Findings Of Fact Respondent, L. D. Terry, operates a thirty-bed adult congregate living facility under the name of Golden Paradise at 1200 Old Dixie Highway, Delray Beach, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. On June 9, 1986 James Valinoti, an HRS inspector, conducted a routine annual license renewal inspection of respondent's facility in the presence of the facility's administrator, Katherine Stevens. The inspection focused on all aspects of the facility's operations, including safety, physical plant, recordkeeping and sanitation. It was Valinoti's purpose to determine if the facility was in compliance with various requirements of Chapter 10A-5, Florida Administrative Code (1987) During the course of his inspection, Valinoti observed the following deficiencies: The facility did not document and place in its records the services delivered by a third party contractor (nurse) as required by Rule 10A-5.024(1)(a)4., FAC. The facility employed three or more staff but did not maintain a record of personnel policies, including state- ments of work assignments for each position as required by Rule 10A-5.024 (1)(a)5., FAC. The facility did not maintain a time sheet for all employees as required by Rule 10A-5.024(1)(a)7., FAC. The respondent failed to assure that there was at least one staff member within the facility at all times who had a certification in an approved first aid course and that the staff was free of communicable diseases as required by Rule 10A-5.019(5)(f), FAC. The facility failed to furnish each staff member with a copy of written policies governing conditions of employment including the work assign- ments of his position as required by Rule 10A-5.019(5)(h), FAC. The resident contract did not contain a refund policy if transfer of ownership, closing of facility or resident discharge should occur as required by Rule 15.024(1)(b)1., g., FAC. The facility failed to note in the residents' records the disposition of drugs after a resident had left the facility as required by Rule 10A- 5.0182(3)(a)7., FAC. The facility had no policies or pro- cedures for assisting residents in the making of appointments or providing transportation to and from appropriate medical, dental, nursing or mental health services as required by Rule 10A-5.0182(8) and (9), FAC. The facility did not participate in continuing in-service education on an annual basis at a minimum as required by Rule 10A-5.020(1)(c), FAC. The dietary allowances were not met offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents, and prepared by the use of standardized recipes as required by Rule 10A-5.020 (1)(g), FAC. There was evidence of rodent dropping in the food storage room in violation of Rule 10A-5.020(1)(n)1. and 5., FAC. The facility did not assure that food service employees were free of communicable disease as required by Rule 10A-5.020(1)(n)15., FAC. Linoleum in the facility was peeling causing a tripping hazard and sinks and toilets were rusted in violation of Rule 10A-5.022(1)(a),(c), and (g), FAC. With the exception of item (a), which was unclassified, all deficiencies were Class III violations. After the inspection was completed, Valinoti discussed the deficiencies with the administrator and suggested ways to correct them. A letter was then prepared by the HRS area supervisor on July 23, 1986 and mailed the same date to Terry with a copy of the Classification of Deficiencies. That document provides a description of each deficiency, the class of deficiency and the date by which the deficiency must be corrected. Except for a requirement that the deficiency pertaining to rodent droppings be corrected immediately, Terry was given thirty days, or to August 23, 1986, in which to correct the cited deficiencies. Terry acknowledged he received a copy of the letter and attachments. On September 24, 1986 Valinoti reinspected respondent's facility. He found that none of the items had been fully correct. By letter dated September 29, 1986 HRS advised Terry of its findings and warned him that a "recommendation for sanction" would be made. It advised him further that another inspection would be made after October 29, 1986. On October 30, 1986 Valinoti made a second follow-up visit to respondent's facility. Valinoti found that all items had been corrected except item (j). The results of his inspection were reduced to a written report on November 13, 1986, a copy of which was sent to Terry. A year later, an administrative complaint against respondent was issued by HRS. Terry acknowledged, through admissions or testimony at hearing, that most of the allegations were correct but offered mitigating testimony as to why certain corrections were not made on a timely basis. When he purchased his facility in 1982, it was in a state of disrepair through neglect by the previous owner. Since then, he has attempted to upgrade the facility through a series of repairs and renovations. He currently has nineteen residents, most of whom were referred from a nearby mental health center. A mental patient is more difficult to care for, and this type of patient is prone to tear up furniture and equipment. Terry pointed out that he has only three employees, and they fully understand their duties and responsibilities. For this reason, he did not have documentation outlining their job assignments. When the June 9 inspection was made, Terry contended that HRS was in the process of implementing new rules, which he did not identify, and which he claims he did not understand. As evidence of his good faith, Terry pointed to the fact that all deficiencies except one were corrected by October 30, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of twelve Class III violations and one unclassified violation and that he be assessed a $1,250 civil fine to be paid within thirty days after the date of the final order entered in this matter. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989. COPIES FURNISHED: Leonard T. Helfand, Esquire North Tower, Room 526 401 Northwest Second Avenue Miami, Florida 33128 John W. Carroll, Esquire Post Office Box 31794 Palm Beach Gardens, Florida 33410 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Prior to its licensure as an adult congregate living facility, the respondent H & E Guest Home received an initial inspection by HRS on June 24, 1985. Various deficiencies were cited during this visit and all such deficiencies were corrected by September 10, 1985, the date of the revisit by HRS. Among the deficiencies cited by HRS were that "the facility income and expense records were not available for review," denominated by HRS as an "unclassified" deficiency, and that "menus were not dated and planned one week in advance," denominated as a Class III deficiency. At the time of this initial survey on June 24, 1985, there were no residents in the respondent's facility as it was not yet licensed or opened for operation as an adult congregate living facility. On June 17, 1986, HRS performed an annual survey on respondent's facility. During this survey, several deficiencies were found. As pertinent to the charges in this proceeding, HRS found that there were no fiscal records relating to the facility's financial operating status available at the facility site for review. This deficiency was denominated by HRS as a Class III repeat deficiency. The other repeat deficiency noted, also denominated as Class III, was that menus were not dated and planned one week in advance. Residents were in the respondent's facility on June 17, 1986. HRS proposes to levy a fine of $250.00 for the fiscal records deficiency, and a fine of $200.00 for the deficiency relating to menus. According to HRS, the impacts upon patients resulting from such deficiencies are, respectively, "without the records it would be difficult to determine the financial stability of the facility," and "it would be difficult to maintain a sufficient food supply, and the residents would not be aware of their meals in advance."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint be DISMISSED, without prejudice to HRS to conduct an unannounced visit to the respondent's facility to determine if the cited deficiencies have been corrected. Respectfully submitted and entered this 6th day of October, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1374 The proposed findings of fact submitted by the petitioner are accepted, except as follows: 2. Partially accepted; however, there was no evidence that the corrections were not timely made. 4. Accepted, but not included as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: Gaye Reese, Esquire Senior Attorney Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 Aubrey E. Estes 3116 Ninth Street, East Bradenton, Florida 33508 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this case is whether Petitioners should be granted approval by the City of Clearwater of their request for expansion of a six-bed group home facility, located at 1430 Palmetto Street in Clearwater, to eight beds.
Findings Of Fact Petitioners, Generosa T. Santos and Rose W. Milam, operate the White Palace, an assisted living facility, in a residence owned by Petitioner Milam, located at 1430 Palmetto Street in Clearwater. The facility is currently licensed for six residents and has been in operation for several years. The property in question is a single family residence located in an area zoned RS 8, (residential urban), on the north, east and west, and recreational/open space on the south. In actuality, all parcels, including the property in question, except for the golf course on the south, are occupied by single family residences. On December 15, 1996, Ms. Santos applied to the City's Planning and Zoning Board for a conditional use permit to expand the existing six bed Level I Group Care Facility to a maximum capacity of eight residents. The Petitioners' request was considered by the Board at its public meeting held on February 4, 1997. Prior to that time, the Petitioners' application was reviewed by Sandra E. Glatthorn, a planning administrator for the City who determined that the property, a single family residence, has been utilized since 1983 as an assisted living facility for six adults. In 1985, the facility was permitted for eight residents, but for two years thereafter, the facility did not operate as such and that permit lapsed. In March 1994, Ms. Santos requested zoning approval for six clients, which was approved. After her review of the application in issue, Ms. Glatthorn prepared a staff report which supported the request. This report was based on the matters submitted with the application. Her review indicated that the intended use for which the application was submitted appeared to be compatible with the neighborhood and the zoning requirements, but at the meeting of the Board held on February 4, 1997, several neighbors came forward to present evidence that the proposed use, based on demonstrated conditions, was not compatible with but had a negative impact on surrounding properties. An RS 8 zoning category is generally limited to single family residences or to family care facilities for up to six clients. Once the projected client population exceeds six residents, the category becomes Level I Group Care. Clients in either case can be elderly, physically or mentally handicapped, or non-dangerously mentally ill. Criminal or dangerous clients are not allowed within either category. Distance requirements between the residence in issue and surrounding properties are not in issue here. On reconsideration of this application, after the Board meeting, the planning staff now recommends denial. At the Board meeting, several neighbors expressed their opposition to the approval of the requested permit. They cited what they considered to be incidents of a nature inconsistent with the quiet enjoyment of their property, including aberrant and disconcerting behavior by residents of the existing facility which made them uncomfortable and precluded them from a worry-free occupancy of their property. Residents of the facility were seen to wander the neighborhood, to verbally abuse neighbors and shout out obscenities, to seek access to neighboring properties and to occasion a police response to complaints by neighbors. Mr. Santos opined that the neighborhood opposition to the increase in the number of beds is based on