STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6907

)

AZALEA MANOR, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 13, 1995, in Orlando, Florida. The parties, witnesses, and court reporter attended the formal hearing in Orlando. The undersigned conducted the formal hearing by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Linda L. Parkinson, Esquire

Division of Health Quality Assurance Agency For Health Care Administration

400 West Robinson Street, Suite 309 Orlando, Florida 32801

For Respondent: Jeannie Brevig, pro se

Azalea Manor

150 Willow Drive Orlando, Florida 32805

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on October 31, 1994. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of Mr. William Fleschner and Mr. Raymond Heyser, both of whom are Fire Protection Specialists for Petitioner. Petitioner submitted four exhibits for admission in evidence.

Petitioner's Exhibits 1-3, respectively, are copies of deficiency statements dated June 3, September 8, and October 3, 1994. Petitioner's Exhibit

4 is a diagram of the facility. Petitioner's Exhibits 1-4 were admitted in evidence without objection.

Respondent presented the testimony of Ms. Jeannie Brevig, ACLF Management Consultant, and Mr. James McDaniel, Administrator for Respondent. Respondent submitted two exhibits for admission in evidence.

Respondent's Exhibit 1 is a copy of a letter from Respondent's attorney.

Respondent's Exhibit 2 is a copy of a summary of deficiencies from an inspection in 1992 that is not at issue in this proceeding. Respondent's Exhibits 1 and 2 were rejected pursuant to objections by Petitioner.

Petitioner timely filed its proposed recommended order ("PRO") on June 30, 1995. Respondent timely filed its PRO on July 5, 1995.

Proposed findings of fact in Petitioner's PRO are accepted in this Recommended Order. Proposed findings of fact in Respondent's PRO are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for inspecting and enforcing fire and safety requirements for adult congregate living facilities ("ACLF"). Respondent has a conditional license to operate as a residential ACLF.

   
   

2. Respondent operates as an ACLF at 150 Willow Drive, Orlando, Florida 32805. Respondent is a large ACLF that houses approximately 45 residents.

   
   

3. Petitioner conducted a complaint investigation on June 3, 1994. Petitioner cited Respondent for deficiencies involving a leaky roof and improper locks on the front, side, and rear doors.

   
   

4. The time established in the deficiency statement for correcting the roof was July 3, 1994. The time established in the deficiency statement for correcting the door locks was June 13, 1994. None of the deficiencies were corrected at the time that follow up investigations were conducted on September

   8 and October 3, 1994. 1/

   
   

5. All deficiencies are Class III violations within the meaning of Section 400.419(3). 2/ They are designated as Class III deficiencies on the deficiency statements given to Respondent.

   
   

6. The roof was in need of repair or replacement during each of the three inspections at issue in this proceeding. On October 3, 1994, there were holes in the ceiling of two dining rooms. Buckets were used to catch water.

   
   

7. Leaks caused water to flow into electrical light fixtures. Leaks in the roof presented a dangerous condition for residents.

   
   

8. The door locks created fire hazards for residents. The front door was equipped with an electronic key pad. Residents could exit the front door only if they knew the combination for the key pad.

9. The combination for the key pad was not posted so that residents could egress the front door in the event of fire. Residents could open the door only with the assistance of a member of the staff.

   
   

10. The side door was equipped with an electronic push button. Residents could open the door only with the assistance of a member of the staff.

    
    

11. The rear door had a key operated lock in conjunction with panic hardware. The door could not be opened by either staff or inspectors.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

13. Petitioner has the burden of proof in this proceeding. Petitioner must show by a preponderance of evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

14. Petitioner satisfied its burden of proof. Respondent violated Florida Administrative Code Rule 10A-5.022(1)(a) 3/ by failing to maintain the roof in good repair, free of cracks and leaks. Respondent violated Rules 10A-5.023(2) by failing to maintain all doors so that they can be readily opened when the building is occupied.

    
    

15. In determining the penalty that should be imposed for the violations committed by Respondent, Section 400.419(2) authorizes consideration of the gravity of the violation, actions taken by the owner or administrator to correct the violations, any previous violations, the financial benefit to the facility for continuing the violation, and the licensed capacity of the facility.

    
    

16. The deficiencies threaten the health and safety of the residents. Respondent failed to correct the deficiencies in a reasonable period and permitted the deficiencies to continue through the date of the formal hearing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of violating Rules 10A-5.022(1)(a) and 10A- 5.023(2) and imposing a fine of

$1,000.

RECOMMENDED this 25th day of July, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 25th day of July 1995.

ENDNOTES

1/ The deficiencies were not corrected when Petitioner conducted inspections on April 10 and June 8, 1995. Nor were they corrected as of the date of the formal hearing.

2/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated. Sec. 400.419(3) provides in relevant part that Class III violations are those that threaten the physical or emotional health, safety, or security of residents.

3/ All references to rules are to rules promulgated in the Florida Administrative Code as of the date of the Recommended Order.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6907

Petitioner's Proposed Findings Of Fact.

Petitioner's proposed findings of fact are accepted in this Recommended Order. Respondents' Proposed Findings Of Fact.

1.-11. Rejected as irrelevant and immaterial

12. Accepted in substance except for matters regarding "Kathy" 13.-18. Rejected as irrelevant and immaterial

COPIES FURNISHED:

Douglas Cook, Director

Agency For Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome Hoffman, Esquire General Counsel

Agency For Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Linda L. Parkinson, Esquire

Division of Health Quality Assurance Agency For Health Care Administration

400 West Robinson Street, Suite 309 Orlando, Florida 32801

Jeannie Brevig, pro se Azalea Manor

150 Willow Drive Orlando, Florida 32805

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. Some agencies allow a larger period within 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: 94-006907

Orders for Case No: 94-006907