STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-3654

) FRANCES KEY, d/b/a FRAN'S PLACE, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0348

) VIRGIL & FRANCES KEY, d/b/a ) FRAN'S PLACE, )

)

Respondent. )

)

RECOMMENDED ORDER

The above-styled administrative proceeding was heard pursuant to notice by Stephen F. Dean, Hearing Officer, on May 7, 1985, in Tampa, Florida. The consolidated matter was brought before the Hearing Officer on the basis of a request for a formal hearing predicated upon administrative complaints filed by the Department of Health and Rehabilitative Services against the Respondents, Virgil and Frances Key, d/b/a Fran's Place.

APPEARANCES

For Petitioner: Barbara McPherson, Esquire

District V Legal Counsel 2255 East Bay Drive Clearwater, Florida 33546

For Respondent: Eloise Taylor, Esquire

7306 State Road 52, Suite 4

Hudson, Florida 33567

ISSUES

1. Whether Respondent, Fran's Place, violated provisions of Chapter 400, Part II, Florida Statutes, and the provisions of Chapter 10A-5, Florida Administrative Code, and whether and in what amount a civil penalty should be imposed; and

   
   

2. Whether Respondent should be granted renewal of its license for its Adult Congregate Living Facility because of alleged violations of Chapter 400 of the Florida Statutes and Chapter 10A-5 of the Florida Administrative Code, and whether said violations constituted an intentional negligent act seriously affecting the health, safety or welfare of the residents.

STIPULATIONS AND ADMISSIONS

The parties stipulate that the Florida Administrative Code that is applicable to this matter is Florida Administrative Code Chapter 10A-5 (1984), as amended by Florida Administrative Code (1985 Annual Supplement). Respondent admits that they are licensed pursuant to Chapter 400, Florida Statutes. Petitioner stipulates that as of February 1985 the fire safety deficiencies had been corrected. There are no disputes as to legal issues.

The only matters at issue are matters of fact.

The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The parties stipulated or agreed to the following:

   
   

   1. The Respondent has a license under Chapter 400 of the Florida Statutes and Chapter 10A-5 of the Florida Administrative Code. The Department stipulates that as of February 1986 the fire safety deficiencies have been corrected.

      
      

   2. The parties stipulate that this matter is under Chapter

      400 of the Florida Statutes and Chapter 10A-5 of the Florida Administrative Code, 10-5, 1984, as amended by Florida Administrative Code, 1985 Annual Supplement.

      
      

   3. The parties stipulate that this case concerns denial of application for relicensure and a fine.

      
      

   4. The parties stipulate that paragraphs (3)(e) and (3)(h) should be deleted from the Administrative Complaint and the respective fines of $100 and $200 should not be imposed.

2. Fran's Place is an Adult Congregate Living Facility ("ACLF") which is licensed by the Department of Health and Rehabilitative Services under authority of Chapter 400 of the Florida Statutes. It has been operating as a licensed ACLF since approximately 1980 and is owned and operated by Frances and Virgil Key.

   
   

3. The allegations in this case are based upon the results of inspections conducted from 1984 to 1986. These inspections revealed many deficiencies, some of which were corrected before the next inspection and some which persisted through all of the inspections. The latter deficiencies are the most critical because of their repeated nature and duration. These include:

   
   

   1. Not all residents were covered by a contract executed on or prior to admission;

      
      

   2. A week's supply of non-perishable food, based on the number of weekly meals that the facility has contracted to serve, was not on hand at all times.

      
      

4. The following deficiencies were discovered on two successive inspections:

   
   

   1. There were no employees on duty who were certified in first aid as required and employees had not had physicals to assure that they were free from communicable disease;

      
      

      b The facility did not have emergency procedures for contacting a resident's family, guardian or physician;

      
      

      1. There was no documentation of quarterly fire alarm tests; and

         
         

      2. There was no approved smoke detector powered by house electrical service installed in the facility.

         
         

      3. Failure to provide approved emergency lighting for front and rear exits;

         
         

      4. Failure to provide two exits from each room;

         
         

      5. Funds belonging to a resident were not kept separate from those of the facility;

         
         

      6. The facility did not have a written Disaster Preparedness Plan.

      7. Residents' files did not have a health assessment form contained in them.

      
      

5. A revisit by the Department occurred on February 19, 1986 to determine the status of the September 16, 1985 deficiencies. All the fire code violations had been corrected as of the February revisit and the Department has so stipulated. Employees had received first aid certification and physicals and emergency procedures had been adopted.

