The Issue Whether the allegations set forth as count one in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Bistro on Park Avenue (Respondent) are correct, and if so, what penalty should be assessed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a public restaurant located at 348 North Park Avenue, Suite 5, Winter Park, Florida 32789. On December 14, 2012, Dennis Watson, a trained and experienced sanitation and safety specialist employed by the Petitioner, performed a routine inspection of the Respondent, during which Mr. Watson observed various violations of the Food Code. At the conclusion of the routine inspection, Mr. Watson prepared a written report documenting the Food Code violations that he had observed. Before leaving the premises, Mr. Watson discussed his observations with Mr. Boesch and provided him with a copy of the inspection report. According to the inspection report, the violations were to have been corrected by 8:00 a.m., on February 15, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Food Code violations identified during the routine inspection had been resolved. The callback inspection occurred on February 19, 2013. Some of the Food Code violations observed during the routine inspection were again observed during the callback inspection. Between the routine inspection and the callback inspection, the Petitioner amended its rules and began to apply an updated version of the Food Code. In relevant part, both versions of the Food Code identify proper food storage temperatures applicable to potentially hazardous food products. The storage of such products at improper temperatures can result in bacterial or pathogenic contamination of the product and can cause serious illness in humans who consume the contaminated products. Both versions of the Food Code require that certain cold food products be stored at temperatures of 41°F or less. At the time of the routine inspection, the applicable Food Code identified violations of the referenced food temperature standard as "critical" violations. By the time of the callback inspection, the updated Food Code being utilized by the Petitioner identified violations of the food temperature standard as "high priority" violations. According to the report of the routine inspection, Mr. Watson observed that both crème brulee and tiramisu were being held at 44 degrees. According to the report of the callback inspection, Mr. Watson observed that crème brulee was being held at 46 degrees and that butter was being held at 47 degrees. At the time of both inspections, the cited items were stored in a glass door cooler. At the hearing, Mr. Boesch asserted that the temperatures measured by Mr. Watson were not accurate. Mr. Boesch produced the thermometer he used at his restaurant and argued that the thickness of the cited food products was insufficient to permit an accurate determination of their temperatures with his thermometer. Mr. Watson testified that the construction of the thermometer used to measure food temperatures during inspections was superior to that of the thermometer being used by Mr. Boesch. Mr. Watson testified that his thermometer was capable of accurately determining the temperature of food products during the inspection and that he routinely calibrated the thermometer to make certain that it was performing properly. Mr. Watson's testimony and the measurements obtained through his thermometer have been accepted and are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $250 against the Respondent, and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2013.
The Issue The issue is whether Respondent failed to maintain the nutritional status of two residents, as required by 42 Code of Federal Regulations Section 482.25(i), so as to justify the imposition of a conditional license rating upon Respondent's skilled nursing facility, pursuant to Section 400.23(7)(b), Florida Statutes, and an administrative fine of $2500, pursuant to Section 400.23(1)(b), Florida Statutes.
Findings Of Fact At all material times, Respondent has owned and operated a skilled nursing facility located at 7300 Del Prado South in Boca Raton. On August 2, 2001, Petitioner completed a survey of the facility. The surveyors cited Respondent for Tag 325, which they classified as a class II (state) or Level G (federal) deficiency. Tag 325 concerns two residents: Resident #9 and Resident #18. The following four paragraphs restate the stipulation into which the parties entered at the hearing. Resident #9 was admitted to the facility on May 22, 2000, with the following diagnoses: stroke, pneumonia, stage III pressure sore at the coccyx, hypothyroidism, urosepsis diabetes, tracheotomy, respiratory dependency on a ventilator, and nutritional dependency on a percutaneous endoscopic gastronomy (PEG) feeding tube. At all times, Resident #9 was wholly dependent on internal feeding for 100 percent of his nutritional needs. At the time of the survey, Resident #9 required Glucerna at one-half strength at