STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0948

)

FICUS MANOR, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 20, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire

Department of Health and Rehabilitative Services

401 Northwest Second Avenue North Tower, Room 526 Miami, Florida 33128

For Respondent: Donna Szczebak O'Neill, Esquire

2800 West Oakland Park Boulevard Suite 205

Fort Lauderdale, Florida 33311 STATEMENT OF THE ISSUE

Whether civil penalties should be imposed against Respondent for alleged violations of the statutes and rules regulating the operation of adult congregate living facilities?

PRELIMINARY STATEMENT

On January 13, 1990, Petitioner, Department of Health and Rehabilitative Services, issued an Administrative Complaint against the Respondent, Ficus Manor, Inc., imposing a civil penalty in the amount of $1500.00 for alleged violations of the statutes and rules regulating adult congregate living facilities. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint, and this cause was transmitted to the Division of Administrative Hearings on February 12, 1990, for the conduct of that formal hearing.

Petitioner presented the testimony of Gary Warnok, Lorraine Grisson, and by way of deposition Elizabeth Baller. Additionally, Petitioner's Exhibits numbered 1 and 2 were admitted in evidence.

Respondent presented the testimony of Rosella Felt and Ronald Holck.

Additionally, Respondent's Exhibits numbered 1-3 were admitted in evidence.

Both parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed by the Department to operate an adult congregate living facility (hereinafter "ACLF"), which is located at 2610 Southwest 14th Avenue, Fort Lauderdale, Florida, and is known as Ficus Manor.

   
   

2. The Department performs an announced annual survey on every ACLF. A survey is simply an inspection of the facility in order to determine the degree of compliance with Departmental rules and regulations. HRS-AA Form 1806, Classification of Deficiencies for ACLF Licensure Requirements, is completed by the Department's surveyors and forwarded to the facility, designating the deficiency and reference, class of deficiency, and date by which each deficiency must be corrected. A follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected.

   
   

3. On October 19, 1988, then-Department employee Elizabeth Balle performed the annual survey of Ficus Manor. During that survey, she cited twenty-seven deficiencies. Compliance dates were established for each deficiency. A follow-up survey was conducted by Baller on January 26, 1989, at which time she noted on Form 1806 that only seven of the previously-cited deficiencies had not been corrected. Those deficiencies noted by Baller as not having been corrected by January 26, 1989, are as follows:

   
   

   1. ACLF 41

      Facility does not provide documentation of daily awareness of the general health, safety and physical and emotional well being of residents.

      
      

      Ref: 10A-5.128(1)(b)

      
      

   2. ACLF 51

      
      

      The facility does not provide staff and services appropriate to the needs of the residents as evidenced by a lack of towels and toilet paper. (refer to ACLF 49, 41, 23, 17)

      
      

      Ref: 10A-5.182(4)

      
      

   3. ACLF 52

      
      

      Owners or administrators are to protect residents rights and freedoms in accordance with the following:

      
      

      evidenced by 49, 41, 23, 17, 106

      
      

      Ref: Ch. 400.428, F.S. and Ch. 10A-5.182(5), F.A.C.

   4. ACLF 89

      
      

      The facility does not provide uncrowded safe and sanitary housing to its residents, in the following was observed:

      
      

      as evidenced by dirty sheets. Ref: Ch. 10A-5.23(1), F.A.C.

   5. ACLF 109

      
      

      The interior and exterior of buildings are not kept reasonable [sic] attractive, in that:

      
      

      1. rusted and or dirty legs on chair and tables.

         
         

         Ref: Ch. 10A-5.22(1)(d), F.A.C.

         
         

      2. ACLF 112

         
         

         The building is not maintained in a clean, safe and orderly condition in that the following was observed:

         
         

         as evidenced by 108, 109, & 110. Ref: Ch. 10A-5.22(1)(g), F.A.C.

      3. ACLF 115

      
      

      There was slight odor of urine in room #1400. Ref: 10A-5.22(1)(j)

4. On March 7, 1989, a second follow-up visit was performed by Baller and by Gary Warnok, a registered dietician employed by the Department.

   
   

5. On October 19, 1988, on January 26, 1989, and on March 7, 1989, there was no documentation of daily awareness of the general health, safety, and physical and emotional well being of the residents by designated staff.

   
   

6. On October 19, 1988, towels and toilet paper were not available to all residents. Many of the residents' bathrooms had no toilet paper and no towels. The few bathrooms that did have toilet paper and towels only contained one towel even though that bathroom was utilized by four to six residents.

