Findings Of Fact On August 10, 1977, Petitioner filed an application for an Adult Congregate Living Facility License. Thereafter, on nine separate occasions Petitioner was visited by representatives of Respondent, the Dade County Fire Department, and the Dade County Health Department. The results of the inspections by these governmental agencies were numerous lists showing deficiencies in Petitioner's staff, physical plant, sanitary practices, and in diets being furnished to the residents of the facility. At the final hearing in this cause, Petitioner's President admitted that the deficiencies noted in the May 22, 1978 letter of Respondent's Supervisor of the Aging and Adult Services Program, which was marked as Petitioner's Exhibit Number 3, were correct as of the date of the letter. Petitioner contends, however, that the deficiencies noted in Petitioner's Exhibit Number 3 have since been corrected. However, the issue in this proceeding is whether there was substantial competent evidence in existence on May 22, 1978, to justify the denial by HRS of Petitioner's application for an Adult Congregate Living Facility License. Corrections made by Petitioner after that date are irrelevant to this proceeding, although Petitioner would not, of course, be estopped to show correction of these deficiencies in a later application. Inspections conducted by or on behalf of HRS on April 7, 1978, May 12, 1978, and May 16, 1978, showed that staff on duty at Petitioner's facility was inadequate to properly supervise residents in the facility. On the April 7, 1978, visit, there were only one or two staff members on duty to care for thirty-four residents of the facility. The inspection conducted on May 16, 1978, revealed only one staff member on duty. The Administrator of the facility on both occasions was not in attendance at the facility at the time of the inspections. Fire inspections on Petitioner's facility were conducted on January 6, 1978, and again on April 20, 1978. The January 6, 1978, inspection resulted in a lengthy list of deficiencies, which included citations for no building evacuation plan, improper fire extinguishers, lack of proper latching devices on doors, improper hanging of doors, improper installation and maintenance of electrical equipment, no emergency lighting, obstruction in facility corridors, lack of exit signs, lack of smoke detectors, insufficient landing size on stairways, improper storage of flammable chemicals, and improper safety precautions in the electrical equipment room. The April 20, 1978, inspection also resulted in a lengthy list of deficiencies, including lack of an evacuation plan, no record of evacuation drills having been held, lack of proper latching devices on stairway fire doors, and lack of exit signs. There is no evidence of record from which to conclude that these deficiencies were corrected prior to the date on which HRS denied Petitioner's application for a license to operate an Adult Congregate Living Facility. Sanitary inspections of Petitioner's facility were conducted on August 29, 1977, and April 18, 1978. The August 29, 1977 inspection resulted in a lengthy list of deficiencies which is contained in Petitioner's Exhibit Number Among these deficiencies were improper doors, windows and screens in the facility, lack of handrails, improper lighting, improper heating, insufficient number of toilets for the existing number of residents in the facility, and numerous electrical code violations. The inspection conducted on April 18, 1978, revealed many of the same deficiencies noted in the earlier inspection. In addition, a serious fly problem was observed in the kitchen area which was caused by improper sanitary procedures in the kitchen and disrepair of windows, screens and doors. In addition, live roaches and roach eggs were observed in the kitchen, also due to improper sanitary procedures. Further, a live rat and significant quantities of rat droppings were also observed in the kitchen area. The April 18, 1978 inspection also revealed cracked ceilings, holes in walls, malfunctioning lights, holes in floors, and use of a common drinking cup at the water fountain in the facility. There is insufficient evidence in the record in this cause to appropriately demonstrate that the deficiencies noted in the August 29, 1977 and April 18, 1978 inspections were adequately corrected prior to the denial of Petitioner's request for a license on May 22, 1978. On May 12, 1978, the kitchen facilities belonging to Petitioner were inspected by an HRS staff nutritionist. On the day of the inspection, the Administrator was not in attendance at the facility, and the only staff member present was a young woman who had difficulty communicating in English, and who was in charge of both residents of the facility and total food service, including preparation, serving and cleaning. The lunch menu posted for the date of the inspection did not provide one third of established recommended dietary allowances. The menu was also calculated to be deficient in calories, protein, calcium, iron, Vitamin A, Vitamin C, Thiamine, Riboflavin and Niacin. The food on hand in the facility did not correspond to posted menus, and the meal observed together with the food inventory were not sufficient for the age group residing in the facility and could result in malnutrition. The kitchen area was dirty, and food preparation utensils required scrubbing and sanitizing. Dishes were being washed with tepid water which was not sufficient for sterilization, and other sterilization methods being used for kitchen utensils were not sufficient to sterilize them. A serious fly problem existed in the kitchen, at least in part due to poor installation of doors. It was impossible to determine the qualifications of the Food Service Supervisor, no policy manual regarding food preparation was found in the facility, and no job description, work assignment, orientation plan, training record, health exam, or employee evaluation could be located for food service personnel. There were no written menus approved by a qualified consulting dietician, no written procedures for ordering, receiving and storing foodstuffs, and no food preparation or recipe file.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, denying Petitioner's Application for a License to Operate an Adult Congregate Living Facility. RECOMMENDED THIS 5th day of January, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Stuart E. Wilson, Esquire Franklin International Plaza 255 Alhambra Circle, Suite 100 Coral Gables, Florida 33134 Leonard Helfand, Esquire DHRS District XI Legal Counsel State Office Building 401 Northwest 2nd Avenue Miami, Florida 33128
