STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1191

)

SHALOM MANOR, INC. d/b/a ) KING DAVID MANOR RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 18, 1986, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Dennis E. Berger, Esquire

5190 Northwest 167th Street Miami, Florida 33014

For Respondent: Peter A. Portley, Esquire

2401 East Atlantic Boulevard Pompano Beach, Florida 33062

BACKGROUND

By amended administrative complaint filed on July 2, 1985, petitioner, Department of Health and Rehabilitative Services, has charged that respondent, Shalom Manor, Inc. d/b/a King David Manor Retirement Home, had violated an agency requirement governing the operation of adult congregate living facilities. Specifically, petitioner has alleged that while performing a survey of respondent's facility on March 29, 1984, it found respondent had no fire emergency plan for the facility, that respondent was given until April 29, 1984 to correct this deficiency, and that the same was not corrected when petitioner made a follow-up visit on August 22, 1984. Because of this, petitioner seeks to impose a $500 civil penalty pursuant to Subsection 400.419(3)(c), Florida Statutes (1985).

By petition filed with the agency on July 15, 1985, respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was referred by petitioner to the Division of Administrative Hearings on April 7, 1986, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated May 2, 1986, the final hearing was scheduled for July 18, 1986, in Fort Lauderdale, Florida.

At final hearing petitioner presented the testimony of Philip Drabick, an HRS inspector, and James Valinoti, an HRS fire prevention specialist. It also offered petitioner's exhibits 1 and 2. Both were received in evidence.

Respondent presented the testimony of Robert Salerno, its former coordinator of governmental matters.

There is no transcript of hearing. Neither party submitted proposed findings of fact and conclusions of law.

The issue is whether respondent should have a $500 civil penalty imposed upon it for allegedly violating an agency rule.

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

FINDINGS OF FACT

1. When the events herein occurred, respondent, Shalom Manor, Inc. d/b/a King David Manor Retirement Home (King David), was licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregte living facility (ACLF) at 5800 N.W. 27th Court, Lauderhill, Florida. The corporate headquarters of Shalom Manor, Inc., were located at 901 South Federal Highway, Suite 200, Fort Lauderdale, Florida.

   
   

2. On March 29, 1984 two HRS inspectors performed a routine annual survey of King David to determine whether King David was complying with all HRS requirements necessary for licensure.

   
   

3. During the course of the survey, the inspectors noted that King David did not have an established fire and emergency plan. They accordingly charged respondent with having violated Section 3-8.a of HRS Manual 140-3. That manual is entitled "Fire Safety Standards for Adult Congregate Living Facilities." The manual is not a formal rule, but has been adopted and incorporated by reference in Rule 10A-5.23(15), Florida Administrative Code. The cited section (3-8.a) provides in relevant part that "a Fire and Emergency plan shall be established." It does not specifically require that the plan be in written form, or that it be posted in each resident's living area. According to the HRS inspectors, respondent was charged with a Class III statutory violation because it had no acceptable written plan, and the plan was not posted in each resident's room.

   
   

4. When the survey was completed, the inspectors reviewed this deficiency with the facility's administrator, Graeme Burne, and advised him that the deficiency must be corrected within thirty days, or by April 29, 1984. They also described to him the type of plan necessary to comply with the HRS Manual, and told him it must be posted in each area where a resident resided. A thirty- day compliance period was used since the inspectors considered the deficiency to be a "paperwork" item that could be easily corrected within that time period.

   
   

5. After returning to their office, the inspectors had a Form 1806 prepared. This form is entitled "ACLF Corrective Action Plan" and contains each deficiency noted during the survey, the class of violation, date for correction action, provider's plan of correction, when such correction is completed and the status of correction or follow-up. The form noted that the deficiency in question had to be corrected by April 29, 1984. The form was then signed by the HRS area supervisor and mailed to Burne on April 4, 1984. Burne received the form, inserted the comment "Being Prepared" in the column under the provider's

   plan of correction, signed it as respondent's administrator on April 27, 1984 and returned it to local HRS offices in Miami.

   
   

6. On May 1, May 18, June 11, August 22 and October 31, 1984, the two inspectors made repeat surveys of King David's facility. They found no satisfactory fire and emergency plan had been established on any of those dates. On the August 22 visit Burne showed to the inspectors a diagram he had prepared, but was told it did not meet HRS requirements.

