STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1899

) ELINORE KOLLIGS d/b/a FAMILY ) AFFAIRS LIVING FACILITY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on July 31, 1987, at Clearwater, Florida.

APPEARANCES

For Petitioner: Gaye Reese, Esquire

7827 North Dale Mabry Tampa, Florida 33614

For Respondent: Elinore Kolligs, pro se

7127 Otter Creek Drive

New Port Richey, Florida 33553

By Administrative Complaint dated March 19, 1987, the Department of Health and Rehabilitative Services (DHRS), Petitioner, seeks to impose a civil penalty in the amount of $800 against Elinore Kolligs, d/b/a Family Living Affairs, Inc., Respondent. As grounds therefor it is alleged that Respondent failed to timely correct two Class III deficiencies (ACLF 2 and ACLF 67). By Administrative Complaint dated January 26, 1987, Petitioner seeks to impose a civil penalty of $250 against Respondent. As grounds therefor it is alleged that Respondent had a repeat deficiency from the April, 1985 survey again found during the April, 1986 survey (ACLF 27).

At the hearing Petitioner called two witnesses, Respondent testified in her own behalf and sixteen (16) exhibits were admitted into evidence.

Proposed findings have been submitted by Petitioner. Treatment accorded those proposed findings are contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Following an April, 1985 inspection of the ACLF known as Family Affairs, Respondent timely obtained certificates for its two employees viz. Elinore Kolligs and Kathy Cisterna showing them free from communicable diseases and presented these certificates at the follow up inspection to satisfy the cited deficiency.

   
   

2. Those two employees were employed during the April, 1986 annual inspection which resulted in a repeat citation for the same alleged violation,

   i.e. no certification that the employees were free from communicable disease. There is no requirement that employees of an ACLF obtain certificates annually that they are free from communicable diseases. The fact that documentation had been provided to DHRS following the April, 1985 inspection that these same employees cited in 1986 were free from communicable diseases should have carried over to the 1986 inspection.

   
   

3. Exhibit 3 lists three employees under ACLF 26, the third being Virginia Sumter who worked as a volunteer at the facility. Ms. Sumter was a former resident at the facility who had provided a certificate that she was free of communicable diseases when she entered as a resident. In this connection during the proceedings Respondent inquired of Petitioner's witness if non-paid volunteers required certificates showing them free from communicable diseases and the response was in the affirmative. When asked if this also applied to Boy or Girl Scouts who worked at the ACLF as volunteers no satisfactory answer was forthcoming.

   
   

4. One of the two uncorrected violations listed in the Administrative Complaint dated March 19, 1987 is that Respondent had six residents when the facility was licensed for only five (ACLF 2). This violation was noted at the April 14 inspection and also at a follow up inspection on July 14, 1986. The house in which this facility is located is large and on a minimum square feet per resident basis can accommodate nine residents.

   
   

5. On March 18, 1986, before the April, 1986 inspection, Respondent obtained zoning approval from the City of Clearwater to increase the capacity of the ACLF to seven persons (Exhibit 15). Respondent had also communicated with the ACLF Program Manager in Petitioner's Jacksonville office and had been assured that her application to increase the licensed capacity to six residents would be approved.

   
   

6. By letter dated May 14, 1986, (Exhibit 10) Respondent was advised by Petitioner that at the time of the April 14, 1986 survey an appraisal for the application to increase licensed capacity from five to six was conducted and the facility met all standards related to the increase.

   
   

7. By letter dated May 29, 1986, Petitioner acknowledged that notice of approval of the application to increase the licensed capacity had been received and a recommendation approving the increase had been forwarded to the Office of Licensure and Certification in Jacksonville, Florida (Exhibit 16). By letter dated July 21, 1986, Respondent was issued a new license authorizing six residents at the facility.

   
   

8. During the survey conducted on April 14, 1986 the facility did not have a week's supply of non-perishable food on hand as required (ACLF 67) and this deficiency remained uncorrected at the follow up inspection on July 14, 1986. Respondent acknowledged that during that period Mrs. Kolligs' daughter was

   injured in an accident, that Mrs. Kolligs devoted much time to her daughter and authorized the cook to use the emergency supplies if necessary due to the curtailment of Mrs. Kolligs' shopping time.

