STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3351

) INVERRARY RETIREMENT CENTER ) INC., d/b/a INVERRARY )

RETIREMENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated hearing officer on February 13, 1985 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

Department of Health and Rehabilitative Services

201 West Broward Street

Fort Lauderdale, Florida 33301

For Respondent: Dr. Martin Marenus

Inverrary Retirement Center 5811 Northwest 28th Street Laudarhill, Florida 33317

BACKGROUND

By administrative complaint filed on August 10, 1984, petitioner, Department of Health and Rehabilitative Services, has charged that respondent, Inverrary Retirement Center, Inc., d/b/a Inverrary Retirement Center, had violated various agency rules and statutes governing the operation of adult congregate living facilities. Specifically, petitioner has alleged that while performing a survey of respondent's facility on April 4, 1984, it noted ten separate "deficiencies," that by corrective action plan issued on April 14, 1984, respondent was given until May 4, 1984 to correct these deficiencies, and that the same ware not corrected when petitioner made a follow-up visit on May 15, 1984. For this, petitioner seeks to impose a $1,600 civil penalty pursuant to Subsection 400.419(3)(c) and (4), Florida Statutes.

By letter dated August 15, 1984, respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred by petitioner to respondent on September 21,

1984 with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated November 26, 1984, the final hearing was scheduled for January 25, 1985 in Fort Lauderdale, Florida.

At the final hearing petitioner presented the testimony of Phil Drabick and Jim Valinoti, both HRS inspectors, and offered petitioner's exhibits 1 and 2; both were received in evidence. Sandra Tabler, manager of respondent's facility, testified on behalf of respondent. Respondent also offered its exhibits 1-4 and 6; all were received in evidence.

There is no transcript of hearing. Respondent and petitioner filed proposed findings of fact and conclusions of law on February 22 and 27, 1985, respectively. A ruling on each proposed finding of fact has bean made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

The issue herein is whether respondent should have a $1,600 civil penalty and administrative fine imposed upon it for allegedly violating various rules of petitioner.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Invarrary Retirement Center, Inc. (IRC), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF). The facility operates under the name of Inverrary Retirement Center at 5811 Northwest 28th Street, Lauderhill, Florida.

   
   

2. On or about April 4, 1984, two HRS inspectors performed a routine relicensure survey of IRC. The purpose of the survey was to determine whether IRC was complying with all HRS requirements relating to record keeping, sanitation, fire and safety.

   
   

3. During the course of the survey, the inspectors noted the following violations of HRS rules:

   
   

   1. There was no staff member within the facility at all times who was certified in an approved first aid course (Rule 10A- 5.19(5)(f), F.A.C.);

   2. The facility failed to keep "current" records of self administered medication (Rule 10A-5.18(6)(f), F.A.C.);

   3. Menus were not planned and posted where they could be easily viewed by the residents (Rule 10A-5.20(1)(j), F.A.C.);

   4. The kitchen was not equipped with an approved exhaust hood over the stove (Rule 10A-5.23(15)(a), F.A.C.);

   5. An electrical extension cord was used to service the coffee maker (Rule 10A- 5.23(15)(a), F.A.C.);

   6. One of the buildings had an insufficient

      means of egress for the residents (Rule 10A- 5.23(15)(a), F.A.C.);

   7. There were no manually operated fire alarms capable of being heard throughout the facility (Rule 10A-5.23(15)(a), F.A.C.);

   8. Respondent failed to provide documenta- tion reflecting the smoke detectors were tested on a weekly basis (Rule 10A- 5.23(15)(a), F.A.C.); and

      (j) There was a sliding bolt on an exit door on one of the buildings (Rule 10A- 5.23(15)(a), F.A.C.).

      
      

      All of the foregoing constituted a separated violation of HRS rules. 1/

      
      

4. When the survey was completed, the inspectors reviewed all violations with IRC's manager and advised her that a resurvey would be taken in about thirty days, and that all violations must either be corrected by that time, or some action instituted which reflected an intent on the part of the facility to correct the same. This was in accordance with HRS policy governing ACLFs, and approximated the time given other facilities to make similar corrections.

