STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH ) AND REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3883

)

THOMAS E. KEHOE, d/b/a )

KEHOE ON THE BAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing officer, Jane C. Hayman, held a formal hearing in the above- styled case on December 14, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire

Department of Health and Rehabilitative Services

Rhode Building

North Tower, Room 526 Miami, Florida 33128

For Respondent: F. William Harvey, Esquire

Sherman and Fischman, P.A.

3050 Biscayne Boulevard, Suite 600

Miami, Florida 33137 STATEMENT OF THE ISSUE

The issue presented in this case is whether the Respondent violated certain statutes and rules as alleged in the administrative complaint, and if so, to what extent penalties should be imposed.

PRELIMINARY STATEMENT

On June 27, 1989, the Department of Health and Rehabilitative Services, Petitioner, issued an administrative complaint against Thomas E. Kehoe, d/b/a Kehoe on the Bay, Respondent. The five count complaint alleged that Respondent, the owner of an adult congregate living facility, was in violation of Section 400.419, Florida Statues, due to his failure to conduct, document and make available for inspection quarterly fire alarm and smoke detector tests and his failure to maintain certain door closures which would close and latch the residents' doors. The case was originally assigned to Hearing Officer, Joyous

D. Parrish. However, on December 11, 1989, the action was duly reassigned to the undersigned.

At the hearing, the Petitioner abandoned the fifth count of the administrative complaint, and the matter was received on the remaining four counts. Petitioner presented the testimony of Mr. Richard Brinkman, Fire Safety Specialist for Respondent, and offered three exhibits which here received into evidence. Respondent presented the testimony of Mr. Issac Rodriguez of Quality Services Contractors; Mr. Thomas E. Kehoe, Respondent; Mr. Lindsey Smith, administrator for Respondent; Mr. Carl Anderson, chief of staff for Respondent; and Mr. Charles Woods, carpenter for Respondent. Respondent offered three exhibits which were received into evidence.

A transcript of the proceeding was filed on January 24, 1990. By stipulation of the parties, proposed recommended orders were to be filed on or before, February 8, 1990. Both parties filed proposed recommended orders which were timely received. A ruling has been made on each proposed finding of fact and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material to this matter, Thomas E. Kehoe, d/b/a Kehoe on the Bay, Respondent, was licensed by the Department of Health and Rehabilitative Services, Petitioner, to operate the adult congregate living facility (ACLF), Kehoe on the Bay.

   
   

2. Kehoe on the Bay serves young adult clients who suffer from drug overdose, mental retardation or alcohol abuse.

   
   

3. On November 30, 1988, Richard Brickman, a fire safety specialist for Petitioner, performed a general inspection of Kehoe on the Bay for purposes of re-licensure. Mr. Brickman identified eighteen operating deficiencies which he discussed with Mr. Kehoe and Mr. Lindsey Smith, administrator of Kehoe on the Bay.

   
   

4. On December 16, 1988, the Department issued a letter confirming the findings of the re-licensure survey conducted by Mr. Brickman. Enclosed with the letter was a form "Classification of Deficiencies for ACLF Licensure Requirements", which noted the deficiencies, the deadlines for correction, and citations to the administrative rules allegedly violated by the deficiencies. The deficiencies cited by Mr. Brickman appear on pages four through seven of the form and are under the headings ACLF 107-2, ACLF 107-3 and ACLF 107-4. Each of the deficiencies was classified as a class III violation with a civil penalty of

   $250 each and were to be corrected by December 30, 1988. On December 19, 1988, Mr. Kehoe requested a thirty day extension of the compliance date. The extension was granted on December 21, 1988.

   
   

5. On January 31, 1989, Mr. Brickman made a return visit to Kehoe on the Bay and determined that each of the deficiencies, except for the four at issue had been corrected. These deficiencies form the basis of the administrative complaint and are indicated on the administrative complaint as follows:

   
   

   1. Quarterly fire alarm tests were not conducted and/or documented as required.

   2. Quarterly smoke detector inspections and tests were not conducted and/or documented as required.

   3. Resident room door closers did not close and latch as required.

   4. Seven resident room doors were not self closing.

      
      

6. As to deficiencies one and two, existent law, as reasonably interpreted, by the Department requires that the fire alarm and smoke detectors in an ACLF be tested quarterly; that each test be documented in writing; and that the written documentation be made available for inspection.

