STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7714

)

SCARLET MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell held a formal hearing in this case on August 21, 1991 in Clearwater, Florida.

APPEARANCES

For Petitioner: Paula M. Kandel, Esquire

HRS - Office of Licensure and Certification

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Eloise Taylor, Esquire

TAYLOR AND WILKERSON

11912 Oak Trail Way

Port Richey, Florida 34668 STATEMENT OF THE ISSUES

Whether or not Respondent's license to operate Scarlet Manor as an adult congregate living facility should be renewed.

PRELIMINARY STATEMENT

By letter dated October 17, 1990, Petitioner, Department of Health and Rehabilitative Services, Office of Licensure and Certification, advised Respondent, Ray Dorman, d/b/a Scarlet Manor, that his application for renewal of license to operate an adult congregate living facility (ACLF), which expired by its terms on October 12, 1990, was being denied. The specific basis for the denial was that there was a confirmed charge of neglect against Respondent, the facility's owner/administrator.

Petitioner advised Respondent of his right to contest the denial of the renewal of the license by requesting a formal hearing pursuant to Chapter 120, Florida Statutes within thirty days of the receipt of the denial letter.

Respondent timely requested a formal hearing and the matter was thereafter transferred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing.

The matter was initially set for hearing for January 30, 1991 to be heard on March 15, 1991. On March 1, 1991, Petitioner filed a Motion in Limine to limit the issue at the hearing to whether Respondent waived his right to have the confirmed finding of neglect amended or expunged. The matter was continued based on a Motion to Continue filed by Respondent's counsel. On March 26, 1991 the matter was again set for hearing for May 21, 1991.

By letter dated April 10, 1991 Petitioner advised Respondent that it intended to amend the basis for the license denial action to allege additional basis for the denial. A copy of the letter setting forth the Motion to Amend was filed with the Division of Administrative Hearings on May 14, 1991.

By telephone conference, both parties requested a postponement of the hearing and on June 13, 1991, a new hearing date was set for August 21, 1991. Petitioner filed its Motion to Amend the Petition which was granted on July 15, 1991. The Motion in Limine was treated as abandoned. The basis for denial included the following:

1. The confirmed charge of neglect against the facility's Administrator (FPSS Report No. 90-091417);

2. Failure to pay a fine imposed in the final order, Case Nos. 91-01FO and 90-355FO, and

3. Failure to correct multiple and repeat deficiencies as evidenced by deficiencies identified during the surveys of September 26 and 27, 1981, December 28, 1989 and September 20, 1990.

On July 13, 1991, Petitioner filed a Motion for Official Recognition of the two reference HRS Final Orders which was granted. The hearing was heard as scheduled on August 21, 1991.

At hearing, Petitioner's counsel stipulated that she received payment of the two outstanding fines from Respondent and that Petitioner would not be proceeding with that basis as a ground for denial. Therefore, that matter is not at issue herein.

At hearing, Petitioner presented the testimony of Malcolm Cavanaugh, George Seibert, Diane Cruz, and John C. Morton. Petitioner's witnesses Cavanaugh and Morton were recalled as rebuttal witnesses. Petitioner's exhibits 1 through 5 were offered and received in evidence at the hearing. Respondent testified and presented the testimony of his wife, Winifred Dorman. Respondent's exhibit 1 was offered and received in evidence at the hearing.

The parties filed proposed recommended orders which were considered in preparation of this recommended order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix.

FINDINGS OF FACT

1. During times material hereto, Respondent, Ray C. Dorman, is the owner and administrator of Scarlet Manor.

   
   

2. Scarlet Manor is an adult congregate living facility at 13009 Lake Carl Drive in Hudson, Florida. The facility has a census of 40 beds and of that census, two residents are elderly patients and the remaining 38 residents are "hard core" mental patients who require intensive and specialized nursing care.

   
   

3. Ray Dorman (Respondent) is named as the confirmed perpetrator of neglect (FPSS No. 90-091417) based on a finding that Respondent neglected a resident at the ACLF.

