STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-1289

) ELSIE MILLER CONVALESCENT ) HOME, INC., d/b/a ELSIE MILLER ) MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on July 1, 1985, in Vero Beach, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane

1. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner: K. C. Collette

   District IX Legal Counsel

   111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401

   
   

   For Respondent: Charles E. Garris

   2205 14th Street

   Vero Beach, Florida 32960

   
   

   ISSUE

   
   

   The issue in this proceeding is whether the placement of a window in a sleeping room at Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor (Elsie Miller), an Adult Congregate Living Facility, violates Chapter 400 or Chapter 553, Florida Statutes.

   
   

   This case came to hearing based upon a peculiar set of circumstances. Initially on December 12, 1984, the Department

   of Health and Rehabilitative Services (HRS), Office of Licensure and Certification, cited Elsie Miller for a deficiency, stating that "Bedroom No. 3 is not provided with a window to the outside for ventilation and light." By letter dated February 11, 1985, Elsie Miller disagreed with the deficiency, citing reasons for the disagreement, and requested a formal hearing on the deficiency. On February 28, 1985, HRS sent a letter to Elsie Miller reiterating the deficiency and denying a waiver for the window in question. Therein, HRS told Elsie Miller that it could appeal the deficiency determination. By letter dated March 12, 1984, Elsie Miller requested a hearing to appeal the decision in the February 28, 1985, letter, without specifying whether it appealed the actual finding of deficiency or the denial of a waiver. The matter was then forwarded to Division of Administrative Hearings for assignment of a Hearing Officer. At no time did HRS issue a Notice of Violation or any other document that would serve as an administrative complaint, nor did HRS seeks to impose sanctions for the alleged violation.

   Presumably, an administrative complaint would have eventually been issued if Elsie Miller had done nothing to correct the alleged deficiency.

   
   

   Under this set of circumstances, a formal hearing was convened, after which the parties recognized and agreed that the matter was in fact not ripe for hearing. However, to avoid the time and expense of gathering the witnesses and parties at some future time, the parties instead stipulated that the formal hearing should proceed as if an Administrative Complaint has been filed, that HRS would take final agency action based on this Recommended Order, and that this proceeding would conclusively address the issue of whether the window complies with Chapter 400 and Chapter 553 as incorporated by reference in Section 400.444.

   
   

   Petitioner presented the testimony of Jim Valinoti, together with one exhibit. Respondent presented the testimony of Earnest J. Miller, Jr., together with three exhibits. The parties submitted proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent or credible evidence.

   FINDINGS OF FACT

   
   

   1. Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor, is the owner and licensee of a licensed Adult Congregate Living Facility (ACLF) located at 1914-21st Street, Vero Beach, Florida. It has been so licensed since 1974 and houses twenty residents.

      
      

   2. In 1984 Elsie Miller remodeled its facility by enclosing a screened porch to make a dining room and adding a new screened porch outside of the dining room. A building permit was obtained from the City of Vero Beach. Pursuant to that building permit, the City of Vero Beach approved the plans and inspected the construction to determine whether the project was in compliance with the building codes of the City of Vero Beach.

      
      

   3. The window in Bedroom #3 previously opened onto the screened porch. After remodeling it opens into the dining room a few feet from the new screened porch.

      
      

   4. ACLF facilities must have their licenses renewed yearly. Elsie Miller's license was renewed in October, 1984, after the remodeling was completed. On December 12, 1984, Jim Valinoti, a Fire Protection Specialist for HRS, conducted an annual licensure survey. He cited Elsie Miller for a deficiency for the window in Bedroom #3 because it did not open "to the outside for ventilation and light." This allegedly violated Section 2001.1 of the applicable building code. Mr. Valinoti's interpretation of Section 2001.1 as it refers to windows opening to an approved open space is that the window must open into a space open to the outside.

      
      

   5. Bedroom #3 has two exit routes in addition to the window, but has only the one window which opens onto the dining room.

      
      

   6. In order to move the window to open to the outside, Elsie Miller would have to move two patients, tear out walls and reshape two bedrooms.

      
      

   7. There is adequate light and ventilation with the current placement of the window. The dining room is connected to the screened porch by an entire wall of glass and sliding glass doors. The window is approximately three feet from the plate glass window and light and ventilation are adequate.

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1983).

9..Chapter 400, Florida Statutes, relates to the regulation of nursing homes and related health care facilities, including ACLFs. Specifically Section 400.444 provides:

The requirements for the construction and renovation of a facility shall comply with the provisions of Chapter 553 which pertain to building construction standards, including plumbing, electrical code, glass, manufactured buildings, accessibility for the physically disabled, and the state minimum building code.

1. Chapter 553, Part VI, Florida Statutes, relates to the state minimum building codes and enforcement thereof. The City of Vero Beach is subject to the state minimum building code and has specifically adopted the required codes, including the Southern Building Code (SBC).

   
   

2. Section 2001 of the SBC relates to light, ventilation and sanitation. Section 2001.1(e)3 of the SBC requires a window in each sleeping room. Section 2001.1(b) states in pertinent part:

   Where windows are required such windows shall open on a street, public space, yard, or approved open space that will afford adequate air and light.

   
   

3. In the present case, the window does not open onto a street or yard. It is arguable that the dining room is not a public space since it is within a private facility. The question is whether the window opens on an "approved open space that will afford adequate air and light." Two matters must be examined. First, does the location of the window provide adequate air and light? It is concluded that it does. Second, what is an approved open space and what agency has authority to issue such approval?

   
   

4. Section 553.79, Florida Statutes (1983), requires a permit for any construction or alteration and specifically states:

After the effective date of the State Minimum Building Codes adopted as herein provided, no enforcing agency may issue any permit for construction, erection, alteration, repair, or demolition unless it is determined to be in compliance with the State Minimum Building Codes. The enforcing agency shall issue a permit to construct, erect, alter, repair, or demolish any building when the plans and specifications for such proposal comply with the provisions of the State Minimum Building Code.

It is the responsibility of each local government and each state agency with statutory authority to regulate building construction to enforce the building code. Section 553.80(1), Florida Statutes (1983). The "local enforcement agency" is defined as "the agency of local government with authority to make inspections of buildings and to enforce the codes which establish standards for construction, alteration, repair, or demolition of buildings." HRS does not have statutory authority "to regulate building construction." The City of Vero Beach is the agency of local government with authority to enforce the building codes. The City of Vero Beach issued a permit for the construction at issue here. By issuing a permit, the City of Vero Beach had to determine that the plans and specifications complied with the state minimum building codes, including the SBC. Subsequent to the renovations, the City of Vero Beach inspected the project and again determined that it complied with the codes. The City of Vero Beach, as the local enforcing agency, is the agency with the authority to approve open spaces relative to Section 2001.1(b) of the SBS. That approval has been given by the City of Vero Beach in issuing a permit and approving the construction. Therefore, in addition to concluding that the window provides adequate air and light, it is also concluded that the window opens onto an approved open space. The window in Bedroom #3 of Elsie Miller Manor does not violate Section 2001.1 of the Southern Building Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is

RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Final Order determining that Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor is not deficient and is not in violation of Section 2001.1(b) of the Southern Building Code as it relates to the window in Bedroom #3.

DONE and ENTERED this 12th day of September, 1985, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1985.

COPIES FURNISHED:

K. C. Collette

District IX Legal Counsel

111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401

Charles E. Garris 2205 14th Street

Vero Beach, Florida 32960

Leslie Mendelson, Agency Clerk Assistant General Counsel- Department of HRS

1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301

David Pingree, Secretary 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 85-001289

Orders for Case No: 85-001289