   
   

7. By the time of the January 26, 1989, or of the March 7, 1989, follow-up visit, the facility had placed a handwritten, paper sign in each bathroom advising the residents that if they needed towels or toilet paper they should "ask the person in charge." However, the supply of towels and toilet paper in each bathroom had not been increased. On January 26, 1989, and on March 7, 1989, the supply of towels and toilet paper remained inadequate.

   
   

8. At the time of the annual survey and at the time of the two follow-up visits, the sheets on the beds in some of the resident bedrooms were dirty or were clean but had stains which appeared to have resulted from dried feces or urine.

9. On October 19, 1988, and on January 26, 1989, there were rusted and/or dirty legs on the chairs and tables in the dining room at the Ficus Manor facility.

   
   

10. At the time of the annual survey and at the time of the two follow-up visits, there was a slight odor of urine in room 1400.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

12. Section 400.419, Florida Statutes, sets forth the rights and obligations of the Department and of the facility when the Department determines that a facility is not in compliance with the standards promulgated by the Department. Subsection (3)(c) defines Class III violations and provides, in part, as follows:

    
    

    A class III violation is subject to a civil penalty of not less than $100 and not exceeding

    $500 for each violation. A citation for a class III violation shall specify the time within which the violation is required to be

    corrected. If a class III violation is corrected with the time specified, no civil penalty may

    be imposed, unless it is a repeated offense.

    
    

13. All deficiencies noted on the October 19, 1988, annual survey Form 1806 were Class III violations. All deficiencies noted had a deadline for correction prior to the time that the surveyor returned to the facility for her first follow-up visit on January 26, 1989. Out of the twenty-seven deficiencies noted on the annual survey form, only seven remained uncorrected on January 26, 1989. The seven deficiencies noted to have not been corrected by January 26, 1989, remained uncorrected by the time of the second follow-up visit on March 7, 1989. No evidence was offered that any of the Class III violations noted on the annual survey was a repeated offense, and, therefore, civil penalties may be imposed only for those deficiencies noted on the annual survey which were not corrected by the time that the Department's surveyor re-visited the facility to determine if the deficiencies noted on the annual survey had been corrected.

    
    

14. The Administrative Complaint filed in this cause seeks to exact civil penalties from Respondent for alleged violations, some of which were not noted on the annual survey. The Department reasons that the surveyor can testify regarding her personal observations while at the facility even though those additional deficiencies were not noted on the annual survey form. The Department is in error. The language of Section 400.419, Florida Statutes, clearly establishes a scheme whereby the Department surveys the facility, advises the facility owner or operator as to deficiencies noted, and provides a deadline for correcting those deficiencies. If the deficiencies are corrected, no civil penalty may be imposed. The statutory scheme does not enable the Department to advise the facility's owner or operator of certain deficiencies and then file an administrative complaint based upon different deficiencies. Since the statutory scheme encompasses affording to the facility an opportunity to correct deficiencies before it is in jeopardy of administrative penalties, those allegations in the Administrative Complaint filed in this cause which were

    not noted in the annual survey cannot support disciplinary action since the Administrative Complaint constitutes the first notice to the operator or owner of the facility that some standards imposed by the Department were not being met.

    
    

15. The seven deficiencies not corrected by the time of the first follow- up visit have been set forth in the Findings of Fact section of this Recommended Order. The first uncorrected deficiency is entitled ACLF 41 and recites that the facility did not provide documentation of daily awareness of the general health, safety, and physical and emotional well being of the residents. That deficiency references Rule 10A-5.128(1)(b), Florida Administrative Code. That rule does not exist. However, Rule 10A-5.0182(1)(b) provides that appropriate supervision in an adult congregate living facility includes such daily awareness. There is no requirement for documentation in that rule. The Administrative Complaint attempts to cure this by alleging that daily awareness was neither offered nor documented. However, the deficiency noted on the annual survey form does not allege that daily awareness was not offered but simply alleges that it was not documented. Since the Department has failed to cite any authority requiring such documentation, no civil penalty may be imposed for this alleged deficiency.

    
    

16. The second uncorrected deficiency is entitled ACLF 51 and notes that the facility does not provide staff and services appropriate to the needs of the residents as evidenced by a lack of towels and toilet paper. The alleged deficiency references ACLF 49, 41, 23, and 17 and Rule 10A-5.182(4). ACLF 49, 23, and 17 involve alleged deficiencies that were corrected by the January 26, 1989, follow-up visit and will not, therefore, be discussed herein. ACLF 41 has been discussed in the preceding paragraph. Rule 10A-5.182(4) relates to limited nursing services and is not, therefore, applicable to this alleged deficiency.

