STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 97-1636

) G & W EXTENDED HEALTH CARE CORP., ) d/b/a SOUTH MIAMI RESIDENCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 23, 1997, at Miami, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings. Because one of Petitioner's witnesses was unavailable on September 23, 1997, because he was serving jury duty, the hearing was concluded on September 26, 1997, by video between Tallahassee, Florida, and Miami, Florida.

APPEARANCES

For Petitioner: Jean Claude Dugue, Esquire

Agency for Health Care Administration Manchester Building

8355 Northwest 53rd Street, First Floor Miami, Florida 33166

For Respondent: Lawrence E. Besser, Esquire

1925 Brickell Avenue, Suite D207 Miami, Florida 33129

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the

Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent operates an Assisted Living Facility (ALF) at 7701 Southwest 20th Street, Miami, Florida. Following an inspection of that facility, the Petitioner took emergency action against Respondent and thereafter filed the Administrative Complaint that underpins this proceeding. The Administrative Complaint charged Respondent as follows:

1. Respondent has violated the provisions of Chapter 400, Part III, F.S. and provisions of Chapter 58A-5, F.A.C. in that it was operating as follows:

   1. During the unannounced visit on November 21, 1996 it was observed during the tour and record review that there were nine

      (9) residents1 being housed at the facility with a license for six (6). This is in violation of Rule 58A-5.0181(3)(b)3, F. A. C., Class II violation.

   2. The facility was operating without water because they failed to pay the water bill. This is in violation of Sections 400.417(1) and 400.447(2), Florida Statutes (F.S.) Class I deficiency.

   3. Residents complained of having to use the bathroom outside behind the house. The water and toilet could not be used because it had been turned off. This is in violation of Sections 400.417(1) and 400.447(2), F.A.C. (sic).

   4. It was observed during [the] facility tour that a case of dry milk inside the emergency supply storage area had been opened; when the surveyor picked [the case] up to check the amount of milk left in [the case], roaches poured out of the opening. This is a violation of Rule 58A-5.029(1)a-c, F.A.C., Class II deficiency.

2. Respondent has violated the provisions

of Chapter 400, Part III, F.S. and Chapter 58A-5, F.A.C., in that it failed to meet minimum license standards or the requirements of rules adopted under Chapter 400, Part III,

F.S. to operate an adult (sic) living facility (ALF).

At the formal hearing, Petitioner presented the testimony of Mary Ippolito, Mary Jo LaMont, and Arturo Bustamante. Officers Ippolito and LaMont are police officers employed by the Miami Dade Police Department. Mr. Bustamante is a fire protection specialist and a health facility evaluator employed by Petitioner. Petitioner presented no exhibits. Respondent presented no witnesses and no exhibits.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was the owner of a licensed assisted living facility located at 7701 Southwest 20th Street, Miami, Florida (the subject premises). This facility was licensed for six residents.

   Jose Gutierrez-Marti and Maria Witt were the owners of the

   Respondent.

   
   

2. The residents of the subject premises were mentally ill adults.

3. On November 21, 1996, Arturo Bustamante, a fire protection specialist and a health facility evaluator employed by Petitioner, conducted an inspection of the subject premises.

   Mr. Bustamante went to the subject premises in response to a complaint and to conduct a follow-up inspection to the previous inspection.

4. During the course of his inspection, Mr. Bustamante determined that there were eight residents living at the subject premises. This determination was initially made by counting beds and inspecting the prescription medication that was provided each resident. Mr. Bustamante confirmed that there were eight residents by interviewing the residents, and by observing that the eight residents were removed from the subject premises later that day by the Department of Children and Family Services, formerly known as the Department of Health and Rehabilitative Services.

5. There was no running water in the subject premises on November 21, 1996. Consequently, there were no functioning bathroom facilities in the subject premises. Mr. Bustamante observed fresh feces and the smell of urine in an area of the backyard that the residents reported they used in lieu of a bathroom.

6. Respondent had not notified Respondent that the water services had been terminated. There was no evidence that Respondent had taken any action to correct this serious deficiency.

7. There was insufficient evidence to establish when the water service had been terminated or whether water service had been terminated previously.

8. Mr. Bustamante observed roach droppings throughout the subject premises. Mr. Bustamante observed a box of powdered milk on a shelf inside the facility. When he opened the container to inspect the contents, five or six roaches jumped out of the box.

9. Metro-Dade Police Officers Mary Ippolito and Mary Jo LaMont came to the subject premises at the request of

   Mr. Bustamante. These police officers were present when the residents were removed from the subject premises. Officer LaMont observed cockroaches in the kitchen area.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

11. Part III of Chapter 400, Florida Statutes, is the Florida Assisted Living Facilities Act. See Section 400.401(1), Florida Statutes.

