Findings Of Fact Respondent, ACLF, was inspected May 5, 1985, and some 29 Class III deficiencies were noted and a schedule of correction was established to have these deficiencies corrected by June 6, 1985. At a follow-up visit July 11, 1985, some 19 of these deficiencies had been corrected while 10 remained uncorrected. As a result of failure to timely correct these deficiencies Respondent was assessed a $1000 fine which was paid. A subsequent inspection of Respondent's facility was conducted on February 3, 1986, with the following previously reported violations uncorrected: No personnel policies and work assignments. No written work schedule for employees. No assurance staff trained in providing personal hygiene care. Written job descriptions not available for review. Employees not furnished written policies governing conditions of employment. Strong urine odor in rear bedroom. Additionally, eight new Class III deficiencies were noted with four classified as food service standards, three physical plant standards and one fire safety standard. Respondent submitted a schedule to correct these deficiencies (Exh. 3) indicating all deficiencies corrected prior to 2/27/86. No reinspection has been conducted by Petition to confirm these Class III deficiencies have been corrected. New discrepancies noted on February 3, 1986, included menu not posted where it could easily be seen by residents, menu not corrected as served, oven door broken off, potentially hazardous food at room temperature in kitchen, screen on front door torn, clothes closet door off track, vanity in bedroom had part of facing missing, exposed wiring in living room area, shower head missing in one bathroom, and two ceiling fans serviced by extension cord wiring. The menu was posted on the side of the refrigerator where it had been kept for three years and was readily visible to residents. Respondent testified the menu was corrected as served on the back of the menu, but the inspector contended such corrections must be on a separate paper. This testimony was not rebutted. The inspection on February 3, 1986, occurred shortly after the breakfast meal was served and all of the food had not been replaced in the refrigerator. This included one can of fruit that was the subject of this discrepancy. No inquiry was made as to how or when the screen was torn on the front door. Exhibit 3 indicates the deficiency was repaired February 10, 1986. All of these discrepancies were corrected by February 21, 1986 (Exh. 3). All discrepancies at any inspection relating to fire safety were timely corrected by Respondent. Respondent facility is operated by Mrs. Gilpin, her husband and adult daughter, who comprise the employees of the facility. Each testified that he/she has all of the certifications required to work in an ACLF and that each job description was included in the daily work schedule that was posted. It appears from the testimony that at times other employees have been utilized and Ms. Gilpin stated they fill out time cards showing time they commenced and stopped work and that their work schedule is included in the cleaning schedule they carry out. Respondent explained the strong urine odor as coming from the room occupied by a patient with a urostomy early in the morning before the room was cleaned. The death of this person subsequently solved the odor problem.
The Issue The issues are whether Respondent failed to maintain a record of major incidents on two occasions, and if so, what penalty should be imposed.
Findings Of Fact Petitioner regulates assisted living facilities (ALFs) pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. Respondent is licensed as an ALF pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. On or about October 4, 1999, Petitioner received a telephone call alleging that Respondent was operating contrary to Rule 58A-5, Florida Administrative Code, in several respects. In response to the telephone complaint, Petitioner performed an unannounced inspection/survey at Respondent's facility on October 6, 1999. Petitioner performed record reviews, interviews, and observations during its October 6, 1999, inspection of Respondent's facility. The survey revealed that Respondent's business was deficient in several respects that are not relevant here. These deficiencies resulted in four citations. On November 10, 1999, Petitioner completed a follow-up appraisal/complaint investigation at Respondent's facility. During the survey, Petitioner reviewed randomly selected medical records of eight of Respondent's clients. The November 10, 1999, revisit resulted in Respondent being cited for several Class III deficiencies. The deficiencies included one citation for failing to maintain a record of a major incident involving an injury to a resident who required treatment by a health care provider. Specifically, Resident No. 5 