STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3259

)

MILDRED HU-JENNY THOMPSON, )

d/b/a Oakbridge, )

)

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 July 31, 1991, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Paula M. Kandel, Esq.

Senior Attorney Department of Health and

Rehabilitative Services Office of Licensure and

Certification

7827 North Dale Mabry Hwy. Tampa, Florida

For Respondent: Mildred H. Thompson, pro se

Administrator, Oakbridge 5546 Ridge Road Seminole, Florida

STATEMENT OF THE ISSUES

Whether Respondent failed to maintain adequate current fiscal records relating to the financial operations of the facility, in violation of Section

400.419 (3)(c), Florida Statutes and Rules 10A-5.021(1) and 10A-5.024, Florida Administrative Code.

PRELIMINARY STATEMENT

On March 22, 1991, Petitioner filed an Administrative Complaint against Respondent. By letter, dated May 1, 1991, Respondent denied the charges and demanded a formal administrative hearing. This matter was referred to the Division of Administrative Hearings and this hearing followed.

At the hearing, Petitioner called Alice Adler, HRS Adult CLF Inspector, and offered five exhibits in evidence. Respondent testified in her own behalf and did not offer any exhibits in evidence. A transcript of the proceedings was not ordered and neither party submitted proposed findings of fact or conclusions of law.

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

FINDINGS OF FACT

1. At all times relevant, Respondent, doing business as Oakbridge, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF).

   
   

2. During the inspection of the facility on July 19, 1990 and again on October 18, 1990, the date of the revisit of the facility, Respondent had no written accounting procedures. Therefore, they were not available for review and no expense records were maintained.

   
   

3. Respondent resides on the premises and there were no residents of the ACLF on the date of the first inspection; one on the date of the second.

   
   

4. Although Respondent acknowledged receipt of the HRS inspection report, she did not understand the need for preparing or maintaining the written accounting procedures or expense records until she had residents in the ACLF. A completed expense record was accepted by HRS in November, 1990, several months after the assigned date of compliance.

   
   

   CONCLUSIONS OF LAW

   
   

5. 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.

   
   

6. 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 400.419(1)(b), Florida Statutes.

   
   

7. 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.

   
   

8. Section 400.417(1), Florida Statutes grants to HRS the right of access to books, records and any other financial documents maintained by a facility to the extent necessary to carry out the purpose of the Adult Congregate Living Facilities Act. Respondents failure to set up the necessary books and records at the time of the inspection and her failure to correct the deficiency prior to the follow-up visit is a violation of the statute.

   
   

9. However, from the evidence, it is clear that Respondent's failure to set up and maintain books and records was not an intentional or deliberate attempt to withhold information from HRS, but was rather Respondent's lack of understanding for the need for such records since there was no residents of the facility at the time of the inspection and she resided on the premises. Therefore, all of her expenses were fixed. When Respondent gained some understanding of the requirement for such records she did attempt to comply.

10. Based on the evidence, it is determined that Respondent violated Sections 400.417(1) and 400.427, Florida Statutes, by failing to have written accounting procedures available for review and by not maintaining expense records. These deficiencies have been corrected since late 1990. The 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 lack of understanding of the need for maintaining expense records even though there were no residents in her ACLF at the time of the inspections, and Respondent's demonstrated attempts to correct the violations, it is believed that a penalty of $100 is appropriate in this case.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 400.417(1) and 400.427, Florida Statutes and that a civil penalty be imposed in the amount of

$100, pursuant to Section 400.419(3)(c), Florida Statutes.

RECOMMENDED this 26th day of August, 1991, 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 26th day of August, 1991.

COPIES FURNISHED:

Paula M. Kandel, Esq. Senior Attorney Department of Health and Rehabilitative Services Office of Licensure and Certification

7827 North Dale Mabry Hwy. Tampa, Florida

Mildred H. Thompson Administrator, Oakbridge 5546 Ridge Road Seminole, Florida

Sam Power Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda Harris General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Docket for Case No: 91-003259

Orders for Case No: 91-003259