   
   

9. Subsequent to the July, 1986 re-inspection Mrs. Kolligs sold the facility and no longer operates this ACLF.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 400.019, Florida Statutes authorizes the Department to assess a fine against an ACLF such as Respondent for failure to timely correct Class III violations. Subparagraph (2) thereof provides:

    
    

    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:

    1. 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.

    2. Actions taken by the owner or administrator to correct violations.

    3. Any previous violations.

    4. The financial benefit to the facility of committing or continuing the violation.

       
       

12. Subparagraph (3) of this section provides in part that a Class III violation is subject to a civil penalty of not less than $100 and not exceeding

    $500 for each violation.

    
    

13. Applying these standards to the facts found in this case the repeated violation regarding certification of employees as free from communicable diseases had been verified by DHRS inspectors as corrected in 1985 and the same employees were still employed in 1986. Accordingly, the 1986 survey was, in this regard, incorrect and Petitioner's records disclosed this error.

    Apparently the proposed fine is levied solely because Respondent failed to produce and show the certificates to the inspector at the time of the survey not because the certificates had not been obtained. The proposed $250 for this violation should be dismissed.

    
    

14. With respect to the violation alleging six residents were occupying the facility while licensed for five, the facts above found show that at most this was a mere technical violation. More prompt action by DHRS personnel in processing the application would have led to the issuance of the six resident license before the July 14, 1986 re-inspection. At the time of this re- inspection Respondent had an application for increase in residents pending, had been assured that the facility met all the requirements for the increased number of residents, knew that the application had been recommended for approval, and the only thing holding up the issuance of the new license was bureaucratic

    delay. The new license was issued one week after the July 14 re-inspection. Under these circumstances no occasion for imposing a penalty on Respondent for this alleged violation exists.

    
    

15. With respect to the violation involving emergency provisions, the possibility that violation occurred was acknowledged by Respondent. In mitigation thereof Mrs. Kolligs testified, in addition to the diversion due to her daughter's accident, that there was an additional food storage locker in the laundry room. That space was not checked by the nutritionist during the inspection. In this regard it is to be noted that the location of the food storage facilities is not something incumbent on the surveyor to ferret out but something to be pointed out by the facility owner or administrator. However, when the gravity of this violation is weighed by the statutory criteria above noted an appropriate fine would be $200.

    
    

16. From the foregoing it is concluded that Respondent had no repeat violation of ACLF 27 as alleged; that, under the circumstances, the mere technical violation of ACLF 2 merits the imposition of no fine; and that an appropriate fine for failing to timely correct ACLF 67 is a fine of $200. It is

RECOMMENDED that Respondent be assessed a fine of $200 for failure to have the prescribed non-perishable food on hand during the survey conducted April 14, 1986 and again at the re- inspection on July 14, 1986, and that all other charges be dismissed.

ENTERED this 14th day of August, 1987, in Tallahassee, Florida.

K. N. AYERS, 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 14th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1899

Treatment accorded Petitioner's proposed findings of fact:

1. It is a fact that the Department alleges (indicates) two Class III deficiencies were uncorrected at the July 14, 1986 re-inspection.

2. Also accepted as a fact.

3. Also accepted as a fact.

4. Accepted, while the laundry facilities were in the same space as one bedroom the laundry facilities were separated from the bedroom by a curtain or screen.

5. Accepted insofar as consistent with Hearing Officer #5.

6. Rejected as irrelevant.

7. Accepted.

8. Accepted. Letter speaks for itself.

9. Included in Hearing Officer #8.

10. Included in Hearing Officer #8.

11. Accepted insofar as included in Hearing Officer #1, 2 and 3. Otherwise rejected as mere testimony of witnesses or speculation.

COPIES FURNISHED:

Gaye Reese, Esquire 7827 North Dale Mabry Tampa, Florida 33614

Elinore Kolligs

7127 Otter Creek Drive

New Port Richey, Florida 33553

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

John Miller, Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Docket for Case No: 87-001899

Orders for Case No: 87-001899