fell on October 22, 1999, and fractured a leg. She was transferred and admitted to the hospital. At the time of the November 10, 1999, inspection, Respondent could not produce documentation indicating that it had completed a major incident report. Petitioner advised Respondent that it had until November 24, 1999, to correct cited deficiencies. On December 20, 1999, Petitioner conducted a revisit survey of Respondent's facility. The purpose of the inspection was to determine whether Respondent had corrected deficiencies cited during the November 10, 1999, inspection. This inspection included a review of medical records for eight randomly chosen residents. The December 20, 1999, survey revealed a repeat deficiency for failing to complete a major incident report of an injury to a resident who required treatment by a health care provider. Petitioner cited Respondent for failing to complete a major incident report for Resident No. 7 who fell on or about August 1, 1999. Resident No. 7 fell in her room but refused initially to go to the hospital. Two days later, Resident No. 7 was admitted to the hospital for observation due to her complaints of pelvic pain. She returned to Respondent's facility with a new health assessment dated August 3, 1999. The new health assessment revealed a decline in the resident's ability to perform daily living activities and changed her status from independent to requiring supervision in dressing, grooming, toileting, and transferring. Respondent did not complete a major incident report at the time of the resident's fall or upon her admission to and return from the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $300 for repeated violations of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Mohamad Mikhchi Owner/President Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32514 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 1618782. Respondent’s license authorizes Respondent to operate a public food service establishment known as Golden Corral at 7401 West Commercial Boulevard, Tamarac, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location.2 At all times material hereto, Sean Grosvenor and Larry Torres were experienced and appropriately trained investigators employed by Petitioner as Sanitation and Safety Specialists. Their job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. On July 7, 2005, Mr. Grosvenor led an inspection of the subject restaurant. Based on that inspection, Mr. Grosvenor prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on July 7, Mr. Grosvenor discussed his findings with the associate manager of the restaurant. Mr. Grosvenor ordered that two of the violations be corrected immediately. He ordered the restaurant to correct the remaining violations by no later than August 7, 2005. On July 8, 2005, Mr. Grosvenor conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the two violations he had ordered corrected immediately had been corrected. One of the two violations that were to be corrected immediately had been corrected and is not at issue in this proceeding. The other violation had not been corrected and is the subject of the Paragraph 1 violation. PARAGRAPH 1 The Food Code requires that food be maintained at a temperature of 41° F. or less. On July 8, 2005, Mr. Grosvenor found the following: cottage cheese located on the buffet table was at a temperature of 48° F., raw hamburger patties located in a cooler were at a temperature of 47° F., and potato salad located in a cooler was at a temperature of 47° F. Mr. Afsarmanesh, the restaurant’s manager, testified that the hamburger patties had been freshly ground and that the potato salad had been freshly made. He testified that these items were brought to a temperature above 41° F. during the preparation process, that they had been placed in coolers to cool down shortly before the inspection, and that they were above 41° F. when Mr. Grosvenor conducted his inspection because they had not had sufficient time to cool down. While his testimony explained Mr. Grosvenor’s findings as to the hamburger patties and the potato salad, Mr. Afsarmanesh had no explanation as to why the cottage cheese was above 41° F. Petitioner established by clear and convincing evidence that Respondent violated Section 3.501.16(B) of the Food Code as alleged in paragraph 1 by proving that Respondent failed to maintain cottage cheese on the buffet line at or below the required minimum temperature. The violations alleged in paragraphs 2-6 were based on Mr. Torres’s follow-up inspection on August 8, 2005. That follow-up inspection was conducted during a power failure which left the restaurant without electricity. Mr. Afsarmanesh requested that the follow-up inspection be rescheduled because of the power outage, but Mr. Torres decided to go forward with the inspection using flashlights. Mr. Torres