STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO: 87-0173

) ALMIRA C. MORGAN, d/b/a MORGAN ) 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 March 25, 1987, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: K. C. Collette, Esquire

111 Georgia Avenue, Third Floor West Palm Beach, Florida 33401

For Respondent: James A. Cassidy, Esquire

120 South Olive Street, Suite 711 West Palm Beach, Florida 33401

BACKGROUND

By administrative complaint dated November 13, 1986, petitioner, Department of Health and Rehabilitative Services, has charged that respondent, Almira C. Morgan, d/b/a Morgan Retirement Home, had violated Section 400.419, Florida Statutes (1985), by having failed to timely correct a deficiency in her adult congregate living facility after an agency inspection. For this infraction, the agency has proposed to impose a $200 civil penalty. Thereafter, respondent requested a formal hearing on November 26, 1986, to contest the allegations.

The matter was referred to the Division of Administrative Hearings by petitioner on January 14, 1987, with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated March 9, 1987, a final hearing was scheduled on March 25, 1987, in West Palm Beach, Florida. At final hearing, petitioner presented the testimony of James Valinoti, an agency program analyst, and offered petitioner's exhibit 1 which was received in evidence. Respondent testified on her own behalf and offered respondent's exhibit 1 which was received in evidence.

There is no transcript of hearing. The parties waived their right to submit proposed findings of fact and conclusions of law.

STATEMENT OF THE ISSUE

At issue is whether respondent should have a $200 civil penalty imposed for the alleged violation set forth in the administrative complaint.

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

FINDINGS OF FACT

1. Respondent, Almira C. Morgan, operates an adult congregate living facility under the name of Morgan Retirement Home at 432 South F Street, Lake Worth, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction.

   
   

2. On or about February 17, 1986, James Valinoti, an HRS program analyst, conducted a routine inspection of respondent's facility. During the course of the inspection, Valinoti requested documentation verifying that Morgan's employees were free of communicable diseases. This documentation is normally presented in the form of a certificate from a medical doctor. The requirement that employees be free of communicable disease was then embodied in Rule 10A- 5.19(5)(g), Florida Administrative Code [now renumbered as Rule 10A-5.019(5)(g)

   
   

3. Since Morgan had no documentation to comply with the rule, Valinoti prepared a "Notification of Deficiencies" which recited the deficiency, class of violation, and date on which the deficiency had to be corrected. Morgan acknowledged receiving a copy of the same on March 14, 1986. According to the notice, Morgan had until April 12, 1986, in which to comply with the regulation.

   
   

4. Sometime in April 1986 a nurse who was employed by Dr. David H. Kiner, a West Palm Beach internist, visited Morgan's facilities and administered skin tests for tuberculosis to Morgan and another employee named Violet Shepard. As agreed to by the parties, and for purposes of this proceeding only, this test was all that Morgan needed to comply with the rule. Dr. Kiner then prepared two small typewritten notes stating that the two were "free from communicable diseases." Through inadvertence, he did not place a date on the notes.

   
   

5. When Valinoti returned to reinspect the facility on May 21, 1986, Morgan gave him the two notes. Because they were undated, Valinoti would not accept the notes. He did agree, however, that Morgan was making a good faith effort to comply with the rule. Nonetheless, he cited her for a Class III violation, a violation which "indirectly" or "potentially" threatens the safety, health or security of the residents. The administrative complaint was thereafter issued proposing that respondent be fined $200.

   
   

6. Shortly after the administrative complaint was issued, Morgan obtained a third note from Dr. Kiner stating that the date had been omitted by "inadvertence." Morgan then contacted an HRS dietary inspector (Ms. Perez) who advised her to mail the notes to her, and she would give them to Valinoti. Although Morgan mailed the dated notes to Perez, the agency did not consider this to be timely correction of the deficiency.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

   
   

8. The administrative complaint charges respondent with violating Section 400.419, Florida Statutes (1985), by failing to be in compliance with Rule 10A- 5.19(5)(g), Florida Administrative Code. This rule requires the following:

   
   

   (5) The operator of a facility shall:

   * * *

   (g) Ensure that the staff is mentally and physically capable of performing their assigned duties, and are free of communicable diseases. If any staff member is found to have, or is suspected of having a communicable disease, or is mentally or physically incapable of performing his duties, he shall be removed from duties until the operator determines that such risk/deficiency no longer exists.

   * * *

   
   

9. Of some significance is the provision in Subsection 400.419(1)(a), Florida Statutes (1985), which allows the agency, after discovering a deficiency, to either fix a date certain by which it must be corrected, or to "request a plan of corrective action from the facility which demonstrates a good faith effort to remedy each violation." In this case, a date certain was established. Because of this, any good faith efforts by respondent to correct the deficiency do not absolve her of guilt but are only a consideration in setting the amount of a penalty.

   
   

10. The evidence discloses that Morgan failed to "ensure that (her) staff

    . . . (was) free of communicable diseases" when the facility was inspected on February 17, 1986. When the follow-up visit was made on May 21, 1986, respondent had obtained documentation providing such verification, but it was undated. As such, it did not provide the assurance needed under the rule.

    Therefore, a technical violation of the rule occurred.

    
    

11. Subsection 400.419(3), Florida Statutes (1985), requires the agency to categorize rule violations according to "the gravity of (their) probable effect on facility residents." In this case, the rule violation is the least severe, or a Class III violation. Subsection 400.419(3)(c), Florida Statutes (1905) mandates a fine of not less than $100 or more than $500 per offense. Given the technical nature of the violation, and respondent's good faith effort to comply with the rule, the minimum fine should be imposed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 10A-

5.19(5)(g), and that a $100 civil penalty be imposed.

DONE AND ORDERED this 27th day of March 1987 in Tallahassee, Leon County, 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 27th day of March 1987.

COPIES FURNISHED:

K. C. Collette, Esquire Department of Health and Rehabilitative Services

111 Georgia Avenue, Third Floor West Palm Beach, Florida 33401

James A. Cassidy, Esquire

120 South Olive Street Suite 711

West Palm Beach, Florida 33401

Docket for Case No: 87-000173

Orders for Case No: 87-000173