STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5028

)

1. D. TERRY, d/b/a GOLDEN )

   PARADISE, )

   )

   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 September 26, 1988, in Delray Beach, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Leonard T. Helfand, Esquire

   North Tower, Room 526

   401 Northwest Second Avenue Miami, Florida 33128

   
   

   For Respondent: John W. Carroll, Esquire

   Post Office Box 31794

   Palm Beach Gardens, Florida 33410 BACKGROUND

   By administrative complaint dated October 5, 1987, petitioner, Department of Health and Rehabilitative Services, charged that respondent, L. D. Terry, d/b/a Golden Paradise, had violated Section 400.419, Florida Statutes (1985), by having failed to timely correct eleven Class III deficiencies and one unclassified deficiency in his adult congregate living facility after an agency inspection on June 9, 1986. For these infractions, the agency proposed to impose a $2,350 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 November 9, 1987 with a request that a hearing officer be assigned to conduct a hearing. On December 21, 1987 petitioner filed a motion requesting leave to file an amended complaint. This motion was granted on September 19, 1988. The amended complaint added a deficiency inadvertently omitted from the original complaint and made a total of twelve alleged Class III violations by respondent.

   
   

   By notice of hearing dated May 18, 1988, a final hearing was scheduled on June 10, 1988 in Delray Beach, Florida. The matter was later rescheduled to June 30, 1988 at the same location. At the parties' request, it was rescheduled

   to September 14, 1988 and then again to September 26, 1988 at Delray Beach, Florida. On September 16, 1988 the case was reassigned from Hearing Officer James E. Bradwell to the undersigned.

   
   

   At final hearing, petitioner presented the testimony of James Valinoti, an HRS inspector, and offered petitioner's exhibits 1-4. All exhibits were received in evidence. Respondent testified on his own behalf and presented respondent's exhibits 1-3. All exhibits were received in evidence.

   
   

   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 $2,350 civil penalty imposed for the alleged violations set forth in the amended administrative complaint.

   
   

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

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, L. D. Terry, operates a thirty-bed adult congregate living facility under the name of Golden Paradise at 1200 Old Dixie Highway, Delray Beach, 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 June 9, 1986 James Valinoti, an HRS inspector, conducted a routine annual license renewal inspection of respondent's facility in the presence of the facility's administrator, Katherine Stevens. The inspection focused on all aspects of the facility's operations, including safety, physical plant, recordkeeping and sanitation. It was Valinoti's purpose to determine if the facility was in compliance with various requirements of Chapter 10A-5, Florida Administrative Code (1987)

      
      

   3. During the course of his inspection, Valinoti observed the following deficiencies:

      
      

      1. The facility did not document and place in its records the services delivered by a third party contractor (nurse) as

         required by Rule 10A-5.024(1)(a)4., FAC.

      2. The facility employed three or more staff but did not maintain a record of personnel policies, including state- ments of work assignments for each position as required by Rule 10A-5.024 (1)(a)5., FAC.

      3. The facility did not maintain a time sheet for all employees as required by Rule 10A-5.024(1)(a)7., FAC.

      4. The respondent failed to assure that there was at least one staff member within the facility at all times who had a certification in an approved first aid course and that the staff was free of communicable diseases as required by Rule 10A-5.019(5)(f), FAC.

      5. The facility failed to furnish each staff member with a copy of written policies governing conditions of employment including the work assign- ments of his position as required by Rule 10A-5.019(5)(h), FAC.

      6. The resident contract did not contain a refund policy if transfer of ownership, closing of facility or resident discharge should occur as required by Rule 15.024(1)(b)1., g., FAC.

      7. The facility failed to note in the residents' records the disposition of drugs after a resident had left the facility as required by Rule 10A- 5.0182(3)(a)7., FAC.

      8. The facility had no policies or pro- cedures for assisting residents in the making of appointments or providing transportation to and from appropriate medical, dental, nursing or mental health services as required by Rule 10A-5.0182(8) and (9), FAC.

      9. The facility did not participate in continuing in-service education on an annual basis at a minimum as required by Rule 10A-5.020(1)(c), FAC.

      10. The dietary allowances were not met 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 as required by Rule 10A-5.020 (1)(g), FAC.

      11. There was evidence of rodent dropping in the food storage room in violation of Rule 10A-5.020(1)(n)1. and 5., FAC.

      12. The facility did not assure that food service employees were free of communicable disease as required by Rule 10A-5.020(1)(n)15., FAC.