testified that the absence of electricity had no bearing on his inspection. Based on the violations found, the undersigned finds that Respondent was not prejudiced by Mr. Torres proceeding with the inspection. PARAGRAPH 2 The initial inspection cited Respondent for storing uncovered lettuce, onions, and peppers in a cooler. On August 8, 2005, Mr. Torres observed that lettuce, onions, and peppers were stored uncovered in a cooler. That conduct violated Section 3-302.11(A)(4) of the Food Code. Mr. Afsarmanesh testified that his staff rushed to put these items in the cooler when the electricity went out and that they did not have sufficient time or light to cover them. The exigent circumstances created by the power outage do not excuse the violation observed by Mr. Torres, but those circumstances can be considered in mitigation when determining the penalty to be imposed. Petitioner established by clear and convincing evidence that Respondent violated Section 3-302.11(A)(4) of the Food Code as alleged in paragraph 2. PARAGRAPH 3 Paragraph 3 alleged that Respondent violated Section 3- 304.14(B) of the Food Code by failing to have chlorine sanitizer in a cleaning bucket at minimum strength. On August 8, 2005, Mr. Torres determined that the chlorine sanitizer in a cleaning bucket was below minimum strength. Petitioner established by clear and convincing evidence that Respondent violated Section 3-304.14(B) of the Food Code as alleged in paragraph 3. PARAGRAPH 4 Paragraph 4 alleged that Respondent violated Section 5- 205.11(B) of the Food Code by using a hand-washing sink for purposes other than washing hands. The inspection report does not detail what other use was being made of the hand-washing sink and Mr. Torres could not recall what he had observed to cause him to cite that as a violation. Petitioner failed to establish by clear and convincing evidence the alleged violation of paragraph 4. PARAGRAPH 5 Paragraph 5 alleged that Respondent violated Section 6-202.15 of the Food Code by failing to properly seal an exterior door. On August 8, 2005, Mr. Torres observed that an exterior door to Respondent’s facility was not properly sealed and, consequently, would not prevent the intrusion of pests. Petitioner established by clear and convincing evidence that Respondent violated Section 6-202.15 of the Food Code as alleged in paragraph 5. PARAGRAPH 6 Paragraph 6 alleged that Respondent violated Florida Administrative Code Rule 61C-1.004(7), by failing to keep an electrical room clean and free of debris by storing items in the electric room. On August 8, 2005, Mr. Torres observed that Respondent had stored items in an electric room. Petitioner established by clear and convincing evidence that Respondent violated Florida Administrative Code Rule 61C-1.004(7), as alleged in paragraph 6. A violation of applicable rules by a public food service establishment is either a critical or non-critical violation. A critical violation is one that poses a significant threat to the health, safety, and welfare of people. A non- critical violation is one that does not rise to the level of a critical violation. The paragraph 3 violation is a non-critical violation. The remaining violations found are critical violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1, 2, 3, 5, and 6 and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation; $100.00 for the paragraph 2 violation; $100.00 for the paragraph 3 violation; $500.00 for the paragraph 5 violation; and $500.00 for the paragraph 6 violation. In addition, the final order should require a manager responsible for the subject restaurant to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program. DONE AND ENTERED this 2nd day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2006.
The Issue At issue in this proceeding is whether Respondent committed the violations alleged in the Administrative Complaints dated August 31, 2009, and April 19, 2010, and, if so, what penalty is warranted.
Findings Of Fact Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. At all times material to this case, Respondent Tatu was a restaurant located at 1702 West University Avenue, Suite J, Gainesville, Florida 32603, holding Permanent Food Service license number 1102115. Tatu consists of a sushi bar and a restaurant serving Asian food, on the second floor of the UF Plaza directly across the street from the University of Florida campus. It is owned and operated by Chang Bahn. A critical violation is a violation that poses an immediate danger to the public. A non-critical violation is a violation that does not pose an immediate danger to the public, but needs to be addressed because if left uncorrected, it can become a critical violation. On July 8, 2009, Daniel Fulton, a senior inspector with the Division, performed a food service inspection of the Respondent. During the inspection, Mr. Fulton