The Issue Relating to Case No. 89-2757 Whether Respondent failed to assure that a sufficient number of staff members were certified in an approved First Aid course (a repeat violation), in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(f), Florida Administrative Code. Whether Respondent failed to sanitize multi-use eating and drinking utensils in accordance with the food service standards (a repeat violation), in violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A-5.020(1)(n)6, Florida Administrative Code Relating to Case No. 89-3411 Whether Respondent failed to have in its files the inspection reports for the years 1984 and 1985, in violation of Sections 400.419(3)(c)4. and 400.435(1), Florida Statutes and Rule 10A-5.024(1)(d)(2a), Florida Administrative Code. Whether Respondent failed to assure compliance with physical plant standards, by not providing a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area for one (1) sleeping room window that serves as a second means of escape, in violation of Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code. Whether Respondent failed to have a fire and evacuation route plan to assure compliance with fire safety standards, in violation of Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.
Findings Of Fact Case No. 89-2757: At all times relevant the dates and alleged occurrences referred to in these proceedings, Respondent, Henderson's Retirement Home, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). Respondent's facility was staffed without assurance of at least one staff member within the facility at all times who is certified in an approved first aid course. Tina Porterfield, the granddaughter of Dee Henderson, owner of Henderson's Retirement Home, although certified in an approved first aid course, was not a full time staff member. This violation occurred on September 30, 1987 and was not corrected on February 2, 1988. There was no competent evidence to show that Respondent's multi-use eating and drinking utensils were not being properly sanitized in accordance with food service standards. Case No. 89-3411: At all times relevant to the dates and alleged occurrences referred to in these proceedings, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF). HRS inspection reports relating to the Respondent's ACLF facility were not provided to Respondent for the years 1984 and 1985, and therefore could not be retained in its files at the time the facility was inspected in February, 1986 and February 18, 1987. HRS inspection of the premises on February 16, 17 and 18, 1987 revealed that a window that serves a second means of escape did not provide a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area. It was not proven where this window was located or if it was a sleeping room. Respondent was given until April 1, 1987 to correct the deficiency and the window was removed and replaced by a fire exit door when inspected on June 4, 1987. As of February 18, 1987, Respondent had a written fire and evacuation route plan prepared. A copy was posted during the time the HRS inspectors were completing their survey on February 18, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner impose a civil penalty in the total amount of $300 against Respondent pursuant to Section 400.419, Florida Statutes. DONE AND ENTERED this 15th day of November, 1989, 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 15th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2757, 89-3411 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact: As to Case No. 89-2757: Adopted in substance. As to Case No. 89-3411: Paragraphs 1 and 3 adopted in substance. Paragraph 2 rejected as against the weight of the evidence. COPIES FURNISHED: Linda L. Parkinson, Esquire District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson Street Suite 701 Orlando, Florida 32801 Raymond A. McLeod, Esquire McLeod, McLeod and McLeod, P.A. Post Office Drawer 950 Apopka, Florida 32704 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Kevin Hinckley, at all times relevant to the Administrative Complaint, was licensed to operate Creative Living #2, 225 26th Avenue, Northeast, St. Petersburg, Florida, as an Adult Congregate Living Facility in compliance with Chapter 400, Florida Statutes. On January 3, 1985, Earl Wright, Demaris Hughes and Bernard Dunagan, personnel from the Department of Health and Rehabilitative Services, Office of Licensure and Certification, conducted a survey of Creative Living #2. Mr. Wright was primarily responsible for conducting the administrative aspects of the survey, such as paperwork and staffing matters. Ms. Hughes was employed as a public health nutrition consultant and was responsible for surveying the nutritional aspects of the facility. Mr. Dunagan was employed as a fire safety specialist and was responsible for conducting the fire safety aspect of the survey. During the survey of January 3, 1985, the inspection team determined that various deficiencies existed in Respondent's facility. An exit conference was conducted by the inspection team with a representative of Creative Living #2 upon. completion of the survey wherein the alleged deficiencies were explained. Certain time-frames were established in which the