the rate of 60 cc hourly plus a supplemental protein powder. At the time of the survey, the coccyx of Resident #9 had a stage III wound, measuring 0.16 inches by 0.08 inches by 0.08 inches. A dietary note states that the amount of feeding for Resident #9 was below his estimated needs. However, the management of Resident #9's feeding was problematic due to his gastrointestinal problems. Resident #18 was admitted to the facility with the following diagnoses: pneumonia, dehydration, fever, atrial fibrillation, and nutritional dependence on PEG tube feeding. A dietary assessment dated July 17, 2001, did not address Resident #18's alleged seven-pound weight loss. Nothing in the clinical records for Resident #18 indicates that the alleged seven-pound weight loss was planned. Resident #18 was admitted to the facility on January 19, 2001 at 78 years of age. At that time, Respondent's staff completed a Nutrition Risk Assessment. The Nutrition Risk Assessment determined that Resident #18's desirable weight range was 128-156 pounds. At admission, Resident #18 weighed 121.5 pounds. According to Respondent's weight log for Resident #18, he weighed the following on the indicated dates in 2001: January 24--121 pounds; January 30--122.2 pounds; February 7--121 pounds; February 14--123 pounds; February 21--119 pounds; February 28--119.4 pounds; March 4--119 pounds; April 4--120 pounds; April 11--122 pounds; May 4--128 pounds; June 6--129 pounds; and July 4--122 pounds. Resident #18's weight decreased by 5.4 percent from June 6, 2001, to July 4, 2001. However, the record does not suggest that this weight loss evidenced any nutritional problems. To the contrary, for 2001, Resident #18's normal weight approximated 122 pounds. As noted in the guidelines to 42 Code of Federal Regulation Section 483.25(i), the desirable weight range stated for Resident #18 is approximate because "ideal body weight charts have not been validated for the institutionalized elderly." Thus, the guidelines warn that "weight loss (or gain) is a guide in determining nutritional status. An analysis of weight loss or gain should be examined in light of the individual's former life style as well as current diagnosis." The guidelines offer "[s]uggested parameters for evaluating significance of unplanned and undesired weight loss": five percent over one month is "significant loss" and over five percent over one month is "severe loss." Over a five-month period, Resident #18 gained one pound. Petitioner implicitly places considerable emphasis upon the 128-pound minimum desirable weight range for Resident #18, even though the guidelines suggest caution in establishing ideal weights for the institutionalized elderly. Reliance upon this minimum desirable weight allows Petitioner to ascribe significance to the loss between June 6 and July 4 of the weight gained between April 11 and May 4. However, the record fails to suggest that Resident #18 suffered any nutritional problems for the first two and one-half months of his residency at the facility, when he consistently weighed 119-122 pounds. The record likewise fails to suggest that Resident #18's gain and loss of seven pounds over a three- month period was indicative of any nutritional problems. This short-term change in Resident #18's weight appears either to have been a harmless anomaly or, as Respondent suggests, a measurement error. Evidence supportive of a measurement error is found by comparison of the weight log entry for May 4, which marked the first time Resident #18 weighed as much as 128 pounds, with the Dietary Enteral Assessment for May 2, which showed that Resident #18 weighed only 123.6 pounds two days earlier. Although the latter source documented a weight of 129 pounds on June 6, which corresponds exactly with the data from the weight log, the unlikelihood that Resident #18 gained 4.4 pounds over two days suggests measurement error, such as by using different scales. Resident #9 presents a more complicated case. She was 69 years of age at the time of admission, but suffered from complex medical problems, including serious gastrointestinal difficulties that interfered with her nutrition. At admission, Resident #9, a quadriplegic, was five feet, four inches, tall and weighed 185.4 pounds, according to her Nutrition Risk Assessment, or 191.5 pounds, according to her weight log. According to her Nutrition Risk Assessment, Resident #9's desirable weight range was from 108-132 pounds. Notwithstanding any uncertainty concerning the ideal body weights for the institutionalized elderly, Resident #9 was obese and remained so during the period at issue. Resident #9's Nutrition Risk Assessment deletes the portion of the printed form stating that Resident #9 would suffer "moderate risk" to her nutritional status if she were to lose less than 5 percent of total body weight within one month, less than 7.5 percent of total body weight within 90 days, or less than 10 percent of total body weight within six months. An updated Nutrition