Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Boley Manor, Incorporated, is licensed to operate Boley Manor Group Home #1, 214 Fourth Avenue South, St. Petersburg, Florida, as an Adult Congregate Living Facility in compliance with Chapter 400, Florida Statutes. On August 13, 1984, Mr. Mike Morris, a Fire Protection Specialist from the Department of Health and Rehabilitative Services, Office of Licensure and Certification, conducted a survey of Boley Manor Group #1. During the survey, Mr. Norris observed that the facility was using an area below the stairway as a storage space for several items, including linens, boxes and a metal trunk. An exit conference was conducted by Mr. Morris with two representatives of the facility, Ms. Moulton and Ms. Murphy. Mr. Morris told Ms. Murphy and Ms. Moulton that the combustible items under the stairway had to removed. A deadline of October 1, 1984, was established in conjunction with the facility by which time the space under the stairway would no longer be used for storage of combustible items. The representatives of the facility were told that the metal trunk was not a combustible item and could remain under the stairway. Subsequent to the initial survey and exit conference, the Respondent was mailed a list of the deficiencies noted during the survey and suggested action required for correction. The list contained other deficiencies not related to the fire safety aspect of the survey. In regard to the deficiency concerning stairway storage, the document read as follows: "A. Space under stairway used for storage. (Action to correct: Remove storage from under stairway)." On March 14, 1985, Mr. Bernard Dunagan, Fire Protection Specialist with the office of Licensure and Certification, conducted a follow-up survey of Boley Manor Group #1 and observed that the metal trunk was still stored under the stairway. Thereafter, the Respondent was cited with the alleged deficiency set forth in the Administrative Complaint. When the nature of the deficiency was clarified in March of 1985, the Respondent removed the trunk from under the stairway. All of the other deficiencies, not related to the fire safety aspect of the survey, had been corrected or were being corrected by Respondent. Mr. Mike Morris is no longer employed as a Fire Protection Specialist with the office of Licensure and Certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a final order be issued dismissing the Administrative Complaint. DONE and ORDERED this 29th day of April, 1986 in Tallahassee, Leon County, 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 29th day April, 1986. COPIES FURNISHED: Carol Wind, Esquire HRS District V Asst. Legal Counsel 2255 East Bay Drive Clearwater, Florida 33546 Donna Varnadoe Residential Program Boley, Inc. 1236 Ninth Street North St. Petersburg, Florida 33705 William "Pete" Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, Esquire 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 Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Addressed in Conclusions of Law Section of R.O. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Partially adopted in Findings of Fact 4 and 5. Matters not contained therein are rejected as not supported by competent substantial evidence. Partially adopted in Findings of Fact 5. Matters not contained therein are rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as not supported by competent substantial evidence. Rulings on Proposed Findings of Fact Submitted by Respondent Salutatory remarks and not a finding of fact. Adopted in findings of fact 2-8. Addressed in Recommendations Section of R.O.
Findings Of Fact By letter dated February 3, 1986, which was sent certified, returned receipt requested, Petitioner was advised that her application for an initial license to operate an ACLF was denied based on Respondent's determination that the facility Administrator, Margaret Staggers, was not of suitable character to operate an ACLF pursuant to Sections 40-0.414(2)(a) and (b), Florida Statutes. Petitioner was specifically advised that the determination was based on the fact that on September 16, 1985, Margaret Staggers pled no contest to a felony charge of adult abuse, pursuant to Section 827.09(1), Florida Statutes, and was convicted of the offense. (State v. Margaret Staggers, Case No. 85-8490). In fact, Petitioner entered a plea of nolo contendere to the felony charge of adult abuse and adjudication was withheld. The thrust of Petitioner's challenge to denial of her license application is that since adjudication was withheld, there was no conviction and therefore for Respondent to state that she was convicted, as a basis for denials was improper. It is true, as Petitioner urges, that she pled no contest to the charge of adult abuse and adjudication was withheld rather than the stated reasons that Petitioner was convicted of the charge of adult abuse. However, Respondent also alleges in its denial letter dated February 3, 1986, that the Department determined that Petitioner's initial license to operate an ACLF was being denied based on its determination that Petitioner is not of suitable character to operate an ACLF pursuant to Sections 400.414(2)(a)(b), Florida Statutes.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Fina1 Order denying Petitioner's application for licensure to operate an Adult Congregate Living Facility. RECOMMENDED this 23rd day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1987. COPIES FURNISHED: Michael O. Mathis, Esquire Office of Licensure & Certification Department of HRS Post Office Pox 210 Jacksonville, Florida 32231 Ira M. Witlin Esquire Suite 107 17555 South Dixie Highway Miami, Florida 33157 Gregory L. Coler, Secretary 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.
