STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2471

) DOROTHY K. EMRICK d/b/a) )

O.P.R.A. ANNEX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 24, 1985, in Fort Lauderdale, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division

of Administrative Hearings. At the commencement of the hearing, John Marfilius was duly qualified under Rule 221-6.08, Florida Administrative Code; to represent Dorothy K. Emrick, d/b/a

1. Annex, Respondent, in this case, and the parties were therefore represented as follows:

   
   

   For Petitioner: Harold L. Braynon, Esquire

   Department of Health and Rehabilitative Services

   201 West Broward Boulevard

   Fort Lauderdale, Florida 33301

   
   

   For Respondent: John Marfilius

   Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 Northwest 27th Court Lauderhill, Florida 33313

   
   

   The Department of Health and Rehabilitative Services, Petitioner, has charged Respondent with deficiencies in the operation of O.P.R.A. Annex which were identified as existing between September 21, 1984 and November 28, 1984. Petitioner offered the testimony of Phillip Drubik and James Valinoti,

   inspectors of adult congregate living facilities, and also introduced one exhibit. Respondent's representative, John Marfilius, offered his own testimony on her behalf. No transcript of the hearing was filed, and no proposed findings of fact have been filed by either party.

   FINDINGS OF-FACT

   
   

   1. Respondent is licensed to operate O.P.R.A. Annex, 5744 N.W. 28th Street, Lauderdale, Florida 33313, as an adult congregate living facility.

      
      

   2. An inspection of O.P.R.A. Annex by Phillip Drubik and James Valinoti, employees of Petitioner, on September 21,

      1984, identified twelve (12) class III deficiencies and four (4) unclassified deficiencies which were not corrected by November 28, 1984 when a reinspection visit was conducted.

      
      

   3. The class III deficiencies which were not corrected included Respondent's failure to:

      
      

      1. Provide written procedures for general emergency care during a disaster which should include a hurricane preparedness plan placed in an area immediately accessible to facility staff.

      2. Ensure there were sufficient staff members trained in an approved first aide course to provide coverage at all times.

      3. Ensure that contracts are on file for all residents concerning existing financial arrangements.

      4. Ensure that the facility has written food service policies and procedures.

      5. Provide menus that were dated and planned one week in advance, posted in an area that could be easily seen by residents, corrected as served, and kept on file for six months.

      6. Provide an up-to-date, approved diet manual.

      7. Ensure that medications are administered only by licensed persons.

      8. Ensure that all staff members have had a yearly skin test, x-ray or physician's statement certifying they are free from tuberculosis and other communicable diseases.

      9. Make maintenance repairs including replacing shower curtains, towel bars, thermostat covers, globes for light fixtures and closet door handles.

      10. Make plumbing repairs including leaking faucets.

      11. Equip laundry rooms and storage rooms with self-closing solid core doors.

          1. Prevent the use of transfer grills for return air for the air conditioners.

   4. The unclassified deficiencies which were uncorrected included Respondent's failure to:

      
      

      1. Ensure there was a qualified assistant duly appointed in writing.

      2. Provide staff members with written employment policies.

      3. Ensure that patient weights were recorded semi- annually.

      4. Have a written maintenance/housekeeping policy.

         
         

   5. Respondent did fully correct seven (7) deficiencies found on September 21, 1984 by the time of the reinspection on November 28, 1984, and partially corrected one additional deficiency on which Petitioner's representatives did not complete

their reinspection.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

Petitioner has adopted certain rules governing adult congregate living facilities found in Chapter lOA-5, Florida Administrative Code, to implement Sections 400.419 (3)(c),(4), 400.402(10), and 400.424(1), Florida Statutes, which authorize the imposition of an administrative fine if Petitioner determines

a facility is not in compliance with certain operating standards set forth in those rules. Class III violations are those which Petitioner has determined indirectly or potentially threaten the physical or emotional health, safety or security of facility residents, and for which a fine of between $100 and $500 shall be

assessed for each violation. Petitioner may assess a $500 fine for unclassified violations.

Since this is a license disciplinary proceeding, Petitioner has the burden of proving, by clear and convincing evidence, that the violations alleged in the Administrative Complaint occurred. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977) Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA

1981). Petitioner has met this burden regarding the twelve (12) Class III and four (4) unclassified violations enumerated above.

Specifically, Respondent has violated Rules 10A 5.18(3),(6)(e), 10A-5.19(5)(f), 10A-5.20(1)(j)(i). 10A

5.22(1)(a)(c) and 10A-5.24(1)(a)3,(1)(c)la., Florida Administrative Code, which constitute Class III violations. Respondent has also violated Rules 10A-5.19(2),(5)(h), 10A 5.22(2), and 10A-5.24(1)(a)7f.,(1)(b)3., Florida Administrative Code, which constitute unclassified violations. Respondent did take corrective action on eight (8) other deficiencies and this should be considered in assessing the fine to be imposed for these violations.

RECOMMENDATION

Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of

$1200, but that no additional fine be assessed for the unclassified violations.

DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida.

DONALD D. CONN, 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 27th day of November, 1985.

COPIES FURNISHED:

Harold L. Braynon, Esquire Department of Health and Rehabilitative Services

201 West Broward Boulevard Fort Lauderdale, FL 33301

Dorothy K. Emrick

Oakland Park Retuirement Annex

Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313

John Marfilius

Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313

David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32301

Docket for Case No: 85-002471

Orders for Case No: 85-002471