Judges: LARRY J. SARTIN
Agency: Agency for Health Care Administration
Latest Update: Jan. 22, 1988
Summary: Whether a civil penalty should be imposed upon the Petitioner for alleged violations of Chapter 400, Part II, Florida Statutes?Adult Congregate Living Facility fined for fire code violations.
86-4584STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4584
) NARVEL ARMSTRONG, d/b/a ) ARMSTRONG ACLF, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 1, 1987, in Bonifay, Florida.
APPEARANCES
For Petitioner: Narvel Armstrong, pro se
Post Office Box 261 Vernon, Florida 32462
For Respondent: John R. Perry, Esquire
Assistant District 2 Legal Counsel Department of Health and
Rehabilitative Services
2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303
On or about October 15, 1986, the Respondent, the Department of Health and Rehabilitative Services, served an Administrative Complaint on the Petitioner, Narvel Armstrong, d/b/a Armstong ACLF. In the Administrative Complaint the Respondent informed the Petitioner that it intended to impose a Part II, Florida Statutes. The Petitioner filed an Answer to Administrative Complaint in which she contested the allegations of the Respondent's Administrative Complaint.
At the final hearing, the Petitioner presented the testimony of J. C. Armstrong, Jr., and testified on her own behalf. The Petitioner also offered 3 exhibits which were marked as "Petitioner's" exhibits and accepted into evidence.
The Respondent presented the testimony of James Temkin. The Respondent offered 7 exhibits which were marked as "HRS" exhibits and accepted into evidence.
The formal hearing of this case was scheduled to commence at 9:30 a.m., on July 1, 1987. Prior to the commencement of the hearing the Respondent filed a Motion for Continuance. The undersigned was informed by telephone that the
Respondent would be ready to proceed if the commencement of the formal hearing was delayed until the afternoon of July 1, 1987. Based upon this representation and the representation of the Respondent that the Petitioner was not opposed, the formal hearing was commenced at 1:30 p.m.
Subsequent to the completion of the formal hearing the Respondent filed a Motion for Leave to File Proposed Findings of Fact and Conclusions of Law Five Days Out of Time. In fact the Respondent's proposed findings of fact and conclusions of law were filed six days late. The parties were ordered to file their proposed recommended orders within twenty days from the date the transcript of the proceeding was filed. The transcript was filed on October 30, 1987. Proposed recommended orders were therefore due no later than November 19, 1987. Pursuant to Rule 22I-6.03, Florida Administrative Code, "filing" means "received by the Office of the Clerk . . . ." No additional time is allowed for mailing. The Respondent's proposed recommended order was filed November 25, 1987. The Respondent has represented in its Motion that the Petitioner is opposed to the granting of the Motion. The Respondent's Motion is hereby denied.
The Petitioner has not filed a proposed recommended order.
ISSUE
Whether a civil penalty should be imposed upon the Petitioner for alleged violations of Chapter 400, Part II, Florida Statutes?
FINDINGS OF FACT
The Petitioner owns an adult congregate living facility.
On May 28, 1985, Jim Temkin, an employee of the Respondent, inspected the Petitioner's facility. As a result of this inspection, Mr. Temkin noted four violations of the rules and regulations governing the operation of Florida adult congregate living facilities. (Other deficiencies, not relevant to this proceeding, were also noted).
The deficiencies noted in Mr. Temkin's May 28, 1985, inspection report were as follows:
ACLF 1 Styrofoam plastic ceiling is used in the dining room, sleeping rooms, hallway, bathrooms and laundry, the kitchen has a particle board ceiling all of which appear to be combustible.
. . . .
ACLF 2 The kitchen has a gas range and an electrical range without exhausts or automatic extinguishing systems.
. . . .
ACLF 3 The outside chimney stark [sic] for the gas heater in the resident dining room does not extend above the roof.
. . . .
ACLF 5 Bed No. 1 & No. 2 have unprotected windows into the dining room.
The deficiencies quoted in finding of fact 3 (hereinafter referred to as "ACLF 1, 2, 3 or 5"), were discussed with the Petitioner by Mr. Temkin at the conclusion of his inspection. The Petitioner was given the opportunity to select reasonable dates for correction of the problems noted by Mr. Temkin. The Petitioner accompanied Mr. Temkin during his inspection on May 28, 1985.
The following dates were agreed upon by the Petitioner and Mr. Temkin for the correction of the deficiencies noted in finding of fact 3:
ACLF 1: February 1, 1986.
ACLF 2: September 28, 1985.
ACLF 3: July 8, 1985.
ACLF 5: July 8, 1985.
