Judges: WILLIAM F. QUATTLEBAUM
Agency: Agency for Health Care Administration
Latest Update: Oct. 04, 1988
Summary: Adult Congregate Living Facility fined for fire code violations and other operational failure.
87-5649STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 87-5649
) 87-5652
ALFRED Q. GREGORY d/b/a )
ENON COUNTRY MANOR, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for formal administrative hearing on July 29, 1988, before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Michael O. Mathis, Esquire
Senior Staff Attorney Department of Health and
Rehabilitative Services
Office of Licensure and Certification 2727 Mahan Drive
Tallahassee, Florida 32308 For Respondent: none
BACKGROUND AND INTRODUCTION
On November 16, 1987, the Department of Health and Rehabilitative Services (Department) separately issued two administrative complaints against the Respondent, PDRL No. I-87-721 ACLF and PDRL No. I-87-722 ACLF. The Respondent timely requested formal administrative hearings on the complaints. The Department forwarded the requests to the Division of Administrative Hearings.
The hearings were scheduled and appropriately noticed. Upon motion of the Department, the two cases, 87-5649 (PDRL No. I-87-722 ACLF) and 87-5652 (PDRL No. I-87-721 ACLF), were consolidated for hearing.
At the hearing, the Department presented the testimony of James Temkin and Richard Glover, and had eight exhibits admitted into evidence. The Respondent made no appearance, nor was any appearance made on his behalf, at the hearing. Rule 221-6.033, Florida Administrative Code, provides that failure to appear at the final hearing shall be grounds for entry of a recommended order of dismissal.
On October 15, 1988, the Department moved for an extension of the deadline set for the filing of proposed recommended orders. The motion was considered
and denied based on insufficient grounds. The Department timely filed a proposed recommended order. The Respondent filed no submission. The Department's proposal received due consideration during the preparation of this order. The proposed findings of fact are ruled upon in the appendix which is attached and hereby made a part of this order.
The issue in this case is whether the Respondent violated certain statutes and rules as alleged in the administrative complaint and if so, to what extent a penalty should be imposed.
FINDINGS OF FACT
At all times relevant to this matter, the Respondent was appropriately licensed by the Petitioner to operate an adult congregate living facility (ACLF), Enon Country Manor, in Pensacola, Florida.
CASE NO. 88-5652
On October 9, 1986, an authorized representative of the Petitioner, James H. Temkin, a fire protection specialist, performed a complete routine fire safety inspection of Enon Country Manor. Mr. Temkin testified at the hearing following qualification as an expert witness in fire safety.
During the October 9 inspection, Mr. Temkin found eleven deficiencies in the facility's compliance with fire safety regulations of the Petitioner.
Mr. Temkin discussed the deficiencies with the Respondent and established a timeframe for the correction of the deficiencies.
On December 9, 1986, Mr. Temkin again inspected the facility to determine whether the previously identified deficiencies had been timely corrected. At that time three deficiencies remained uncorrected. The remaining deficiencies were the lack of a documented fire safety plan including fire drills and alarm tests, the lack of steel supports for ceiling access panels, and the lack of one-hour fire rated construction of certain walls and ceilings including the inability to inspect certain locked rooms to which entry was not made available.
The lack of a documented fire safety plan is a violation of Rules 10A- 5.023(15)(a), 4A-40.013, 4A-40.014 and 4A-40.017, Florida Administrative Code.
The lack of steel supports for ceiling access panels is a violation of Rules 10A-5.023(15)(a) and 4A-40.005, Florida Administrative Code.
The lack of one-hour fire rated construction is a violation of Rules 10A-5.023(15)(a) and 4A-40.005, Florida Administrative Code.
The three deficiencies are classified as Class III violations under Section 400.419(3), Florida Statutes, which provides for the classification of violations of the ACLF operational standards established by the Department. Class III violations, are subject to a penalty of not less than $100.00 or more than $500.00 for each violation.
