STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

vs. ) CASE NO. 90-1616

) 90-1617

FREED TOWERS, (Freed Towers, Ltd. ) d/b/a Freed Towers, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in these cases in Bradenton, Florida

on May 18, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

DHRS

7827 N. Dale Mabry Highway Tampa, Florida 33614

For Respondent: Audley L. and June E. Freed, pro se

c/o Freed Towers 1029 7th Avenue East

Bradenton, Florida 34208 STATEMENT OF THE ISSUES

The issue for consideration is whether the Respondent's license to operate an Adult Congregate Living Facility, (ACLF), in Florida should be disciplined because of the deficiencies cited in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

On January 31, 1990, Petitioner, Department of Health

and Rehabilitative Services, (Department), filed two separate Administrative Complaints herein, one in each cited case, in which it alleged the Respondent violated provisions of Rules 10A- 5.019(5), 4A-40.017(3), and 10-5.023(16), F.A.C., as well as

Chapter 400.419(3), Florida Statutes. Respondent subsequently filed its answer to the Administrative Complaints in which it requested formal hearing, and the matters were forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer. By Notice of Hearing dated April 3, 1990, issued after the parties had been served with the Initial Order and had had the opportunity to respond thereto, the undersigned set the case for hearing on May 18, 1990 in Bradenton, at which

time it was held as scheduled. Prior to that date, however, on April 4, 1990, the undersigned entered an Order of Consolidation in which both cases were joined for common hearing.

At the hearing, Petitioner presented the testimony of Tamie J. Smith, a human services program analyst with the

Department's Office of Licensure and Certification, and Robert L. Scharnweber, a state safety fire protection specialist for ACLF facilities, assigned to the Department'S Office of Licensure and Certification. Petitioner also introduced Petitioner's Exhibits

1 through 5. Respondent presented the testimony of June E. Freed and Audley L. Freed, co-owners of the Respondent facility. No transcript was provided and subsequent to the hearing, only Petitioner submitted Proposed Findings of Fact which have been accepted and are incorporated herein.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained

   in the Administrative Complaints, the Respondent, Freed Towers, Ltd., was a business association between June E. Freed and Audley

   L. Freed, husband and wife, who owned and operated it as an Adult Congregate Living Facility, located at 1029 7th Avenue East, Bradenton, Florida. The facility was licensed for 50 apartments, (100 beds). Petitioner, Department, was and is the state agency responsible for licensing the operation of ACLFs in Florida.

   
   

2. On January 10, 1989, Tami J. Smith, a human services program analyst with the Department Office of Licensure and Certification in Tampa, along with a team consisting of a dietitian and a fire inspector, inspected the Respondent's facility located in Bradenton. During the course of the inspection, Ms. Smith noted that Respondent's records on six employees failed to include the statement that the employees were free from disease or other communicable illnesses. Ms. Smith also noted that a portion of the carpet in the dining room was dirty and displayed numerous coffee stains. During the same inspection, another member of the team, Mr. Scharnweber, the fire protection specialist, noted that the quarterly smoke detector inspections and tests had not been conducted or documented; the quarterly fire alarm pull station tests had not been conducted or documented; the automatic sprinkler system had not been inspected or documented quarterly; several portable fire extinguishers had not been inspected within the past year; and the fixed extinguishing system for the protection of cooking equipment in the kitchen did not display a current semiannual inspection tag.

   
   

3. The team consisting of Ms. Smith and Mr. Scharnweber returned to the facility on a follow-up inspection on May 1, 1989. At that time Ms. Smith noted that of the six employee records which had previously failed to contain the required health certificate, four had been corrected but two had not. At the same time, she noted that on the May 1 visit, an effort had been made to clean the carpet but it was not done correctly. Because an effort had been made, however, she noted that on the inspection report and indicated that the deficiency was under correction.

4. On July 12, 1989, Ms. Smith returned to the facility for a second follow-up inspection. At that time she noted that one of the previously noted employee files still did not have the required health certificate, and the carpet was still unsatisfactorily dirty. As a result, she wrote up both deficiencies.

   
   

5. Mr. Scharnweber conducted a follow-up inspection in his area on April 28, 1989 and found at that time that no corrective action had been taken. A follow-up conducted at the same time as that done by Ms. Smith on July 12, 1989 indicated

   the required tag was still not on the cooking equipment, but the other discrepancies had been corrected.

   
   

6. When the initial inspection was concluded on January 10, 1989, prior to leaving the facility the inspection team met with the facility operators and went over each of the noted discrepancies, identifying the problem and giving

   suggestions as to how each could be corrected. They also discussed with the operators an appropriate time for correction

   and entered into an agreement as to that matter. On January 23, 1989, the Department sent a copy of the inspection report, with proposed correction dates, to the operators and on January 30, 1989, Gary C. Freed, then the Administrator of the facility and the son of the Mr. and Mrs. Freed previously identified, signed and returned to the Department an acknowledgment of receipt of the list of discrepancies and the agreed upon correction dates.

