STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NOS. 86-2055

) 86-2103

MILDRED SUMPTER, d/b/a ) SUMPTER WESTSIDE CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

These consolidated cases were heard pursuant to notice on March 31 and April 1, 1987, in Jacksonville, Florida by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The factual basis for both cases is essentially identical. Case No. 86-2055 relates to a moratorium on the placement of additional residents in Sumpter Westside Care Center and in Case No. 86-2103 the Department seeks to revoke the license of the Respondent to operate Sumpter Westside Care Center.

Counsel for the Petitioner filed his Proposed Recommended Order on May 11, 1987, and counsel for the Respondent filed his Proposed Recommended Order on May 12, 1987.

APPEARANCES

For Petitioner: Reese A. Waters, Jr., Esquire

District IV Legal Counsel Department of Health and

Rehabilitative Services 5920 Arlington Expressway Post Office Box 2417

Whether the Respondent violated Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.

FINDINGS OF FACT

1. At all times pertinent to the allegation, the Respondent, Mildred Sumpter, held a standard license to operate Sumpter Westside Care Center, 2149

   West 39th Street, Jacksonville, Florida 32209, as an adult congregate living facility. Said license was issued by the Department of Health and Rehabilitative Services.

   
   

2. The Respondent had a $100 administrative fine levied against her in a Final Order entered by the Department of Health and Rehabilitative Services on August 14, 1985, for having one more resident than she was licensed to house as revealed in two on-site inspections approximately two weeks apart. The Respondent had an administrative fine of $1050 levied against her in a Final Order entered by the Department of Health and Rehabilitative Services on June 28, 1985, for violations of Chapter 400, Part II, and Chapter 10A-5, Florida Administrative Code, very similar to those set forth in the instant case. During the period between these fines and the Department's moratorium, additional inspections revealed that the Respondent did improve the services to residents and the conditions at the facility; however, these improvements were too frequently temporary in nature, particularly regarding the maintenance of a one week supply of non-perishable food on the premises and keeping the premises clean, free of pests, and odor free. It is, however, clear from these attempts to improve the conditions that the Respondent was trying to comply with the Department's requirements.

   
   

3. A spirit of cooperation appears to have existed between the Department and the Respondent until 1985. Inspections in 1984 reveal some deficiencies and follow-up inspections were increased. The number and relative strictness of the inspections in 1985 apparently led to a conflict between the Respondent's son and June Frye, the Department's primary inspector until early 1986. However, this confrontation between Respondent's son and the Department's inspector came after the inspections upon which the Department's actions were based, and the findings made during the inspections form appropriate bases for the action initiated by the Department.

   
   

4. The inspections conducted between September 20, 1984 and April 25, 1986 reveal that the kitchen was frequently unclean, there were frequently noxious odors and general uncleanliness throughout the facility, there were insufficient quantities of required foods on the premises, and the meals prepared failed to meet dietary requirements established in the Department's rules. In addition, the Respondent failed to keep or did not properly maintain the fiscal records, time sheets, personnel records and work schedules as required by the Department. The Respondent did not maintain proper records of the medications administered to the residents.

   
   

5. Based upon the continuing conditions at the facility, notwithstanding the efforts of the Respondent to correct the deficiencies, the Department had sufficient cause to remove all residents from the facility and place a moratorium on new admissions on April 25, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has juris- diction over the subject matter and the parties to this action in authority to enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes.

7. The factual issues presented in this case are whether the Respondent violated Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code, as alleged in the two Administrative Complaints. It should be noted that the factual allegations in both of the Administrative Complaints are essentially identical and that only the action sought differs in the two cases. On this basis, the two cases were consolidated for hearing and for the entry of this Recommended Order.

   
   

8. The facts reveal that in early 1985, a series of inspections and visits by the Department revealed multiple deficiencies at the Sumpter Westside Care Center. The most serious of these deficiencies related to the cleanliness of the facility and the quality and quantity of food available and prepared for the residents. Although the record reflects that the Respondent attempted to correct the deficiencies and that many of the deficiencies were technical in nature, the overwhelming weight of the evidence reflects that the Respondent had difficulty maintaining sufficient food on hand for the residents and providing the residents' meals in accordance with approved menus. This, together with the general nature of the deficiencies revealed during the inspections and the testimony of the Respondent and other witnesses, points to a lack of adequate funding. However, contrary to the assertions in paragraph 3 of the Conclusions of Law in Petitioner's Proposed Recommended Order, there were no allegations in the Administrative Complaints that the Respondent was financially unstable and had violated Section 400.414(2)(d), Florida Statutes.

