The Issue Whether the Petitioner should be fined $11,000.00 and have its license revoked for failing to correct a Class III deficiency and for a Class II deficiency related to the same set of facts.
Findings Of Fact The Agency is the state agency responsible for the licensing and regulation of ALF's in the State of Florida. The Petitioner is licensed to operate Woodland Field, Inc., as an ALF in Jacksonville, Florida. Robert Cunningham was called as a witness for the Agency. He is a Health Facilities Evaluator II. His duties include performing surveys of different health care facility types. Mr. Cunningham was familiar with Woodland Field because he had surveyed Woodland Field, Inc. Mr. Cunningham identified the Agency's composite Exhibit 1, item 1, as a copy of a letter to Ms. Wallace reporting himself and Audrey Deas, R.N.'s findings of the state appraisal survey of February 14, 2002. Mr. Cunningham found that one staff member on duty at the time of the survey, who was hired in 2001, did not have a Level I background screening on file. See Tag A511, Exhibit 1, item 1. Mr. Cunningham also testified that a staff worker must have a Level I background screening. Mr. Cunningham discussed the employee with Ms. Harriett Wallace and made her aware of the fault, and that it was a Class III deficiency. Mr. Cunningham gave the facility a 30-day period up to and including March 16, 2002, to correct the deficiency. Mr. Cunningham identified the Agency's composite Exhibit 1, item 2, as a copy of a follow-up survey conducted on March 15, 2002, by himself and Audrey Deas. On the follow-up of March 15, 2002, Mr. Cunningham testified that he found Tag A511 uncorrected. The employee who did not meet background screening requirements in February was still there in March. Additionally, it was determined that this person had committed disqualifying offenses. See Tag A1115. Mr. Cunningham testified that he surveyed the facility a day earlier than the full 30 days given for the correction because a plan of correction submitted by the facility showed everything to be corrected on or before March 15, 2002, or a day early. However, the Petitioner had until the following day to effect the correction. Mr. Cunningham cited Tag A1115 because of the police report that he received from Protective Services of Department of Children and Family Services suggested further problems with this particular employee. Robert Dickson was called as a witness for the Agency. Mr. Dickson is employed by the Agency in the Jacksonville Field Office as a Health Facility Evaluator Supervisor. Mr. Dickson supervised Mr. Cunningham and others in the Jacksonville Field Office. Mr. Dickson is familiar with Woodland Field, Inc. Mr. Dickson identified the Agency's Composite Exhibit 1, item 3, as a copy of a recommendation for sanction drafted by himself and approved by his supervisor's designee on March 23, 2002, based on the on-site visits February 14 and March 15, 2002. Petitioner was originally cited for a Class III deficiency, Tag A511. Upon re-inspection, Petitioner was again cited for an uncorrected Class III deficiency, Tag A511, which warranted a fine. The Class II deficiency, Tag A1115, pertaining to the disqualified employee being retained in the facility and a Class III deficiency, Tag A511, pertaining to the employer who was not in compliance with Level I background screening requirements were the bases for levying the second fine on Petitioner. However, it is noted that both cited violations relate to the same factual predicate. Both citations relate to the employment of Pamela Harvey. Petitioner could have come into compliance merely by firing her. At the time of the second inspection, the Petitioner had initiated a background check on Pamela Harvey and been advised by FDLE that Pamela Harvey was cleared for employment. The source of Pamela Harvey's disqualification may have been communicated orally to Wallace by Cunningham, but there is uncertainty about whether the Department had provided Wallace a copy of the disqualifying record. There was no uncertainty about Pamela Harvey's clearance by FDLE. A conflict existed at this point between agencies regarding clearance of Pamela Harvey, and it was incumbent upon the Agency to provide Wallace with a copy of the disqualifying record and resolve the conflict, not just cite Petitioner for an alleged violation. Ms. Wallace had initiated the paperwork for the background screen of the subject employee after the first survey, and around the 1st of March, received notice from Tallahassee that the employee was