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 Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the record compiled herein, the following relevant facts are found. By its Administrative Complaint filed on August 10, 1981, Petitioner's district administrator notified Respondent that the Department intended to impose a civil penalty in the amount of two hundred dollars ($200.00) based on the fact that Respondent denied to one of Petitioner's employees the right of entry into Simmons Hesperides Home For The Elderly. Simmons Hesperides Home For The Elderly is an adult congregate living facility (ACLF) licensed to operate as such pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. The facility is located at 4710 Hesperides Street in Tampa, Florida. The facility was licensed as an ACLF on December 2, 1980. Petitioner's program specialist, Alice Adler, made a periodic visit to Respondent's facility on June 23, 24 and 25, 1981, to perform a routine check of Respondent's operation to determine compliance with the applicable rules and regulations of the Department. During the June, 1981, visits, Ms. Adler advised Respondent that she did not have on hand a seven-day supply of non-perishable food to meet nutritional needs of residents and she was, therefore, in violation of Rule 10A-5.10(1)(k), Florida Administrative Code. Ms. Adler memorialized this deficiency by completing a deficiency report, a copy of which was provided Respondent. Approximately one week later, on July 1, 1981, Ms. Adler made another check of Respondent's facility to determine if Respondent was in compliance with the above cited rule requirement, at which time Respondent denied Ms. Adler the right of entry into the facility. Ms. Weinchowski was thereafter advised that her failure to permit her (Ms. Adler) to enter the facility could result in the imposition of a civil fine. Ms. Weinchowski, the owner/operator of Simmons Hesperides Home For The Elderly admitted that she denied Ms. Adler the right of entry into the facility on July 1, 1981. Ms. Weinchowski voiced her opinion that she was being harassed by Ms. Adler and, therefore, she did not permit her to enter the facility on July 1, 1981.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department's notice of intent to impose a civil penalty in the amount of two hundred dollars ($200.00) upon Lea Weinchowski d/b/a Simmons Hesperides Home For The Elderly, be upheld. RECOMMENDED this 24th day of November, 1981, in Tallahassee, Florida. COPIES FURNISHED: Janice Sortor, Esquire Assistant District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 Lea Weinchowski 4710 Hesperides Street Tampa, Florida 33614 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 24th day of November, 1981.
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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On November 20, 1985, License Number B03139 was issued to Swan Care Homes II to operate as an adult congregate living facility. This license was issued to Wayne Veccitto, who was a tenant of respondent and his wife. The expiration date of the license was May 19, 1986. Due to the facts that Mr. Veccitto had not made his rental payments in several months and the property was falling into disrepair, respondent evicted Mr. Veccitto on or about May 1, 1986. Respondent and his wife operated the facility during the month of May, 1986, and advertised for someone else to live in the facility and operate it. Neither the respondent nor his wife desired to personally operate the facility. According to the respondent, the Millers responded to his advertisement and began operating the facility around June 1, 1986. On June 9, 1986, the petitioner received an application dated June 6, 1986, from respondent's wife to operate the subject property as an adult congregate living facility. By letter dated June 16, 1986, respondent's wife was advised that her application for initial license was incomplete and that no further action on the application would be taken until the requested information was received. This letter further advised that it was unlawful to offer adult congregate living facility services or to advertise such services without having obtained a valid license. Respondent was aware of this correspondence but was not concerned because he knew the Millers were assuming the operation of the facility. On June 27, 1986, a representative of the petitioner conducted a complaint investigative visit to the facility. At that time, there were residents at the facility and a couple in charge of the facility who stated that they were working for the respondent. There was no valid license for the facility on June 27, 1986. By letter dated July 2, 1986, and received by the petitioner on July 7, 1986, respondent requested petitioner to rescind or void his application for licensure and to accept an enclosed application from Dorothy V. Miller for the same facility. The respondent and his wife have owned and/or operated approximately 12 adult congregate living facilities in Michigan and 5 or 6 in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent Louis E. Smith be found guilty of violating Section 400.407(1)(a), Florida Statutes, and that an administrative fine of $1,000.00 be imposed. Respectfully submitted and entered this 1st day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 1st day of February, 1988. APPENDIX (Case No. 87-1377) The proposed findings of fact submitted by the petitioner have been accepted and/or incorporated in this Recommended Order, except as noted below: 2. Last sentence rejected as immaterial. 5. Reference to Exhibit 2 is rejected. The proper Exhibit Number is 6. Also, no competent evidence to support the statement that Exhibit 6 was rejected by HRS. COPIES FURNISHED: Gaye Reese, Esquire Office of Licensure and Certification 7827 N. Dale Mabry Hwy. Tampa, Florida 33614 Louis E. Smith 6060 Shore Blvd. South Gulfport, FL 33707 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