an opinion held that Petitioners are not capable of running the facility and on the Petitioners as a family. He rejects the contention by some neighbors that his children, who occupy the house along with their parents and the clients, are not being brought up in a good environment. This is not in issue. The decision to operate the home as an assisted living concept was not a spur of the moment decision by the Petitioners. They researched the possibility thoroughly before deciding to operate it. Mr. Santos asserts that the neighbors claim the residents at the facility are abandoned, but this is not so. The residents have families who visit them and who take the residents for off- facility visits. In addition, he claims, the residents are not violent. Before admission to the facility, potential residents are screened to insure they are not violent or dangerous. He contends he would not expose his family, which lives in the facility, to dangerous residents. The staff of the facility is made up of members of the Santos family. Any clients who created trouble at the facility have been removed from it at Mr. Santos' instigation. Though residents are not restricted to the facility grounds, if there is a problem with a resident, that resident is removed from the home in an effort to satisfy the neighbors. Though Mr. Santos believes he has a good relationship with most of the neighbors, he cannot seem to get through to the Popes. Ms. Santos and Ms. Milam are willing to work with the neighbors to alleviate their anxieties regarding the facility and, if that is what it takes to do so, will agree to limit the occupancy of the facility only to elderly clients. Only Mr. and Mrs. Pope appeared at the instant hearing. Both expressed substantial objection to the expansion of the facility. Their concerns are based on the fact that residents of the facility have come to their home next door and banged on the door seeking entrance; have screamed obscenities at them while they were in their back yard; and on the report that the owners will move out if the increase in resident authorization is approved and bring in other people to care for the residents. Neither Mr. nor Mrs. Pope have ever been in the facility. It appears, also, that on only one occasion did residents come to their home to seek entry. Mr. Pope admits to being quick to anger and to being prejudiced against Orientals. He served in the South Pacific during World War II. Mr. And Mrs. Santos are Orientals. Neither the Popes nor their neighbors who appeared at the Board's February 4 meeting want the facility in their residential community. Most of them have spent their entire lives working towards providing a comfortable and secure home for their retirement and they feel that the insertion of a group home, with the attendant additional activity, would be incompatible with the quiet enjoyment of their property and would adversely affect their property values, which make up a large portion of their financial worth. On the other hand, representatives of Directions For Mental Health, Inc., an agency devoted to the placement of disabled adults, primarily the mentally ill, consider the White Palace a much needed resource. They recommend the bed increase sought be granted.
Findings Of Fact On January 24, 1994, the Respondent, Aries Retirement Living, which is owned by W.T. Holding, Inc., filed an application for renewal of its license as an ACLF. The Aries application, completed by its administrator Patricia Holland, provided the following information: The mailing address for the administrator was completed as: 817 11th Street, West Palm Beach, Florida 33401. The mailing address for the corporate or limited partnership-corporate president or partner was: 817 11th Street, West Palm Beach, Florida 33401. At the time of the surveys (inspections) pertinent to these cases, Respondent had a conditional license to operate an ACLF for eight residents. The surveys were performed by two Agency employees who divided the review into two areas of expertise. Irwin Fried, a fire protection specialist, surveyed the Aries property for fire safety and physical plant regulation compliance. Meryl McDonald, a human services surveyor specialist, reviewed the property for all other areas of compliance. On March 14, 1994, and subsequently on June 1, 1994 and August 26, 1994, the financial records for the Aries facility were not available for review. Ms. McDonald requested the documents on each visit, but they were not provided by Aries until January 19, 1995. As a result, the Agency was unable to determine whether the facility was administered on a sound financial basis consistent with good business practice at the times of the surveys. Ms. McDonald also noted on the survey beginning March 14, 1994, that personal funds from one resident's account were used to purchase plastic gloves without the resident's consent. On December 7, 1994, the resident signed a consent for this appropriation of her funds. Despite requests from Ms. McDonald, Aries could not produce a certificate of liability insurance for review during the surveys. In this instance, Ms. McDonald asked Mr. Davis for the certificate but Aries did not present the information until January 19, 1995. For the survey and follow-ups conducted on March 14, 1994, June 1, 1994, and August 26, 1994, the last Health Quality Assurance inspection report was not posted in the Aries facility. At the times of the survey and follow-ups, Aries did not produce proof of radon testing. According to Mr. Davis, the radon testing was completed in October, 1994 (again several months after the request was made). Ms. McDonald brought several inaccuracies or deficiencies in the admission and discharge register maintained by Aries to their attention at the March 14, 1994 survey. Such inaccuracies included that seven residents were living in the facility but only three names were noted on the admission register. Further, none of other residents allegedly living in building two were listed. These inaccuracies continued uncorrected at the June 1, 1994, and August 26, 1994 follow-up visits. At the time of the March 14, 1994, survey and the follow-ups of June 1, 1994, and August 26, 1994, Aries could not establish that its Disaster Preparedness Plan had been reviewed by the Palm Beach County Disaster Preparedness Authority. According to Mr. Davis, this requirement was satisfied by the time of hearing. The Aries contract did not clearly provide a 30 days prior written notice of rate increase at the times of the survey or follow-ups. The statement disclosing Aries' medication storage policy was not given to each resident on admission. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. However, as of December 8, 1994, Aries corrected this deficiency. Aries could not produce the required demographic data for all residents, and military service information was not included for any resident. This deficiency was cited at the March 14, 1994, survey and remained uncorrected on June 1, 1994 and August 26, 1994. At the time of the March 14, 1994, survey, it was noted that a nurse was transferring insulin from labeled containers to syringes for one resident's later use. This procedure, although cited by Ms. McDonald, continued uncorrected on the June 1, 1994, follow-up. Later, the resident changed to tablets, and the deficiency was changed to corrected as of the August 26, 1994, follow-up. Also with regard to medications, Aries could produce no records or documentation to show how medications were disposed of when the resident left the facility. This lack of documentation was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. When Ms. McDonald surveyed the food supply, she noted that a one week supply of non-perishable food, based on the number of weekly meals the facility had contracted to serve, was not on hand. Nor was there enough water in storage for emergencies. Food supplies on hand lacked sufficient protein. This shortage was noted on March 14, 1994, and remained uncorrected on June 1, 1994 and August 26, 1994. Mr. Davis removed dented and bulging cans after the March 14, 1994 survey. Mr. Fried surveyed the Aries property on March 14, 1994, and found the following conditions: Hot water temperature for resident use was recorded at 126 degrees F at 12:30 p.m. on the dates of the survey. On January 19, 1995, this was still uncorrected. The structure had openings in the walls which were uncorrected on June 8, 1994. The facility had exposed water pipes and exposed electrical wires or missing plates which were uncorrected on June 8, 1994. The fire and smoke detector system did not interconnect the front and back buildings to warn staff of an emergency. This condition continued from April 11, 1994 through January 19, 1995. The doors to the sleeping rooms were not self closing and latching to reduce smoke circulation during an emergency. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994. The Aries facility did not have a secondary means of egress from the upstairs of the front building. This condition was noted during the April 11, 1994, survey and was uncorrected on June 8, 1994. The exit lights were not illuminated in the front Aries building and two locks were noted on the upstairs front exit and downstairs rear exit. This condition was noted during the June 8, 1994, visit and remained uncorrected for the August 25, 1994, follow-up. Ms. Holland, the administrator for Aries at all times material to these cases, was not at the property during any of the surveys or follow-up visits. Ms. Holland is employed full-time at a hospital and spends irregular hours at the Aries facility. Mr. Davis was present for the March, 1994, survey but was not present for the subsequent visits. Aries employees attempted to reach Mr. Davis when survey or follow-up visits were made to the facility. At the times of the visits, both Ms. McDonald and Mr. Fried requested to speak to the Aries staff member in charge. All deficiencies noted were itemized to Aries personnel in discussion at the times of the surveys. Additionally, written notice of the alleged deficiencies was provided to Aries at its address of record. Respondent's allegations of poor mail delivery or lack of notice have not been deemed credible. The Respondent did not claim it had not received the deficiency notices until December 7, 1994. During the June and August, 1994, follow-up surveys, Aries did not claim it had not received the deficiency statement from the prior survey or follow-up. All deficiencies alleged in these cases are Class III violations.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration enter a final order imposing an administrative fine in the amount of $8000.00. DONE AND RECOMMENDED this 5th day of April, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 5th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 94-5078 and 94-6908 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 13 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: The Respondent's "Proposed Order" was not in a format to readily review for proposed findings of fact. Paragraph 1 states: Petitioner has failed to meet its burden pursuant to Florida Statutes Section 400.419(1)(a) of communicating a recommended corrective action and informing the facility of the deficiencies prior to imposing violations and penalties. Such statement is rejected as a conclusion of law which is not established by this record. Paragraphs 1a. through 1e. are rejected as irrelevant, contrary to the weight of credible evidence, or argument. Paragraph 1f. is a restatement of law, not a fact and is rejected as such. Paragraph 2 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 3 is rejected as argument or conclusion of law not applicable to this case. Paragraphs 4a. through 4u., except as specifically found above, are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraph 5 is rejected as argument or conclusion of law not applicable to this case. COPIES FURNISHED: Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Esther Zaretsky 1655 Palm Beach Lakes Boulevard Forum III, Suite 900 West Palm Beach, Florida 33401 Linda L. Parkinson Agency for Health Care Administration Division of Health Quality Assurance 400 W. Robinson Street, Suite S-309 Orlando, Florida 32801
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.