The Petitioner has determined that in light of the nature of the violations and the prior history of the facility that a penalty of $250.00 for each of the three violations, or a total of $750.00, should be imposed. No evidence was presented to indicate that such a penalty was not warranted.
CASE NO. 88-5649
On October 29, 1986, an authorized representative of the Petitioner, Richard Glover, performed a general operational inspection of Enon Country Manor for relicensure purposes. Mr. Glover testified at the hearing following qualification as an expert witness in general ACLF operations.
During the October 29 inspection, Mr. Glover identified seventeen deficiencies in the facility's compliance with the operational standards regulations of the Petitioner.
Mr. Glover discussed the deficiencies and established a timeframe for the correction of the deficiencies.
On or about December 11, 1986, Mr. Glover again inspected the facility to determine whether the previously identified deficiencies had been timely corrected. At the time four deficiencies remained uncorrected. The remaining deficiencies included the failure of the facility to make fiscal records available for inspection, the failure to maintain a facility staff work schedule, the failure to maintain employee time sheets, and the failure to maintain a written kitchen cleaning schedule.
The failure to make available the fiscal records of the facility is a violation of Rule 10A-5.024(1)(f), Florida Administrative Code.
The failure to maintain a facility staff work schedule is a violation of Rule 10A-5.024(1)(a)(6), Florida Administrative Code.
The failure to maintain employee time sheets is a violation of Rule 10A-5.024(1)(a)(7), Florida Administrative Code.
The failure to maintain a written kitchen cleaning schedule is a violation of Rule 10A-5.020(1)(m), Florida Administrative Code.
The failure to maintain a written kitchen cleaning schedule is a Class III violation under Section 400.419(3), Florida Statutes, and is subject to a penalty of not less than $100.00 or more than $500.00 for each violation. The Petitioner has determined that a fine of $100.00 is appropriate and no evidence was received which would indicate otherwise.
As to the remaining violations, under the provisions of Section 400.419(4), Florida Statutes, they are unclassified and subject to a penalty not to exceed $500.00 for each violation. The Petitioner has determined that a fine of $250.00 should be imposed for the failure to make available the fiscal records, and that fines of $150.00 should be imposed for each of the two remaining violations. There was no evidence received which would indicate that such penalty was not appropriate.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57, Florida Statutes.
The Petitioner is authorized to impose penalties on operators of adult congregate living facilities found to be in violation of certain statutes and
rules. Section 400.419(1), Florida Statutes. The burden of proof is on the Petitioner to establish that the facts alleged in the administrative complaint were correct and that the facts constitute a violation of the statutes and rules. In this case, the Petitioner has met the burden.
RECOMMENDATION
Based on the foregoing findings of fact, conclusions of law and failure of the Respondent to appear at hearing, it is
RECOMMENDED:
That the Department of Health and Rehabilitative Services enter a Final Order imposing against the Respondent an administrative fine of $750.00 in Case No. 87-5652 and an administrative fine of $650.00 in Case No. 87-5649.
DONE and ENTERED this 4th day of October, 1988, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
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 4th day of October, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5649 AND 87-5652
The Petitioner's proposed findings of fact were accepted as modified and reflected in the findings of fact in the Recommended Order.
COPIES FURNISHED:
Michael O. Mathis, Esquire Senior Staff Attorney Department of Health and
Rehabilitative Services Office of Licensure and
Certification 2727 Mahan Drive
Tallahassee, Florida 32308
Alfred Q. Gregory Enon County Manor 7000 Lindskog Street
Pensacola, Florida 32506
Sam Power, HRS Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
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: 87-005649
Orders for Case No: 87-005649
| Issue Date |
Document |
Summary |
|
Oct. 20, 1988 |
Agency Final Order
|
|
|
Oct. 04, 1988 |
Recommended Order
|
Adult Congregate Living Facility fined for fire code violations and other operational failure.
|