cleared. Ms. Wallace notified Mr. Cunningham that she had received a clear report from Tallahassee. See Petitioner's Exhibit 2. Therefore, she had complied with the screening requirement for which she was originally cited. She had appropriate documentation. Mr. Cunningham verbally advised Ms. Wallace about the employee's arrest, but did not provide her a written copy of the file which AHCA had received from the Protective Services of the Department of Children and Family Services. The reviewing personnel in AHCA had the information on the employee; however, the FDLE, from whom an employer requests a background check did not have the record of conviction. Over the next several months, the Petitioner continued to submit information to FDLE and receive back an all clear on Harvey. The Agency's witnesses could not state with certainty that they ever gave the Petitioner a copy of the information from the Department of Children and Family Services.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing both complaints. DONE AND ENTERED this 6th day of December, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 6th day of December, 2002. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Harriett Wallace, Administrator Woodland Field, Inc. 8236 Moncrief-Dinsmore Road Jacksonville, Florida 32219 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308
Conclusions Having reviewed the attached Notices of Intent to Deny, Notices of Intent to Deem Applications Incomplete and Administrative Complaints, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named parties pursuant to Chapter 409, Florida Statutes, Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Notices of Intent to Deny with Election of Rights forms and Administrative Complaints with Election of Rights forms. (Composite Exhibit 1). The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties below shall comply with the terms of the Settlement Agreement. As to Amwil Assisted Living, Inc.: a. The Administrative Complaint (AHCA No. 2012003838) against Amwil Assisted Living, Inc., is UPHELD and its license is SURRENDERED. b. An administrative fine of $21,500.00 is imposed against Amwil Assisted Living, Inc., but is STAYED and the Agency will not attempt to collect the administrative fine in accordance with the terms of the settlement agreement. c. The Notice of Intent to Deny (AHCA No. 2012003675) the renewal application of Amwil Assisted Living, Inc., is UPHELD. d. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the 3 authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. e. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. f. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. As to Ann-Way Assisted Living, Inc.: g. The Administrative Complaints (AHCA Nos. 2012003081 and 2012008505)" continue to be UPHELD and Ann-Way Assisted Living, Inc. continues to be responsible for payment of the previously imposed amount of $5,750.00. The license revocation action against Ann-Way Assisted Living, Inc., imposed in the Final Order is VACATED and withdrawn to permit the change of ownership application process. h. The Notice of Intent to Deny (AHCA No. 2012013663) the renewal application of Ann-Way Assisted Living, Inc., is SUPERSEDED in accordance with the terms of the Settlement Agreement to permit the change of ownership process. i. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 10 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 ORDERED in Tallahassee, Florida, this 7 day ot Oplrer_. 2013. Elizabeth Dudek, Secretary Agency for H Care Administration 2 This Final Order amends the original final orders that were entered on October 15, 2012. 4 CERTIFICATE OF SERVICE I CERTIFY that a true and correct Copy ge te foregoing was Ae named , 2013. addressees by the method designated on this_ 5% day of Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance & Accounting Arlene Mayo-Davis, Field Office Manager Revenue Management Unit Local Field Office Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) _ (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration Electronic Mail) Theresa DeCanio, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration Tracy George Chief Appellate Counsel Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Lourdes Naranjo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) John Bradley, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Eric D. Frommer, Esquire Fisher & Frommer, PLLC 250 International Pkwy, Suite 260 Lake Mary, Florida 32746-5022 efrommer@fisherfrommer.com (Electronic Mail) NOTICE OF FLORIDA LAW. 