   
   

4. A certified letter from Petitioner dated September 22, 1990, which was received by Respondent on September 27, 1990, advised Respondent that he could challenge the confirmed finding of neglect if he considered that the classification was inaccurate or that it should otherwise be amended or expunged.

   
   

5. Although Petitioner maintains that Respondent failed to challenge the confirmed finding of neglect, Respondent and his wife, Winifred Dorman, credibly testified that on October 10, 1990, she accompanied Respondent to an HRS office in Clearwater to deliver a written request to challenge the finding of neglect. While the office which would have addressed Respondent's challenge (Mr. Morton's office) is situated in St. Petersburg, on that point, it appears that Respondent's wife was either unclear as to exactly where the Respondent's challenge to the confirmed classification was delivered and nothing more.

   
   

6. Respondent's facility has been the subject of regular survey reports wherein it was determined that Respondent's facility was deficient in maintaining minimum licensure requirements based on inspection surveys dating back to September, 1989.

   
   

7. Mrs. Diane Cruz, a human services surveyor specialist employed by Petitioner, was part of a three (3) member team of surveyors at Respondent's facility during late September, 1989. During the September, 1989 survey, it was determined that Respondent's facility was deficient in several areas including fiscal policies, facility records, client records, medication records, staffing, food service standards, maintenance and housekeeping standards, resident care, admission criteria and fire safety standards. In all of the cited areas, Respondent corrected the deficiencies and no cited deficiency was outstanding at the time of the hearing herein. Significantly, of the numerous deficiencies that Respondent was cited, only three of the deficiencies were repeat deficiencies during the annual 1990 annual survey.

   
   

8. Respondent's facility is a fairly new and modern facility and Respondent prides himself in providing his residents the high degree of nursing services which the residents of his ACLF require. In this regard, in each instance wherein Respondent was cited for deficiencies, the matter was corrected by the time that the follow-up survey was conducted with only two exceptions. Regarding those exceptions, Respondent credibly testified that he had undertaken a good faith effort to correct the deficiency by the time of the follow-up survey. In any event, all of the cited deficiencies were corrected and Respondent has abided by the terms of any restrictions including the payment of any administrative fines which were imposed by Petitioner. Such conduct

   evidences that Respondent is conscientious in the operation of his adult congregate living facility and, to his credit, more than one of and Petitioner's witnesses testified that Respondent operates a good ACLF.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

11. Petitioner's authority is derived from Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code.

    
    

12. Section 400.441, Florida Statutes, authorizes Petitioner to promulgate rules for the operation of adult congregate living facilities. Pursuant to this section, the Department has promulgated Chapter 10A-5, Florida Administrative Code as its rules relating to adult congregate living facilities.

    
    

13. The Department has the burden of proving, by a preponderance of the evidence, the allegations as set forth in the petition pursuant to Section 400.414(1), Florida Statutes. Petitioner has challenged the confirmed classification naming him as the alleged perpetrator in FPSS Report No. 90- 019417.

    
    

14. Petitioner failed to establish, by a preponderance of the evidence, that Respondent engaged in a repeated pattern of multiple and repeated violation of the minimum licensure standards to a degree sufficient to deny the renewal of Respondent's facility license.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. Petitioner enter a final order granting Respondent a conditional license to operate Scarlet Manor as an adult congregate living facility. 1/

   
   

2. Afford Respondent an opportunity to challenge the confirmed classification naming him as the perpetrator in FPSS Report No. 90-091417 as soon as practical.

DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991.

ENDNOTES

1/ The condition will be effective pending the outcome of Respondent's challenge to FPSS Report #90-091417.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Paula M. Kandel, Esquire HRS - Office of Licensure

and Certification

7827 North Dale Mabry Highway Tampa, FL 33614

Eloise Taylor, Esquire TAYLOR AND WILKERSON

11912 Oak Trail Way Port Richey, FL 34668

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-007714

Orders for Case No: 90-007714