observed that cold foods were not being held at their proper temperature. This is a critical violation because foods held out of their proper temperatures for any length of time can grow bacteria that could cause food borne illnesses in persons who eat the food. Mr. Fulton also observed that Respondent’s cold holding equipment was not capable of maintaining potentially hazardous foods at their proper temperature. This is a critical violation because refrigeration equipment must be capable of holding foods below 41 degrees Fahrenheit for the safety of the consuming public. At the conclusion of his inspection, Mr. Fulton prepared and signed an inspection report setting forth the violations he encountered during the inspection. He notified Mr. Bahn’s wife, Suy Bahn, of the nature of the violations and she signed the inspection report. (Mr. Bahn was not present in the restaurant during the July 8, 2009, inspection.) Mr. Fulton informed Ms. Bahn that all of the violations noted in the inspection report would have to be corrected by the following day, July 9, 2009. Mr. Fulton performed a callback inspection at Tatu on July 14, 2009. Mr. Fulton’s callback inspection report noted that the critical violations found on July 8, 2009, had not been corrected. Uncooked fish was found held at temperatures of 45 to 46 degrees Fahrenheit, and the cold holding equipment was still incapable of maintaining food at the proper temperature. Mr. Fulton further observed that Respondent was misrepresenting a food product. In this case, imitation crab was being served in a dish labeled "Crab Delight," rather than under the name "krab" to indicate its ersatz nature. This is a critical violation, not just because of the misrepresentation involved, but because restaurant customers may have allergies to certain foods and therefore need to know exactly what they are eating. Mr. Bahn signed the July 14, 2009, callback inspection report. After the July 14, 2009, callback inspection, Mr. Fulton recommended that an Administrative Complaint be issued because Respondent had not corrected the critical violations found in the July 8, 2009, inspection. This Administrative Complaint was the basis for DOAH Case No. 10-2675. On April 5, 2010, Mr. Fulton performed a food service inspection at Tatu. During this inspection, Mr. Fulton found two critical violations. The first critical violation was that the restaurant was keeping potentially hazardous cold foods at temperatures greater than 41 degrees Fahrenheit. On the cooking line, Mr. Fulton found breading mix held at 66 degrees Fahrenheit and liquid eggs at 77 degrees Fahrenheit. At the front counter, seafood was held at 70 degrees Fahrenheit, and Mr. Fulton found seafood at 68 degrees Fahrenheit in the reach- in cooler. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009, and during his callback inspection of July 14, 2009. The second critical violation noted by Mr. Fulton during his April 5, 2010, inspection was that the hand sinks were not accessible for employees’ use at all times. The hand- washing sink was blocked by a waste bucket and a wiping cloth bucket. This is a critical violation because employees are less likely to wash their hands if it is difficult for them to do so. The employees’ failure to wash their hands can lead to contamination of the food and consequently food-borne illnesses in the restaurant’s customers. Mr. Fulton had noted the same critical violation during his inspection of July 8, 2009.4/ Mr. Fulton prepared an inspection report. He notified Mr. Bahn of the violations. Mr. Bahn signed the report. Mr. Fulton recommended that an Administrative Complaint be issued in this case because Respondent had not corrected a violation for which it had already been cited within a one-year period. This Administrative Complaint was the basis for DOAH Case No. 10-3295. The Division presented evidence of prior disciplinary action against Respondent. Administrative complaints were filed against Respondent based on inspections conducted on September 26, 2008 and on February 18, 2009. Each of these cases was resolved by a Stipulation and Consent Order in which Respondent neither admitted nor denied the facts alleged in the respective administrative complaint. See Endnote 2, supra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order imposing an administrative fine of $2,500.00, payable under terms and conditions deemed appropriate. DONE AND ENTERED this 20th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2010.
The Issue The issue in this case is whether the license to provide assisted living facility services and operate an assisted living facility of Respondent, Gloria Ann Raulerson, d/b/a Country Sunshine Retirement Home, should be revoked based upon the allegations of an Administrative Complaint entered by Petitioner on or about October 2, 1998.
