STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARRIE SUTTON d/b/a SUTTON HOME ) FOR THE AGED, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2245

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 18, 1988. Thereafter, the parties were afforded leave to file supportive memoranda which was considered in preparation of this recommended order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix attached hereto.

APPEARANCES

For Petitioner: Carrie Sutton, pro se

Sutton's Home For The Aged 2831 Avenue "S"

Riviera Beach, Florida 33404

For Respondent: Peggy Miller, Esquire

HRS District 9 Legal Counsel

111 Georgia Avenue

West Palm Beach, Florida 33401 ISSUE PRESENTED

The issue presented is whether or not petitioner's facility meets and complies with the requisite standards for licensure as an adult congregate living facility (ACLF) and whether the license should be renewed. 1/

INTRODUCTION AND BACKGROUND

By letter dated January 8, 1988, petitioner was advised that her license to operate Sutton's Home For The Aged expired on January 7, 1988, and her application for renewal of that license was being denied pursuant to Chapter

400.412 and 400.414(2)(b) and (d), Florida Statutes. Specifically, respondent determined that based on multiple and repeated violations noted during surveys and follow-up visits to the ACLF on November 5, 1986, December 1, 1986, August 3, 1987, August 12, 1987, and September 9, 1987, the facility does not meet or comply with the standards for the operation of an ACLF pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.

Thereafter, petitioner timely filed a request for a formal hearing indicating that the noted deficiencies as found in the surveys were corrected and that petitioner was currently bringing the ACLF up to standards.

The parties stipulated that there was proper jurisdiction under Chapter 120, that Cecie Mae Davis is the administrator of the ACLF and Carrie Sutton is the owner. It was also stipulated that pursuant to Chapter 400, respondent sets standards for the operation of ACLFs which apply to petitioner's facility.

Respondent presented the testimony of Jo Ann Linch, an ACLF supervisor, employed by respondent in the Office of Licensure and Certification, Diane Strouck, an environmental health specialist employed by the Palm Beach County Health Department, John Dodds, a supervisor employed in the Environmental Health Department of the Palm Beach County Health Unit, and Nan McDermitt, an environmental health specialist.

Cecie M. Davis, petitioner's administrator, testified on petitioner's behalf. Respondent introduced Composite Exhibit No. 1 which was received in evidence during the hearing.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings:

1. Petitioner's facility was established in the 1950's as a nursing home for welfare clients in Riviera Beach. In 1979, the facility was changed to an ACLF. At that time, a physician and a nurse from the County Health Department examined all residents and transferred those out who needed continuing nursing care. One resident from the nursing home continues as an ACLF resident.

   
   

2. Mrs. Davis, the current administrator, has been employed at the facility since 1960 and lives on the premises. The current staff of the ACLF includes several family members: Mrs. Sutton's daughter, Sabrina; Mrs. Davis' daughter, Christie; the son of a former long-time employee, "Jr."; Amon Shaw and Patricia Roach, another long-time employee. The neighborhood where the ACLF is situated is a high crime area and the ACLF has been burglarized on several occasions. When the facility is burglarized, the typical burglary involves broken windows, food items are stolen, files are ransacked, and petty cash is taken.

   
   

3. The ACLF is licensed for a census of 35 residents. Based on surveys conducted by respondent on August 3, 12, and September 9, 1987, several deficiencies were noted, including the unavailability of records to reflect that the facility was being administered on a sound financial basis; no assurances that the facility maintained an admission/discharge roster of residents containing all information required including records for residents receiving self-administered medications; no records of personnel policies for employees employed by the facility including work assignments for each employee; no work schedule of staff and for relief staff; no time sheets; no disaster preparedness plan available for review; no assurance that staff were free from communicable disease or; that there was present at all times, at least one staff member certified in an approved first-aid course, missing diet orders for residents, missing physical assessments for patients. The diet menu reviewed showed deficiencies in Vitamin A and did not have adequate servings from the meat, milk, vegetable and fruit groups. The facility was not providing a variety of

   foods, nor did it have standardized recipes for all items on the menu. The menus were not dated and planned one week in advance, or readily accessible for review by the residents. Menus and corrections were not kept on file for six months, mice and other rodent droppings were observed in the kitchen, the kitchen was not clean and there was no effective pest control program instituted. No management employee had completed a food service management course. One freezer did not contain a thermometer, and the meat was not properly stored in the freezers (ribs stored in a garbage bag). The fan in the kitchen was dusty and greasy, the ovens were dirty and contained food spills, the can opener was not clean and had dried food residue, the silverware holder was not clean and contained dirty silverware which was stored together with money, keys and other items. Drip pans were grease laden. The facility did not provide sanitary housing in that the showers were laden with mildew, areas occupied by residents were not climatically controlled in a manner conducive to the comfort of residents in that there were no cooling devices. Residents were not provided adequate space for hanging clothes, the beds were not in good repair with mattresses free from odor, stains or lumpy stuffings, showers did not have non-slip safety devices on the floor, and the building was not kept in good repair in that the front doors of the men's dormitory were rotting. There were torn and loose screen windows and doors, and torn and loose linoleum throughout the facility. The outside walls contained peeling paint. Clothing and mops were hung on fences and the inside walls and doors needed painting.

