STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1374

) HELEN ESTES, d/b/a H & E ) GUEST HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on September 9, 1987, in Bradenton, Florida. The issue for determination in this proceeding is whether respondent is subject to two civil penalties totaling

$450.00 for violations of Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.

APPEARANCES

For Petitioner: Gaye Reese, Esquire

Senior Attorney

Office of Licensure and Certification 7827 North Dale Mabry Highway

Tampa, Florida 33614

For Respondent: Aubrey E. Estes

3116 Ninth Street, East Bradenton, Florida 33508

INTRODUCTION

By an Administrative Complaint filed on February 25, 1987, respondent is charged with violating Chapter 400, Part II, Florida Statutes, and the provisions of Chapter 10A-5, Florida Administrative Code, in that two Class III deficiencies originally cited on an annual survey conducted June 24, 1985 were again cited on the annual survey of June 17, 1986. The two "repeat" deficiencies related to the unavailability of current fiscal records and failure to date and plan menus at least one week in advance. Petitioner proposes to assess civil penalties of $250.00 for the fiscal records offense, and $200.00 for the offense relating to the menus.

In support of the charges against the respondent, the petitioner presented the testimony of John C. Morton, HRS's Human Services Program Director for the Adult Congregate Living Facility Program; Earl Wright, a Human Services Program Analyst for HRS; and Loveda Perry, a public health nutritionist with HRS. HRS's Exhibits 1 through 10 were received into evidence.

The respondent offered no testimony or exhibits at the hearing.

Counsel for the petitioner submitted a proposed Recommended Order subsequent to the hearing and Mr. Estes submitted written argument. To the extent that the petitioner's proposed factual findings are not included in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Prior to its licensure as an adult congregate living facility, the respondent H & E Guest Home received an initial inspection by HRS on June 24, 1985. Various deficiencies were cited during this visit and all such deficiencies were corrected by September 10, 1985, the date of the revisit by HRS. Among the deficiencies cited by HRS were that "the facility income and expense records were not available for review," denominated by HRS as an "unclassified" deficiency, and that "menus were not dated and planned one week in advance," denominated as a Class III deficiency. At the time of this initial survey on June 24, 1985, there were no residents in the respondent's facility as it was not yet licensed or opened for operation as an adult congregate living facility.

   
   

2. On June 17, 1986, HRS performed an annual survey on respondent's facility. During this survey, several deficiencies were found. As pertinent to the charges in this proceeding, HRS found that there were no fiscal records relating to the facility's financial operating status available at the facility site for review. This deficiency was denominated by HRS as a Class III repeat deficiency. The other repeat deficiency noted, also denominated as Class III, was that menus were not dated and planned one week in advance. Residents were in the respondent's facility on June 17, 1986.

   
   

3. HRS proposes to levy a fine of $250.00 for the fiscal records deficiency, and a fine of $200.00 for the deficiency relating to menus. According to HRS, the impacts upon patients resulting from such deficiencies are, respectively, "without the records it would be difficult to determine the financial stability of the facility," and "it would be difficult to maintain a sufficient food supply, and the residents would not be aware of their meals in advance."

   
   

   CONCLUSIONS OF LAW

   
   

4. Adult congregate living facilities are required to comply with HRS's rules and standards regarding food services and fiscal records. The standards at issue in this proceeding are contained in Rules 10A-5.020(1)(j) and 10A- 5.021, Florida Administrative Code. The former rule requires that

   
   

   "Dated menus shall be planned at least one week in advance for regular and therapeutic diets; posted where easily viewed by residents; and corrected as served and kept on file for six months."

   
   

   Rule 10A-5.021, relating to fiscal standards, states

   The administrator or owner of a facility shall be responsible for maintaining fiscal records which accurately identify, summarize, and classify funds received and disbursed for the operation of the facility. A recognized system of accounting shall be used to accurately reflect details of the business including residents' "trust finds" and other property. The facility shall:

   
   

   1. Be administered on a sound financial basis consistent with good business practices.

      
      