facility was to correct the deficiencies noted in the survey. The deficiencies noted during the January 3, 1985 survey were as follows: Deficiency Correction Date a. Failure to maintain an admission February 3, 1985 and discharge record. b. Failure to maintain employee February 3, 1985 time-sheets. c. Failure to have policies and February 3, 1985 procedures to ensure leisure services for residents. Failure to ensure that supper February 3, 1985 meal and breakfast were no more than 14 hours apart. e. Failure to keep menus on file February 3, 1985 for six months and no substitutions were documented. f. Failure to keep the kitchen February 3, 1985 and equipment in good repair. g. Failure to ensure that all February 3, 1985 residents' sleeping rooms opened directly into a corridor, common use area or outside. h. Failure to have a grab bar February 3, 1985 in the shower. i. Failure to keep the building in February 3, 1985 good repair and free of hazards as evidenced by the following: the kitchen ceiling needed plastering, and (2) the rear bed- room window was cracked. Failure to keep all plumbing February 3, 1985 fixtures in good repair, properly functioning and satisfactorily protected to prevent contamination from entering the water supply as evidenced by two back-flow devices not being installed in order to prevent contamination on outside faucets. Failure to have an automatic March 3, 1985 sprinkler system in the facility. (a two-story unprotected wood-frame building.) 1. Failure to maintain a January 10, 1985 fire alarm system that could be shown to work when tested. m. Failure to provide either a January 10, 1985 one hour fire resistant rating or automatic fire protection for storage under the stairs in the facility. A follow-up visit was made by Earl Wright and Demaris Hughes on March 14, 1985 and by Bernard Dunagan on March 20, 1985. The follow-up visits were made by the Department of Health and Rehabilitative Services to determine the status of deficiencies noted during the initial survey of January 3, 1985. During the follow-up survey on March 14, 1985, an argument ensued between Mr. Hinckley and Ms. Hughes. The argument took place in the dining room and shortly thereafter the survey was terminated. Although the majority of the re- inspection was performed, the argument resulted in the survey being terminated short of completion. Because the survey was concluded before completion, the inspectors did not verify action taken by Respondent to correct certain deficiencies. At the time of the follow-up survey on March 14, 1985, the facility had not corrected certain "administrative" deficiencies noted by Mr. Wright. Specifically, the facility: 1) did not have an admission and discharge record; 2) did not have employee time-sheets; and, 3) did not have established policies and procedures to ensure leisure services for residents. Further, a resident's sleeping room in the house did not open directly into a corridor, common use area or outside, and two back-flow plumbing devices were not installed in order to prevent contamination from entering the water supply. At the time of the follow-up survey on March 14, 1985, the facility had not corrected certain deficiencies noted by Ms. Hughes which concerned diet and nutrition. Specifically, the facility failed to keep menus on file for six months and note documentation of substitute foods. At the time of the follow-up survey on March 20, 1985, the facility had not corrected a number of deficiencies noted by Mr. Dunagan which concerned fire safety. In particular, the facility: (1) failed to have an automatic sprinkler system; (2) failed to maintain a fire alarm system that could be shown to work when tested; and (3) failed to provide either a one hour fire resistant rating or automatic fire protection for an area under the stairs in the facility which was used as storage. Mr. Hinckley ran the facility out of his home and operated it on a "family concept." A resident could eat whenever he or she was hungry. Normally, the evening meal was served at 5:00 P.M. or 6:00 P.M., and a snack was provided at 8:00 P.M. or 9:00 P.M. Breakfast was available from 6:30 A.M. through 7:00 A.M. for the Respondent's children. The residents could join the family for breakfast, or, if they wished to "sleep-in," could have breakfast later. ~ An upstairs toilet had overflowed and caused the ceiling plaster in the kitchen below to buckle. On March 14, 1985, the plastering was repaired but had not been painted. The cracked bedroom window had been repaired. Following the initial survey, Mrs. Hinckley called Mr. Wright to talk about the shower grab bar. Mr. Wright told her that she could put adhesive skid grips in the shower. From her conversation with Mr. Wright, Mrs. Hinckley believed that she could substitute adhesive skid grips for the grab bar because there was a sit-down commode. Adhesive skid grips were installed in the shower. Respondents, in a separate action, lost their license as an adult congregate living facility in November, 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a fine in the amount of $600 be imposed upon Kevin Hinckley d/b/a Creative Living #2. DONE and ORDERED this 6th day of May, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1986. COPIES FURNISHED: Carol Wind, Esquire HRS District V Assistant Legal Counsel 2255 East Bay Street Clearwater, Florida 33518 Jack S. Carey, Esquire 575 2nd Avenue South St. Petersburg, Florida 33701 William J. "Pete" Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Facts Submitted by the Petitioner: Adopted in Finding of Fact 1. Addressed in Conclusions of Law. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact 8. Rejected as unnecessary in view of Finding of Fact 13. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as subordinate. Rejected as a recitation of testimony. Rejected as a conclusion of law. Adopted in Finding of Fact 14. Addressed in Conclusions of Law section of Recommended Order.