Risk Assessment dated June 1, 2000, notes that Resident #9 had gained six pounds, but does not delete the "moderate risk" parameters concerning rates of weight loss. Resident #9 experienced several significant weight losses while a resident at the facility. According to her weight logs, Resident #9 weighed 206-208 pounds from June 7 through August 9, 2000. On August 20, 2000, she weighed 217 pounds, and she gained two more pounds through September 13, 2000. Between September 13 and 27, Resident #9 lost 13 pounds. From September 27 to October 5, Resident #9 regained four pounds to 210 pounds. She weighed within four pounds of 210 through October 25, at which time she weighed 207.4 pounds. Petitioner contends that the first significant weight loss was from 214 pounds on October 18, 2000, to 191.0 pounds on November 14 and 15, 2000, which is a loss of ten percent of body weight within one month. It is also a loss of ten percent of body weight within three months, and the loss of merely one-half pound within six months. Although no one would opine that Resident #9 were healthier at 200+ pounds than at 191 pounds and her weight, over six months, did not change, Respondent must maintain Resident #9's nutrition at all times within the six months in question. However, the improved health at a lower weight and absence of change from admission weight are factors that must inform the determination whether Respondent maintained Resident #9's nutritional status. Petitioner contends that the next two significant weight losses occurred in December 2000 and January 2001. According to the weight log, Resident #9 weighed 184 pounds on December 6, 187 pounds on December 15, 185.4 pounds on December 20, and 186 pounds on December 28. Resident #9 thus lost seven percent of her body weight between November 8 and December 6. Resident #9 continued to lose weight in January 2001. She weighed 181.8 pounds on January 3, 175 pounds on January 10, 178 pounds on January 17, 177.6 pounds on January 24, and 176 pounds on January 30. Between the end of December and end of January, Resident #9 lost 5.4 percent of her body weight. Between December 15 and January 10, she lost 6.4 percent of her body weight. For the three months ending at the end of January, Resident #9 lost 15.1 percent of her body weight, and for the six months ending at the end of January, Resident #9 lost 15.4 percent of her body weight. On February 14, Resident #9 weighed 171.8 pounds, and on March 28 she weighed 172.4 pounds; in between, she weighed more, but never over 179 pounds. On April 4, Resident #9 weighed 167 pounds, but on April 18 and 25, she weighed, respectively, 173 and 174 pounds. Petitioner contends that the next significant weight loss was in April 2000 when she lost 6.2 percent of her body weight between March 7 and April 4. From May 2 through June 13, Resident #9 weighed from 174-178 pounds. On July 3 and July 18, she weighed 167.4 pounds and 165 pounds, respectively, but, on July 11, she weighed only 137.6 pounds. The sudden loss of 30 pounds over eight days followed by the gain of 28 pounds over the next seven days-- given a significant history of much more modest weight changes-- suggests again measurement error. This time, Petitioner seems to concede the point as in its proposed recommended order it contends only that Resident #9 suffered a six percent weight loss in July, which is the weight loss from June 6 to July 3. Despite her obesity, none of Resident #9's weight loss was planned. Among her many gastrointestinal conditions was gastroparesis, which is the impaired ability of the stomach to transport food as part of the normal digestive process, and paralytic ileus, which is the impaired ability of the intestinal tract to transport food as part of the normal digestive process. These serious digestive disorders, as exacerbated by the effect of Resident #9's diabetes on her digestive capabilities, contributed to vomiting, constipation, diarrhea, and, on at least one occasion, the aspiration of feces, which necessitated the suctioning of feces from Resident #9's mouth. At all times, Respondent's staff also had to manage the abdominal distention caused by these digestive disorders so that Resident #9's ventilator-dependent respiration was not compromised; sometimes, maintaining respiratory function required the reduction of nutrition. At other times, Resident #9's veins, already weakened by various diseases, precluded intravenous feeding. In December 2000, Resident #9 suffered a cardiac event; Resident #9's husband, who held a health-care power of attorney for his incapacitated wife, declined the suggestion of outside health care providers that Resident #9 be admitted to a hospital. Respondent's staff tried dozens of interventions, including different nutritional formulas and feeding regimes, to deal with the ever-changing digestive problems that Resident #9 presented. Unable to tolerate bolus feedings, Resident #9 received small frequent feedings, which were easier for her