Findings Of Fact The Parties. Petitioner, the Agency for Health Care Administration (hereinafter referred to as "AHCA"), is an agency of the State of Florida. AHCA is charged with the responsibility for, among other things, evaluating assisted living facilities in the State of Florida. Part III of Chapter 400, Florida Statutes (1997). Respondent, Gloria Raulerson, d/b/a Country Sunshine Retirement Home, is licensed to operate an assisted living facility. Country Sunshine Retirement Home (hereinafter referred to as the "Country Sunshine"), is located at 6119 Peeples Lane, Jacksonville, Florida. Ms. Raulerson's current license was effective for the period January 25, 1997, through January 24, 1999. No application for renewal of the license has been filed by Ms. Raulerson. AHCA's Initial Survey. On April 21, 1998, AHCA staff conducted an appraisal visit of Country Sunshine (hereinafter referred to as the "Initial Survey"). Following the conclusion of the Initial Survey, AHCA issued a survey report (hereinafter referred to as the "Initial Report") in which it concluded that Country Sunshine had committed a number of violations of regulatory standards. A copy of the Initial Report was provided to Ms. Raulerson on or about April 19, 1998. During the Initial Survey AHCA found 12 class II violations, approximately 56 class III violations, and two unclassified violations. The exact number of class III violations was not proved. The Administrative Complaint alleges a total of 77 violations. The testimony at hearing was that there were 69 violations. Based upon Exhibit 1, there was a total of 70 violations, 12 of which were class II violations and two of which were unclassified; but the exhibit is missing pages 88 and 89. The violations found by AHCA during the Initial Visit "range from general licensure standards, from things having to do with paperwork; to lack of staff training; to lack of financial stability; to nutrition/dietary standards; to violations with medication standards; violations of resident care standards; violations of housekeeping, maintenance, and physical plant standards; and then resident and staff records." Page 9, lines 6-12, Transcript. The specific nature of the class III violations found during the Initial Survey is reported in the Initial Report, Petitioner's Exhibit 1. The specific nature of the class III violations described in Petitioner's Exhibit 1 is hereby incorporated into this Recommended Order by reference. AHCA's Moratorium. By letter dated April 22, 1998, AHCA informed Ms. Raulerson that a moratorium was being imposed on the admission of any new residents to Country Sunshine. Ms. Raulerson complied with the moratorium imposed on Country Sunshine. AHCA's Second Survey. AHCA staff returned to Country Sunshine on June 4, 1998, to determine if the violations found during the Initial Survey had been corrected (hereinafter referred to as the "Second Survey"). It was determined during the Second Survey that Country Sunshine had 29 of the same class III violations found during the Initial Survey. Country Sunshine also had 4 repeat class II violations, a repeat of the same 2 unclassified violations found during the Initial Survey, and 2 new class III violations. The violations found by AHCA during the Second Survey were described more particularly in a survey report (hereinafter referred to as the "Second Report"). A copy of the Second Report was provided to Ms. Raulerson on or about June 19, 1998. The cover letter that accompanied the Second Report informed Ms. Raulerson that further administrative action against her license, including revocation of her license, would be considered by AHCA. The specific nature of the class III violations found during the Second Survey are reported in the Second Report, Petitioner's Exhibit 3. The specific nature of the class III violations described in Petitioner's Exhibit 3 are hereby incorporated into this Recommended Order by reference. The evidence proved that the violations affected the health, safety, or welfare of residents of Country Sunshine. The Administrative Complaint. On October 2, 1998, AHCA issued an Administrative Complaint against Ms. Raulerson. The Administrative Complaint alleged that Ms. Raulerson's license should be revoked pursuant to Sections 400.414(2)(b), (e), (h), and (5), Florida Statutes (1997), the law in effect at the time the violations were committed. In particular, AHCA alleged in the Administrative Complaint that Country Sunshine had "committed five or more repeated or recurring or similar Class III violations which were identified by the Agency during the last biennial inspection, monitoring visit or complaint investigation, which, on the aggregate, affect the health, safety or welfare of facility residents." AHCA did not specifically allege in the Administrative Complaint that Ms. Raulerson's license should be revoked or disciplined due to any repeated or recurring class II or unclassified violations. AHCA alleged in the Administrative Complaint there were 34 repeated or recurring violations but actually listed 36 specific repeat or recurring violations. The evidence, however, failed to prove that one of those alleged violations, A-811, was a repeat or recurring violation. Two of the specific violations, A-612 and A-814, are unclassified violations and not class III violations. Finally, four of the violations, A-101, A-705, A- 807, and A-1001, are class II violations and not class III violations. AHCA did not rely in the Administrative Complaint upon the unclassified violations and/or the repeated class II violations, in addition to the repeated class III violations, to support its determination that Country Sunshine had violated Sections 400.414(2)(b) and (h), Florida Statutes (1997).