The Issue The issues in these cases are whether the natural persons named as Respondents are guilty of neglect of an aged person and, if so, whether Eileen's Guest Home is entitled to renewal of its license as an adult congregate living facility.
Findings Of Fact C. G. is the owner and operator of Eileen's Guest Home, which has been licensed as an adult congregate living facility for six to seven years. C. G. has a bachelors degree with significant coursework in public health. During the relevant time period, J. K. R. was a part-time employee of Eileen's Guest Home and was not a caregiver. She worked only about seven hours a week, performing housekeeping tasks such as mopping floors, hanging laundry, and putting away groceries. At the time, J. K. R. was 20 years old. Eileen's Guest Home is located on Haben Drive in a residential neighborhood in Orlando. A lake, which is surrounded by a steep embankment, is located in the neighborhood. Virginia Avenue, which is heavily travelled, crosses Haben Drive about 500 yards from the facility. A short distance from this intersection is the intersection of Virginia Avenue and U.S. Route 17-92, which is very busy. A lumber yard in the vicinity of this intersection is directly behind a row of bushes that are located about seven houses down from the facility. At all relevant times, Eileen's Guest Home housed eight residents. Four of these residents are mentally confused to a substantial degree and require monitoring. Two of these residents, both of whom have Alzheimer's disease, wandered from the facility without permission or supervisioin in February and April, 1989. C. M., who had been admitted to the facility in December, 1984, wandered from Eileen's Guest Home during the daytime on February 4, 1989. C. M. became disoriented and requested assistance from a neighbor who lives seven houses from the facility. Directly across from this house, which is only four houses down from the steep embankment leading to the lake, is the row of bushes screening the neighborhood from the lumberyard. With the neighbor's help, C. M. returned to the facility without incident a short time after her departure. At the time, C. M. was 87 years old. This is the only time that C.M. wandered from the facility. N. B., who was 77 years old at the time and suffers from Alzheimer's disease, was admitted to Eileen's Guest Home on April 19, 1989. The owner of the Alzheimer's daycare center that N. B. attended told C. G. that N. B. needed a place to live for about one week while her husband was being hospitalized. The daycare center owner told C. G. that N. B. had Alzheimer's disease, but did not mention any tendency to wander. C. G. agreed to take N.B. Sometime during the afternoon of April 20, N. B. left the house without permission or supervision. C. G. failed to notice N. B.'s absence until after 5:30 p.m. when C. G. went to find N. B. to prepare her for bed. At the time of N. B.'s departure, C. G., J. K. R., C.G.'s 18-year-old daughter, and M. C., a 31-year-old employee, were working at the facility. N. B. wandered through the neighborhood for at least one hour before she found assistance. At about 6:30 p.m., N. B. walked up to the home of the same neighbor who had assisted C. M. several weeks earlier. She approached the neighbor's home from the direction of the lake, which is not in the direction of Eileen's Guest Home. She requested help to find her way home. As the neighbor walked N. B. to another neighbor's house, C. G. and J. K. R. drove up in C. G.'s car. With the help of a young man who had been water skiing at the lake and lived in the back of the facility premises, C. G. brought N. B. back to the facility. Neither of the neighbors reported seeing any marks on N. B. However, she had suffered bruises under her left eye, upper right chest, and left hand and thumb, plus lacerations under the left eye and near the left elbow, on the evening of April 19 when facility employees tried to get her to go to bed. Following the incident on April 20, C. G. contacted the owner of the Alzheimer's daycare center and requested that she find another facility for N. B. Told that no other facilities were available, C. G. took no other action except to explain to N. B. that her husband was in the hospital and she should not leave the house. C. G.'s failure to take corrective action after N. B.`s first escape is exacerbated by the fact that the doors to the facility were not secure. The back door, which either had no alarm or had an alarm that was never operative, was normally left unlocked, apparently for the convenience of several persons living in the back. The front door had an alarm, but the alarm was broken for about three weeks in April, beginning a few days prior to the arrival of N. B. On Sunday, April 23, 1989, N. B. wandered from the facility a second time without supervision or permission. At the time, C. G. and her daughter were the only employees present. Never realizing that N. B. had escaped, C. G. received a telephone call from a neighbor informing her that he had N. B. at his home, which was not located on the same street as the facility. N. B. was returned to the facility without incident. The following Sunday, April 30, N. B. wandered from Eileen's Guest Home for a third time without supervision or permission. Again, only C. G. and her daughter were present to care for the residents. A neighbor summoned a police officer, who returned N. B. to the facility. N. B. stayed at the facility for about six more weeks. During that time, she did not wander off the premises without supervision.