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that 5 offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds 1 The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:37 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”’], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7/_ day of Alauacte , 2014. Elizabeth Dudak, Secretary th Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this L2 ay of F a , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Licensure Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia Caufman, Field Office Manager Revenue Management Unit Local Field Office (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Suzanne Suarez Hurley, Esq. Medicaid Accounts Receivable Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Corinne Porcher, Esquire Medicaid Contract Management Smith & Associates Agency for Health Care Administration 3301 Thomasville Road, Suite 201 (Electronic Mail) Tallahassee, FL 32308 (U.S. Mail) Lynne Quimby-Pennock Brandia Presha, Owner/Administrator Administrative Law Judge Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW. 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Whether FPSS Report No. 96-130813 should be amended or expunged, as requested by Respondent.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: South Florida Evaluation and Treatment Center (SFETC) is a state-operated facility that provides mental health services to forensic patients. Respondent was formerly employed at SFETC. He began his employment at SFETC in October 1992, after graduating from Bethune-Cookman College in Daytona Beach, Florida, where, before sustaining a serious knee injury, he played offensive and defensive tackle on the football team. His employment at SFETC was terminated in August 1997, as a result of an incident at the facility which occurred on December 2, 1996. At the time of the incident, Respondent was working the 7:45 a.m. to 4:15 p.m. shift as a UTR (Unit Treatment Rehabilitation) Specialist3 responsible for assisting and monitoring the activities of patients in Unit Seven South (which is located on the seventh floor of the facility). One of these patients was R. P. R. P. is short and stocky. He is considerably smaller (in terms of both height and girth) than Respondent. At the time of the incident R. P. was on medication that made him more sluggish than he otherwise would be. The incident occurred in the recreational therapy yard at approximately 3:30 p.m. when Respondent was escorting R. P. and other patients back to the unit and noticed that R. P. was not wearing his identification badge. Respondent located the identification badge in R. P.'s pocket. As Respondent was reaching into R. P.'s pocket, R. P. grabbed the badge and threw it on the ground. After picking up the badge, Respondent attempted to pin it on R. P.'s shirt. R. P. resisted Respondent's efforts and the badge again wound up on the ground. Respondent, with his back to R. P., bent down to pick up the badge a second time. As Respondent was bending down, R. P. jumped on Respondent's back. Concerned that he was in a vulnerable position, Respondent stood up quickly, causing R. P. to fall and hit the back of his head on the ground. Respondent did not intend to harm or injure R. P. He was simply trying to protect himself. While it is unfortunate that R. P. was injured as a result of the incident, it has not been shown that, in quickly standing up when R. P. jumped on his back, Respondent breached any standard of care that a UTR Specialist with his training and experience was required to follow. R. P. (who was bleeding from the back of his head) was taken in a wheelchair to the facility's medical clinic where his wound was closed (with sutures) and bandaged. Before leaving work that day, Respondent provided his supervisor with a written report of the incident in which he and R. P. had been involved earlier that day in the recreational therapy yard. In his report, Respondent stated that R. P. had hit the back of his head on a nearby wall. In making this statement (which was inaccurate inasmuch as R. P. had hit the back of his head, not against the wall, but on the ground), Respondent was relying on what someone else had told him. He himself had not seen R. P. fall. By the time he had stood up and turned around, R. P. had already landed on the ground.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting Respondent's request for amendment or expunction and reclassifying FPSS Report No. 96-130813 as "unfounded." DONE AND ENTERED this 22nd day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1998.
