STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1531

) D & L PROPERTIES, LTD., d/b/a ) COUNTRY ESTATES RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard on August 26, 1986, in West Palm Beach, Florida, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. No transcript of the proceedings was filed. Proposed findings of fact and conclusions of law were submitted by the Respondent, but none were submitted by the Petitioner. The proposed findings of fact contained in the proposals submitted by Respondent have been accepted.

At the hearing two witnesses testified on behalf of the Department and one exhibit was offered and received in evidence. One witness testified on behalf of the Respondent and three exhibits were received in evidence.

APPEARANCES

For Petitioner: Dennis Berger, Esquire

For Respondent: James E. Copeland, Esquire

ISSUE

The issue is whether the Respondent has violated Section 400.419, Florida Statutes (1985), and five rules of the Department of Health and Rehabilitative Services adopting standards for the operation of adult congregate living facilities by failing to correct violations after receiving notice of what the Department considered to be violations of applicable rules discovered during an inspection conducted in May 1985. The conduct alleged in paragraph 3 of the Administrative Complaint as rendering the facility subject to discipline and the rules violated are:

1. Failure to show evidence of maintaining time sheets for employees, in violation of Rule 10A-5.24(1)(a)7., Florida Administrative Code.

   
   

2. Failure to have written plans complying with the maintenance and housekeeping standards established in Rule 10A-5.22(1), Florida Administrative Code, in violation of Rule 10A-5.22(2), Florida Administrative Code.

3. Failure to provide electrically powered smoke detectors interconnected to the fire alarm system in violation of Section 400.419, Florida Statutes and Section 17-3.4.1 of the 1981 Life Safety Code.

   
   

4. Failure to separate the kitchen from the rest of the facility with a material having a one hour fire rating, in violation of Rule 4A-40.10, Florida Administrative Code, and

   
   

5. Failure to provide self closing doors between residents' rooms and corridors, in violation of Rule 4A-40.10, Florida Administrative Code.

FINDINGS OF FACT

1. D & L Properties, Ltd., operates Country Estates Retirement Home, which is licensed as an adult congregate living facility by the Department of Health and Rehabilitative Services under Chapter 400, Part II, Florida Statutes (1985). In connection with the annual application for licensure renewal, an inspection was made by the Department on May 29, 1985, by Ms. Merle McDonald and by Mr. Jim Valanoti.

   
   

2. A report of deficiencies which the inspectors believe they found during their visit of May 29, 1985, was prepared and mailed to the administrator of the facility, Ms. Denise Conley, on June 10, 1985. That survey report and its transmittal letter from the Department of Health and Rehabilitative Services, previously marked as Petitioner's Exhibit 6, was received in evidence.

   
   

3. Ms. McDonald visited the facility again on September 23, 1986, to determine whether the deficiencies set out in the report of her prior visit had been corrected. On the reinspection visit Ms. McDonald requested the employees' time sheets, and the person she spoke to was not able to produce them. The evidence is not clear who Ms. McDonald asked to produce employee time sheets, either during her first visit in May 1985 or during her follow-up visit in September 1985. Mr. Dennis Conley, who was employed at the facility, testified that he has been in charge of the facility's records at the times at issue and that employee time sheets were available for inspection in a file cabinet located in the facility. An example of the type of time sheets kept by the facility was entered into evidence without objection as Respondent's Exhibit 1. The Hearing Officer finds that the facility did maintain time sheets for employees.

   
   

4. Although the Administrative Complaint alleges in paragraph 3(b) that there were no written plans to comply with facility maintenance and housekeeping standards, Ms. McDonald testified that during her visit she reviewed a housekeeping plan, but did not see any maintenance plan. Mr. Conley testified that a maintenance plan was prepared in August 1985; a copy of this plan was entered into evidence as Respondent's Exhibit 2. According to Ms. McDonald, Respondent's Exhibit 2 is an adequate maintenance plan. This plan was available in a file cabinet in the facility before the reinspection visit by Ms. McDonald on September 23, 1985.