to digest. Unable to tolerate the prescribed caloric intake, staff reduced nutritional levels to the maximum that Resident #9 could tolerate. When Resident #9 became unable to tolerate an intravenous port, staff decided to resort to a PIC line, which penetrates less deeply into the vasculature. However, Resident #9's poor vascular condition and her husband's ongoing preference to avoid more invasive treatment options limited the utility of this option. A registered nurse practitioner working under the supervision of Resident #9's treating physician saw Resident #9 at least as often as every one to two weeks from September 2000 through the August 2001 survey. At times, under the nurse's supervision, the only relief available for Resident #9's intractable gastrointestinal problems was to allow the gut to rest by reducing foods and fluids. The nurse and physician also addressed Resident #9's hypothyroidism, which contributed to a sluggishness. Thus, while managing direct gastrointestinal problems, they were also trying to convert Resident #9 to a new, more active thyroid state--a process that explains some of the weight loss. Overall, Resident #9's weight loss, though unplanned, was not unexpected. Her health care providers properly accepted the weight loss as a secondary, unavoidable issue, as they struggled to reestablish crucial cardiopulmonary, gastrointestinal, and endocrinal functions. Respondent's staff and outside health care providers always monitored all reductions in nutritional levels, as they pursued other, more crucial treatments. Her new weight range ultimately contributed to her health. Petitioner has failed to prove by a preponderance of the evidence that Respondent at anytime failed to maintain acceptable levels of nutritional status for Resident #9 or Resident #18.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 01-4331 and the Administrative Complaint in DOAH Case No. 02-0674. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 3rd day of July, 2002. COPIES FURNISHED: William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Nelson E. Rodney Assistant General Counsel Agency for Health Care Administration 8355 Northwest 53rd Street, First Floor Miami, Florida 33166 Karen L. Goldsmith Alex Finch Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790
The Issue After the hearing had concluded, the Petitioner filed a Notice of Voluntary Dismissal in DOAH Case No. 12-2627. Accordingly, the remaining issues for consideration are whether the allegations of the Administrative Complaint filed in DOAH Case No. 12-2748 are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2012). At all times material to this case, the Respondent was a restaurant operating at 288 Windward Passage, Clearwater, Florida 33767. The Food Code identifies proper food storage temperatures for potentially-hazardous food products. The storage of such products at improper temperatures can result in bacterial contamination of the product and can cause serious illness in humans who consume contaminated products. Violations of food temperature regulations that present an immediate threat to public safety are deemed to be "critical" violations of the Food Code. At the hearing, Mr. Suarez acknowledged that the Respondent had been disciplined by the Petitioner for food temperatures in excess of those permitted by relevant Food Code regulations and that he had paid an administrative fine pursuant to a previous Final Order. On May 9, 2012, Christine Craig, a trained sanitation safety specialist employed by the Petitioner, performed a "callback" inspection at the Respondent. The violations referenced herein were identified by Ms. Craig as critical. The relevant portion of the Food Code requires that certain products be stored at temperatures of 41 degrees Fahrenheit or less. Previous inspections at the Respondent revealed that holding temperatures of some food products stored in a reach-in cooler and in a two-door glass upright cooler did not comply with the Food Code requirements. The purpose of the May 9, 2012, callback inspection was to determine whether food temperature violations indentified in the previous routine inspections had been resolved. During the callback inspection, Ms. Craig found that ham, chicken broth, and cream cheese were being held in the referenced coolers at temperatures in excess of 41 degrees Fahrenheit, which were critical violations of the Food Code. The Respondent did not dispute Ms. Craig's testimony or the results of her inspection.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $750 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violation identified herein. DONE AND ENTERED this 27th day of November, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2012. COPIES FURNISHED: Mark Anthony Suarez Island Way Cafe 288 Windward Passage Clearwater, Florida 33767 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether AHCA found deficiencies at Stuart sufficient to support the issuance of a Conditional license.