   
   

7. Kehoe on the Bay has a more than acceptable fire detection and alarm system which was installed by Mr. Issac Rodriguez of Quality Services Contractors. For approximately five years, Mr. Rodriguez has been performing annual inspections of the system. At the conclusion of each inspection, Mr. Rodriguez places a sticker on the control panel for the system. The control panel is located immediately outside the administrative office at Kehoe on the Bay. In addition to Mr. Rodriguez's tests, Kehoe on the Bay had followed the internal policy of testing the fire detection and alarm system at least once a month. The tests were performed by Mr. Smith or Mr. Carl Anderson, chief of staff at Kehoe on the Bay, but were not documented in written form. If a malfunction occurred and they could not fix it on site, Mr. Rodriguez was called to repair the system.

   
   

8. On Mr. Brickman's first visit in November 1988, he requested and did not receive written documentation of the quarterly tests, although Mr. Smith verbally informed him that they had been done. After Mr. Brickman's review, Mr. Smith called Mr. Rodriguez to request an inspection and repair of a malfunction which Mr. Brickman had noted. The malfunction was corrected, and on January 4, 1989, Mr. Rodriguez performed the inspection and placed his sticker on the control panel.

   
   

9. When Mr. Brickman returned on January 31, 1989, he again was not provided with documentation of tests performed on either the smoke detectors or the fire alarm. Mr. Brickman is an experienced fire safety inspector, having been employed by the Department for over three years and having worked with the New York City Fire Department for twenty-three years prior to moving to Florida. He is familiar with the inspection stickers used by commercial fire inspecting companies such as Quality Services Contractors. However, Mr. Brickman did not remember seeing the sticker on the panel, even though he had checked the panel during his investigation, and he had passed the panel on his way to the office in which he discussed his observations with Mr. Smith, nor was he shown the sticker on the panel. The sticker, if made available to Mr. Brickman, would have been sufficient to meet the requirement of written documentation of fire alarm and detection devices. In addition, Mr. Brickman would have accepted a copy of an invoice from Mr. Rodriguez as meeting the requirement for written documentation. Mr. Rodriguez is typically late in mailing his invoices.

   Although he did, in fact, bill Mr. Kehoe for the January 4, 1989 test, the invoice did not arrive until after Mr. Brickman's visit on January 31, 1989.

   
   

10. Subsequent to Mr. Rodriguez's inspection of January 4, 1989, Kehoe on the Bay has implemented the documentation procedure suggested by Mr. Brickman at his November 30, 1988 visit and has made quarterly, documented inspections. Mr. Rodriguez inspected the fire detection and alarm devices on January 4, 1989 and placed the sticker on the panel at that time, making the sticker available to Mr. Brickman on his inspection. The oversight of the sticker by Mr. Brickman did not make the sticker unavailable to him. In fact, the first quarterly tests were performed, documented and made available for inspection within the time given for correction of the deficiencies noted on November 30, 1988.

11. As to deficiencies three and four relating to alleged faulty door closures or lack of door closures, the deficiencies noted on the November 30, 1988 visit by Mr. Brickman were repaired prior to Mr. Brickman's return visit. Mr. Kehoe purchased new door closures for the errant doors, and they were installed by Mr. Anderson and Mr. Charles Woods, carpenter at Kehoe on the Bay.

    
    

12. When Mr. Brickman returned on January 31, 1989, some of the closures would not latch as required by the Department and some were not operational. However, the clients at Kehoe on the Bay frequently break the door closures. Also, the closures which were installed require adjustment during the first six months of operation. Mr. Smith and Mr. Anderson walk the halls daily and fix the items which they note as broken, including adjusting the door closures. Mr. Brickman's visit was unannounced and, by chance, some of the closures ware not operational when he did his inspection.

    
    

13. Kehoe on the Bay has been previously cited by the Department for deficiencies. However, the instant administrative complaint is the first action taken by the Department against the facility.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. The burden of proof is on the Department to establish that the factual allegations of the administrative complaint are correct and that the facts constitute a violation of the statutes and rules.

    
    

16. Chapter 400, Part II, Florida Statutes provides for the regulation of adult congregate living facilities (ACLF) by the Department of Health and Rehabilitative Services. Pursuant to Section 400.441, Florida Statutes, the Department has adopted rules establishing operating standards for such facilities.

