STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

BLUE HAVEN RETIREMENT, INC., d/b/a BLUE HAVEN RETIREMENT CENTER,

Respondent.

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) Case No. 02-4170

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RECOMMENDED ORDER

This cause came on for hearing before P. Michael Ruff, duly-designated Administrative Law Judge in Panama City, Florida, on January 24, 2003. The appearances were as follows:

APPEARANCES

For Petitioner: Thomas R. Moore, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Alvin L. Peters, Esquire

Peters & Scoon

25 East Eighth Street Panama City, Florida 32401

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent has committed a violation of the "physical plant standards" contained in Rule 58A-5.023, Florida

Administrative Code, contended by AHCA to be a Class II violation.

PRELIMINARY STATEMENT

This cause arose upon the receipt by the Agency for Health Care Administration (AHCA or Agency) of a citizen complaint concerning a certain purported deficiencies concerning residents and the physical plant at the facility known as The Blue Haven Retirement Center, the Respondent herein. On May 7, 2002, the next day, the Agency's surveyor, Ed Melvin, spent about seven hours at the Blue Haven facility investigating the citizen complaint, reviewing records, interviewing residents and others, and observing the operation and grounds of the facility. He reported his findings in a survey report of May 7, 2002, citing the Respondent for various deficiencies including two related to a hole in the backyard over the facility's septic tank. These two deficiencies, with which the subject proceeding is concerned, involved alleged failure to comply with resident care standards and physical plant standards.

The matter was reviewed internally by AHCA and ultimately it filed its pleading charging that the Respondent had violated both the specified regulatory resident care standards and the physical plant standards. Upon filing its proposed recommended order, however, the Agency announced its intention to withdraw the allegations regarding the resident care standards. Thus the

Agency seeks to prove a violation and impose a fine for only violation of the physical plant standards cited herein.

The Respondent upon being advised of the Agency's intent to determine that a violation had occurred and to impose a fine therefor, chose to contest that proposed agency action and availed itself of the right to a formal proceeding before the Division of Administrative Hearings. The cause was ultimately transmitted to the undersigned administrative law judge for adjudication.

The cause came on for hearing as noticed. The Petitioner presented four witnesses and six exhibits. Petitioner's Exhibit C was admitted as corroborative hearsay and for the limited purpose of explaining the agency's position as to penalty.

Petitioner's Exhibits D, E, and F were admitted for purposes of impeachment only. The Respondent presented five witnesses.

Upon concluding the proceeding, the testimony was transcribed and the parties filed proposed recommended orders, after the Agency sought and obtained one stipulated extension of the filing time therefor. Those proposed recommended orders have been considered in the rendition of this recommended order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged with licensing and regulating adult living facilities. The Respondent, Blue Haven Retirement, Inc., owns and operates a

   16 bed adult living facility, The Blue Haven Retirement Center, in Panama City, Florida. It was licensed by AHCA at all times material to this proceeding.

2. On or about May 6, 2002, the Agency received a complaint regarding events and circumstances existing at the Respondent's facility. On May 7, 2002, the Agency surveyor,

   Ed Melvin, began investigating the complaint and spent approximately seven hours at the Blue Haven facility conducting an investigation by reviewing records, interviewing residents and others, and observing the operation and grounds of the facility.

3. Mr. Melvin executed a survey report on May 7, 2002, detailing his findings. He cited the respondent for deficiencies including two deficiencies related to a hole in the backyard over the septic tank (where it had been pumped out in the past). These two deficiencies were for alleged failure to comply with "resident care standards" and with "physical plant standards".

4. Although AHCA's pleadings charge that the Respondent had violated both specified regulatory resident care standards and the physical plant standards as observed by Mr. Melvin, on May 6 and May 7, 2002, the Agency withdrew the allegations regarding the resident care standards. Thus, the Agency continues to prosecute this case based upon violation of the

   physical plant standards only with regard to the circumstances and perceived effects of the hole in the backyard of the Blue Haven facility over its septic tank. The testimony and evidence adduced at hearing clearly focused on facts surrounding the existence of, and the circumstances pertaining to, the hole over the septic tank and its alleged danger or potential danger to residents of the facility.

5. In the course of his investigation on May 7, 2002,

   
   

   Mr. Melvin observed a depression or hole in the ground over the lid to the facility septic tank. He believes the hole to be somewhere between a foot deep to 18 inches deep at its maximum depth. Mr. Fretwell, of the septic tank service company who had pumped the tank out, testified that the hole was already existing when he arrived to pump the septic tank out and he could see the top of the tank in the bottom of the hole about a foot to 14 inches below the ground surface. The hole over the septic tank lid had sloped sides so that the holes depth varied from a few inches to a foot or more at its deepest point. There is no photograph in evidence showing the exact configuration of the hole as it existed on May 7, 2002, when Mr. Melvin made his inspection. Thus the hole was between a foot and a foot and one-half deep at its deepest point, but was certainly more than a depression only two or three inches in depth as the Respondent seemed to claim at one point in the Respondent's case. The hole

   was between two feet square and three feet by two feet at the top or where the depression or hole began to descend from the grade level or ground surface of the yard surrounding the area in question. The hole was approximately 18 inches square at the bottom. There was a slope from the ground surface to the bottom of the hole. There is no evidence to clearly establish what degree of slope existed, but it was more than a gentle slope.

   There was no obstruction, shrubbery, brush, or structure blocking access to the hole although there were four to six boards or wooden slats covering the top of the hole, placed about four inches apart. There is no dispute that the septic tank lid was intact and in place and that there was no sewage leaking in the hole itself, even though the top of the concrete septic tank could be seen at the bottom of the hole.