Findings Of Fact Stuart is a licensed nursing home located in Port Salerno, Florida, that participates in Medicare and Medicaid reimbursements. (See Paragraph 5(b) of Joint Stipulation) Every year, Stuart is surveyed by AHCA to determine whether the facility complies with both state and federal standards and whether it should receive a Superior, Standard or Conditional licensure rating. (See Section 400.23(8), Florida Statutes) On November 14, 1997, AHCA conducted an in-depth annual survey of Stuart. (T.pp. 10-11) After the survey was completed, AHCA alleged that the facility failed to maintain adequate nutritional parameters for one resident, and thereby violated the regulatory standard contained in 42 CFR §483.25(i)(1). AHCA issued a survey report in which this deficiency was identified and described under a "Tag," numbered F325.1 (T.pp. 5-6, 16-17; see also, Respondent Exhibit 1) AHCA is required to rate the severity of any deficiency identified during a survey with two types of ratings. The first is a "scope and severity" rating which is defined by federal law, and the other rating is a state classification rating which is defined by state law and AHCA's rule. (See Respondent Exhibit 1, Section 400.23(9), Florida Statutes) After the November survey, AHCA assigned the F325 deficiency a scope and severity rating of "G" which, under federal regulations, is a determination that the deficient practice was "isolated." (T.p. 55; Respondent Exhibit 1) The F325 deficiency was also given a state classification rating of II which, under AHCA's rule, is a determination that the deficiency presented "an immediate threat to the health, safety or security of the residents." (See T.p. 24; Respondent Exhibit 1; 59A-4.128(3)(a), Florida Administrative Code.) Because AHCA determined that there was a Class II deficiency at Stuart after the November survey, it changed Stuart's Standard licensure rating to Conditional, effective November 14, 1997. (T.p. 5) By law, Stuart was required to post the Conditional license in a conspicuous place in the facility. (Section 400.23(8)(f), Florida Statutes) Stuart was also required to submit a Plan of Correction to AHCA ("Plan"). (T.p. 57; Section 400.23(8)(f), Florida Statutes) Although the plan submitted by Stuart did not admit the allegations of the survey, it did provide steps that the facility would implement to address the deficiencies cited in the survey report. (Respondent Exhibit 1) The Plan also represented that all corrective action would be completed by December 24, 1997. (T.pp. 57-58; Respondent Exhibit 1) AHCA returned to Stuart on January 22, 1998, completed a follow-up survey and determined that the facility had corrected the deficiencies cited in the November 1997 survey report. AHCA reissued Stuart a Standard license effective January 22, 1998. (T.p. 5 and Paragraphs 1 and 2 of Joint Prehearing Stipulation) Stuart filed a Petition for Formal Administrative Hearing with AHCA to challenge the findings of the November survey, as well as AHCA's decision to issue Stuart a Conditional license. That Petition was referred to the Division of Administrative Hearings and a hearing was conducted by Judge Pfeiffer on December 1, 1998. Following the hearing, Judge Pfeiffer ruled that the parties had until February 12, 1999, to file their proposed recommended orders. AHCA alleged under Tag F325 that Stuart failed to provide adequate nutritional care to Resident 26. Resident 26 was an eighty-year-old man who was admitted to Stuart on May 7, 1997, for a "short term basis" after suffering a stroke that left him with partial paralysis on one side of his body. (T.pp. 41, 80-81) In addition to having suffered a stroke, he entered the facility with diagnosed conditions of hypertension, glaucoma, dysphasia and senile dementia, and he had a stage II pressure sore on one buttock. (T.pp. 81-82; see also pp. 1, 30 and 78 of Petitioner's Exhibit 1) After admission, Resident 26 improved some of the functional abilities he lost due to the stroke, but his inability to fully recover resulted in his being changed from a short term resident to a long term resident in August of 1997. (T.pp. 42, 89) In September, he was diagnosed with depression and was placed on anti-depressant medication. (T.pp. 93-94; p. 145 of Petitioners Exhibit 1) In October, Resident 26 suffered another stroke. (T.pp. 42, 87-88) About that same time, Resident 26's wife began to severely decline in health to the point that she died in early December. Consequently, Resident 26 manifested symptoms of severe depression and required psychological counseling to deal with his wife's death. (T.pp. 95-96, 106) Resident 26 began losing weight after his admission to the facility in May and continued losing weight through the November 14th survey date, as demonstrated by the following monthly weights taken from his medical record: May 156.8 pounds June 151.2 pounds July 147.2 pounds August 146.8 pounds September 143.5 pounds October 143.1 pounds November 138.7 pounds (See p. 79 of Petitioner's Exhibit 1) AHCA determined that Resident 26's weight loss between May and November was severe because a comparison of the actual weights for those months revealed that he had lost more than 10 percent of his admission weight. (T.p. 25) AHCA apparently cited the facility for a deficiency