Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Raymond F. Cay was licensed as a barber in the state of Florida and licensed to operate a barbershop in the state of Florida, holding license numbers BB00014055 and B50007436, respectively. At all times material to this proceeding, Respondent was owner of the barbershop, Cay's Hairstylist (Cay's), located at 1349 Cassat Avenue, Jacksonville, Florida 32205. On April 14, 1987, Petitioner conducted a routine annual inspection of Cay's as required by rule and noted certain deficiencies which if proven could have resulted in Respondent's licenses being revoked, suspended or otherwise disciplined. However, there was insufficient evidence to show that these allegations of deficiencies were ever proven in a formal proceeding or admitted to by Respondent in an informal proceeding under Chapter 120, Florida Statutes. In fact, there was insufficient evidence to show that any disposition had been made by the Petitioner on these alleged deficiencies. On March 11, 1988, Petitioner again conducted a routine annual inspection of Cay's and again noted certain deficiencies which were the basis of the Second Amended Complaint. There was insufficient evidence to show that there was excessive hair on floor or that the back of the bars, chairs or furniture were not maintained in a safe and sanitary manner or that the shop and equipment were dirty on March 11, 1988 when the inspector visited Cay's. Although all of the barbering tools were not totally immersed in a disinfectant solution on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that that portion of the barbering tool (including brushes) which comes in contact with the patrons, was not sufficiently immersed in a proper disinfectant solution to allow proper sanitation. Although there were no sanitary towels in the bathroom on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that the bathroom was dirty. Sanitation rules were improperly displayed in Cay's on March 11, 1988 when the inspector visited. The only license not displayed on March 11, 1988 when the inspector visited Cay's was Ms. Delp's, and she was currently on leave and not working even though she was in the shop shampooing her hair on that day. On November 22, 1988, Petitioner conducted a re-inspection of Cay's and the inspector noted certain deficiencies which if proven could result in Respondent's licenses being revoked, suspended or otherwise disciplined. However, these alleged deficiencies were neither made a part of the Second Amended Administrative Complaint nor was there any evidence that these alleged deficiencies were ever proven or that they formed the basis for any disciplinary action taken by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order DISMISSING the Second Amended Administrative Complaint filed herein. RESPECTFULLY submitted and entered this 24th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4180 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by Petitioner in this case. Respondent did not submit any Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Treated as a conclusion of law rather than a finding of fact. 2.-3. Adopted in Finding of Fact 1. 4. Adopted in Finding of Fact 2. 5.-6. Subordinate to facts actually found in this Recommended Order. 7. Treated as a conclusion of law rather than a finding of fact. 8.-0. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 4. Subordinate to facts actually found in this Recommended Order. COPIES FURNISHED: Myrtle Aase, Executive Director Barber's Board 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 E. Renee Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 P. W. Cay, Qualified Representative 1349 Cassat Avenue Jacksonville, Florida 32205 Raymond F. Cay 1349 Cassat Avenue Jacksonville, Florida 32205
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Richard Byers, was a licensed cosmetologist in the State of Florida having been issued license No. CL0155765 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was the manager of Today's Hair and Nails, a cosmetology salon located at 3936 West Hillsboro Blvd. Deerfield Beach, Florida (the "Salon"). A Department of Professional Regulation inspector visited the Salon on July 27, 1990. During that visit he noticed certain problems which he discussed with Respondent. Among the items discussed were the ventilation in the Salon and certain sanitary problems in the Salon. The evidence was inconclusive as to the specific sanitary problems found during that inspection. The investigator indicated that he would return to follow-up on those matters at a later date. The Department's inspector returned to the Salon on August 6, 1990. Respondent was not working on that day. During the second visit, the Department's investigator noted that many of the problems discussed during the first visit had been corrected. For example, the ventilation had been improved and wet sanitizers were being utilized. However, some of the work stations, including Respondent's work station, were not clean. The countertop at Respondent's work station was cluttered and dirty and there were brushes with hair still in them. In addition, the drawer at Respondent's work station was not dry sanitized. Respondent argues that, since he was not working on the day of the second inspection, he should not be charged with any sanitation violations on that day. Respondent contends that he would have cleaned up his work station and sanitized all equipment before beginning work on customers the next day when he returned. However, no adequate explanation was given for the uncleanliness of his work station over the weekend. There is no evidence that any unsanitized equipment was used by Respondent on customers. The evidence does not clearly and convincingly support a conclusion that Respondent was not utilizing proper sanitation procedures before the combs and brushes were used on a customer. Without evidence of such use, Respondent cannot be guilty of a violation of the Board's rule on the provision of wet sanitizers and the sanitation of combs or brushes before their use. However, the evidence did establish that Respondent did not cleanse, sanitize and store his implements in a clean closed cabinet until used as required by the Board's Rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order reprimanding Respondent for violating Chapter 477, Florida Statutes and imposing a $50 fine. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1991. COPIES FURNISHED: Mark E. Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Richard Byers 9769 N. W. 20th Street Coral Springs, Florida 33071 Richard Byers c/o Today's Hair & Nails 3936 West Hillsboro Boulevard Deerfield Beach, Florida 33442 Myrtle Aase Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At the times pertinent to this proceeding, Respondent was an owner and operator of Myrliflore Hair and Nail Design, which is a beauty salon. Her first location of this establishment was at 2471 Pembroke Road, Hollywood, Florida. She later closed the shop on Pembroke Road and reopened her shop at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. At the time of the formal hearing, Respondent was operating her beauty salon at the Hallandale location. On September 8, 1990, and on February 13, 1991, Leonard Baldwin, an inspector for the Department of Professional Regulation inspected Respondent's shop at 2471 Pembroke Road, Hollywood. Respondent's shop was open for business and was doing business at the time of Mr. Baldwin's visits. Respondent had failed to obtain a license for her beauty salon from Petitioner prior to engaging in business. Respondent does not dispute that she operated her beauty salon in Hollywood without a license for the shop. Respondent testified that she had not secured a salon license for her location in Hollywood because she had only recently come to the United States from Haiti and she had not known that a license was required. Between February 13, 1991, and March 22, 1991, Respondent closed her beauty salon located at 2471 Pembroke Road, Hollywood, and reopened her beauty salon at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. On March 22, 1991, Mr. Baldwin inspected Respondent's beauty salon at the Hallandale address and found several violations of sanitation standards that had been established by rule. At the time of Mr. Baldwin's inspection, the implements for the nail station did not appear to have been sanitized, the equipment on the hair dresser's station was not clean and sanitized, instruments stored in a closed cabinet were not clean and sanitized, and the sanitation rules were not displayed. Respondent denied that her shop failed to meet sanitation standards as related by Mr. Baldwin. The conflict in the testimony is resolved by finding that the greater weight of the evidence establishes the sanitation violations to which Mr. Baldwin testified. It is found that on March 22, 1991, the implements for the nail station had not been sanitized, the equipment on the hair dresser's station was not clean or sanitized, instruments stored in a closed cabinet were not clean or sanitized, and the sanitation rules were not displayed. Respondent promptly corrected all sanitation deficiencies noted by Mr. Baldwin following the inspection of March 22, 1991.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered a Final Order be entered that finds the Respondent guilty of the violations alleged in Counts I and II of the Administrative Complaint and which assesses against Respondent an administrative fine in the amount of $750.00. DONE AND ORDERED this 29th day of July, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992. Copies furnished: Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton, Executive Director Board of Cosmetology Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roberta L. Fenner, Esquire Department of Professional Regulation Northwood Centre, Suite 60 Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0792 Myrliflore DeJean, pro se 730 N.E. Hallandale Beach Boulevard Hallandale, Florida 33009
Findings Of Fact On March 6, 1991, Mr. Leonard Baldwin, an inspector for the Department of Professional Regulation, inspected the salon known as Wonderful Hairweaving #2, located at 1439 Northeast 4th Avenue, Fort Lauderdale, Florida 33304. At the time he entered, the owner of the establishment, Kettly Guilbaud, was not present. Mr. Baldwin found two persons working at the salon; one person, a lady who identified herself as Rachel Guillaume, was placing chemicals on the hair of a patron as part of giving a permanent to the patron. The gentleman, who identified himself as St. Armond Iout, was cutting the hair of another patron. Both acknowledged that they had no license from the Department of Professional Regulation to perform cosmetology. Ms. Rachel Guillaume stated that she had only been at the salon for two days and was just there to help out a friend. It is not clear whether this was meant to mean that she was helping Ms. Guilbaud, the owner of the shop, or the person whose hair was being permed. It is more likely that she meant that she was helping Ms. Guilbaud. See Finding 6, below. Mr. Baldwin was not able determine how long Mr. Iout had been working there because of Mr. Iout's great difficulty with English. A customer translated for Mr. Iout, who told Mr. Baldwin through the customer that although he was cutting a man's hair, he did not work there. This is not believable. Mr. Baldwin also found sanitation violations at the salon, in that the implements available for use had not been sanitized, and they were kept in a drawer which was not clean. The sanitation rules were not displayed at the shop. Ms. Guilbaud testified that Rachel Guillaume was there only to answer the telephone and to make appointments for customers who would either call or come to the shop. Ms. Guilbaud was away at another location which she was preparing to open as an additional salon. She also testified that St. Armond Iout was there because the electrical inspector from the City of Fort Lauderdale was to come to the salon to look at some electrical wiring and that Mr. Iout was there only to meet the inspector. In view of Mr. Iout's very limited fluency in English this is unlikely, for he could have been no assistance to the electrical inspector. Rachel Guillaume could have admitted the inspector to the shop. I find the testimony of Mr. Baldwin persuasive, that both Ms. Guillaume and Mr. Iout were either perming or cutting hair. Neither were at the salon for the limited purposes described by Ms. Guilbaud. I accept Ms. Guilbaud's testimony that both Ms. Guillaume and Mr. Iout are not fluent in English, but Mr. Baldwin has not been confused by difficulties in understanding either Ms. Guillaume or Mr. Iout. What is significant is what Mr. Baldwin observed, not what Ms. Guillaume or Mr. Iout tried to explain to him.