    
    

17. However, Rule 10A-5.182(5) provides that "Owners or administrators shall provide staff and service appropriate to the needs of the residents living in the facility." Providing toilet paper and towels in the bathrooms in the facility is a basic service need for residents living there. The fact that the majority of resident bathrooms had no toilet paper and no towels in them at the time of the annual survey and at the times of the two follow-up visits is uncontroverted. Rather, Respondent simply explains the reasons why that might be, none of which constitutes a legal or factual defense for failure to provide toilet paper and towels in the bathrooms. It is uncontroverted that subsequent to the annual survey the facility's administrator/owner placed in each resident bathroom a sign telling residents that they could ask for toilet paper and towels. A sign in the bathroom is not a substitute for toilet paper or for towels. Requiring residents who need to use the bathrooms to first ascertain "the person in charge" at a given time, to then seek out that person, and to then wait for that person to get the toilet paper and towels and place them in the bathrooms is unreasonable and does not meet the requirement of providing service appropriate to the needs of the residents.

    
    

18. The third uncorrected deficiency noted on the annual evaluation form is entitled ACLF 52 and provides that owners or administrators are to protect residents' rights and freedoms in accordance with ACLF 49, 41, 23, 17, and 106. The deficiency references Section 400.428, Florida Statutes, and Rule 10A- 5.182(5), Florida Administrative Code. ACLF 49, 23, 17, and 106 involve deficiencies which were corrected by January 26, 1989, and will not, therefore, be discussed herein. ACLF 41 has been discussed in the preceding paragraphs and involves the lack of documentation regarding activities of daily living.

    Section 400.428, Florida Statutes, is the resident bill of rights, and Rule 10A-

    5.182(5) requires the provision of staff and services appropriate to the needs of the residents. Neither this statute nor this rule requires documentation of activities of daily living, the subject matter of the ACLF 41 alleged deficiency. No other factual allegation appears in ACLF 52, and there is no evidence as to the basis for this alleged deficiency other than its reference to ACLF 41.

    
    

19. The fourth noted deficiency is entitled ACLF 89 and alleges that the facility does not provide uncrowded, safe, and sanitary housing to its residents as evidenced by dirty sheets. The deficiency references Rule 10A-5.23(1), Florida Administrative Code. That rule requires that "The facility shall provide uncrowded, safe, and sanitary housing appropriate for services provided and needs of the residents." The surveyor testified that, throughout the facility but not in every room, the sheets were either dirty or stained with what appeared to have been feces or urine. Respondent's evidence was that the sheets were not dirty, just stained. Respondent offered no evidence that urine and feces stains are sanitary. There is no rational or legal basis for distinguishing between dirty and clean but stained. Accordingly, sheets with urine or feces stains fail to comply with the requirement that sanitary housing be provided.

    
    

20. The fifth uncorrected deficiency involves that portion of ACLF 109 which was not corrected prior to January 26, 1989, and which provides that the interior and exterior of the buildings were not kept reasonably attractive in that there were rusted and/or dirty legs on chairs and tables. This alleged deficiency involves a subjective standard, i.e., the meaning of the words "reasonably attractive." It is not alleged that the legs on all tables and chairs in the facility were rusted and/or dirty. Further, no evidence was offered that rusted or dirty legs on chairs and tables alone is sufficient to conclude that the facility itself was not "reasonably attractive." Rule 10A- 5.022(1)(d), Florida Administrative Code, does require that the interior and exterior of the buildings be reasonably attractive, but that rule discusses loose, cracked, or peeling wallpaper or paint, and requires that a facility have a satisfactory "finish." It is clear that the chairs and tables are not part of the building structure which is the subject matter of Rule 10A-5.022(1)(d), Florida Administrative Code. The only logical conclusion is that dirty or rusted legs on tables and chairs do not constitute a violation of the rule requiring the structure itself to be reasonably attractive.