under Tag F325 because AHCA claimed that there was no adequate explanation by Stuart that his weight loss was unavoidable. (T.pp. 17-18) Although the regulatory standard cited under Tag F325 does not identify what constitutes an unacceptable weight loss for a resident, AHCA's surveyors recognize standard guidelines from the State Operations' Manual ("SOM") to define those losses. (T.p. 107) The SOM guidelines indicate that a severe weight loss occurs if a Resident has a loss of 5 percent of his or her body weight in 30 days, 7.5 percent in 90 days or 10 percent in 180 days. (T.pp. 111; Petitioner Exhibit 2) Under the SOM, a severe weight loss is determined by comparing a resident's usual body weight with the resident's actual weight from a particular month. (T.p. 114; see also formula on p. 106 of Petitioner's Exhibit 2) Although Resident 26 was admitted to the facility weighing 156.8 pounds, the two experts disagreed whether this was a realistic weight for the Resident, and whether his usual body weight range was between 142 and 147 pounds or whether it was 164 pounds. (T.pp. 18, 103-104, 115-116) A weight loss which exceeds the percentages set forth in the SOM is not a de facto deficiency. The regulation, the SOM guidelines and standard dietary practice recognize that any weight loss cannot be properly identified as unacceptable without evaluating the dietary care offered to the resident and the effects of the resident's overall clinical condition on the weight loss. (T.pp. 110; Petitioner Exhibit 2) Florence Treakle, a surveyor who had a nursing background and limited dietary training, was AHCA's sole witness at hearing. (T.pp. 8-9, 36-34) She testified that she reviewed Resident 26's medical records but could not find any information in those records which would indicate that the weight loss he experienced between May and November was unavoidable. (T.pp. 11- 14, 18) Therefore, the apparent absence of any clinical documentation to identify the loss as unavoidable in his medical records led her to cite Stuart for failing to prevent Resident 26's weight loss. (T.pp. 17-18, 26, 50-51) At hearing, Ms. Treakle indicated that she did not evaluate Resident 26's consumption records before concluding that the facility caused Resident 26's weight loss, and she admitted that Stuart provided Resident 26 with an appropriate diet. (T.pp. 46, 50, 59) She failed to explain the effect, if any, Resident 26's clinical conditions may have had on the Resident's weight loss. She further acknowledged that, when a facility provides a resident with an adequate diet and the resident consumes an adequate amount of that diet, the resident's weight loss can be attributed to the resident's clinical conditions. (T.pp. 46-47) She indicated that the facility's nutritional care plan for Resident 26 between May and October was good, despite his weight loss of 13.5 pounds during that time period. (T.p. 43) Stuart demonstrated that the weight loss experienced by Resident 26 between May and November was not due to Stuart's failure to adequately assess him. Resident 26 was assessed by Stuart for his dietary needs upon admission to the facility in May. He was reassessed for those needs in August when his swallowing ability had improved enough to merit a change in the texture of his diet. He was assessed again in October after he suffered his second stroke, and then was assessed almost weekly thereafter. (T.pp. 81-84, 87-88; see also pp. 30-38 of Petitioner's Exhibit 1) The dietary assessments also attempted to address Resident 26's ongoing weight loss. However, the Resident stated at that time that he frequently felt full after meals and refused to accept any changes to his diet other than an increase in the amount of a dietary supplement being offered. (T.p. 83; p. 32 of Petitioner's Exhibit 1) Stuart also demonstrated that Resident 26's weight loss was not a product of the facility's failure to have him consume a sufficient portion of the diet that was offered. Stuart maintained consumption records for Resident 26 which show that, although he did not always eat all of the food or supplements offered to him, he consumed enough of his diet so that he should have maintained or even increased his weight.2 In fact, it was shown that Resident 26 consistently consumed between 50 percent and 100 percent of a 3,665 calorie diet. (T.pp. 85-89) Kathy Nelson, Stuart's former employee and admitted expert witness on dietary care of the elderly who had over twenty years experience as a registered dietician, opined that there was nothing more that the facility could have done to improve Resident 26's dietary care or prevent his weight loss. (T.p. 93) She opined that the plausible explanation for the weight loss was the effects of his numerous compromising clinical conditions. (T.pp. 90-97, 113) Ms. Nelson identified several conditions that she found while reviewing Resident 26's medical record which contributed to the weight loss he experienced between May and November of 1997. She opined that a resident's inability to adjust to being admitted to a nursing home or an inability to adjust to being designated as a long term resident generally produces weight loss. She also opined that dementia and depression, as well as a resident's refusal to accept new dietary interventions are clinical