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order confirming the report of neglect of an aged person by C. G., expunging the confirmed report of neglect of an aged person by J. K. R. and expunging her name as a perpetrator from the registry, and revoking the license of Eileen's Guest Home. ENTERED this 16th day of April, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1990. APPENDIX Treatment Accorded Proposed Findings of Eileen's Guest Home, C.G., and J. K. R. 1. First two sentences adopted. Remainder rejected as irrelevant. 2-6. Adopted or adopted in substance. 7. Rejected as unnecessary. 8-10. Adopted. First sentence adopted. Second sentence rejected as against the greater weight of the evidence. Third sentence adopted except as to "despite" clause. Fourth sentence adopted. Fifth sentence rejected as speculation. Adopted. Adopted in substance. First sentence rejected as subordinate. Second sentence rejected as unsupported by the greater weight of the evidence, although there was no evidence of other incidents of wandering. First two sentences adopted. Remainder rejected as irrelevant. Rejected as against the greater weight of the evidence. 17-19. Rejected as irrelevant. Rejected as recitation of testimony and irrelevant. Rejected as recitation of testimony and against the greater weight of the evidence. Rejected as hearsay and against the greater weight of the evidence. 23-24. Adopted. 25. Rejected as unsupported by the greater weight of the evidence. 26-27. Rejected as against the greater weight of the evidence. 28. Adopted. COPIES FURNISHED: Jonathan S. Grout Dempsey & Goldsmith, P.A. P.O. Box 10651 Tallahassee, FL 32302 Linda L. Parkinson, Attorney Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 701 Orlando, FL 32801 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact The respondent was licensed in 1976 as a foster home, and obtained a license to operate an adult congregate living facility on May 31, 1981. This was the first ACLF license issued in Gadsden County. On September 12, 1983 two representatives of the Department visited the Fletcher Group Home in response to an abuse complaint. Although the abuse complaint was not substantiated, they found unsanitary conditions which led to a concern about the general cleanliness of the facility, and they found that the noon meal was being served around 3:50 in the afternoon. The facility's cleanliness and the late mealtime became a concern because the residents are non-verbal or have low verbal skills, and are in the facility because they are unable to care for their basic personal needs. Because of these conditions, the Department's representatives brought their supervisor to the facility on an unannounced visit at noon on September 14, 1983, to do a complete investigation. When they arrived, the noon meal was just beginning to be prepared, and was not ready until about 1:00 p.m. The conditions of the facility were found to be a potential threat to the health, safety and welfare of the residents in that flies were observed in the kitchen area; the entire kitchen was generally dirty and unsanitary; roaches were found in the refrigerator; food containers in the refrigerator had no covers; there was unwrapped meat stored in the refrigerator; and the refrigerator was generally unclean. The medicine cabinet was unlocked. In the bedroom areas, beds were dirty and unmade; there were roach droppings found in the beds and in the dresser drawers; the ceiling and walls were wet from rain due to the roof leaking; the ceiling sheetrock had fallen out in one of the closets with the clothes still in there, and the clothes were wet because of the leak; the facility had mold and mildew on the walls and ceilings; and generally smelled musty. In the bathroom, the toilet was stopped up and had been used until it was filled with feces; the bathtub was dirty; the sink was dirty; the hot water did not work in the sink; and the cold water tap would not turn off. Outside the facility, the kitchen sink drained into an open pipe which discharged onto the ground. The linoleum in the facility was not tacked down properly, and the metal trim was exposed so that a resident could be injured. 4.. Another visit was made on September 15, at approximately 1:30 p.m. During this investigation, the menus had not been kept on a weekly basis nor corrected with changes in the meals. The records were incomplete or were missing from their folders. There was no indication of any special diets for two of the residents who had diabetes. The contracts between the facility and the residents were out of date. Roaches were still found to be present in the closets and in the refrigerator and the kitchen waste water was still being piped onto the ground behind the facility. On September 16 the Department made another inspection. This revealed that the facility had improper wiring, and did not meet the requirements of the standard building code. Plates were off the wiring receptacles making it possible for residents to come in contact with electrical wiring; exterior wiring was done improperly; interior lighting fixtures were put on the exterior of the building; LP gas heaters were improperly installed; and the beds were too close to the gas heaters. Neither the plumbing, nor the wiring, nor the building itself were in compliance with the applicable building codes. The-respondent either denied that the conditions found by Department representatives existed, or she contends that those which existed have been corrected. However, there was no evidence presented by the respondent to show that the plumbing, electrical wiring or the building itself is in compliance with the applicable building codes. Thus, there is substantial, competent evidence to support a finding that the violations alleged existed on September 12, 14, 15 and 16, 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license of Carrie Fletcher to operate the adult congregate living facility known as the Fletcher Group Home, be revoked. THIS Recommended Order entered this 4 day of June, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4 day of June, 1984. COPIES FURNISHED: John L. Pierce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Conrad C. Bishop, Jr., Esquire Post Office Box 167 Perry, Florida 32347