   Furniture in the dormitories was not kept in good repair in that cushions on the sofas in the living rooms were torn, the arms and backs of the sofas were torn, and the drawers in chests were broken or missing. The facility was not free of accumulations of possessions in that clothing bags were being kept on the residents' beds, old baskets, bottles, tin and other junk and debris was strewn over the back yard, the fire alarm test did not include testing of the smoke detectors. There was no documentation of the quarterly automatic sprinkler tests, and waste containers were not constructed of noncombustible material.

   The generator for the emergency lighting was not load-tested on a monthly basis, and the door between the boiler room and the exit access door was not self- closing. Exit signs were not illuminated. The rear yard contained debris, including a refrigerator which was not being used with doors attached which presented a safety hazard and an unsealed septic tank which was not being maintained. Follow up visits by respondent's staff revealed that while there have been correction of some deficiencies, numerous deficiencies continue at the facility and petitioner's staff has been counseled repeatedly with suggestions about curing problems and/or deficiencies which were documented on six times by Nan McDermitt, to wit: May 31, August 2, August 5, August 18, September 8, and

   September 19, 1988.

   
   

4. A moratorium on placements was issued by Respondent on June 30, 1988, based on repeated deficiencies which were not corrected during follow-up visits, inspections and surveys of the facility by respondent's staff.

   
   

5. Cecie M. Davis admits that there are ongoing deficiencies which were reflected in respondent's surveys provided by staff. Davis has placed thermometers in the refrigerator, although they are at times removed by employees who store meat in the refrigerator. The screen doors are cut by burglars during break-ins. Missing lights have now been installed, and they are all operating properly. Vinyl flooring has been repaired, and there are new rugs on the living room floors. The unsealed septic tank has been repaired and cots have been purchased for the storage of linen. The refrigerator which was not stored in the back yard has been moved and exterminators have been employed to eradicate the rodent problems. The ladies shower has been painted and new mattresses were bought to replace those which were lumpy or stained. Despite

   all these corrections, there are numerous deficiencies that remain uncorrected at the ACLF. In trying to correct all of the deficiencies, Administrator Davis points out that the building is old, located in a high crime area and is subject to repeated burglaries. She admits that a gas odor which emanates from the kitchen is not corrected. A large segment of the patient census is old and disoriented, and male patients, at times, urinate on the floors. Administrator Davis is making efforts to cope with the problems with the limited resources available, however numerous deficiencies remain.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to subsection 120.57(1), Florida Statutes

   
   

7. The parties were duly noticed pursuant to the provisions of Chapter 120, Florida Statutes.

   
   

8. The authority of the respondent is derived from Chapter 400, Part II, Florida Statutes.

   
   

9. Section 400.414(2)(d) , Florida Statutes, authorize Respondent to take disciplinary action, against a licensee including revocation of a license, for engaging in multiple and repeated violations of the minimum standards or rules adopted pursuant to Chapter 400, Florida Statutes. See, 400.414(2)(d), Florida Statutes.

   
   

10. The Respondent's surveys of Petitioner's ACLF revealed, by a preponderance of the evidence, that there are multiple and repeated violations of minimum standards and rules which have not been corrected by Petitioner. Rules 10A-5.021(1), .024(1)a 1, 3, 5, 6, 8; 10A-5.019(5)(a) 1; 10A-5.019(5)(d) and (h) 10A-5.020(1)(e), (f), (m), (g), (j); 10D-13.25(1) and (2); 10A- 13.26(4)(a); 10D-13.27(8); 10D-13.23(a); 10D-13.26(1)(a); 10D-13.26(4)(a); 10A- 5.023(9); 10A-5.022(1)(a), (d), (e), (g), (i), (j), (k); 10A-5.022(1)(l), (2), (3); 4A-40.005, .009, .012 and .017, Florida Administrative Code. Petitioner has been given ample opportunities to correct such violations, to no avail. Petitioner does not dispute, and in fact admits, that the violations are ongoing and repeated in contravention of the minimum standards required of ACLF licensees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

The Department of Health and Rehabilitative Services enter a final order sustaining the denial of the license renewal of petitioner's adult congregate living facility, Sutton Home For The Aged, based on repeated and multiple violations of the minimum standards.

DONE and ORDERED this 16th day of February, 1989, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1989.

ENDNOTE

1/ Although this case is styled showing the licensee as the Petitioner, the agency is placed on notice that an application for the renewal of a license is an application which triggers a ministerial duty on the agency to renew the license. See e.g. Vocelle v. Riddell, 119 So.2d 809, (Fla. 1st DCA, 1960) .

Here, the agency must demonstrate, by a preponderance of evidence, that the licensee has engaged in conduct sufficient to warrant revocation of an existing license.

COPIES FURNISHED:

Peggy Miller, Esquire

HRS District 9 Legal Counsel

111 Georgia Avenue

West Palm Beach, Florida 33401

Cecie M. Davis, Administrator Carrie Sutton, Owner

Sutton's Home For The Aged 2831 Avenue "S"

Riviera Beach, Florida 33404

Sam Power, 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: 88-002245

Orders for Case No: 88-002245