   
   

7. The testimony of Ms. Smith and Mr. Scharnweber, as included in the above Findings of Fact, clearly establish that the initially identified deficiencies were not corrected in full consistent with the time frame agreed upon by the parties.

   
   

8. The Freeds opened the facility in May, 1988 with their son, Gary, as Administrator. Gary ran it until April, 1989. It was obvious to the Freeds at that time that he was not properly operating it and he was removed as Administrator in

   April, 1989. At that time, Mrs. Freed took over as Administrator and was certified in that position at the earliest possible time.

   
   

9. When Mrs. Freed took over she found the business was unable to afford to hire a trained Administrator and was unable to expend the monies necessary for immediate and full

   correction of the deficiencies identified by the inspectors. In fact, she recognized there were many discrepancies which needed correction and claims it was overwhelming to anticipate doing all which had to be done in the time frame given.

   
   

10. With regard to the medical certificates, Mrs.

    Freed claims that she made considerable effort to convince her employees to comply with the requirement for proper

    certification. She states that each employee had a doctor's certificate but those certificates did not contain the required statement that the employee was free of communicable disease. It

    was only when she threatened to fire any employee who did not provide the appropriate certificate that she was able to secure everyone's compliance. Unfortunately, she missed one.

    
    

11. As for the carpet deficiency, she claims the

    carpet is constantly being cleaned and an effort made to insure it is within compliance. A cleaner is rented periodically, but she admits many of the employees and residents are careless and spill on the rug and that it is impossible to keep the rug in a pristine condition. This argument is not persuasive as justification for the failure to bring the carpet within standards. As licensees and operators, the Freeds are bound to

    insure that employees meet state requirements and that the facility meets state standards.

    
    

12. Mr. Freed claims that when he first took over the facility, even though county fire authorities had inspected and found his fire protection system to be adequate, upon notification by the Department of the need for additional fire extinguishers, he immediately purchased five new ones. With regard to the kitchen equipment, Mr. Freed claims it was of the proper kind and properly installed, and that if any deficiency exists, it was solely in the failure to display the proper tag. This is all that is alleged.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

14. In its Administrative Complaints, Petitioner seeks to discipline the Respondent'S license to operate an ACLF because of the failure to correct certain conditions existing at the facility which constitute violations of Department Rules and Florida Statutes. Here, these deal with the failure to have all employees properly certified as free from communicable disease; the failure to have the carpet in the dining room clean to proper standards; and failure to insure that fire safety equipment is properly and timely inspected and these inspections documented and displayed.

    
    

15. The burden of proof to establish the violations as alleged, by a preponderance of the evidence, falls upon the Petitioner, Department. Here, the Department has shown, through the uncontradicted testimony of Ms. Smith and Mr. Scharnweber, that the discrepancies existed at the initial visit and necessary corrective actions were discussed with the Administrator and were followed up in writing. No requests for extensions or clarification were submitted and on follow up visits, it was determined that the corrective action had not completely been timely taken. One personnel record was still not complete even on the second follow up visit; the soiled rug had not been properly cleaned or replaced; and one fire discrepancy still existed. The last violation is of a minor nature and is not

    considered life-threatening. Neither are the others, but the fact that ample time was given for correction, and the sole

    reason for noncompliance appears to be a reluctance to expend the money to make a permanent correction to the soiling problem, tends to exacerbate the nature of the violation.

    
    

16. Petitioner proposes to impose a total administrative fine of $350.00 for failing to insure that all personnel were properly certified as free from disease; $250.00 for failing to maintain the carpet in an acceptable state of cleanliness;

    $350.00 for failing to have the proper tag displayed on the kitchen fire protection equipment in Case 90-1616. It also seeks a fine of $1,000.00 for the several other fire safety violations alleged dealing with the failure to test and document the testing of fire protection equipment. The two separate allegations regarding both the personnel documentation and the kitchen equipment tag are multiplicious and support only one fine each.

    
    

17. Each of the fines sought are permissible under the provisions of the Department's rule. However, most are procedural rather than substantive, and most, (those including the equipment testing and documentation), were corrected prior to the second inspection. The fines sought for those no longer existing are inappropriate.

RECOMMENDATION

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

RECOMMENDED that the Secretary issue a Final Order as

to both consolidated files, assessing a total Administrative Fine of $500.00 against the Respondent.

RECOMMENDED this 21 day of July, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 21 day of July, 1990.

COPIES FURNISHED:

Edward A. Haman, Esquire DHRS

Office of Licensure and Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

June E. Freed Audley L. Freed Freed Towers

1029 7th Avenue East Bradenton, Florida 34208

John Miller General Counsel

Department of Health

and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 90-001616

Orders for Case No: 90-001616