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Health Care Administration revoking the license of Gloria Ann Raulerson, d/b/a Country Sunshine Retirement Home, to own and operate an assisted living facility in the State of Florida. DONE AND ENTERED this 19th day of April, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Gloria Raulerson 6119 Peeple Lane Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1999. Jacksonville, Florida 32219 Michael O. Mathis, Senior Attorney Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Respondent, John L. Viscelli, operates a twenty-five bed adult congregate living facility under the name of South Moor Retirement Home at 1722- 26 Madison Street, Hollywood, 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. Viscelli serves as administrator of the facility. On or about March 14, 1986, Martha M. Perez, then an HRS nutritional consultant, conducted a routine annual inspection of respondent's facility in the presence of the facility's cook/manager, John Logan. The inspection focused on the facility's food service section which consisted of a kitchen area and an adjoining dining room. It was Perez' purpose to review required documentation which would show if the facility was in compliance with certain requirements of Chapter 10A-5, Florida Administrative Code (1987). Perez first requested documentation to demonstrate that all food service personnel had received proper orientation, training and supervision. This type of documentation is normally kept in the personnel files of the employees, and insures that such employees have been properly trained in such duties as preparing food, controlling the portions served, preparing a menu and using proper hygiene. No such documentation was on file for any employee as required by Rule 10A-5.020(1)(b), Florida Administrative Code (1987). Perez next asked for documentation to verify that "food service was coordinated with other services" as required by the same rule. This type of documentation is normally found in a "staffing plan" and is required whenever an employee is involved in more than one facility service, including food. Its purpose is to assure that no cross-contamination occurs when an employee comes from another work area to the food service area. Again, no such records were produced. Perez then inspected the kitchen area facilities to determine if all "duties were being performed in a safe and sanitary manner" as required by the same rule. She detected numerous violations of Chapter 10D-13, Florida Administrative Code (1987), which governs this type of facility as well as commercial food establishments. For example, she found food improperly stored in the refrigerator, no thermometer on the refrigerator and a torn gasket on the refrigerator. She also noted such deficiencies as greasy and soiled pots and pans, glasses being carried by employees with their fingers inside the glasses, a cat in the kitchen area, and dirty and moldy plastic wares. All constituted a violation of Chapter 10D-13 standards. Perez next asked to see the facility's standardized recipes but was told there were none. These recipes must show such things as the foods involved, method of preparation, total yield in portion size, and the quantities necessary to meet the facility's requirements. The recipes are required by Rule 10A-5.020(1)(b), Florida Administrative Code (1987). The facility was also unable to provide documentation showing that appropriate substitutes of food with comparable nutritive value were planned and offered when a resident refused food, and that food adapted to the food habits, preferences and physical abilities of residents was being served. Such documentation is required by the same rule. Collectively, the above deficiencies constituted two Class III violations, or violations which indirectly or potentially threatened the physical or emotional health, safety and security of the residents. During the same visit, Perez explained and discussed all such deficiencies with Logan. She also told Logan that such deficiencies would have to be corrected by a date certain and that a repeat inspection would occur within the next few months to verify if corrections had been made. Perez thereafter prepared a typed report known as a "Notification of Deficiencies" which detailed the findings of her inspection. A copy of same was mailed to Viscelli on an undisclosed date. At hearing, Viscelli acknowledged receiving the same. According to the Notice, Viscelli had until May 4, 1986 in which to correct all deficiencies. A follow-up visit was made by Perez in the presence of Logan on July 7, 1986. On that visit, she found that most of the previously cited deficiencies had not been corrected. More specifically, she found numerous Chapter 10D-13 deficiencies in the kitchen area which indicated that the duties were not being performed in a safe and sanitary manner. She noted further a lack of standardized recipes. There was also no coordination of food service duties with