STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2757

) HENDERSON'S RETIREMENT HOME, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3411

) HENDERSON'S RETIREMENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 10, 1989 in Apopka, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Linda Parkinson, Esquire

District 7 Legal Office Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite 701 Orlando, Florida 32801

Raymond A. McLeod, Esquire McLeod, McLeod and McLeod Post Office Drawer 950 Apopka, Florida 32704

STATEMENT OF THE ISSUES

Relating to Case No. 89-2757

Whether Respondent failed to assure that a sufficient number of staff members were certified in an approved First Aid course (a repeat violation), in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(f), Florida Administrative Code.

Whether Respondent failed to sanitize multi-use eating and drinking utensils in accordance with the food service standards (a repeat violation), in violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A-5.020(1)(n)6, Florida Administrative Code

Relating to Case No. 89-3411

Whether Respondent failed to have in its files the inspection reports for the years 1984 and 1985, in violation of Sections 400.419(3)(c)4. and 400.435(1), Florida Statutes and Rule 10A-5.024(1)(d)(2a), Florida Administrative Code.

Whether Respondent failed to assure compliance with physical plant standards, by not providing a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area for one (1) sleeping room window that serves as a second means of escape, in violation of Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.

Whether Respondent failed to have a fire and evacuation route plan to assure compliance with fire safety standards, in violation of Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.

PRELIMINARY STATEMENT

On March 31, 1989, Petitioner filed two administrative complaints against Respondent. By letter, dated April 27, 1989, Respondent, through counsel, denied the charges in both complaints and demanded a formal administrative hearing. These matters were referred to the Division of Administrative Hearings. After these cases were consolidated for the purpose of taking testimony, these cases were heard on October 10, 1989.

At the hearing on Case No. 89-2757, Petitioner called James Haas, Human Services Program Analyst, and offered two composite exhibits in evidence.

Respondent called Dee Henderson, owner, and offered one exhibit. At the hearing on Case No. 89-3411, Petitioner called two witnesses, Andy Hannwacker, HRS Office of Licensure and Certification, and James Haas. Petitioner offered one composite exhibit. Mr. Henderson testified and offered one exhibit in evidence. A transcript of the proceedings was not ordered. Respondent submitted proposed findings of fact and conclusions of law on October 23, 1989. Petitioner did not submit proposed findings as of the date of submittal of this recommended order. Respondent's proposals are addressed in the Appendix attached hereto.

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

FINDINGS OF FACT

Case No. 89-2757:

1. At all times relevant the dates and alleged occurrences referred to in these proceedings, Respondent, Henderson's Retirement Home, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF).

2. Respondent's facility was staffed without assurance of at least one staff member within the facility at all times who is certified in an approved first aid course. Tina Porterfield, the granddaughter of Dee Henderson, owner of Henderson's Retirement Home, although certified in an approved first aid course, was not a full time staff member. This violation occurred on September 30, 1987 and was not corrected on February 2, 1988.

   
   

3. There was no competent evidence to show that Respondent's multi-use eating and drinking utensils were not being properly sanitized in accordance with food service standards.

   
   

   Case No. 89-3411:

   
   

4. At all times relevant to the dates and alleged occurrences referred to in these proceedings, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF).

   
   

5. HRS inspection reports relating to the Respondent's ACLF facility were not provided to Respondent for the years 1984 and 1985, and therefore could not be retained in its files at the time the facility was inspected in February, 1986 and February 18, 1987.

   
   

6. HRS inspection of the premises on February 16, 17 and 18, 1987 revealed that a window that serves a second means of escape did not provide a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area. It was not proven where this window was located or if it was a sleeping room. Respondent was given until April 1, 1987 to correct the deficiency and the window was removed and replaced by a fire exit door when inspected on June 4, 1987.

   
   

7. As of February 18, 1987, Respondent had a written fire and evacuation route plan prepared. A copy was posted during the time the HRS inspectors were completing their survey on February 18, 1987.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Petitioner has jurisdiction to administer ACLF pursuant to Chapter 400, Florida Statutes, and to impose a civil penalty in an amount based upon the classification of the violation when a facility owner or administrator is found to be in violation of the chapter. Section 400.19(1)(b), Florida Statutes.