12. Section 400.401(3), Florida Statutes, provides, in pertinent part, as follows:

    (3) The principle that a license issued under this part is a public trust and a privilege and is not an entitlement should guide the finder of fact or trier of law at any administrative proceeding or in a court action initiated by the Agency for Health Care Administration to enforce this part.

    
    

13. Section 400.414(1), Florida Statutes, authorizes the Petitioner to discipline licensees and sets the standard of proof as follows:

    1. The agency may deny, revoke, or suspend a license issued under this part or impose an administrative fine in the manner provided in chapter 120. At the chapter 120 hearing, the agency shall prove by a preponderance of the evidence that its actions are warranted.

       
       

14. Petitioner specifically charged Respondent with violating the provisions of Section 400.417(1), Florida Statutes, which provide as follows:

    1. Biennial licenses issued for the operation of a facility, unless sooner suspended or revoked, shall expire automatically 2 years from the date of issuance. The agency shall notify the facility by certified mail 120 days prior to the expiration of the license that relicensure is necessary to continue operation. Ninety days prior to the expiration date, an application for renewal shall be submitted to the agency. A license shall be renewed upon the filing of an application on forms furnished by the agency if the applicant has first met the requirements established under this part and all rules promulgated under this part. The failure to file a timely application shall result in a late fee charged to the facility in an amount equal to 50 percent of the fee in effect on the last preceding regular renewal date. Late fees shall be deposited into the Health Care Trust Fund as provided

       in s. 400.418. The facility shall file with the application satisfactory proof of ability to operate and conduct the facility in accordance with the requirements of this part. An applicant for renewal of a license must furnish proof that the facility has received a satisfactory firesafety inspection, conducted by the local fire marshal or other authority having jurisdiction, within the preceding 12 months. An applicant for renewal of a license who has complied on the initial license application with the provisions of s. 400.411 with respect to proof of financial ability to operate shall not be required to provide proof of financial ability on renewal applications unless the facility or any other facility owned or operated in whole or in part by the same person or business entity has demonstrated financial instability as evidenced by bad checks, delinquent accounts, or nonpayment of withholding taxes, utility expenses, or other essential services or unless the agency suspects that the facility is not financially stable as a result of the annual survey or complaints from the public or a report from the State Long-Term Care Ombudsman Council. Each facility shall report to the agency any adverse court action concerning the facility's financial viability, within 7 days after its occurrence. The agency shall have access to books, records, and any other financial documents maintained by the facility to the extent necessary to carry out the purpose of this section. A license for the operation of a facility shall not be renewed if the licensee has any outstanding fines assessed pursuant to this part which are in final order status.

15. Petitioner also specifically charged Respondent with violating the provisions of Section 400.447(2), Florida Statutes, which provide as follows:

    (2) It is unlawful for any holder of a license issued pursuant to the provisions of this act to withhold from the agency any

    evidence of financial instability, including, but not limited to, bad checks, delinquent accounts, nonpayment of withholding taxes, unpaid utility expenses, nonpayment for essential services, or adverse court action concerning the financial viability of the facility or any other facility licensed under part II or part III of this chapter which is owned by the licensee.

16. Paragraph 4 of the Administrative Complaint alleged that Respondent violated the provisions of Chapter 400, Part III, Florida Statutes, and Chapter 58A-5, Florida Administrative Code, by failing to meet minimum licensure standards.

17. Section 400.414(2), Florida Statutes, provides, in pertinent part, as follows:

    (2) Any of the following actions by a facility or its employee shall be grounds for action by the agency against a licensee:

    1. An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.

    2. The determination by the agency that the facility owner or administrator is not of suitable character or competency, or that the owner lacks the financial ability, to provide continuing adequate care to residents, pursuant to the information obtained through s. 400.411, s. 400.417, or s. 400.434.

    * * *

    
    

    (g) Failure of the licensee . . . to meet minimum license standards or the requirements of rules adopted under this part.

    
    

18. Petitioner asserts that Respondent lacks the financial ability to operate the facility, and argues in support of that assertion the absence of running water at the facility on November 21, 1996. The Petitioner's proof as to the reason there

    was no running water consisted solely of hearsay evidence that cannot be used as the sole basis for a finding of fact in a formal administrative hearing conducted pursuant to Section 120.57(1), Florida Statutes. See Section 120.57(1)(c), Florida Statutes. Consequently, it cannot be concluded, based on the evidence presented by Petitioner, that Respondent lacked the financial ability to provide continuing adequate care for the residents within the meaning of Section 400.414(2)(b), Florida Statutes; that it violated the provisions of Section 400.447(2), Florida Statutes; or that it violated the provisions of Section 400.417(1), Florida Statutes, as alleged by Petitioner.

19. Rule 58A-5.0221, Florida Administrative Code, imposes a duty on a licensee to provide adequate running water and bathroom facilities for its residents. The evidence that there was no running water and no functioning bathroom was sufficient to establish a prima facie case that the Respondent failed, at least on November 21, 1996, to provide these basic sanitation requirements to the residents. Respondent did not rebut this prima facie showing.