6. The residents of the facility are ambulatory and free to walk about the premises, including the backyard where the hole was located. The residents are a mix of people, some with mental disabilities who had previously been residents of the state hospital or various psychiatric facilities. There is no question that the residents are not of sufficient disability as to require immediate close supervision. There is no requirement that they be assisted in the normal activities of walking in a safe fashion. Although the residents have a variety of either

   psychological or physical problems or both, all are independent ambulators who are able to walk unassisted.

7. The area of the hole was open, visible and well-enough marked because the boards were so placed over the hole as to draw anyone's attention who was walking in the area to the existence of the hole or at least the boards and to alert people of the hole's existence. There is no evidence that suggests that any person has stepped into this space and suffered any injury, or that there has been any complaint about the hole in the vicinity of the septic tank access point.

8. Mr. Melvin opined that the risk of the hole's existence would be greater in hours of darkness or at night time because of the lack of light. The evidence showed, however, that there was ample light from two large overhead lights in the vicinity of this area in the backyard of the facility.

9. Mr. Max Fretland who works for Hall Septic Tank Company pumped out the septic tank in April of 2002. He testified that he replaced the septic tank lid and covered the access point with some dirt and the boards. He testified that when he left in early April he did not perceive this area as a danger.

   Cham Hewitt is a case manager with the "Life Management Center." He had clients at Blue Haven and was familiar with the area and a frequent visitor to the facility. He testified that he was familiar with the boards across the hole area and had seen them.

   He did not perceive the area as a danger. Keith Peacock is a resident of Blue Haven retirement center and has lived there for approximately four years. Mr. Peacock was aware of the space or the hole but did not perceive it as a danger nor had he had any problems slipping or tripping or falling in this vicinity. He was unaware of anyone else having a problem with the area in dispute (i.e. the hole).

10. Immanuel Connor is the husband of Verna Connor and is a co-owner and worker at the Blue Haven retirement center. He corroborated the fact that there were boards covering the septic tank access point or hole. He also established that when

    Mr. Melvin discovered the hole or deficiency involving the hole that Mr. Melvin insisted that a concrete block structure be built around the access point. Mr. Connor, with the assistance of another worker promptly accomplished this, blocking access to the hole (one wonders why the hole was not simply filled up and the location of the septic tank access point marked so that any future worker who was attempting to pump out the septic tank would readily find the access point).

11. There is no question that, although a person could step into the hole and possibly suffer a foot, or ankle or leg injury, that an intervening event, such as a person failing to see the boards covering the hole, stepping into the area and turning their foot so that it would go between the four inch

    intervals of the boards would be a required event in order to cause any harm to a resident. There is no substantial evidence to clearly and convincingly suggest that the residents were not properly supervised with regard to use and access to this portion of the premises.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.57(1) and 120.569, Florida Statutes.

13. The Agency has the burden of proven by clear and convincing evidence that the Respondent Blue Haven Retirement Center, Inc., was guilty of a Class II deficiency, as charged by the Agency, which is defined in Section 400.419(1)(b), Florida Statutes, and Rules 58A-5.0182 and 58A-5.023, Florida Administrative Code. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Florida 1996); Ferris v. Turlington, 510 So. 2d 292 (Florida 1987); Florida Department of

    Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. A Class II violation is designated under Section 400.19(1)(b), Florida Statutes as a condition that "directly threaten[s] the physical or emotional health, safety, or security of the facility resident." The American Heritage

    Dictionary defines "directly" as "(1) in a direct line or manner; straight; (2) without anyone or anything intervening; immediately."

15. Analogizing to the jurisprudence relating to nursing homes, Class II deficiencies are defined as those that impact the health and well being of a resident as, for example, an avoidable pressure sore. Beverly Enterprises-Florida v. Agency for Health Care Administration, 745 So. 2d 1133, (Fla. 1st DCA 1999).

16. In the context of assisted living facilities operating under Section 400.419(1), Florid Statutes, a Class III violation is one that "indirectly or potentially threaten[s] the physical or emotional health, safety, or security of facility residence. The American Heritage Dictionary defines "potentially" as: "(1) capable of being, but not yet in existence; latent."

17. The evidence shows in a clear and convincing manner that the hole in the ground at issue covered by the boards over the septic tank access point had the potential to harm a person. However, before that harm could come to pass an intervening event would have to occur such as the failure of the person walking in the vicinity of the area of the hole to see the hole or to see the boards covering the hole and then to have to step into the area in such a fashion that the person's foot would turn in such an orientation as to slip between the spaces

    separating the boards (four inches). Such intervening events would be necessary before a person could fall potentially suffering an injury. Thus the clear and convincing evidence of record does supports a finding of an indirect or potential for harm to the facility residents but does not support a finding of direct or immediate harm.

18. Accordingly, the clear and convincing evidence of record establishes that a violation of Section 400.419(1), and the above-cited rule has been established to the extent that an indirect or potential threat to the physical safety of the facility residents has been established but not a direct threat to the physical security or safety of the facility residents. Accordingly, a Class III violation has been established.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED:

That a Final Order be entered by the Agency for Health Care Administration finding that a Class III violation in the above particulars has occurred but, because the matter has been corrected, that no fine be imposed.

DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2003.

COPIES FURNISHED:

Thomas R. Moore, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Alvin L. Peters, Esquire Peters & Scoon

25 East Eighth Street Panama City, Florida 32401

Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 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: 02-004170

Orders for Case No: 02-004170