   
   

10. Petitioner has the burden of proving by a preponderance of the evidence the allegations contained in the Administrative Complaint. Section 120.57(1)(b), Florida Statutes.

    
    

    Case No. 89-2757:

    
    

11. Failure to assure that at least one staff member, within the facility at all times, was certified in an approved first aid course is a violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A- 5.019(5)(f), Florida Administrative Code.

12. Failure to assure that all food service standards are met is a violation of Sections 400.419(3)(c) and 400.441(1)(b) and (c), Florida Statutes and Rule 10A-5.020(1)(n)6., Florida Statutes.

    
    

13. Petitioner has met its burden as to the first allegation, but has failed to do so as to the second.

    
    

    Case No. 89-3411:

    
    

14. Although Section 400.435, Florida Statutes, requires that every facility maintain, as public information, records containing copies of all inspection reports pertaining to the facility for five years, Respondent did not have copies of the inspection reports for the years 1984 and 1985 when inspected in 1987. The evidence also showed that HRS did not forward the results of those inspections to Respondent. As soon as Petitioner provided Respondent with copies of those inspection reports the deficiency was corrected. Respondent cannot be held to be not in compliance with the standards of HRS when Respondent did not provide him with a copy of the reports.

    
    

15. Rule 4A-40.005, Florida Administrative Code, adopts portions of the standards of the National Fire Protection Association by reference and requires compliance with respect to ACLF Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes, and Rule 10A-5023(16)(a), Florida Statutes. The evidence does not support the conclusion that the undersized window reported as a deficiency in the February 18, 1987 report was located in a sleeping room as required by the rule. In addition, the evidence does support the conclusion that the alleged deficiency was corrected within the mandated time frame for compliance. Therefore, Respondent is not in violation of this part of the rules.

    
    

16. Under the provisions of Rule 4A-40.013(8), Florida Administrative Code:

    
    

    (8) Fire evacuation route plans shall be conspicuously posted throughout all adult congregate living facilities, except that adult congregate living facilities housing fewer than 9 residents need not post such plans.

    
    

    Respondent posted the required evacuation route plan while the inspection was in progress in February, 1987, although Dee Henderson, the owner, testified that such a plan was in existence for the past ten years. Petitioner did not prove how many residents were living at the facility during the time the alleged violation took place. Therefore, Respondent "need not post such plans." Rule 4A-40.013(8), Florida Administrative Code.

    
    

17. Based on the evidence presented, it is determined that Respondent violated only Petitioner's Rule 10A-5.019(5)(f), Florida Administrative Code, by failing to have a staff member certified in an approved First Aid course on the premises at all times. This deficiency has been corrected since July, 1988. This deficiency constitutes a Class III violation as set forth in Section 400.419(3)(c), Florida Statutes for which a civil penalty of not less than $100 and not exceeding $500 is authorized, if the violation has not been corrected within the response time. In view of the Respondent's demonstrated attempts to correct the violation in this instance, it is believed that a penalty of $300 is warranted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner impose a civil penalty in the total amount of

$300 against Respondent pursuant to Section 400.419, Florida Statutes.

DONE AND ENTERED this 15th day of November, 1989, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 15th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2757, 89-3411

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact:

As to Case No. 89-2757: Adopted in substance.

As to Case No. 89-3411:

Paragraphs 1 and 3 adopted in substance.

Paragraph 2 rejected as against the weight of the evidence.

COPIES FURNISHED:

Linda L. Parkinson, Esquire District 7 Legal Office Department of Health and Rehabilitative Services

400 West Robinson Street Suite 701

Orlando, Florida 32801

Raymond A. McLeod, Esquire McLeod, McLeod and McLeod, P.A. Post Office Drawer 950

Apopka, Florida 32704

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

John Miller General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-002757

Orders for Case No: 89-002757