STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONTICELLO RETIREMENT HOTEL, )

)

Petitioner, )

)

v. ) CASE NO. 88-1677

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 5, 1988, in St. Petersburg, Florida. The issue for determination in this proceeding is whether petitioner, Monticello Retirement Motel, is entitled to licensure as an adult congregate living facility.

APPEARANCES

For Petitioner: Gregory H. Fisher, Esquire

149 Central Avenue

St. Petersburg, Florida 33701

For Respondent: Edward A. Haman, Esquire

Senior Attorney Department of Health and

Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614

INTRODUCTION

In support of its position of entitlement to licensure as an adult congregate living facility, the petitioner presented the testimony of Minnie L. Nance and Charles W. Nance. No documentary evidence was offered by the petitioner.

The respondent presented the testimony of Diane Cruz, a Human Services Program Analyst; Mary Cook, a Senior Public Health Nutritionist; Gordon McMichael and Robert L. Scharnweber, both of whom are Fire Protection Specialists. Respondent's Exhibits 1 through 3 were received into evidence.

Subsequent to the hearing, both parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not included or summarized in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. In August of 1987, the petitioner submitted an initial application for licensure as an adult congregate living facility. With advance notice to the petitioner, a survey team from the Department of Health and Rehabilitative Services' Adult Congregate Living Facility Program went to the petitioner's facility on September 28, 1987, to conduct a survey to ensure that the facility was in compliance with the minimum standards for licensure. The then- administrator, Kevin Nance, and the owner of the facility, Minnie Nance, were present while the survey was being conducted.

   
   

2. The survey conducted on September 28, 1987, resulted in a finding of some 44 Class III deficiencies. A Class III deficiency or violation is defined as a condition or occurrence related to the operation and maintenance of a facility or to the personal care of residents which the Department determines indirectly or potentially threatens the physical or emotional health, safety or security of facility residents. The deficiencies found related to administration, management and staffing standards, admission criteria and resident standards, food service standards, resident and personnel records and fire safety standards.

   
   

3. Prior to leaving the facility on September 28, 1987, the HRS survey team conducted an exit interview with Kevin and Minnie Nance, discussed the deficiencies found during the survey, and mutually arrived at dates upon which the deficiencies were to be corrected. It was agreed that the deficiencies should and would be corrected on or before various dates, ranging from October 1, 1987, to November 28, 1987, depending upon the nature of the particular deficiency. The Nances were requested to write down the deficiencies found, as well as the times for correction, and they were informed that a written report of the survey would be received in several weeks. They were informed that additional time could be granted to correct specific deficiencies if a written request were received by HRS prior to the original date set for the correction. They were further informed that an unannounced revisit would be conducted after the dates of correction to determine if the deficiencies had been corrected.

   
   

4. In the early part of November, 1987, the written report of the survey was sent to the petitioner. This report listed each of the deficiencies found, as well as the required date of correction. A Statement of Acknowledgement of Receipt, dated November 11, 1987, and signed by Charles W. Nance as the Administrator, was returned to HRS on November 13, 1987.

   
   

5. The HRS survey team revisited the facility on January 7, 1988, and found that some thirty deficiencies previously cited on September 28, 1987, had not been corrected and that three or four more had been only partially corrected. At that time, petitioner was informed that its application for initial licensure as an adult congregate living facility would be denied.

   
   

6. Petitioner does not dispute the existence of the deficiencies initially found on September 28, 1987, nor did petitioner offer testimony to rebut the respondent's testimony regarding the uncorrected deficiencies. Instead, petitioner attempted to explain the still uncorrected deficiencies with testimony that the Administrator of the facility on September 28, 1987, was no longer the Administrator in January of 1988, that Minnie Nance and Charles Nance did not become aware of the specific nature of the deficiencies until late

   November of 1987, and that the holiday season prevented them from securing the necessary labor and assistance to correct the physical deficiencies. Petitioner also presented testimony that on the date of the unannounced revisit, January 7, 1988, Charles Nance was not present and that all the administrative paperwork was in his locked apartment and thus unavailable for review by the survey team. In light of the facts that at least Minnie Nance was present during the initial September survey and the exit interview, that Charles Nance signed as the Administrator on November 11, 1987, and acknowledged that he received the written report of the survey from HRS, and that petitioner never requested an extension of the time required for correction of the deficiencies, these explanations by the petitioner are neither credible nor sufficient. Also, no documentation was offered at the hearing concerning the existence of records contained in the locked apartment of Charles Nance on January 7, 1988.

   
   

   CONCLUSIONS OF LAW

   
   

7. An applicant for a license bears the burden of establishing that all the relevant statutory and regulatory criteria for such licensure have been met. In this proceeding, the petitioner has woefully failed to meet that burden. There was no evidence offered at the hearing to indicate that petitioner's facility is in compliance with the requirements of Chapter 400, Part II, Florida Statutes, or Chapter 10A-5 of the Florida Administrative Code.

   
   

8. Among the purposes of the Adult Congregate Living Facilities Act are to provide for the health, safety and welfare of residents of such facilities and to promote the continued improvement of such facilities. Section 400.401(2), Florida Statutes. In order to carry out these purposes, the Department of Health and Rehabilitative Services is authorized to issue licenses to applicants which can provide adequate care and to deny licenses to those applicants which have demonstrated multiple and repeated violations of the minimum standards or rules for licensure. Section 400.414(2)(d), Florida Statutes (1987).

   
   

9. Here, the evidence demonstrates that the petitioner was properly and timely notified of numerous deficiencies relating to the health, safety and welfare of residents found pursuant to the initial licensure survey of September 28, 1987. Petitioner was further advised of the agreed upon times for correction of those deficiencies. No extension of time was requested by the petitioner. On January 7, 1988, over two months after some of the correction dates and over one month after other correction dates, a large majority of the deficiencies were still in existence. The petitioner offered no valid reason for failing to correct the cited deficiencies within the agreed upon time frames.

   
   

10. The petitioner's failure to correct approximately seventy-five percent of the cited deficiencies within the agreed upon time frames constitutes multiple and repeated violations of Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code, and constitutes valid grounds for licensure denial pursuant to Section 400.414, Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure as an adult congregate living facility be DENIED, without prejudice to petitioner to submit a new application at such time as compliance with the relevant standards and criteria for licensure can be established.

Respectfully submitted and entered this 18th day of November, 1988, in Tallahassee, Florida.

DIANE D. TREMOR

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 18th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1677

The proposed findings of fact submitted by the parties have been carefully considered and are accepted, incorporated and/or summarized in this Recommended Order, with the following exceptions:

Petitioner

5 - 7. Rejected as contrary to the greater weight of the evidence.

8. Rejected as not established by competent, substantial evidence.

10 and 11. Rejected as not established by competent substantial evidence.

COPIES FURNISHED:

Gregory L. Fisher, Esquire

149 Central Avenue

St. Petersburg, Florida 33701

Edward A. Haman, Esquire Senior Attorney Department of Health and

Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

R. S. Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-001677

Orders for Case No: 88-001677