20. Rule 58A-5.0223(1), Florida Administrative Code, requires a licensee to keep all containers, storage areas, and surrounding premises clean and free of vermin. In addition to the absence of running water and functioning bathroom facilities, the Petitioner's contention that the premises lacked basic sanitation is supported by the evidence that the residence was

    infested with roaches. It is concluded that Petitioner established that Respondent on November 21, 1996, Respondent failed to meet minimum licensing standards within the meaning of Section 400.414(2)(g), Florida Statutes.

21. In paragraph 3(d) of the Administrative Complaint, Petitioner alleges that Respondent violated Rule 58A-5.029(1)a-c, Florida Administrative Code. Rule 58A-5.029(1), Florida Administrative Code, does not appear to apply to this proceeding. There are no subsections to that Rule.

22. In paragraph 3(a) of the Administrative Complaint, Petitioner charged Respondent with violating Rule 58A- 5.0181(3)(b)3, Florida Administrative Code, which provides as follows:

    3. A resident placed for temporary emergency shelter shall be exempt from the examination requirements of this subsection as long as the resident is in temporary emergency shelter status, not to exceed 30 days. A resident accepted for temporary emergency shelter shall be counted in the facility census; a facility shall not exceed its licensed capacity in order to accept a temporary emergency shelter resident.

23. Petitioner established by a preponderance of the evidence that Respondent exceeded its licensed capacity by two residents on November 21, 1996. Respondent offered no plausible explanation for the presence of 8 residents on November 21, 1996. There was no evidence as to whether these two "extra" residents were being housed temporarily or permanently by the Respondent. In viewing the evidence most favorably to the Respondent, it is

    found that they were being housed on a temporary basis by the Respondent. Because all of the residents of the facility were mental patients who required assistance, it is inferred that the two "extra" residents were being provided temporary emergency shelter within the meaning of Rule 58A-5.0181(3(b)3, Florida Administrative Code.2 Petitioner established that Respondent violated the provisions of Rule 58A-5.0181(3)(b)3, Florida Administrative Code.

24. Section 400.419, Florida Statutes, pertains to violations of the Florida Assisted Living Facilities Act, and provides, in pertinent part, as follows:

    1. In determining if a penalty is to be imposed and in fixing the amount of the penalty to be imposed, if any, for a violation, the agency shall consider the following factors:

       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 action 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.

       5. The licensed capacity of the facility.

          
          

    2. Each violation shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification of each violation on the face of the notice of the violation as follows:

       1. Class "I" violations are those conditions or occurrences related to the

          operation and maintenance of a facility or to the personal care of residents which the agency determines present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. A class I violation is subject to a civil penalty in an amount not less than $1,000 and not exceeding

          $5,000 for each violation. A fine may be

          levied notwithstanding the correction of the violation.

       2. Class "II" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than class I violations. A class II violation is subject to a civil penalty in an amount not less than $500 and not exceeding

          $1,000 for each violation. A citation for a class II violation shall specify the time within which the violation is required to be corrected. If a class II violation is corrected within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

       3. Class "III" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class II violations. 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 within the time specified, no civil penalty may be imposed, unless it is a repeated offense.

25. The following recommendations as to the penalties to be imposed against Respondent for the violations found herein are based on the foregoing provisions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds that on November 21, 1996, Respondent exceeded its resident capacity and failed to meet licensure standards. It is further RECOMMENDED that the Final Order impose an administrative fine against the Respondent in the amount of $1,000.00 for exceeding its resident and capacity. It is further RECOMMENDED that Respondent be fined $4,000 and its license revoked for failing to provide for the residents' basic sanitation needs. It is further RECOMMENDED that Respondent be permitted to reapply for licensure when it can establish that its facility meets all licensure standards.

DONE AND ENTERED this 1st day of December, 1997, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2st day of December, 1997.

ENDNOTES

1/ The parties stipulated at the hearing that the allegation should have been that there were eight residents, not nine.

2/ The Florida Evidence Code does not prevent the trier of fact from drawing appropriate inferences. See Section 90.301, Florida Statutes. Professor Charles W. Ehrhardt comments as follows: "An inference is a logical deduction of fact that the trier of fact draws from the existence of another fact or group of facts.

Whether the inferred fact is found to exist will be decided by the trier of fact." Ehrhardt, Florida Evidence, Section 301.1 (1997 Edition).

COPIES FURNISHED:

Jean Claude Dugue, Esquire

Agency for Health Care Administration Manchester Building

8355 Northwest 53rd Street, First Floor Miami, Florida 33166

Lawrence E. Besser, Esquire

1925 Brickell Avenue, Suite D207 Miami, Florida 33129

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-001636

Orders for Case No: 97-001636