conditions which produce weight loss.3 Finally, she opined that suffering two strokes and experiencing depression over the loss of a wife would significantly contribute to a resident's weight loss, particularly when they occur over a short time period of six months. (T.pp. 90-97, 113) The conditions identified by Ms. Nelson as causing Resident 26's weight lost were acknowledged by AHCA in the survey report, but there was no evidence that any surveyor considered their relationship to Resident 26's weight loss. Ms. Treakle acknowledged that the only basis for her allegation that there was a deficiency under Tag F325 was her belief that Stuart failed to provide Resident 26 with feeding assistance between October and November of 1997. (T.pp. 42-43) Upon his return from the hospital in October, Resident 26 had a doctor's order requesting the facility to "Please feed patient." (T.p. 24; p. 45 of Petitioner Exhibit 1) Ms. Treakle concluded that the facility did not follow through with this order because she could not find any written directive to Stuart's staff that identified the level of assistance in feeding needed by Resident 26. Rather, Stuart's staff advised the surveyors that each certified nursing assistant would receive a verbal report identifying the needed level of assistance. (T.pp. 27-29) Ms. Treakle did not review any consumption records in an effort to validate her conclusion that Resident 26 was not being fed after his October stroke. She did not personally observe any meal service that was offered to Resident 26 during the survey. (T.pp. 40-41) Ms. Treakle testified that her belief that Resident 26 was not being adequately fed was confirmed by a hearsay complaint from Resident 26's son indicating that the Resident's meal tray would sometimes remain in his room for one half of an hour before set-up. (T.pp. 39-40) Stuart demonstrated that Resident 26 was fed after he returned from the hospital in October, and that the staff was aware of the level of assistance he needed for feeding. Nurses' notes from October 12th through 15th contained statements that Resident 26 needed and was given assistance with his Activities of Daily Living, particularly with regard to his meals. (T.p. 99-101; pp. 93-95 of Petitioners Exhibit 1) In addition, there were consumption records for Resident 26's meals and supplements that indicated that he was consuming adequate amounts of those items. (T.p. 102; pp. 116, 119 of Petitioner Exhibit 1) Stuart also demonstrated that, by October 17th, Resident 26 had improved in his eating skills to the point that he did not need assistance with eating beyond set up.4 This fact was identified not only in the October 17th nursing note, but also in Occupational Therapy Screenings that were done on October 16th and in early December. (T.pp. 99-101, 105-106; see also p. 72 of Petitioner Exhibit 1) Because Resident 26 was independent in his eating skills by October 17th, it was unnecessary for Resident 26 to have a care plan requiring assistance in feeding. (T.p. 101)5
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 issuing a Standard rating to Stuart and rescinding the Conditional rating. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 23rd day of March, 1999.
The Issue The issues are whether Respondent offered for sale adulterated or misbranded food in violation of Subsections 500.04(1) and (2) and 500.10(1)(f), Florida Statutes (2007),1 and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating food establishments in the state. Respondent operates a business that sells mostly pre-packaged food products at retail but also provides ancillary food service. The food service operation is a “deli” that prepares ready-to-eat food products in individual portions for consumption on the premises, including sandwiches, coffee, and ice cream. A sanitation and safety specialist (Specialist) for Petitioner performed a routine inspection of the business on February 28, 2008. Numerous food safety violations existed. Ice held for sale had not been tested for safety. An open mayonnaise container was stored at room temperature. Meat used for the preparation of sandwiches was not documented as to how long it had been open. No test strips were available for the chlorine sanitizer. Ready-to-eat food items in the freezer were not labeled with the preparation date. Fish was not labeled with the product name, ingredients, and distributor. Batteries and soap were stored above food items on retail shelves. The Specialist removed the ice machine until the required test for fecal coliforms was performed; the results of which subsequently proved to be negative. The Specialist required Respondent to label all packaged food items with the product name, ingredients, weight, and distributor. The Specialist informed Respondent that she had assigned a poor rating to the premises and would return for a re-inspection, which the Specialist performed on March 17, 2008. Open meat in the deli area remained unmarked as to how long it had been open. A cooker contained rice at 77 degrees rather than the required 135 degrees. Cooked food items in the refrigerator behind the meat cooler remained undated and unlabeled. Food items in the freezer continued to be unlabeled with the product name, ingredients, weight, and distributor. Eggs, milk, and yogurt were