STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4669

) JOHN L. VISCELLI, d/b/a SOUTH ) MOOR 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 January 8, 1988, in Hollywood, Florida.

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire

5190 Northwest 167th Street Miami, Florida 33014

For Respondent: John L. Viscelli, pro se

1722-26 Madison Street

Hollywood, Florida 33020 BACKGROUND

By administrative complaint dated October 5, 1987, petitioner, Department of Health and Rehabilitative Services, has charged that respondent, John L. Viscelli, d/b/a South Moor Retirement Home, had violated Section 400.419, Florida Statutes (1985), by having failed to timely correct two Class III deficiencies in his adult congregate living facility after an agency inspection. For this infraction, the agency has proposed to impose a $1,000 civil penalty.

Thereafter, respondent requested a formal hearing to contest the allegations. The matter was referred to the Division of Administrative Hearings by petitioner on October 23, 1987 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated November 19, 1987, a final hearing was scheduled on January 8, 1988 in Hollywood, Florida. At final hearing, petitioner presented the testimony of Mildred Hipsman, an HRS clinical dietician, and offered petitioner's exhibits 1 and 2. Both exhibits were received in evidence. Exhibit 1 is the deposition of Martha M. Perez, a former HRS nutritional consultant, while exhibit 2 is a copy of her notes. Respondent testified on his own behalf and presented the testimony of his wife, Rita Viscelli.

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

At issue is whether respondent should have a $1,000 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, John L. Viscelli, operates a twenty-five bed adult congregate living facility under the name of South Moor Retirement Home at 1722-

   26 Madison Street, Hollywood, 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. Viscelli serves as administrator of the facility.

   
   

2. On or about March 14, 1986, Martha M. Perez, then an HRS nutritional consultant, conducted a routine annual inspection of respondent's facility in the presence of the facility's cook/manager, John Logan. The inspection focused on the facility's food service section which consisted of a kitchen area and an adjoining dining room. It was Perez' purpose to review required documentation which would show if the facility was in compliance with certain requirements of Chapter 10A-5, Florida Administrative Code (1987).

   
   

3. Perez first requested documentation to demonstrate that all food service personnel had received proper orientation, training and supervision. This type of documentation is normally kept in the personnel files of the employees, and insures that such employees have been properly trained in such duties as preparing food, controlling the portions served, preparing a menu and using proper hygiene. No such documentation was on file for any employee as required by Rule 10A-5.020(1)(b), Florida Administrative Code (1987). Perez next asked for documentation to verify that "food service was coordinated with other services" as required by the same rule. This type of documentation is normally found in a "staffing plan" and is required whenever an employee is involved in more than one facility service, including food. Its purpose is to assure that no cross-contamination occurs when an employee comes from another work area to the food service area. Again, no such records were produced. Perez then inspected the kitchen area facilities to determine if all "duties were being performed in a safe and sanitary manner" as required by the same rule. She detected numerous violations of Chapter 10D-13, Florida Administrative Code (1987), which governs this type of facility as well as commercial food establishments. For example, she found food improperly stored

   in the refrigerator, no thermometer on the refrigerator and a torn gasket on the refrigerator. She also noted such deficiencies as greasy and soiled pots and pans, glasses being carried by employees with their fingers inside the glasses, a cat in the kitchen area, and dirty and moldy plastic wares. All constituted a violation of Chapter 10D-13 standards. Perez next asked to see the facility's standardized recipes but was told there were none. These recipes must show such things as the foods involved, method of preparation, total yield in portion size, and the quantities necessary to meet the facility's requirements. The recipes are required by Rule 10A-5.020(1)(b), Florida Administrative Code (1987). The facility was also unable to provide documentation showing that appropriate substitutes of food with comparable nutritive value were planned and offered when a resident refused food, and that food adapted to the food habits, preferences and physical abilities of residents was being served. Such

   documentation is required by the same rule. Collectively, the above deficiencies constituted two Class III violations, or violations which indirectly or potentially threatened the physical or emotional health, safety and security of the residents. During the same visit, Perez explained and discussed all such deficiencies with Logan. She also told Logan that such deficiencies would have to be corrected by a date certain and that a repeat inspection would occur within the next few months to verify if corrections had been made.