      13. Linoleum in the facility was peeling causing a tripping hazard and sinks

          and toilets were rusted in violation of Rule 10A-5.022(1)(a),(c), and (g), FAC.

          
          

          With the exception of item (a), which was unclassified, all deficiencies were Class III violations.

          
          

   4. After the inspection was completed, Valinoti discussed the deficiencies with the administrator and suggested ways to correct them. A letter was then prepared by the HRS area supervisor on July 23, 1986 and mailed the same date to Terry with a copy of the Classification of Deficiencies. That document provides a description of each deficiency, the class of deficiency and the date by which the deficiency must be corrected. Except for a requirement that the deficiency pertaining to rodent droppings be corrected immediately, Terry was given thirty

      days, or to August 23, 1986, in which to correct the cited deficiencies. Terry acknowledged he received a copy of the letter and attachments.

      
      

   5. On September 24, 1986 Valinoti reinspected respondent's facility. He found that none of the items had been fully correct. By letter dated September 29, 1986 HRS advised Terry of its findings and warned him that a "recommendation for sanction" would be made. It advised him further that another inspection would be made after October 29, 1986.

      
      

   6. On October 30, 1986 Valinoti made a second follow-up visit to respondent's facility. Valinoti found that all items had been corrected except item (j). The results of his inspection were reduced to a written report on November 13, 1986, a copy of which was sent to Terry. A year later, an administrative complaint against respondent was issued by HRS.

      
      

   7. Terry acknowledged, through admissions or testimony at hearing, that most of the allegations were correct but offered mitigating testimony as to why certain corrections were not made on a timely basis. When he purchased his facility in 1982, it was in a state of disrepair through neglect by the previous owner. Since then, he has attempted to upgrade the facility through a series of repairs and renovations. He currently has nineteen residents, most of whom were referred from a nearby mental health center. A mental patient is more difficult to care for, and this type of patient is prone to tear up furniture and equipment. Terry pointed out that he has only three employees, and they fully understand their duties and responsibilities. For this reason, he did not have documentation outlining their job assignments. When the June 9 inspection was made, Terry contended that HRS was in the process of implementing new rules, which he did not identify, and which he claims he did not understand. As evidence of his good faith, Terry pointed to the fact that all deficiencies except one were corrected by October 30, 1986.

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

      
      

   9. The amended administrative complaint charges respondent with violating Section 400.419, Florida Statutes (1987), by failing to be in compliance with numerous provisions within Rules 10A-5.0182, 10A-5.019, 10A-5.020, 10A-5.022 and 10A-5.024, Florida Administrative Code (1987). These rules govern adult congregate living facilities and relate specifically to resident care standards, staffing standards, facility maintenance and housekeeping standards and recordkeeping requirements, respectively.

      
      

   10. Under the statutory scheme in Section 400.419, Florida Statutes (1987), 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 may require the licensee to submit a plan of corrective action. In this case, a date certain of August 23, 1986 was established, thereby giving the licensee some seven weeks to correct the deficiencies. The evidence reflects that none of the thirteen deficiencies were corrected as of September 24, 1986. This being so, it is concluded that the agency has sustained the charges in the amended administrative complaint.

   11. Respondent is guilty of twelve Class III violations and one unclassified violation. The penalty for each such violation is set forth in Subsections 400.419(3)(c) and (4), Florida Statutes (1987), which read as follows:

(3)(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 poten- tially 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 viola- tion. 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.

(4) The department may set and levy a fine not to exceed $500 for each violation which cannot be classified according to subsection (3).

Subsection 400.419(2), Florida Statutes (1987), 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 nature of the deficiencies and respondent's efforts to correct the same, a $100 civil fine for each Class III violation, and a $50 fine for the unclassified violation, or a total of $1,250 is appropriate.

RECOMMENDATION

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

and one unclassified violation and that he be assessed a $1,250 civil fine to be paid within thirty days after the date of the final order entered in this matter.

DONE AND ORDERED this 5th day of October, 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 5th day of October, 1989.

COPIES FURNISHED:

Leonard T. Helfand, Esquire North Tower, Room 526

401 Northwest Second Avenue Miami, Florida 33128

John W. Carroll, Esquire Post Office Box 31794

Palm Beach Gardens, Florida 33410

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

Tallahassee, Florida 32399-0700

Docket for Case No: 87-005028

Orders for Case No: 87-005028