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 Thomas Singleton, Jr. is the holder of ACLF License No. P-4-16-0089C held under the provisions of Chapter 400, Part II, Florida Statutes. This is a form of temporary license for operating adult congregate living facilities. Mr. Singleton is also an applicant for a permanent license for operating an adult congregate living facility. Carolyn Bothwell, is a social worker with the Department of Health and Rehabilitative Services, who specifically works in the field of aging and adult services. Sane of her clients were residents of Tom's Rest Home, 1834 Silver Street, Jacksonville, Florida, which is owned and operated by Thomas Singleton, Jr. On January 10, 1978, Ms. Bothwell received a call from Mr. Singleton in which Mr. Singleton expressed some consternation about trying to collect money owed by one of his former boarder's at Tom's Rest Home. In Ms. Bothwell's opinion, Mr. Singleton's speech was slurred and he seemed very different than her prior contacts with him. On January 13, 1978, Mr. Singleton came to her office to further discuss the problem about the payment by the hoarder. His appearance was disheveled and his speech was incoherent. In this conversation of January 13, Singleton also mentioned that his wife had left him and that he wanted Ms. Bothwell to be at the boarding home when he told the boarders of his wife's departure. Ms. Bothwell went to the location of the boarding home around 12:00 moon on the date, January 13, 1978, in the presence of other members of the Department of Health and Rehabilitative staff. When she arrived at the boarding home, she discovered that the boarding home was locked and the boarders were on the front porch, locked out of the hone. Mr. Singleton had difficulty remembering why he had gone to meet with Ms. Bothwell earlier that day and made no mention of the fact that his wife had left. In Ms. Bothwell's opinion he appeared very vague and confused. Ms. and the other members departed the premises a short time later. On that .same date, January 13, 1978, June K. Frye , a District Program Specialist, with the Department of Rehabilitative Services dealing with adult congregate living facilities, spoke with Mr. Singleton. This conversation apparently took place in the morning. In the course of the conversation Ms. Frye mentioned that she had called Mr. Singleton to advise him of an upcoming reinspection on the question of considering his probationary license status. Ms. Frye felt that Mr. Singleton was incoherent and unable to give concrete information about the license situation. She asked to speak to someone else at the facility but Mr. Singleton was unable to assist her in that request. Prior to this conversation with Mr. Singleton, 345. Frye had never noticed any slurred speech or inability on the part of Mr. Singleton to respond to requests or to give information. Later that afternoon, Ms. Frye, in the presence of Mr. Otto G. Hrdlicka, went to the facility at 1834 Silver Street.' When they arrived they found that Bertie Mac Baldwin was in charge of the facility. Mr. Singleton's wife was not at the facility and Mr. Singleton was on the bed in his room, out of contact with the boarders. Several attempts were made to awaken Mr. Singleton, but none of those attempts were successful. It should be mentioned that Mrs. Baldwin was hired as a housekeeper whose hours were from 9:00 a.m. to 3:00 p.m. each day and at the time of the visit by Mrs. Frye and Mr. Hrdlicka, Ms. Baldwin was preparing to leave the facility. Ms. Baldwin had no responsibility in terms of cooking the food or attending to the overall needs of the boarders in the home. Testimony was also given in the course of the hearing that Mr. Singleton had written a check for insufficient funds to April Russel on January 15, 1978. This check was in the amount of $50.00. Restitution was made on the check, however. Testimony was also given that Mrs. Frye had been approached by Marion Thomas, a cab driver who claimed that Mr. Singleton had written him checks on January 13, totaling $50.00, for which there were no sufficient funds. Again restitution was made for those checks. A representative of the Atlantic Bank of Springfield, Jacksonville, Florida, testified in the course of the hearing and indicated that the operating account of Mr. Singleton for his business Ton's Rest Home had been closed out in February at a time when the account was overdrawn $151.90. Subsequent to the January 13, 1978, incidents at the rest home, the boarders have been moved and placed in other facilities. Part of the motivation for such removal was due to the fact that some of the patients had come to the boarding home after being released from the Northeast Florida State Hospital, at Macclenny, Florida, an institution for the treatment of patients with mental illness. It was felt by the program coordinators of the adult congregate living facilities that Mr. Singleton would be unable to properly care for these individuals and others in his boarding home and in view of the fact that no other employees were in a position to take care of the needs of the individual boarders, the decision was made to remove them from Tom's Rest Home. Mr. Singleton gave testimony in the course of the hearing and indicated that he had suffered a severe stomach disorder beginning in April, 1977 and had undergone an operation to remove part of his colon. He says this caused him to take a number of pills as