STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5661

)

ELIZABETH JOSEPH, )

d/b/a Jas Manor, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on February 10, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire

Department of Health and Rehabilitative Services

5190 North West 167th Street Miami, Florida 33014

For Respondent: Elizabeth Joseph, pro se

Administrator, Jas Manor 645 North East 131st Street North Miami, Florida 33161

BACKGROUND

Respondent operates an adult congregate living facility, commonly termed a retirement home, pursuant to a license issued and conditioned by Petitioner. A condition of Respondent's license is a limit on the number of individuals who may reside in the Respondent's facility. Petitioner issued an administrative complaint alleging Respondent had exceeded the licensed number of permitted residents. As part of the administrative complaint, Petitioner sought to impose a $300 administrative penalty upon the Respondent. At request of the Respondent, this administrative hearing followed.

At hearing, the Petitioner submitted two exhibits and the testimony of one witness. Respondent presented the testimony of two witnesses and one composite evidentiary exhibit. Proposed findings of fact submitted by the Petitioner are addressed in the appendix to this recommended order. No proposed findings were submitted by Respondent.

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

FINDINGS OF FACT

1. The Petitioner is the Department of Health and Rehabilitative Services.

   
   

2. The Respondent is Elizabeth Joseph, licensed at all times pertinent to these proceedings to operate Jas Manor, an adult congregate living facility in Miami, Florida.

   
   

3. Petitioner's employee, Elizabeth Baller, conducted an inspection of the Respondent's facility on September 18, 1986, and discovered seven persons in residence. This number of individuals exceeded the licensed capacity of Respondent's facility by one person. Ms. Baller recited the initials of those residents present in Respondent's facility on that date. Respondent's composite exhibit number 1, consisting of what are alleged to be copies of admission and discharge records, corroborates Ms. Baller's finding. The Respondent was not present at the facility at the time of this inspection.

   
   

4. The failure of the Respondent to limit the capacity of the facility to no more than six residents posed a potential threat to the well-being of the residents. The existence of the deficiency finding was discussed with the Respondent by Baller via telephone on September 26, 1986.

   
   

5. Ms. Baller did not visit Respondent's facility on September 24, 1986 and is without any direct personal knowledge that the number of residents in the facility on that date exceeded the licensed capacity. In the absence of such direct testimony, Petitioner exhibit number 1, alleged to be a statement of deficiencies issued by Petitioner, is not corroborative or credited with probative value as to the existence of any deficiency of the licensed facility on September 24, 1986.

   
   

6. Petitioner exhibit number 1 does not conform to the statutory requirements for a class III deficiency citation as specified in section 400.419(3)(c), Florida Statutes, in that the exhibit fails to set forth the time within which the deficiency is to be corrected.

   
   

7. Ms. Baller conducted a follow up visit on November 21, 1986, which, she contends, revealed seven residents in the facility, and a continuation of the violation cited previously in September. This contention of Ms. Baller is not supported by the weight of the evidence. Respondent's denial of the continuation of the deficiency at that time is supported by the testimony of Christine Sassone who regularly visits the facility on behalf of the church attended by her and Respondent.

   
   

8. Ms. Sassone works with the residents of Respondent's facility, teaching arts and crafts there every evening, Monday through Friday, from 3:30 or 4 P.M. until 8:30 or 9:00 P.M. She was present at the facility on September 18 and November 21, 1986. She attests that there were only six residents present on either occasion. It is her testimony that individuals in excess of the licensed capacity on both of the dates in question may have been visitors from a neighboring facility known as the "Vet's Nest" which abuts Respondent's property. While discounting Sassone's unsupported testimony regarding the number of residents present on September 18, 1986, her testimony and that of the Respondent establish the fact that only six residents were present at the time of the follow up visit by Baller. Notably, Respondent's exhibit number 1 which supported the Petitioner's finding of seven residents in Respondent's facility

   on September 18, 1986, corroborates the testimony of Respondent and Ms. Sassone establishing that such deficiency was cured by November 21, 1986.

   
   

9. The evidence fails to establish that the violation of Respondent discovered on September 18, 1986, was a repeat offense. It is found that the offense was not a repeat offense.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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).

    
    

11. While the Respondent violated a condition of her license by permitting a class III deficiency to exist at the time of the September 18, 1986, inspection by Ms. Baller, the proof fails to establish that such deficiency existed at the time of the follow-up visit on November 21, 1986. Further, it is concluded that such violation was not a repeat offense by the Respondent. No civil penalty should be imposed since the class III deficiency was not a repeat offense, was not proven to exist at the time of the follow-up visit, and was corrected in the absence of any proven specified time frame. Section 400.419(3)(c), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Department of Health and Rehabilitative Services enter a

final order finding the commission of a class III violation by Respondent, but

assessing no civil penalty for the violation.

DONE AND RECOMMENDED this 11th day of March, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 11th day of March, 1988.

APPENDIX

The following constitutes my specific rulings on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS

1. Included in findings 2 and 3.

   
   

2. Included in finding number 3, except for the last sentence relating to the visit of November 21, 1986. This sentence is rejected as not supported by the weight of the evidence.

   
   

3. Included in finding number 3 and 9, except for the last sentence which is rejected.

   
   

4. Rejected as unnecessary.

COPIES FURNISHED:

Leonard T. Helfand, Esquire Department of Health and

Rehabilitative Services 5190 N.W. 167th Street Miami, Florida 33014

Elizabeth Joseph Administrator Jas Manor

645 N.E. 131st Street North Miami, Florida 33161

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

John Miller, Esquire Department of Health and

Rehabilitative Serviced 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power HRS Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 87-005661

Orders for Case No: 87-005661