STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-1505

) GEOLEN P. MULRONEY d/b/a POMPANO ) RETIREMENT VILLAGE, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-1699

) GEOLEN P. MULRONEY d/b/a POMPANO ) RETIREMENT VILLAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above cases before the Division of Administrative Hearings by its duly designated hearing officer on December 19, 1985 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

For Respondent: Thomas Mulroney, pro se

Pompano Retirement Village

501 Southwest 2nd Place Pompano Beach, Florida 33060

BACKGROUND

By administrative complaint filed on April 3, 1985, petitioner, Department of Health and Rehabilitative Services, has charged that respondent, Geolen P. Mulroney, d/b/a Pompano Retirement Village, 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 July 20, 1984, it noted three separate "deficiencies," that respondent was given until September 2, 1984 to correct these deficiencies, and that the same were not corrected when petitioner made a follow-up visit on September 13, 1984. Because of this, petitioner seeks to impose a $450 civil penalty pursuant to Subsection 400.419(3)(c), Florida Statutes. This matter was assigned Case No. 85-1505. In a second administrative complaint filed on April 8, 1985, petitioner alleges that in the same survey of respondent's facility conducted on July 20, 1984, four additional "deficiencies" were noted by petitioner's inspectors, that respondent was given until September 2, 1984 to correct the same, and that the deficiencies were still uncorrected when a follow-up visit was made on January 17, 1985. By its proposed agency action, petitioner intends to assess a $950 civil penalty for these violations. This complaint was assigned Case No. 85-1699.

By letter dated April 19, 1985, respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matters were referred by petitioner to the Division of Administrative Hearings on Nay 13 and 23, 1985 with a request that a hearing officer be assigned to conduct a formal hearing. By order dated June 20, 1985 both cases were consolidated for hearing purposes. By notice of hearing dated June 20, 1985, the final hearing was scheduled for September 26, 1985 in Fort Lauderdale, Florida. At the request of the parties the matter was rescheduled to December

6 and then to December 19, 1985 at the same location.

At final hearing petitioner presented the testimony of Carin Klein, a HRS public health nutritionist, and offered petitioner's exhibit 1 which was received in evidence. Respondent presented the testimony of its part-owner, Thomas Mulroney, and offered respondent's exhibits 1-3. All were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were due on January 3, 1986. None were filed by either party.

The issue herein is whether respondent should have a $1,400 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, Geolen F. Mulroney, d/b/a Pompano Retirement Village (PRV), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF) at 501 S.W. 2nd Place, Pompano Beach, Florida.

   
   

2. On July 20, 1984, three HRS inspectors performed a routine survey of PRV. One of the purposes of the survey was to determine whether PRV was complying with all HRS requirements relating to food and nutrition services.

   
   

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

   
   

   1. The facility lacked documentation of food service policies and procedures for providing proper nutritional care of residents. (Rules 10A-5.20 and 10A- 5.24(1)(c)1.a., F.A.C.);

      
      

   2. The facility's menus did not meet nutri- tional adequacy requirements in two respects. (Rule 10A-5.20(1)(f), F.A.C);

      
      

   3. The main kitchen, dining room and food storage room were not maintained in a sanitary manner in six respects. (Rules 10D- 13.26(1), 10D-13.26(5)(b), 10D-13.28(1) and 10D-13.28 (2), F.A.C. )

      
      

      Each of the foregoing constituted a separate violation of HRS rules.1

4. When the survey was completed, the inspectors reviewed all violations with PRY's owners and administrator and advised them that a resurvey would be taken within a reasonable period of time, 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.

   
   

5. On August 3, 1984, a Corrective Action Plan was mailed by HRS to PRV which set out in detail the various violations found in the July 20 inspection. It also established a

   compliance date of September 2, 1984 for all corrections to be made.

   
   

6. A resurvey of PRY's facility was made by an HRS inspector on September 10, 1984. The inspector noted that no corrections to items (3)(a), (3)(b) and (3)(c) had been made. Indeed, at final hearing respondent's representative acknowledged that this was true. Accordingly, it-is found that PRV failed to timely correct items (3)(a), (3)(b) and (3)(c) as required by the Corrective Action Plan.

   
   

7. On January 17, 1985 a second follow-up unit to PRV was made by an HRS inspector to determine if all deficiencies had been corrected. At that time, the following deficiencies previously noted on July 20 and set out in detail in the plan of corrections mailed on August 3, 1984 were still found to be present:

   
   

   1. Posted menus were not dated. (Rule 10A- 5.20(1)(j), F.A.C.);

      
      

   2. Facility menus did not meet nutritional adequacy requirements. (Rule 10A-5.20(1)(f), F.A.C.);

      
      

   3. Menu items did not meet HRS standards. (Rule 10A-5.20(1)(g), F.A.C.);

      
      

   4. The dining room and food storage room were not maintained in a sanitary manner in four respects. (Rules 10D-13.26(1) and 10D- 13.28(1) and (2), F.A.C.).

      
      

      Each of the foregoing constituted separate violations of HRS rules.2

8. Respondent did not deny that the violations had occurred. It blamed the delay in correcting the deficiencies on cash flow problems and the fact that repairs took longer to complete than was anticipated. In addition, it pointed out that kitchen area renovations were underway when the deficiencies occurred, but conceded that it failed to request an extension of time to complete these renovations as suggested by the HRS inspector.

   
   

   CONCLUSIONS OF LAW

   
   

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

10. Subsection 400.419(1)(a), Florida Statutes, provides as follows:

    
    

    (l)(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 three specific violations of various rules by PRV on its July 20, 1984 survey, and issued a plan of corrective action to remedy said violations by a specific date. The evidence reveals that items (3)(a), (3)(b) and (3)(c) were not corrected by September 2, 1984, nor did PRV demonstrate a good faith effort to remedy the same.

    
    

11. Subsection 400.419(1)(c), Florida Statutes, provides that "[e]ach day during which any person violates any such provision after the date fixed for termination of the violation, as ordered by the department, constitutes an additional, separate, and distinct violation." The evidence reveals that items (7)(a)-(7)(d) had not been corrected as of January 17, 1985 and accordingly constituted separate violations.

    
    

12. In the event a facility does not meet the deadline for corrective action, Subsection 400.419(1), Florida Statutes, authorizes HRS to impose a fine for each separate violation. In its proposed agency action, HRS seeks to impose fines totaling

$1,400 for the seven noted violations. Such fines are compatible with Subsections 400.419(3) and (4), Florida Statutes, which classify deficiencies into Class I, II, III and unclassified violations, and establish a range of penalties for each.

Therefore, it is concluded that a $1,400 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)(c) and (7)(a)- (7)(d) of the two administrative complaints and that a $1,400 administrative fine be imposed, to be paid within thirty days after the date of the final order rendered in this proceeding.

DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986.

ENDNOTES

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

2/ For purposes of this order, these violations will be referred to as (7)(a), (7)(b), (7)(c) and (7)(d).

COPIES FURNISHED:

Harold L. Braynon, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Thomas Mulroney

Pompano Retirement Village

501 S.W. 2nd Place

Pompano Beach, Florida 33060

Docket for Case No: 85-001505

Orders for Case No: 85-001505