    
    

17. The Petitioner is authorized to impose penalties on the operators of adult congregate living facilities found to be in violation of certain statutes and rules. Section 400.419(1), Florida Statutes. Violations are classified and penalized according to the threat of harm such violations pose to facility residents. Violation classifications range from class I to class III, with class I being the most serious. The section also provides for penalties applicable to violations which are unclassified".

    
    

18. According to Section 400.419(3)(c), Florida Statutes, class III violations are those conditions which relate to the operation and maintenance of the facility or to the personal care of the residents which indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents. Class III violations are subject to a fine of not less than

    $100 and not exceeding $500 for each violation. Section 400.419(3)(c) also states the following:

    
    

    If a class III violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

19. As to the Department's authority to impose penalties for failure to conduct and document quarterly fire alarm and smoke detector tests, the Department cites to Rule 10A- 5.023(6) and Rule 4A-40.017(3), Florida Administrative Code. Rule 10A-5.023(16)(a), Florida Administrative Code, provides that ACLF fire safety protection shall be governed by Chapter 4A-40, Florida Administrative Code. Rule 4A-40.017(3) provides the following:

    
    

    Fire alarm and detection devices in adult congregate living facilities shall be tested quarterly, Written documentation of each test shall be maintained and made available for inspection.

    
    

    Petitioner has reasonably interpreted the above rule as placing a conjunctive requirement on a licensed ACLF. In other words, to be in compliance with the provision of Rule 4A-40.017(3), a licensed ACLF must have performed each of the three requirements of the rule: performed quarterly tests, maintained written documentation of the tests and made the written documentation available for inspection. Conversely, to show noncompliance, Petitioner must prove that Respondent failed to meet one of the requirements of the Rule 4A-40.017(3).

    Here, however, Petitioner failed to prove Respondent's noncompliance since Mr. Rodriguez performed the test and placed the written sticker on the panel which was available to Mr. Brickman when he worked the panel during his January 31, 1989 inspection.

    
    

20. At the hearing, Respondent argued that the wording of the administrative complaint filed in this case indicated that the requirements of Rule 4A-40.017(3) had been interpreted as disjunctive by Petitioner. The wording, as stated in paragraph 5 of the Findings of Fact section of this Recommended Order, reads as follows:

    
    

    1. Quarterly fire alarm tests were not conducted and/or documented as required.

    2. Quarterly smoke detector inspections and tests were not conducted and/or documented as required.

       
       

       Although the wording contains the confusing "and/or" construction found so often in contemporary prose, the competent evidence demonstrated that the interpretation by Petitioner was as stated above, conjunctive. Further, a reasonable interpretation of the rule also supports Petitioner's interpretation.

       
       

21. The administrative complaint further alleged that

    
    

    1. Resident room door closers did not close and latch as required.

    2. Seven resident room doors were not self closing.

    
    

    in violation of Section 400.419, Florida Statutes, and Rules 10A- 5.023(16) and Rule 4A-40.010(8), Florida Administrative Code. The complaint states that such violation is a class III violation with a civil penalty of $250.

    
    

22. The evidence does not establish that the lack of the door closing devices constitutes a violation of the Department's rules. Factually, Respondent repaired the doors prior to Mr. Brickman's return. The errant door

    closures noted at the time of his January 31, 1989 visit were a common every day occurrence and mere happenstance. Under the provisions of Section 400.419(3)(c), Respondent is not subject to the imposition of a civil penalty since the alleged violation was corrected within the specified time, and no prior violation by Respondent was demonstrated. It is instructive to note, however, that although Rule 10A-5.023(16)(a) incorporates by reference Rule 4A- 40, Florida Administrative Code (1987), the specific provisions of Rule 4A- 40.010(8) with which Respondent is charged, were repealed on November 29, 1989. The purpose of the repeal as indicated at 15 Florida Administrative Weekly 3358 (August 11, 1989) was "[t]o establish uniform fire safety standards for adult congregate living facilities and adopt current versions of NFPA standards as they relate to adult congregate living facilities." However, no tracing table or rationale is presented to indicate if the verbatim version of Rule 4A-40.010(8), Florida Administrative Code (1987) was adopted under the new numbering scheme.