    
    

21. The sixth deficiency uncorrected by January 26, 1989, is entitled ACLF

    112 and provides that the building was not maintained in a clean, safe and orderly condition as evidenced by ACLF 108, 109, and 110. The deficiency references Rule 10A-5.22(1)(g), Florida Administrative Code. ACLF 108 and 110 were corrected by January 26, 1989, and, therefore, will not be discussed herein. ACLF 109 involves the rusted and/or dirty legs on chairs and tables. Rule 10A-5.22(1)(g), Florida Administrative Code, does provide that the building be maintained in a clean, safe and orderly condition. It is unnecessary to further discuss this alleged deficiency because although it was not corrected by January 26, 1989, this deficiency was not alleged in the Administrative Complaint filed in this cause, and the Department, accordingly, seeks no civil penalty for its violation.

    
    

22. The last uncorrected deficiency is ACLF 115 which notes that there was a slight odor of urine in room 1400. The deficiency references Rule 10A- 5.022(1)(j), Florida Administrative Code. That rule requires a facility to control odors by cleanliness and proper ventilation. Room 1400 had a slight odor of urine on October 19, 1988, on January 26, 1989, and on March 7, 1989.

    It is not reasonable to believe that the resident in that room "had an accident" immediately before the surveyor appeared at the facility on those three separate dates. It is reasonable to conclude that the odor of urine in that room was persistent, and that the facility failed to take measures to control the odor in that room.

    
    

23. The remainder of the allegations in the Administrative Complaint filed in this cause--such as inadequate grooming, torn sheets, and the mildewed shower and missing bathroom vanity discovered for the first time on March 7, 1989--are not discussed herein, and no findings of fact have been made thereon, for the reason that the owner and operator of the facility were not advised of these alleged deficiencies as a result of the annual survey in order that they could have taken steps to correct them and insulated themselves from civil penalties. The statute requires the Department to afford to the owner and operator of a facility the opportunity to correct deficiencies before those deficiencies can form the basis for disciplinary action. Only those deficiencies noted in the annual survey, which were not corrected when the Department employees re-visited the facility, and which were proven in this proceeding, can result in a civil penalty. The only deficiencies meeting those criteria of both notice and proof were (1) Respondent's failure to provide an adequate supply of toilet paper and towels in every resident bathroom; (2) Respondent's use of bedsheets with stains appearing to be urine or feces; and (3) Respondent's failure to control the slight but persistent odor of urine in room 1400.

    
    

24. Section 400.419(2), Florida Statutes, requires that certain factors be considered in determining if a penalty is to be imposed and in fixing the amount of the penalty. Those factors are as follows:

1. The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.

2. Actions taken by the owner or administrator to correct violations.

3. Any previous violations.

4. The financial benefit to the facility of committing or continuing the violation.

All of those factors have been considered by the undersigned. The three deficiencies for which civil penalties are being imposed herein all relate to basic human sanitation: the provision of toilet paper and towels in bathrooms, sleeping on sheets that appear stained with feces or urine, and the persistent smell of urine. Since the Administrative Complaint filed in this cause only seeks a civil penalty of $250 for each of these violations, the mid-range of the amount which could be imposed, it is concluded that such a penalty for each of the three violations is an appropriate penalty in this case. Although Section 400.419(1)(e), Florida Statutes, provides for the payment of interest when a fine imposed by the Department is upheld, the Department has not requested interest in this proceeding, and none is awarded.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Respondent guilty of three Class III violations and imposing a civil penalty in the amount of $250 each, for a total of $750, to be paid within 30 days from the date of the Final Order.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of May, 1990.

LINDA M. RIGOT

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

29th day of May, 1990.

APPENDIX TO RECOMMENDED ORDER

1. The proposed findings of fact found in Petitioner's 1st, 6th, 7th, and 10th unnumbered paragraphs have been adopted either verbatim or in substance in this Recommended Order.

2. The proposed findings of fact found in Petitioner's 2nd - 4th and 8th unnumbered paragraphs have been rejected as being irrelevant to the issues under consideration in this cause.

3. The proposed findings of fact found in Petitioner's 5th, 9th, 11th, 13th, 14th, and 16th unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law.

4. The proposed findings of fact found in Petitioner's 12th and 15th unnumbered paragraphs have been rejected as not being supported by the weight of the credible evidence in this cause.

5. Respondent's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 4-11 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law.

Copies furnished:

Leonard T. Helfand, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue North Tower, Room 526 Miami, Florida 33128

Donna Szczebak O'Neill, Esquire 2800 West Oakland Park Boulevard Suite 205

Fort Lauderdale, Florida 33311

Sam Power, Agency Clerk 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: 90-000948

Orders for Case No: 90-000948