   
   

7. On the March 29 visit, the inspectors also noted several other deficiencies besides the lack of a fire and emergency plan. All deficiencies, including the lack of a fire and emergency plan, were the subject of administrative complaints issued on July 12 and 26, 1984 in Case Nos. 85-0359 and 85-0360, respectively. 1/ By the issuance of these complaints, the corporate license received actual written notice of the surveys and cited deficiencies. Prior to that time, Burne had apparently neglected to tell the owners about the matter. On July 2, 1985, or approximately one year later, HRS issued the amended administrative complaint in this cause charging respondent with having failed to correct the deficiency by the August 22 visit. 2/ The complaint was served on Shalom Manor, Inc., at its Fort Lauderdale corporate address. After receiving the earlier complaints in July 1984 a representative of Shalom Manor contacted HRS offices in Miami and requested that all future correspondence regarding the matter be sent to the corporate owner's address in Fort Lauderdale.

   
   

8. Respondent acknowledged that it had no fire and emergency plan posted on its premises. However, it established that the corporate licensee (Shalom Manor, Inc.) was never given any documentation regarding the alleged violation until the administrative complaints in Case Nos. 85-0359 and 85-0360 were filed. Moreover, neither the licensee or its administrator was given a document entitled "notice of deficiency" as required by Rule 10A-5.27, Florida Administrative Code. However, the corrective action plan sent to the administrator on April 4, 1984, contained all information referred to in the rule. Respondent also points out that after finally learning of the deficiency, it attempted to comply with HRS requirements, and through its administrator, presented a written plan to HRS inspectors on their August 22 visit.

   
   

   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 (1985).

   
   

10. By way of closing argument, respondent raises several defenses to the amended complaint. First, it contends that there was no evidence presented herein or legal requirement shown that a written fire and emergency plan be established and posted in multiple locations throughout a facility's premises. Secondly, respondent contends that HRS failed to send the corporate licensee a notice of deficiency (NOD) as required by Rule 10A-5.27(1)(d), Florida Administrative Code. Respondent also asserts that a NOD is different from a corrective action plan (CAP), and that the law requires the former document to be mailed to the licensee. Respondent points out that HRS mailed only a CAP, and then compounded the problem by mailing this to King David's administrator rather than the actual corporate licensee.

    
    

11. Subsection 400.441(1), Florida Statutes (1985), provides in relevant part as follows:

    1. Pursuant to the intention of the legis- lature to provide safe and sanctuary facili- ties, the department shall promulgate, pub- lish, and enforce rules to implement the provisions of this part, which shall include reasonable and fair minimum standards in relation to:

       1. The maintenance of facilities, not in conflict with the provisions of chapter 553, relating to plumbing, heating, lighting, ventilation, and other housing conditions, which will ensure the health, safety, and comfort of residents and protection from fire hazard, including adequate provisions for fire alarm and other fire protection suitable to the size of the structure. Minimum fire- safety standards shall be established and enforced by the State Fire Marshal in cooper- ation with the department. Such standards shall be included in the rules promulgated by the department after consultation with the State Fire Marshal. (Emphasis added)

          
          

          To implement the foregoing provision, HRS has adopted Chapter 10A-5, Florida Administrative Code, which contains various rules governing the operation and maintenance of adult congregate living facilities.

          
          

12. Rule 10A-5.23(15), Florida Administrative Code, is pertinent and provides as follows:

    
    

    1. Safety and Fire Protection.

       1. Fire safety protection shall be governed by the applicable local fire code for facili- ties. In areas where no local fire code applies to facilities, the minimum standards in HRS Publication HRSM 140-3, Fire Safety Standards for Adult Congregate Living Facili- ties, effective February 15, 1980, as incor- porated by reference, shall be used to deter- mine compliance with fire safety standards.

          In every instance, a facility shall have an approved fire inspection report which shall comply with applicable local or state stand- ards before a license may be issued. A copy of this HRS Publication shall be available at no cost by writing to the Office of Aging and Adult Services, 1317 Winewood Boulevard, Tallahassee, Florida 32301.