treatment. In addition he indicated that he had had some domestic problems with his wife. He also stated that on January 19, 1978 through January 23, 1978, he received psychiatric treatment in a local hospital, in Jacksonville, Florida, for his condition. He described the condition as a collapse of his nerves, which was brought on, according to Mr. Singleton, by failure of the treating physician who dealt with his colon problem to respond to a need to control his blood pressure. The events of January 13, 1978, and the state of Mr. Singleton's finances have lead to a complaint letter of January 19, 1978. Mr. Singleton has received that letter and been given an opportunity to respond to it. The complaint letter falls into two broad categories. The first category pertains to the matters of January 13, 1978 and the second category pertains to the financial situation of Mr. Singleton. Under the matters of January 13, 1978, the Department of Health and Rehabilitative Services has alleged violations of Chapter 10A-5.06(5)(b)(2); 10A-5.09(1), (4)(a), and (6), Florida Administrative Code, and Section 400.414(2)(a)(d) and Section 400.441(2), Florida Statutes. Those provisions read respectively: 10A-5.06 Operational Standards. Facilities shall offer close supervision and living conditions as is necessary to the condition of the resident. This includes supervision of diets as to quality and quantity, and watchfulness over the general health, safety and wellbeing of residents. There shall be daily awareness of the residents by designated staff of the facility as to the apparent well-being of the individuals with sufficient provision for contacting the resident's physician, if the resident has not already done so, at any time there appears to be significant deviation from his normal appearance or state of health and well-being. Appropriate notice of such instances shall be recorded in the personal records of the individual. * * * (5) The minimum personnel staffing for adult congregate living facilities shall be: * * * 2. There shall be at least one staff member on call at all times when residents are in the facility. 10A-5.09 Personnel Standards. The administrator of a facility shall: (1) Provide such qualified staff as are necessary to assure the safety and proper care of residents in the facility. * * * (4) Assure that each person serving in any official capacity in the facility shall: (a) Be on duty, alert and appropriately dressed during the entire tour-of duty. In smaller facilities it is permissable for the administrator to be on call during normal sleeping hours. * * * (6) Insure that the staff is mentally and physically capable of performing their assigned duties. They shall be free of any communicable diseases which would present the hazard of transmission to resident or other staff member. If any staff member is found to have or is suspected of having such disease, he will be removed from his duties until the administrator determines that such risk no longer exists. 400.414 Denial, suspension, revocation of license; grounds. * * * Any of the following actions by a facility or its employee shall be grounds for action by the department against a facility: An intentional or negligent act materially affect- ing the health or safety of a resident of the facility * * * (c) Violation of the provisions of this act or of any minimum standards or rules promulgated hereunder. 400.441 Rules establishing minimum standards. Pursuant to the intention of the Legislature to provide safe and sanitary facilities, the department shall promulgate, publish, and enforce rules to implement the provisions of this act, which shall include reasonable and fair minimum standards in re- lation to: * * * (2) The number and qualifications of all personnel having responsibility for the care of residents. It is established through the evidence that at all times on January 13, 1978, when the events as described took place, those boarders who had been assigned to Tom's Rest Home were living in that facility. Therefore, an examination of the events of January 13, 1978, as reported above, in view of the requirements set forth in the Florida Administrative Code which are related herein; demonstrates that Thomas Singleton, Jr. was in violation of those conditions and is subject to the penalties for such violation, to include revocation of the temporary licence ACLF License no. P-4-16-089C and the denial of an unrestricted license. Moreover, the financial disarray of Mr. Singleton's business account for Tom's Rest Home, which was shown in the months of January and February, 1978, demonstrates a violation of Rule 10A-5.08(1), Florida Administrative Code, which reads: 10A-5.08 Fiscal Standards. The administrator of a facility shall maintain fiscal records in accordance with the requirements of Chapter 400 F.S., Part II. There shall be a recognized system of accounting used to accurately reflect details of the business including residents' "trust funds" and other property. The fiscal and "trust fund" records shall reflect a verified statement. The facility shall: (1) Be administered on a sound financial basis consistent with good business practices. Evidence of issuance of bad checks or accumulation of delinquent bills far such items as salaries, food, or utilities shall constitute prima facie evidence that the ownership lacks satisfactory proof of financial ability to operate the facility in accordance with the requirements of Chapter 400 F.S., Part II. This would also establish a sufficient basis for denying any application for an unrestricted license, because it would show that the applicant has failed to demonstrate satisfactory proof of financial ability to operate and conduct the facility as required by Section 400.411(2) , Florida Statutes.