   
   

5. On April 10, 1984, a Corrective Action Plan was issued by HRS and sent to IRC. This document set out in detail the various violations found in the April 4 inspection and set a compliance date of May 4, 1984 for all corrections to be made.

   
   

6. A resurvey of IRC's facility was made by the same two HRS inspectors on May 18, 1984. With the exception of item (3)(h), which required documentation verifying that smoke detectors be tested weekly, the inspectors noted that no corrections had been made. However, respondent presented evidence that items (3)(b) and (3)(c) had indeed been corrected by that date and such evidence is deemed to be more persuasive than contrary evidence offered by HRS representatives. Further, the violation in item (3)(f), and turns on whether an HRS publication or the City of Lauderdale fire code was controlling when the inspection was made. Because no evidence was presented to establish which standard was in effect, the allegation that an HRS publication was violated must fail. Accordingly, it is found that IRC failed to timely correct items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i), and (3)(j) as required by the Corrective Action Plan.

   
   

7. Respondent eventually made all corrections, although not within the HRS imposed deadline. One of the deficiencies [item (3)(d) required extensive renovations, including bids and a city permit, which took considerable time to accomplish. However, IRC's manager neglected to provide HRS inspectors with any evidence on the May 18 visit showing that bids were being solicited, or that there was any "movement" on the project. The same is true for item (3)(g) which required competitive bids from suppliers. IRC also failed to advise HRS that it could not immediately enroll an employee in the Broward County First Aid Course [item (3)(a)] because of the large number of participants in the class. IRC failed to do so even though its manager had been told that an extension on the May 4 deadline could be obtained where IRC gave some evidence to the inspectors that action was being instituted to correct the deficiency.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

9. Subsection 400.419(1)(a), Florida Statutes, provides as follows: (1)(a) If the department determines that a

   facility is not in compliance with standards

   promulgated pursuant to the provisions of this part, including the operation of a facility without a license, the department, as an alternative to or in conjunction with an administrative action against a facility, shall make a reasonable attempt to discuss each violation and recommended corrective action with the owner or administrator of the facility, prior to written notification thereof. The department, instead of fixing a period within which the facility shall enter into compliance with standards, may request a plan of corrective action from the facility which demonstrates a good faith effort to remedy each violation by a specific date, subject to the approval of the department.

   
   

   Pursuant to the foregoing statute, HRS found ten specific violations of various rules by IRC, and issued a plan of corrective action to remedy said violations by a specific date. The evidence reveals that items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i) and (3)(j) were not corrected by May 4, 1984, or by the date of the second survey (May 8), nor did IRC demonstrate a good faith effort to remedy the same.

   
   

10. In the event a facility does not meet the deadline for corrective action, Subsections 400.419(1)(b) and (c), Florida Statutes, apply and authorize HRS to impose a fine for each separate violation. In its proposed order, HRS seeks to impose fines totaling $900 for the six noted violations. Such fines are compatible with Subsection 400.419(3), Florida Statutes, which classifies violations into categories, and establishes a range of penalties for each. Therefore, it is concluded that a $900 fine is appropriate under the circumstances.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating agency rules as

set forth in items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i) and (3)(j) of the

administrative complaint, and that a $900 administrative fine be imposed, to be paid within thirty days after the data of the final order rendered in this proceeding. All other charges should be DISMISSED.

DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 11th day of March, 1985.

ENDNOTE

1/ For purposes of this order, these violations will be referred to as (3)(a), (3)(b), etc.

COPIES FURNISHED:

Harold L. Braynon, Esquire Dept. of HRS

201 W. Broward Blvd.

Ft. Lauderdale, Florida 33301

Ms. Jo A. Van Osdale 5811 NW. 28th St.

Lauderdale11, Florida 33317

Docket for Case No: 84-003351

Orders for Case No: 84-003351