   
   

5. The Department contends that the facility failed to have electrically powered smoke detectors interconnected to the fire alarm system. Mr. Paul Grassi of the Department of Health and Rehabilitative Services testified that he performed the follow-up life safety inspection of the facility on September 23, 1985, although he did not perform the original inspection. Mr. Grassi admitted during cross-examination that there were enough electrically operated smoke detectors in the facility to meet standards, and that if they were

   interconnected to the fire alarm, the system would have been an acceptable one. Mr. Grassi did not check the annunciator panel for the fire alarm system at the facility. The Respondent produced photographic evidence that there is a central annunciator panel which was installed between August 13, 1985, and September 6, 1985, which connected all smoke detectors by cable to the panel. The panel has been checked by the security company which installed it in Mr. Conley's presence, and it is tested monthly by that firm. As of the September 23, 1985 reinspection there was a proper electrically powered smoke detector system interconnected to the fire alarm system at the facility.

   
   

6. The gas hot water heater and gas clothes dryer, which are located in the laundry room of the facility, have been separated from the rest of the facility with two solid core doors with at least one hour fire ratings. Mr. Grassi testified that such doors would be sufficient if the laundry room separated the kitchen from the rest of the facility. He could not recall the location of the laundry room.

   
   

7. The facility installed solid core self-closing doors between residents' rooms and the facility's corridors on September 17, 1985.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Department of Health and Rehabilitative Services has the burden of proving the existence of violations of applicable statutes or rules by a preponderance of the evidence before the Respondent may be fined for violations of rules of the Department. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The Department has failed to prove by a preponderance of evidence any of the allegations made in the Administrative Complaint.

   
   

9. While it may be true that the employee at the facility who inspector McDonald spoke with was not able to direct Ms. McDonald to employee time records, those records were available at the facility. In the absence of evidence that the person to whom Ms. McDonald addressed the request for records was an administrator or other person who should have known where the records were and been able to retrieve them, there is no basis to conclude that the institution failed in the duty imposed by Rule 10A-5.24(1)(a)7., Florida Administrative Code, to maintain in an accessible manner time sheets for all employees.

   
   

10. Similarly, while Ms. McDonald may not have seen the maintenance plan, she did testify that the plan (Respondent's Exhibit 2) is an adequate plan. The evidence does not support the contention that the facility had no written plan to comply with the facility maintenance standards of Rule 10A-5.22(1), Florida Administrative Code. Respondent has not violated Rule 10A-5.22(2), Florida Administrative Code.

    
    

11. The photographic evidence of the annunciator panel and the testimony of Mr. Conley established that there was no violation of a life safety code with respect to the smoke detection system.

    
    

12. The Department has not established a violation of the requirement that the kitchen be separated from the rest of the facility with material having a one-hour fire rating. Mr. Grassi was unable to testify that the corrective measures (i.e., the installation of the solid core doors) violated Section 400.419, Florida Statutes, or Rule 4A-40.10, Florida Administrative Code, in any manner.

13. On its face paragraph 3(e) of the Administrative Complaint fails to state any violation of law. Rule 4A-4.10(3) requires that

    
    

    "All construction materials enclosing hazardous operations or storage shall have not less than one hour fire resistance, and all openings between the rooms or enclosures for hazardous operations or processes in the rest of the building shall be protected by self-closing or automatic fire doors, except that food preparation facilities need not have openings protected between food preparation areas and dining areas when protected in accordance with the provisions of NFPA 96."

    
    

14. What the rule requires is that openings between rooms enclosing hazardous operations or processes and the rest of the building be protected with self-closing or automatic fire doors, not that there be self-closing doors between residents' rooms and corridors.

SUMMARY AND RECOMMENDATION

The Department has failed to establish that the Respondent is guilty of any violation of the rules which it adopted to implement Section 400.419(1), Florida Statutes (1985). It is recommended that the Administrative Complaint be dismissed.

DONE and ORDERED this 29th day of October 1986 in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 29th day of October 1986.

COPIES FURNISHED:

Dennis Berger, Esquire Department of HRS

Office of Licensure and Certification 5190 N.W. 167th Street, Suite 210

Miami, Florida 33014

James E. Copeland, Esquire HURD AND COPELAND

300 Prosperity Farms Road

North Palm Beach, Florida 33408-5285

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Steven W. Huss, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-001531

Orders for Case No: 86-001531