stored in a retail cooler at 50 degrees rather than the required 41 degrees. Insect spray and liquid air fresheners were stored above single service paper towels. The Specialist notified Respondent that she rated the premises as poor and would return for another re-inspection, which the Specialist performed on March 31, 2008. Respondent had corrected the previous violations by March 31, 2008. The Specialist returned on April 1, 2008, with her supervisor. Mustard was stored in the deli at 80 degrees rather than the required 41 degrees. Open foods and meat in the self- service coolers in the deli were not documented as to how long they had been open. Food was being stored in the refrigerator behind the meat cases at 61 degrees rather than the required 41 degrees. Food items stored in the refrigerator in the back of the premises were not documented as to how long they had been open, and meat products stored in the self-service area were not labeled. Frozen food in the top of a refrigerator was thawed. A can of gasoline was stored in the mop sink. Petitioner proposes a fine of $3,100.00. A fine of $3,100.00 is reasonable under the circumstances. Petitioner has not promulgated a rule prescribing aggravating and mitigating circumstances for an administrative fine. However, Petitioner presented relevant expert testimony that was credible and persuasive. Respondent committed numerous and egregious food safety violations. A significant number of the violations were critical violations and presented a significant risk to food safety and public health. Respondent prepared, produced, and packed or held food in a manner that exposed the food to contamination and that presented other unwholesome conditions that are injurious to health. The record includes no evidence of actual harm to the public. Respondent has no prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in the Administrative Complaint and imposing a fine of $3,100.00. DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2008.
The Issue Whether the Respondent violated provisions of Section 400.419(3)(c), Florida Statutes, and Chapter 10A-5, Florida Administrative Code, more specifically alleged in the Administrative Complaint dated April 10, 1992.
Findings Of Fact The Respondent, Sun 'N Lake Towers, is an ACLF located in Sebring, Florida, and is duly licensed for 224 beds. On May 14, 1991, the annual licensure survey of Sun 'N Lake Towers reviewed the facility's records to determine the current census and number of meals per day the facility had contracted to serve to its residents. The amount of non-perishable food that would be required to feed the facility's residents two meals per day for seven days was calculated. The supply of food in storage was deficient for every food group by about 50% of the necessary amount of food. A non-perishable food supply protects the residents in the event of a tornado, hurricane, or other disaster. Some of the residents at Respondent's facility were on physician ordered therapeutic diets. One resident, P.M., was on a diabetic diet, but was served orange juice. Orange juice is high in fructose and is not appropriate for such a diet. Tomato juice would have been appropriate, but it was not observed on hand at the facility. Another resident who was on a diabetic diet received a sugary dessert in violation of the physician's order. Another resident on a diabetic diet, M.F., received only one serving of bread and no milk instead of two servings of each group as ordered by the physician. Failure to comply with a physician ordered diabetic diet could result in very serious health problems for a patient. Resident, E.N., who was on a physician ordered 1200 calorie per day diet, received a 4 to 5 ounce serving of meat instead of the two ounce serving ordered by the physician. The facility served a boxed stuffing which was high in sodium content to six residents who were on physician ordered low sodium diets. The facility had no system in place to ensure that information regarding residents' therapeutic diets was transmitted to the food service staff, and the food service staff had no system in place to substitute a modified menu into the meal pattern when required. The food at Sun 'N Lake Towers is otherwise tasty and served in bountiful amounts. An advertisement for Sun 'N Lake Towers was placed the March 1991 edition of Senior Scene Magazine. The advertisement failed to state whether the facility was affiliated with any religious organization. Sun 'N Lake Towers' more recent advertisement now contains the requisite affirmative disclosure. Although the facility kept resident property in trust, it failed to provide a quarterly statements to the residents. The deficiencies cited following the May 14, 1991 visit were also cited during the licensure survey of April 24, 1990.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of all four citations, and that the Agency for Health Care Administration enter a Final Order imposing a fine of $850.00 ($100 suspended) upon the Respondent, Sun 'N Lake Towers. RECOMMENDED this 25th day of January, 1993, 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 25th day of January, 1993.
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing an administrative fine of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2010.