    Further, Petitioner did not offer the provisions of Rule 4A-40.010(8), Florida Administrative Code (1987) 1/ into evidence or request the undersigned to take official recognition of same. Accordingly, Respondent failed to prove that the deficiencies noted were indeed violations of the specified rules.

    
    

23. Since the proof demonstrated that Respondent corrected the deficiencies noted in counts 1 and 2, and the Rule 4A-40.017(3) has not been violated, and, further, since the proof demonstrated that Respondent corrected the deficiencies noted in counts 3 and 4 of the administrative complaint and a determination as to a violation of Rule 4A-40.010(8) was not demonstrated, Petitioner failed to sustain its burden of proving that the factual allegations of the administrative complaint are correct and that the facts constitute violations of the statutes and rules cited therein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Final Order dismissing the administrative complaint filed against Respondent.

DONE AND RECOMMENDED this 9th day of March, 1990, in Tallahassee, Florida.

JANE C. HAYMAN

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 9th day of March, 1990.

ENDNOTE

1/ The provisions of Rule 4A-40.010(8) were addressed recently under similar circumstances in Eldercare, Inc. of Maine d/b/a Elder Care Retirement Home v. Department of Health and Rehabilitative Services, DOAH Case Nos. 89-2058 and 89- 2059, (Final Order November 15, 1989). There, it was noted that Rule 4A- 40.010(8) incorporated certain standards of the National Fire Protection Association. The NFPA standards were not introduced into evidence nor included in the Florida Administrative Code. Accordingly, Respondent failed to meet its burden of establishing proof of the requirements of the NFPA and Rule 4A- 40.010(8). Likewise, here, assuming that the version addressed in Elder Care is the same version of the rule at issue here, Respondent would also fail for failure to introduce the applicable provisions of the NFPA.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3883

The following represent the rulings on the proposed findings of fact submitted by parties. The rulings are reflected by the paragraph number of each proposed finding of fact.

PETITIONER

1. Adopted in paragraph 1.

2. Adopted in paragraph 3 and 4.

3. Adopted in paragraph 7 and 8.

4. Adopted in paragraph 7 and 8.

5. Adopted as subordinate to paragraphs 7 and 8.

6. Adopted in paragraph 5, in part, in part subordinate to the findings of fact.

7. Adopted in paragraph 11.

8. Adopted as subordinate to paragraph 11.

9. Adopted in paragraph 10.

10. Adopted in paragraph 10.

11. Adopted in paragraph 10.

12. Adopted in paragraph 10.

13. Adopted in paragraph 2 and 3.

14. Adopted in paragraph 10.

15. Rejected as irrelevant.

16. Adopted in paragraph 11,in part, and in part, irrelevant.

17. Adopted as subordinate to paragraphs 9 and 10.

18. Adopted as subordinate to paragraphs 9 and 10.

19. Adopted as subordinate to paragraph 8.

20. Adopted as-subordinate to paragraph 8.

21. Adopted as subordinate to paragraph 8.

22. Adopted in part in paragraph 9, in part, uncorroborated hearsay, in part subordinate to paragraph 9.

23. Adopted as subordinate to in paragraph 10.

24. Rejected as irrelevant.

25. Adopted as subordinate to paragraph 9.

26. Adopted as subordinate to paragraph 12.

27. Adopted as subordinate to paragraph 12.

28. Adopted as subordinate to paragraph 12.

29. Adopted as subordinate to paragraphs 11 and 12.

30. Adopted as subordinate to paragraphs 11 and 12.

31. Rejected as irrelevant.

RESPONDENT

1. Adopted in paragraph 1.

2. Adopted in paragraph 5.

3. Rejected as preliminary matter.

4. Adopted as subordinate to paragraphs 6-30.

5. Irrelevant.

6. Adopted, in part, in paragraph 10, 7,9 and 10; in part, rejected as not supported by competent substantial evidence.

7. Adopted in part in paragraphs 3 and 11,in part, subordinate to paragraphs 11 and 12.

COPIES FURNISHED:

Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services

Rhode Building North Tower, Room 526 Miami, Florida 33128

F. William Harvey, Esquire Sherman and Fischman, P.A. Suite 600

3050 Biscayne Boulevard

Miami, Florida 33137

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: 89-003883

Orders for Case No: 89-003883