5. The Legislature has directed HRS to consider certain factors when determining if a penalty should be imposed and in fixing the amount of the penalty for a violation of the standards promulgated. Such factors include the gravity of the violations, corrective actions taken by the owner or administrator, previous violations and the financial benefit to the facility of committing or continuing the violation. Section 400.419(2), Florida Statutes. In accordance with such mandate, the Legislature has classified violations according to the degree of danger or the severity of harm to the residents or guests of the facility, and minimum and maximum fines are prescribed for the various classifications. Section 400.419(3), Florida Statutes. Class III violations are those which "indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than Class I or II violations." Section 400.419(3)(c), Florida Statutes. In contrast, Class I violations present an imminent danger to residents or a substantial probability that death or serious physical or emotional harm would result, and a Class II violation "directly" threatens the resident's physical or emotional health, safety or security. For Class III violations, a civil penalty of not less than $100 and not exceeding $500 may be imposed only if corrections are not made within the time specified or if the violation is a repeated offense. Section 400.419(3)(c), Florida Statutes. In addition, a fine not exceeding $500 may be imposed for violations which cannot be classified. Section 400.419(4), Florida Statutes.

   
   

6. HRS has satisfied its burden of demonstrating that, on June 17, 1986, the respondent violated the cited standards regarding food services and fiscal records. HRS has further justified its determination that these two deficiencies, occurring on June 17, 1986, constitute Class III violations. The failure to have planned, dated and posted menus for residents could indirectly or potentially threaten the physical or emotional health, safety or security of residents. Because the fiscal records relating to the financial operating status of the facility were not available for review, HRS was unable to determine the financial stability of the respondent's facility. The financial instability of a facility could indirectly or potentially threaten the security of residents.

   
   

7. In order to impose a monetary penalty for Class III violations, it must be demonstrated by HRS that the deficiency was either not timely corrected or that it constituted a repeat violation. In this proceeding, HRS failed to demonstrate that the respondent did not timely correct the two deficiencies cited. There was no evidence that HRS conducted a revisit of respondent's facility after June 17, 1986, to determine if the menu or fiscal records deficiencies had been corrected. Section 400.419(3)(c), Florida Statutes,

   requires HRS to specify the time within which a violation is required to be corrected. If corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense. Since HRS did not establish that the cited violations were not corrected within a specified time, a monetary penalty can only be imposed if it is established that these were "repeated offenses."

   
   

8. Prior to the opening of respondent's facility as an adult congregate living facility, respondent was cited for inadequate fiscal records and its lack of planned and dated menus. At the time these citations occurred, it can not be concluded that either violation indirectly or potentially threatened the physical or emotional health, safety or security of residents. There were no residents. It is difficult to imagine how fiscal records can be maintained which identify funds received and disbursed for the operation of a facility, when no funds have yet been received or disbursed and the facility is not in operation. Likewise, it is difficult to imagine how menus for regular and therapeutic diets can be planned, dated and posted for nonexistent residents.

   In short, it is concluded that, at the time of the initially cited deficiencies, they did not constitute Class III violations. HRS itself did not consider the deficiency relating to respondent's fiscal records as Class III during its initial survey.

   
   

9. Some deficiencies existing prior to the operation of an adult congregate living facility could constitute Class III violations, and thus later be subject to a penalty as a "repeated offense," or as not timely corrected.

See Vinder Homes, Inc., d/b/a The White House of Vinder Homes, Palm Harbor, Florida vs. Department of Health and Rehabilitative Services, DOAH Case No. 87- 0177 (Final Order dated August 9, 1987). In this proceeding, however, it has not been demonstrated that respondent repeatedly committed Class III offenses or failed to timely correct the cited deficiencies. Accordingly, monetary penalties are not warranted.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint be DISMISSED, without prejudice to HRS to conduct an unannounced visit to the respondent's facility to determine if the cited deficiencies have been corrected.

Respectfully submitted and entered this 6th day of October, 1987, in Tallahassee, Florida.

DIANE D. TREMOR

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 6th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1374

The proposed findings of fact submitted by the petitioner are accepted, except as follows:

2. Partially accepted; however, there was no evidence that the corrections were not timely made.

4. Accepted, but not included as irrelevant and immaterial to the issues in dispute.

COPIES FURNISHED:

Gaye Reese, Esquire Senior Attorney

Office of Licensure and Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

Aubrey E. Estes

3116 Ninth Street, East Bradenton, Florida 33508

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: 87-001374

Orders for Case No: 87-001374