other services and a lack of documentation to show that food service personnel received orientation, training and supervision. Perez again discussed these violations with Logan and told him that a further inspection would be made. On September 10, 1986 Perez visited respondent's facility for a third time. She found essentially the same deficiencies that had been noted in her two prior inspections. On January 7, 1987 Mildred Hipsman, an HRS clinical dietician, made a full survey inspection of respondent's facility. She found the same violations that Perez had noted during her three visits in 1986. These deficiencies were discussed at length with Logan, who was present during the inspection. Some nine months later, HRS issued the administrative complaint which triggered this proceeding. Viscelli acknowledged that he was aware of the cited deficiencies. He spoke with Perez on several occasions in 1986 in an attempt to learn what type of documentation he was required to have. However, even at the time of hearing, his "standardized" recipes did not comply with HRS rules. Viscelli stated that, because of the facility's small size, he could not afford a full-time dietician to advise him on how to prepare certain documentation. He also suggested that some of the rule requirements were not realistic given the size of his facility. Both he and his wife pointed out that, despite the lack of standardized menus, all residents are well-fed. Viscelli offered no explanation for the other deficiencies cited by HRS inspectors.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of two Class III violations and that he be assessed a $500 civil fine for each violation, to be paid within thirty days after the date of the final order entered in this matter. DONE AND ORDERED this 14th day of January, 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 14th day of January, 1988. COPIES FURNISHED: Leonard T. Helfand, Esquire 5190 Northwest 167th Street Miami, Florida 33014 John L. Viscelli 1722-26 Madison Street Hollywood, Florida 33020 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 Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated March 8, 2010, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact The Division is the state agency charged with regulating the operation of public lodging establishments and public food service establishments pursuant to section 20.165 and chapter 509, Florida Statutes. Respondent is a restaurant operated under License Number 5807590 at 5731 South Orange Blossom Trail, Orlando, Florida 32839. El Valle Restaurant, Inc., is the owner of the restaurant. PE 1. Petitioner's employees inspected Respondent's premises on March 19, August 6, September 24, and December 3, 2009, and February 16, 2010. During these inspections, numerous violations were seen and incorporated into separate Food Service Inspection Reports for each of these dates. Several follow-up inspections were conducted during these times and noted violations had not been corrected, which ultimately led to the filing of the Administrative Complaint. PE 1-6; T 33-34. Petitioner's witnesses characterized several violations as "critical violations" such as inadequate hand washing; the use of unclean cutting boards; hot water turned off at the only kitchen hand sink; undated potentially hazardous ready–to-eat– food held over 24 hours; improper drainage of raw sewage; the three compartment sink not used in the correct order (wash, rinse, and sanitize) and no hot water used at the mop sink; and a lack of a chemical test-strip kit available to verify the concentration of chemicals at the manual ware washing area. See, e.g., T 16-19, 34-44, 47-48. Critical violations are those that will significantly contribute to food contamination, illness, or health hazards. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(a) for a definition of "critical violation." Other non-critical violations included the lack of a plan review submitted and approved for renovations that were in progress and the unavailability of a choking sign. See, e.g., T 44-50. Non-critical violations are those that are not as likely to significantly contribute to those hazards mentioned above. T 12, 24. See also Fla. Admin. Code R. 61C-1.005(5)(b) for a definition of "non-critical violation." Petitioner's Composite Exhibit 7 includes a certified copy of a Final Order on Waiver entered by the Division on June 27, 2008. T 50. This order resolved the allegations in an Administrative Complaint filed against Respondent on April 8, 2008, alleging violations of provisions of chapter 509, Florida Statutes. This order indicates that Respondent did not respond to this Administrative Complaint. Petitioner assessed Respondent an administrative penalty of $1,000, and Respondent was also required to attend a workshop sponsored by the Hospitality Education Program. This order was offered into evidence solely for the purpose of consideration of an increased penalty pursuant to Rule 61C-1.005(7)(a) if the underlying charges were proven. T 50. The allegations in the Administrative Complaint, as found herein, were proven by clear and convincing evidence.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order, which confirms the violations found and imposes on El Valle Restaurant an administrative fine in the amount of $3,500. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2011.