   
   

6. Testimony of nutritionist LoVeda Perry of the Department indicated that in her several visits to Fran's Place between October 4, 1985 and February 19, 1986, the food supply fluctuated. On at least one occasion the Keys had to go out and buy food to serve the noon meal during an inspection. The level of supplies on hand initially improved after Perry's intervention and assistance to the Keys and adequate supplies were on hand on one occasion. Subsequent inspections showed that the food supply had dropped below standards again. Poor management and finances appear to have adversely impacted the available food supply; however, a resident's uncontroverted testimony was that food served was good and no meals were missed.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

   
   

8. Section 400.414, Florida Statutes, provides the grounds for denial, revocation or suspension of a license. The Department has not alleged as grounds for denial matters contained in Sections 400.414(2)(b) or (c). Therefore, the Department must demonstrate the Keys violated Section 400.414(2)(a), which requires: "An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility." Numerous violations of the rules and regulations have been referred to in the December 17, 1985 denial of licensure letter. Some of those violations seriously affect the health, safety or welfare of residents of the facility.

   These include violations of the fire codes and failure to adequate food supplies which are a potential a threat to health, safety or welfare. In mitigation, the Department has stipulated that all fire code violations had been corrected as of its February 1986 visit, and the evidence reflects the amount of food available has improved. There was no evidence that the residents were not served meals or were inadequately nourished. One resident indicated food was available and good. The matter of adequate food supply remains a reoccurring problem.

9. Respondent established that many of the violations were corrected subsequent to the July 5, 1985 Administrative Complaint; however, Respondent was clearly in violation of Rules 120A-5l19(5)(f), 10A-5.24(1)(a)3., 10A-5.20(1)(k), 10A- 5.182(1)(d), 4A-40.17(3), 4A-40.13(8), Florida Administrative Code; Chapters 19-3.4.1.1., N.F.P.A. 101, Life Safety Code (1981), and Section 400.424(1), Florida Statutes. The Department has stipulated the deficiencies indicated in paragraphs (3)(e) and (h) of the Administrative Complaint should be dismissed and no fine imposed for those violations (Violation of 4A-40.17(3), F.A.C., above).

RECOMMENDATION

Considering the violations and the mitigation, it is recommended that the Department impose a fine in the amount of

$1,500.00 upon Frances Key, d/b/a Fran's Place. It is also recommended that the renewal license application of Virgil and Frances Key, d/b/a Fran's Place, be approved if the Respondents have the required food stock on hand within thirty (30) days.

DONE AND ORDERED this 20th day of June 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

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

COPIES FURNISHED:

William Page, Jr. Secretary Department of HRS 1323 Winewood Blvd.

Tallahassee, Florida 32301

Steven W. Huss, Esquire General Counsel Department of HRS

1323 Winewood Blvd.

Building 1, Room 407

Tallahassee, Florida 32301

Barbara McPherson, Esquire District V Legal Counsel 2255 East Bay Drive Clearwater, Florida 33546

Eloise Taylor, Esquire 7306 S.R. 52, Suite 4

Hudson, Florida 33567

APPENDIX

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Adopted in Recommended Order paragraph 2.

2, 3. Reorganized and summarized in Recommended Order 2nd 3* paragraphs 3 and 4.

4, 5.

6. Included in Recommended Order paragraph 6.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Adopted in Recommended order paragraph 2.

2. Reworded and included substantially in Recommended Order paragraph 3.

3. Reworded and included substantially in Recommended Order paragraph 5.

4. Reworded and included substantially in Recommended Order paragraph 6.

5. Rejected because the status of the food stock level was in question and the Keys were not considered competent unbiased witnesses to assess whether the existing level was adequate.

* Petitioner's Proposed Recommended Order had two paragraphs numbered "3".

Docket for Case No: 85-003654

Orders for Case No: 85-003654