not be able to exit the buildings in an emergency.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has juris- diction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes. The Department of Health and Rehabilitative Services is authorized to license and prescribe standards for adult congregate living facilities. Chapter 400, Part II, Florida Statutes.

    
    

11. Pursuant to Section 450.419, Florida Statutes, if HRS determines that a facility is not in compliance with promulgated standards, it may levy an administrative fine against the facility owner.

    
    

12. In determining the amount of the penalty to be imposed, Section 400.419(2)(a) , Florida Statutes, requires HRS to consider the gravity of the

    violation, including the possiblity that serious physical harm to a resident will result therefrom. Subsection (c) of this statute also authorizes HRS to consider any previous violations in assessing the penalty for violations.

    
    

13. Section 10A-5.23(1), Florida Administrative Code provides that an adult congregate living facility "shall provide uncrowded, safe, and sanitary housing appropriate for services provided and needs of residents."

    
    

14. Section 10A-5.23(5), Florida Administrative Code, requires that "resident sleeping rooms designated for multiple occupancy shall provide a minimum inside measurement of 60 square feet usable floor space per bed."

    
    

15. Section 400.419(3)(b) and (c), Florida Statutes divides violations into Class II and Class III violations. A Class II violation is one which HRS determines "directly" threatens the physical or emotional health, safety, or security of the facility residents. It carries a maximum fine of $1,000 for each violation. A Class III violation is one which HRS determines "indirectly or potentially" threatens the physical or emotional health, safety, or security of facility residents. It carries a maximum fine of $500 for each violation.

    
    

16. The Respondent facility had beds in place in excess of its licensed capacity on five separate occasions when HRS inspections were made, and it had been cited previously for the same violation. Thus, the Respondent is guilty of the offenses charged.

    
    

17. The violations should be classified as Class III violations because the situation created by the excess beds is a potential threat to the safety of residents, rather than a direct threat. As Class III violations existing on five separate occa-sions, a maximum fine of $2,500 would be authorized. The fine assessed by HRS in the amount of $1,000 therefore, is appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilita tive Services

assess fine of $1,000. against the Respondent, R & R Guest Home, Inc.

THIS RECOMMONDED ORDER entered this 7th day of March, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1983.

COPIES FURNISHED:

Harold L. Braynon, Esquire

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Jesse H. Diner, Esquire Post Office Drawer 2088

Hollywood, Florida 33022-2088

David Pingree Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002593

Orders for Case No: 82-002593