Findings Of Fact At all times relevant hereto, respondent, Arthritis Medical Center, Inc. (AMC), operated a facility at 901 Southeast 17th Street, Fort Lauderdale, Florida. According to its business card, AMC provides a "Hormone Balance Treatment" to patients suffering from arthritis and uses a "medication" that "combines three separate hormones - glucocorticoid and the male and female sex hormones." The card represents that AMC collaborates with a "medical staff" and that its registered nurse administrator was one Donna Pinorsky. 2/ The card reflects also that AMC has a facility at 2025 Broadway, #19D, New York City. The parties have stipulated that respondent holds no licenses or permits from any state regulatory agency. Further, it has no pending application for any permit. Petitioner, Department of Health and Rehabilitative Services (HRS), is charged with the responsibility of protecting the public health regarding commerce of drugs, devices and cosmetics. Through its pharmacy services program, HRS issues permits to those persons or establishments, other than pharmacies, who provide or sell legend drugs, devices or cosmetics to the public. Also, the agency inspects both permitted and unpermitted facilities that hold drugs, devices or cosmetics to ensure that adulterated, misbranded or unsanitary drugs are not dispensed to the public. To this end, HRS employs licensed pharmacists who make random, unannounced inspections of such facilities. This case arises out of two unsuccessful efforts by HRS inspectors to inspect respondent's facility. The inspections were prompted by HRS' receipt of a letter from the Department of Professional Regulation. The contents of the letter were not disclosed. On the afternoon of January 16, 1987, HRS inspectors Jones, Loudis and White, all licensed pharmacists, visited AMC's facility in Fort Lauderdale for the purpose of inspecting any legend drugs, devices or cosmetics that might be on the premises. They were met by Pinorsky, the facility's administrator. After identifying themselves, Pinorsky picked up a hand-held tape recorder and began taping the conversation. Pinorsky first acknowledged that a "Doctor Kline," whose sign was on the outside of the building, had offices at the facility but was not present. She also gave the inspectors an AMC business card which contained the information set forth in finding of fact 1. When the inspectors asked if any hormones were kept on the premises, Pinorsky responded by asking if the inspectors had a subpoena. After being told there was none, she read the inspectors the following statement: On advice of counsel, under the United States Supreme (Court) decision See's vs City of Seattle, Washington, I must decline to allow a search without a search warrant signed by a Judicial officer. And, if such warrant has been issued on advice of counsel I decline to consent to a search until a Court has ruled on a motion to quash under the Fourth & Fourteenth Amendments to the United States Constitution. My local attorney is Larry Altman Post Office Box 402404 Miami Beach, FL 33140 My general counsel is John Burgess 2000 Powell Street Suite 1680 Emoryville, CA 94608 The inspection ended at that point. Around 4:15 p.m. on March 13, 1987 Jones and Loudis returned to AMC's place of business for the purpose of conducting an inspection. They were met by one Kathy Bentley, a secretary, who was told the purpose of the visit. Bentley would not allow the inspection to be made because the "nurse" was not present. Pinorsky then entered the room carrying a "toddler." After putting the child down, Pinorsky immediately set up a tape recorder and began recording the conversation. After identifying themselves, the inspectors requested they be permitted to inspect the facility to ensure compliance with Chapter 499, Florida Statutes. Pinorsky denied their request saying there was ongoing "litigation" over their right to inspect the facility. The inspection ended at that point. Based upon the two unsuccessful efforts to inspect AMC's facility, an administrative complaint was issued by HRS in January, 1988. The complaint is the second administrative action taken against respondent. The first culminated in a Final Order issued on October 22, 1986 imposing a $500 fine on respondent for refusing to allow inspectors to inspect its facility on April 30, 1986. The inspectors had no search warrants to inspect AMC's facility nor had there been any finding of probable cause by a judge or magistrate that a statutory violation may have taken place on AMC's premises. Also, the inspectors did not know the precise nature of respondent's business or whether any drugs were actually kept on the premises. Indeed, Pinorsky never admitted that any were kept at the facility. The inspectors estimated that approximately forty percent of all inspections are on nonpermitted facilities. The inspections are made on a random basis or after the receipt of information from other agencies suggesting that one be made. In 1986-87, HRS inspected more than 350 health maintenance organizations, doctor's offices and medical centers as well as other establishments that hold drugs, devices and cosmetics. The basis for and criteria used in such inspections are set forth in a written HRS "operational guide." This document is not of record. Based upon (a) the representations in AMC's business card that it "treats" arthritis patients and that a "medication" is given to them, (b) the use of the term "medical center" in respondent's business name, and (c) the fact that a physician has offices at AMC's facility, it may be logically inferred that AMC is an establishment that holds or maintains drugs on its premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 499.005(6), Florida Statutes (1987), and Rule 10D-45.0545, Florida Administrative Code (1987), on two occasions and that it pay $5,000 for each violation, or a total of $10,000, said fine to be paid within 30 days from date of the Final Order rendered in this matter. DONE AND ORDERED this 30th day of August, 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 30th day of August, 1988.