Recommendation It is recommended that the ACLF License No. P-4-16-0089C, held by Thomas Singleton, Jr. be revoked. DONE AND ENTERED this 17th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Department of HRS Post Office Box 2417F Jacksonville, Florida 32231 Thomas Singleton, Jr. Tom's Rest Home 1834 Silver Street Jacksonville, Florida 32206
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
Findings Of Fact During times material hereto, Respondent, Ray C. Dorman, is the owner and administrator of Scarlet Manor. Scarlet Manor is an adult congregate living facility at 13009 Lake Carl Drive in Hudson, Florida. The facility has a census of 40 beds and of that census, two residents are elderly patients and the remaining 38 residents are "hard core" mental patients who require intensive and specialized nursing care. Ray Dorman (Respondent) is named as the confirmed perpetrator of neglect (FPSS No. 90-091417) based on a finding that Respondent neglected a resident at the ACLF. A certified letter from Petitioner dated September 22, 1990, which was received by Respondent on September 27, 1990, advised Respondent that he could challenge the confirmed finding of neglect if he considered that the classification was inaccurate or that it should otherwise be amended or expunged. Although Petitioner maintains that Respondent failed to challenge the confirmed finding of neglect, Respondent and his wife, Winifred Dorman, credibly testified that on October 10, 1990, she accompanied Respondent to an HRS office in Clearwater to deliver a written request to challenge the finding of neglect. While the office which would have addressed Respondent's challenge (Mr. Morton's office) is situated in St. Petersburg, on that point, it appears that Respondent's wife was either unclear as to exactly where the Respondent's challenge to the confirmed classification was delivered and nothing more. Respondent's facility has been the subject of regular survey reports wherein it was determined that Respondent's facility was deficient in maintaining minimum licensure requirements based on inspection surveys dating back to September, 1989. Mrs. Diane Cruz, a human services surveyor specialist employed by Petitioner, was part of a three (3) member team of surveyors at Respondent's facility during late September, 1989. During the September, 1989 survey, it was determined that Respondent's facility was deficient in several areas including fiscal policies, facility records, client records, medication records, staffing, food service standards, maintenance and housekeeping standards, resident care, admission criteria and fire safety standards. In all of the cited areas, Respondent corrected the deficiencies and no cited deficiency was outstanding at the time of the hearing herein. Significantly, of the numerous deficiencies that Respondent was cited, only three of the deficiencies were repeat deficiencies during the annual 1990 annual survey. Respondent's facility is a fairly new and modern facility and Respondent prides himself in providing his residents the high degree of nursing services which the residents of his ACLF require. In this regard, in each instance wherein Respondent was cited for deficiencies, the matter was corrected by the time that the follow-up survey was conducted with only two exceptions. Regarding those exceptions, Respondent credibly testified that he had undertaken a good faith effort to correct the deficiency by the time of the follow-up survey. In any event, all of the cited deficiencies were corrected and Respondent has abided by the terms of any restrictions including the payment of any administrative fines which were imposed by Petitioner. Such conduct evidences that Respondent is conscientious in the operation of his adult congregate living facility and, to his credit, more than one of and Petitioner's witnesses testified that Respondent operates a good ACLF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent a conditional license to operate Scarlet Manor as an adult congregate living facility. 1/ Afford Respondent an opportunity to challenge the confirmed classification naming him as the perpetrator in FPSS Report No. 90-091417 as soon as practical. DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991.