On March 24, 1986, Mr. Temkin returned to the Petitioner's facility to determine if the deficiencies noted in his May 28, 1985, report had been corrected. Deficiencies ACLF 3 and 5 had not been corrected. Deficiencies ACLF
1 and 2 had only been partially corrected. Therefore, as of March 24, 1986, the Petitioner had failed to correct the deficiencies within the correction periods agreed upon by the Petitioner and the Respondent.
ACLF 1 involved the use of materials for the roofs of the rooms noted by the Respondent in violation of Section 6-5.1.3 of the Life Safety Code, National Fire Prevention Association Codes and Standards. Use of these materials constituted an indirect hazard to residents of the facility. As of March 24, 1986, the hazardous material had been replaced with sheet rock in only the back bedrooms.
ACLF 2 involved the use of a range without proper fire protection. Failure to have the proper protection constituted an indirect hazard to residents because fire could easily spread from the kitchen to other parts of the facility. The Petitioner could have chosen from at least two methods to correct this problem. The Petitioner chose to install fire doors on the two exists from the kitchen. As of March 24, 1986, only one door had been installed.
ACLF 3 involved an outside exhaust from a gas heater. Mr. Temkin estimated that the exhaust extended only 9 inches above the roof. Mr. Temkin did not measure the exhaust. Instead, Mr. Temkin merely observed the exhaust from the ground. Mr. Temkin's estimate is insufficient to prove that the exhaust was less than 2 feet above the roof.
ACLF 5 involved two windows between two bedrooms and the "dining room." In fact, the windows were between two bedrooms and a sitting room; not the dining room. These windows did not, however, provide sufficient protection from fire outside the bedrooms to meet Chapter 17 of the Life Safety Code, National Fire Prevention Association Codes and Standards. The windows constituted an indirect risk to residents because fire could easily spread from the sitting room into the bedrooms.
On May 1, 1986, Mr. Temkin inspected the Petitioner's facility again. ACLF 1, 3 and 5 had still not been corrected. Therefore, a new date was agreed upon for the correction of these items: August 1, 1986. The new date was not an extension of time. The new date was given simply because the Petitioner had failed to meet the originally prescribed date and a completion date had to be
re-established.
At no time before or after the original completion dates for ACLF 1, 2, 3 and 5 did the Respondent agree to a different completion date in substitution of the original dates or extend the original extension dates.
The Petitioner took steps to correct ACLF 1, 2, 3 and 5. The steps taken by the Petitioner were not, however, successful in insuring that the deficiencies were corrected by the completion date originally agreed to by the Petitioner and the Respondent.
The Petitioner has not been charged at any other time with a violation of the law applicable to the operation of an adult congregate living facility.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).
Rule 10A-5.023 (15)(a), Florida Administrative Code, provides in part:
Fire safety protection shall be governed by Ch. 4A-40, F.A.C., Minimum Fire Safety Standards for Adult Congregate Living Facilities, 7/25/84, incorporated by reference. Compliance with fire safety standards shall be determined by the Office of Licensure and Certification. . . .
Rule 40A-40.005, Florida Administrative Code, provides, in part:
The standards of the National Fire Protection Association for life safety from fire, as provided in NFPA 101, Life Safety Code, 1985, and as adopted pursuant to Rule 4A-3.012, Florida Administrative Code, shall be the uniform fire safety standards required with respect to adult congregate living facilities . . . .
All adult congregate living facilities shall comply with the provisions of Chapters 1 through 7 of NFPA 101 and shall be in specific compliance with Chapters 16, 17, 18, 19, 20, and 22 of NFPA 101 as each such chapter applies to the type of adult congregate living facility in question.
In this case the Petitioner has been charged with having committed 4 particular violations of the Minimum Fire Safety Standards for adult congregate living facilities. First, in ACLF 1 the Respondent has alleged that the Petitioner's facility is in violation of Section 6-5.1.3, Life Safety Code, NFPA 101, which provides that "[c]ellular or foamed plastic materials shall not be used as interior finish." The evidence proved that the material used for the
roof of the dining room, front sleeping rooms, hallway, bathrooms and laundry room of the Petitioner's facility was in violation of Section 6-5.1.3, Life Safety Code, NFPA 101.
Secondly, in ACLF 2 the Respondent has alleged that the Petitioner's facility is in violation of Rule 4A-40.010, Florida Administrative Code, which provides, in pertinent part:
Any activity or storage area having a degree of hazard greater than
that normal to the general occupancy of the building or structure involved shall be enclosed with construction materials having at least one hour fire resistance rating, or provided with automatic fire protection, or both. If the hazard is deemed to be severe by the authority having jurisdiction, both the fire rated construction and automatic fire protections shall be used.
. . . .
(3) 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 and the rest of the building shall be protected with 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.
. . . .