   
   

4. Perez thereafter prepared a typed report known as a "Notification of Deficiencies" which detailed the findings of her inspection. A copy of same was mailed to Viscelli on an undisclosed date. At hearing, Viscelli acknowledged receiving the same. According to the Notice, Viscelli had until May 4, 1986 in which to correct all deficiencies.

   
   

5. A follow-up visit was made by Perez in the presence of Logan on July 7, 1986. On that visit, she found that most of the previously cited deficiencies had not been corrected. More specifically, she found numerous Chapter 10D-13 deficiencies in the kitchen area which indicated that the duties were not being performed in a safe and sanitary manner. She noted further a lack of standardized recipes. There was also no coordination of food service duties with other services and a lack of documentation to show that food service personnel received orientation, training and supervision. Perez again discussed these violations with Logan and told him that a further inspection would be made.

   
   

6. On September 10, 1986 Perez visited respondent's facility for a third time. She found essentially the same deficiencies that had been noted in her two prior inspections.

   
   

7. On January 7, 1987 Mildred Hipsman, an HRS clinical dietician, made a full survey inspection of respondent's facility. She found the same violations that Perez had noted during her three visits in 1986. These deficiencies were discussed at length with Logan, who was present during the inspection. Some nine months later, HRS issued the administrative complaint which triggered this proceeding.

   
   

8. Viscelli acknowledged that he was aware of the cited deficiencies. He spoke with Perez on several occasions in 1986 in an attempt to learn what type of documentation he was required to have. However, even at the time of hearing, his "standardized" recipes did not comply with HRS rules. Viscelli stated that, because of the facility's small size, he could not afford a full-time dietician to advise him on how to prepare certain documentation. He also suggested that some of the rule requirements were not realistic given the size of his facility. Both he and his wife pointed out that, despite the lack of standardized menus, all residents are well-fed. Viscelli offered no explanation for the other deficiencies cited by HRS inspectors.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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).

   
   

10. The administrative complaint charges respondent with violating Subsection 400.419(3)(c), Florida Statutes (1985), by failing to be in

    compliance with Rule 10A-5.020(1)(b) and (g), Florida Administrative Code (1987). This rule provides as follows:

    
    

    10A-5.020 Food Service Standards. The facility shall have written policies and procedures for providing proper nutritional care of its residents, whether provided by the facility or a third party.

    1. When food service is provided by the facility the following requirements shall be met:

       * * *

       (b) The administrator or designated person shall be responsible for coordinating food services with other services; developing work assignments; purchasing food, and orienting, training and supervising food service employees.

       * * *

       (g) The dietary allowances shall be met by offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents and prepared by the use of standardized recipes.

       * * *

       
       

11. Under the statutory scheme in Section 400.419, Florida Statutes (1985), after finding a licensee in violation of those standards prescribed in Chapter 10A-5, Florida Administrative Code (1987), HRS may fix a date certain by which the licensee must correct the deficiencies, or it may require the licensee to submit a plan of corrective action. In this case, a date certain of May 4, 1986 was established, thereby giving the licensee almost two months to correct the deficiencies. The evidence reflects that the deficiencies were still not corrected on January 7, 1987, and at least one deficiency (standardized menus) had not been corrected at the time of hearing (January 8, 1988). This being so, it is concluded that respondent is guilty as charged in the administrative complaint.

    
    

12. Respondent is guilty of two Class III violations. The penalty for each such violation is set forth in Subsection 400.419(3)(c), Florida Statutes (1985), which reads 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 a class III violation is corrected within the time

specified, no civil penalty may be imposed, unless it is a repeated offense.

However, Subsection 400.419(2), Florida Statutes (1985), prescribes the criteria to be considered when assessing a fine. They are as follows:

1. 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.

Given the continuing nature of the violations over a lengthy period of time, the

$1,000 civil penalty proposed in the administrative complaint is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of two Class III violations and

that he be assessed a $500 civil fine for each violation, to be paid within thirty days after the date of the final order entered in this matter.

DONE AND ORDERED this 14th day of January, 1988, 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 14th day of January, 1988.

COPIES FURNISHED:

Leonard T. Helfand, Esquire 5190 Northwest 167th Street Miami, Florida 33014

John L. Viscelli

1722-26 Madison Street

Hollywood, Florida 33020

R. S. Power, Esquire Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Docket for Case No: 87-004669

Orders for Case No: 87-004669