   
   

9. Based upon the testimony and documentary evidence received at hearing, the Respondent violated Sections 400.414 and 400.419, Florida Statutes, and Rule 10A-5.20(1)(k), Florida Administrative Code, by failing to prepare meals in accordance with approved menus and failing to maintain adequate supplies of non- perishable foods on hand. The Respondent violated Section 400.419 and Rules

   10A-5.20(1)(n)1, 2 and 10A-5.22(1)(b), Florida Administrative Code, by failing to keep the kitchen clean. Respondent violated Section 400.419, Florida Statutes, and Rules 10A-5.22(1)(g) and (j), Florida Administrative Code, by failing to keep bathrooms and living areas of the facility clean. The Respondent failed to keep or improperly maintained fiscal records, time sheets, work schedules, menus, personnel records, admission and discharge records, medication administration records, contrary to Sections 400.419 and 400.428, Florida Statutes, and Rules 10A-5.19(5)(f); 10A-5.181(3)(d); 10A- 5.20(1)(j);

   10A-5.20(1)(n)1, 2; 10A-5.21; 10A-5.22(1)(e), (f)(g); 10A-5.23(8)(c); 10A-

   5.24(1)(a)1, 6 and 7; and 10A-5.24(1)(c), (f), Florida Administrative Code.

   
   

10. By virtue of the removal of the residents and the Department's moratorium on further admissions of April, 1986, the Respondent has not been able to engage in business since that date.

    
    

11. Based upon the violations of Chapter 400, Part II, Florida Statutes, and Rule 10A-5, Florida Administrative Code, cited above, the Department's action in establishing the moratorium on April 26, 1986, was proper. Based upon the same violations, it is recommended that the Petitioner's license to operate an adult congregate living facility be revoked effective as of April 26, 1986. This retroactive revocation effectively gives the Respondent credit for the time she has not been able to engage in business.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law and considering the matters in mitigation, it is

RECOMMENDED:

That the license of the Respondent to operate an adult congregate living facility be revoked nunc pro tunc to April 26, 1986 and that the moratorium on further admissions to Sumpter's Westside Care Center be continued until revocation becomes final.

DONE and ORDERED this 16th day of November, 1987, in Tallahassee, Florida.

STEPHEN F. DEAN

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 16th day of November, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-2055 & 86-2103

The Hearing Officer read and considered the Proposed Findings of Fact Submitted by the Petitioner and Respondent with the following result:

Respondent's Proposed Findings of Fact: 1-2. Substantially adopted.

3-4. Reworded and substantially adopted; however, the evidence does not

support the proposed finding that the deficiency reports were technical and non- serious until the month of April 1986. The facts reveal that the deficiencies were Serious and reoccurring

1. Rejected as contrary to the facts.

2. Rejected as contrary to the facts.

3. Not a finding of fact.

Petitioner's Proposed Findings of Fact:

1-3. Rejected as a statement of the case.

4. As it relates to a statement of fact regarding the fine Previously levied against Mildred Sumpter, is adopted. The remainder of the paragraph is rejected as irrelevant, immaterial surplusage.

5-6. Rejected as outside the scope of the Administrative Complaints. There is no allegation that the Respondent violated Section 400.414(2)(b), Florida Statutes.

7. Adopted and substantially reworded with regard to the inadequacies of the food supply, the kitchen being unclean, the facility being unclean and having noxious odors, and the residents not receiving adequate assistance; however, the proposed finding that the chain link fence around the fence was locked and the operator of the facility was not on the premises is rejected although true because there is an absence of an appropriate showing that said conduct is contrary to the statutes or the rules.

8-9. Substantially reworded and adopted; however, the proposed finding that Mildred Sumpter proposed unlawful restrictions on the movement of the residents is specifically rejected.

10. Substantially reworded and adopted.

COPIES FURNISHED:

Frederick Simpson, Esquire District IV Legal Counsel Department of HRS

5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32231

Al Millar, Esquire 1239 King Street

Jacksonville, Florida 32204

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-002055

Orders for Case No: 86-002055