Any automatic protection required shall be in the form of approved automatic sprinklers in the hazardous area. . . .
The evidence proved that the Petitioner's kitchen was not in compliance with these requirements.
Thirdly, in ACLF 3 the Respondent has alleged that the Petitioner's facility is in violation of Section 7.4.2, Life Safety Code, NFPA 101. This Section of the Code requires, in pertinent part:
a. A chimney for residential-type or low-heat gas utilization equipment shall extend at least 3 feet above the highest point where it passes through a roof of a building and at least 2 feet higher than any portion of a building within a horizontal distance of 10 feet.
Although there was testimony that an exhaust pipe on the roof of the Petitioner's facility did not meet the portion of this Section requiring that the pipe be at least 2 feet higher than any portion of the building within a horizontal distance of 10 feet, that testimony was not persuasive. It is therefore concluded that the Respondent has failed to meet its burden of proof with regard to this charge.
Finally, in ACLF 5 the Respondent has alleged that the Petitioner's facility is in violation of Section 17-3.6.1, Life Safety Code, NFPA 101, which requires that "[f]ire resistance for interior corridors shall be 30 minutes." The evidence failed to prove that this Section has been violated. The area in question in the Petitioner's facility with regard to this alleged violation is a wall between 2 bedrooms and a sitting room. The evidence failed to prove that any corridor was involved.
Based upon the foregoing, it is concluded that the Petitioner is guilty of violations ACLF 1 and ACLF 2. The Petitioner is not, however, guilty of violations ACLF 3 and ACLF 5.
In determining what action should be taken for violations ACLF 1 and ACLF 2, the provisions of Section 400.419, Florida Statutes, must be taken into account. Section 400.419(1), Florida Statutes, requires the Respondent to make reasonable attempts to discuss violations and to recommend corrective action with the owner or administrator of an adult congregate living facility. The Respondent complied with this requirement. Section 400.419(1)(b), Florida Statutes, authorizes the Respondent to impose fines if any facility owner or administrator is found to be in violation of Chapter 400, Part II, Florida Statutes, and the Respondent's rules promulgated thereunder. Sections 400.419(2) and (3), Florida Statutes, provide the following with regard to the imposition of penalties:
In determining if a penalty is to be imposed and in fixing the amount of the penalty to be imposed, if any, for a violation, the department shall consider the following factors:
The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.
Actions taken by the owner or administrator to correct violations.
Any previous violations.
The financial benefit to the facility of committing or continuing the violation.
Each violation shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The department shall indicate the
classification of each violation on the face of the notice of the violation as follows:
. . . .
(c) Class "III" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the department determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or II violations. A class III violation is subject to a civil penalty of not less than $100 and not exceeding $500 for each violation. A citation for a class III violation shall specify the time within which the violation is required to be corrected. If class III violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.
The violations proved in this case, ACLF 1 and ACLF 2, were classified as Class III violations. The evidence proved that these violations were committed and that there was an indirect and potential risk to the safety of the residents of the Petitioner's facility caused by these violations. The evidence also proved that the citation for these violations specified the time within which to correct them and that the Petitioner failed to correct the violations within the specified time. ACLF 1 and 2 are, therefore, Class III violations.
Before imposing a fine for violations ACLF 1 and 2, Section 400.419(2), Florida Statutes (1985), requires that certain factors be taken into account. Taking these factors into account supports a conclusion that the minimum penalty which can be imposed is appropriate in this case. First, although the violations are indirectly threatening, there was no evidence that indicated that the violations were particularly grave. Secondly, the evidence proved that the Petitioner took the steps necessary to correct the violations. The corrective action was not taken quickly enough but the evidence did not prove that there was any intent on the part of the Petitioner to delay correction of the violations. Thirdly, the evidence proved that these are the only violations the Petitioner has been guilty of. Finally, the evidence failed to prove that the Petitioner benefited in any financial manner as a result of the violations or the delay in correcting them.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is,
RECOMMENDED:
That the Petitioner be found guilty of, and a total civil penalty of
$200.00 be imposed for, violating the Class III deficiencies identified by the Respondent as ACLF 1 and 2. It is further:
RECOMMENDED:
That the Petitioner be found not guilty of the Class III deficiencies identified by the Respondent as ACLF 3 and 5.
DONE and ORDERED this 22nd day of January, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
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 22nd day of January, 1988.
COPIES FURNISHED:
Narvel Armstrong, pro se Post Office Box 261 Vernon, Florida 32462
John R. Perry, Esquire
Assistant District 2 Legal Counsel Department of Health and
Rehabilitative Services 2639 North Monroe Street Suite 200-A
Tallahassee, Florida 32303
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Docket for Case No: 86-004584
Orders for Case No: 86-004584
