STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 97-1637

)

LONG SHADOW INN, (Long Shadow ) Retirement Home, Inc., d/b/a ) Long Shadow Inn), )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case by telephone conference on July 8, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas W. Caufman, Esquire

Agency for Health Care Administration

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Rozsi Bogdan, Administrator

Long Shadow Inn

2275 Nebraska Avenue

Palm Harbor, Florida 34683 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent should be subject to an administrative fine for failing to submit a timely change of ownership notice to the Agency, and, if so, in what amount.

PRELIMINARY MATTERS

By certified letter dated February 18, 1997, Tanya J. Williams, the Agency’s Chief, Health Facility Regulation, Central Office, advised the Respondent’s administrator, Rozsi Bogdan, of the Agency’s intention to impose an administrative fine in the amount of $3000 against the Respondent’s assisted living facility (ALF) located at 268 Whisper Lake Road in Palm Harbor, Florida, because of Respondent’s failure to submit a change of ownership license application to the Agency at least sixty days before the transfer of ownership took place. Thereafter, on March 3, 1997, Respondent submitted a Petition for Formal Hearing to dispute the Agency action, and this hearing ensued.

At the hearing, Petitioner presented the testimony of Tom Strazulla, a health services and facilities consultant for the Agency for Health Care Administration, and introduced Petitioner’s Exhibits 1 and 2. Respondent presented the testimony of Rozsi Bogdan, administrator and co-owner of Long Shadow Inn, and introduced Respondent’s Composite Exhibit A.

No transcript of the proceeding was furnished, and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Agency for Health Care Administration was the state agency responsible for the licensing and regulation of assisted living facilities in Florida. Respondent, Long Shadow Retirement Home, Inc., operated the Long Shadow Inn, an assisted living facility, in Palm Harbor,

   Florida.

   
   

2. Rozsi Bogdan and her husband contracted to purchase the Long Shadow Inn from the prior owners, Long Shadow, Inc., a Florida corporation, sometime before January 10, 1997. The closing actually took place on January 10, 1997. Thereafter, on January 27, 1997, Respondent submitted to the Agency an application for change of ownership re-licensing of the facility. This was not in conformity with the provisions of Section 400.412(1), Florida Statutes, which requires that the prior owner submit to the Agency a notice of intent to transfer ownership to another and that the prospective new owner submit a change of ownership license application, at least sixty days before the date of transfer of ownership. When the application was received, however, a provisional license was issued by the Agency, and there is no indication of any intent to discipline that license.

3. The Agency’s consultant, Mr. Strazulla, justified the administrative fine of $3,000, as proposed by the Agency, on the basis that a maximum fine of $5,000 was authorized, and due to the size of the resident population, the proposed figure was deemed appropriate.

4. Ms. Bogdan admits the change of ownership license application was not timely filed. She asserts, however, that neither she nor her husband was aware of the requirement to file such an application for the change in ownership before their real estate agent advised them of the requirement at the time of

   closing. She also asserts, however, that even had she known of the filing requirements, she did not know whether the transaction would be consummated until just three days before closing, and, therefore, could not have filed the application before knowing that the sale would be consummated. That is no justification for failing to file the required notice. If the proposed transfer did not go through, notice of that fact thereafter could have been submitted.

5. Ms. Bogdan also contends that due to the deplorable condition of the facility when they took ownership, she and her husband spent as much as twenty hours per day for several weeks to correct the identified deficiencies and did not have time to file the change of ownership license application. Condition of the facility at the time the Bogdans took over is supported by the summary statement of deficiencies prepared as a result of a survey conducted on June 7, 1995, long before the Bogdans took over.

   CONCLUSIONS OF LAW

   
   

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

7. Section 400.412(1), Florida Statutes, provides that whenever an assisted living facility is sold or the ownership thereof is transferred,

   The transferee shall make application [which conforms to the provisions of Section 400.411] to the agency for a new license at least 60 days before the date of transfer of

   ownership.

8. The Agency has the burden to prove, by a preponderance of the evidence, that its proposed actions are warranted. In the instant case, the evidence is clear, and Respondent’s administrator admits, that the required application was not timely made. The Agency has not shown, however, that any harm or risk was occasioned to any of the residents of the facility because of Respondent’s failure to comply with the terms of the statute regarding license application. It is clear that all the deficiencies noted and referred to by Ms. Bogdan occurred prior to the transfer.

9. Section 400.419(3), Florida Statutes, authorizes the Agency to impose an administrative fine for violations which, in the statute, are classified as Class “I” to Class “IV” violations, depending upon the degree of severity and the probability of danger to residents or guests of the facility. Only a Class “I” violation justifies a fine ranging from a minimum of $1,000 to a maximum of $5,000 per violation.

10. A Class “I” violation is one which relates 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.

11. A Class “II” violation is one which the agency determines directly threatens the physical or emotional health, safety or security of the facility residents, other than Class

    “I” violations. A Class “II” violation carries a minimum fine of

    
    

    $500 and a maximum fine of $1,000 per violation.

    
    

12. A Class “III” violation is one which relates to the operation or maintenance of the facility or the personal care of residents which indirectly or potentially threatens the physical or emotional health, safety or security of facility residents, other than Class “I” or “II” violations, and carries a minimum fine of $100 and a maximum fine of $500 per violation.

13. A Class “IV” violation is one which relates to the operation or maintenance of the facility or to required reports, forms, or documents that do not have the potential of negatively affecting residents. It does not usually threaten the health, safety, or security of residents and carries a minimum fine of

    $50 and a maximum fine of $200.

    
    

14. A review of the evidence admitted at this hearing indicates that the violation attributable to the Respondent does not constitute a Class “I” violation. At worst, it might be classified as a Class “III” violation due to the remote potential threat to the residents. More appropriate, however, is a designation of Class “IV” which relates to the failure to timely apply for a change of ownership license. An administrative fine of $200 is adequate under the circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order finding Respondent guilty of a

Class “IV” violation for failing to file a timely change of ownership application and impose an administrative fine of $200.

DONE AND ENTERED this 12th day of August, 1997, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1997.

COPIES FURNISHED:

Thomas W. Caufman, Esquire Agency for Health Care

Administration

7827 North Dale Mabry Highway Tampa, Florida 33614

Rozsi Bogdan, Administrator Long Shadow Inn

2275 Nebraska Avenue

Palm Harbor, Florida 34683

Sam Power, Agency Clerk Agency for Health Care

Administration

Fort Knox, Building 3 2727 Mahan Drive

Tallahassee, Florida 32309

Jerome W. Hoffman General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Building 2

Tallahassee, Florida 32309

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: 97-001637

Orders for Case No: 97-001637