       2. Monthly fire drills or resident review of evacuation plans shall be conducted by all facilities with a licensed capacity of thir- teen or more residents. (Emphasis added)

    
    

    There is nothing in the rule itself, or the minimum standards incorporated by reference therein, that refers to a written plan, or a requirement that it be posted in every resident's room. Moreover, there was no record foundation to

    establish that the agency's policy is to require this plan to be reduced to writing (or a drawing), and that it be posted in multiple areas of a facility. Because such conduct is not predictably objectionable from a reading of the rule and manual, it can only be proscribed after the agency makes an adequate evidentiary foundation for the policy it seeks to establish. Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177, 1182 (Fla. 1st DCA 1981). In this case, there was no such record foundation made. Then, too, this is a penal proceeding involving a potential fine to be paid by respondent, and penal statutes (and rules) must be strictly construed against the agency. See, for example, Bach v. State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Therefore, the charge that respondent had no written, posted fire and emergency plan must fail.

    
    

13. Respondent has also contended that Rule 10A-5.27, Florida Administrative Code, was contravened when the agency failed to furnish the corporate licensee with a notice of deficiency. That rule prescribes the notice requirements in administrative enforcement actions and provides in relevant part as follows:

    
    

    1. Deficiencies in Compliance:

       1. When a routine visit, evaluation, or investigation of a facility is conducted and the Department determines that a deficiency exists, the Department shall issue a notice of deficiency, unless the deficiency is corrected during the visit.

          * * *

          1. The notice of deficiency shall be in writing and shall include:

             1. A reference to the statute or regu- lation upon which the deficiency is premised;

             2. A factual description of the nature of the deficiency fully stating the manner in which the licensee failed to comply with a specified statute or regulation;

             3. A date by which each deficiency shall be corrected unless the deficiency is of an imminent threat to the health or safety of

                the residents, in which case, the deficiency shall be corrected within 24 hours. In prescribing the date for correcting a deficiency, the Department shall consider the following factors:

                1. The seriousness of the deficiency;

                2. The availability of equipment or personnel necessary to correct the deficiency; and

                3. The estimated time necessary for delivery and any installation of necessary equipment.

             4. The address and telephone numbers of the licensing office responsible for review- ing notices of deficiencies for the area in which the facility is located.

          2. The Department shall serve the notice of deficiency on the licensee according to Chapter 120, F.S. (Emphasis added)

          * * *

          
          

14. The agency readily acknowledges a document entitled "Notice of Deficiency" was not sent to the corporate licensee. However, the agency contends it substantially complied with all relevant requirements by sending a CAP to the administrator. It further contends that even after the licensee received notice of the deficiency in July 1984, it still failed to correct the deficiency by the August 22 visit.

    
    

15. The record reveals that the agency furnished a document entitled "Corrective Action Plan" to the administrator of the facility on April 4, 1984. It contained virtually the same information required by Rule 10A-5.27(1)(c), Florida Administrative Code. Moreover, the administrator is an agent of the principal (owner), and service of the CAP upon him constituted notice to the owner. While the agency did not technically comply with all aspects of the rule, any error in procedure was harmless, and did not impair the fairness of the proceeding. Finally, even though the corporate licensee did not receive written notice of the survey until the two administrative complaints were served in July 1984 it failed to correct the alleged deficiency during the next seven week period before HRS's return visit on August 22, and the final visit on October 31, 1984. Accordingly, respondent may hardly now contend that had it received actual written notice of the first visit on March 29, it would have taken steps to correct the deficiency within the mandated time periods.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed on July 2,

1986, be DISMISSED, with prejudice.

DONE and ORDERED this 19th day of August 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 19th day of August 1986.

ENDNOTES

1/ The complaint in Case No. 85-0359 cited respondent for failing to correct three deficiencies by the May 1, 1984 visit. This complaint was subsequently amended to add four additional charges. Some of these were eventually dismissed by the agency. The complaint in Case No. 85-0360 cited respondent for failing to correct three deficiencies by the May 18, 1984 visit. Included in the charges was the failure to have an established fire and emergency plan. The

complaint in the instant case cites respondent with having failed to correct the same fire and emergency plan deficiency by the August 22, 1984 visit.

2/ HRS gave no explanation as to why the amended complaint was not issued until July 1985 except to say that the charge herein was apparently lost in the mass of paperwork involving this facility and another ACLF (Shalom Manor Retirement Home) then owned by the licensee.

COPIES FURNISHED:

Dennis E. Berger, Esquire 5190 N.W. 167th Street Miami, Florida 33014

Peter A. Portley, Esquire 2401 E. Atlantic Boulevard Pompano Beach, Florida 33062

Mr. William Page, Secretary Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-001191

Orders for Case No: 86-001191