Recommendation It is RECOMMENDED, based upon the foregoing findings of fact and conclusions of law, that a final order be entered by the Board of Cosmetology finding Kettly Guilbaud, doing business as Wonderful Hairweaving #2, to be guilty of the acts alleged in Counts I and II of the Administrative Complaint, and that a fine of $600 be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June 1992. Copies furnished: Roberta Fenner, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kettly Guilbaud, pro se 1439 Northeast 4th Avenue Fort Lauderdale, Florida 33304 Ms. Kaye Howerton Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration, (Agency), had the responsibility for the inspection and regulation of Adult Congregate Living Facilities, (ACLF), in Florida. Respondent was licensed to operate an ACLF at 9110 Star Trail, New Port Richey, Florida. To be an ACLF, a facility must provide at least one personal care service, such as assistance with bathing, dressing or feeding, in addition to room and board. The residents of ACLF's are usually individuals in their later years, though at times, younger people with disabilities are residents of such a facility. On January 12, 1994, Janet I. Mills and a team of Agency inspectors conducted a compliance survey of the Respondent's facility as a result of a change in ownership and the new owner's application for licensure. During this visit, Ms. Mills determined that the food provided to resident by the facility management did not meet the nutritional needs of the residents in some respects. She noted that the menu prepared by the facility's dietician had been changed and the changes were not of equal value. The guidelines used by the inspectors are the recommended daily allowances as supplemented by Florida's minimum standards. Specifically, according to Ms. Mills, the facility's menu did not provide the required daily amount of milk for each patient. Ms. Mills returned to the facility for a follow-up survey of this item on February 22, 1994. On that date she noted that the menus had been redone and were posted, and the staff was following them. The only area remaining for correction was the amount of milk to be provided. This still was not included on the menu. The purpose for requiring this is to insure that unknowing servers would not serve milk if it were not listed. Milk is an important part of an older person's diet. It provides calories, protein, calcium and B vitamins. Ms. Selg contends that milk was on the menu, reflecting a requirement for 8 oz per day, but the entry was illegible. After this survey, she hired a new dietician to prepare the menus but this was not completed until May, 1994, after the follow-up inspection. Ms. Selg restated this contention in her post- hearing submittal. However, if the milk entry on the menu is illegible, it is the same as not being there since its purpose cannot be fulfilled. At the conclusion of the visit on January 12, 1994, Ms. Mills, and the other inspectors, met with Ms. Selg and went over each of the deficiencies discovered, indicating what corrective action was required. The Respondent was given 30 days from January 12, 1994 to make the necessary corrections. In the instant case, because the inspection was due to a change in ownership, there was a limitation on the time which could be allowed for corrections. Other deficiencies identified on January 12, 1994 by Ms. Gonzalez, which are pertinent to the issues herein, included the failure of Respondent to maintain documentation in the facility's files of the guardianship appointment for one of the legally incompetent residents, Rule 10A-5.024(2)(b)5; failure to ensure that all resident contracts contained all required provisions, Rule 10A- 5.024(2)(a); failure to ensure that all residents were examined by a health care provider within 60 days prior to admission or 30 days after admission, 10A- 5.0181(3)(a); and failure to ensure that at least one staff member who was fully trained in First Aid was in the facility at all times, Rule 10A-5.019(5)(f), F.A.C. All of these deficiencies were identified to Ms. Selg at the out- briefing for the initial survey on January 12, 1994. When Ms. Gonzalez returned to the facility for a follow-up survey on February 17, 1994, she found many of the previously identified deficiencies had been corrected. However, several, as pertinent here, had not been covered. Specifically, she found that the previously identified personnel who did not have First Aid training, V.M. and S.W., were no longer employed at the facility, but two other personnel, who were at times left alone with the residents, B.L. and P.S., were not certified as having been trained in First Aid. Therefore, the problem still existed though the individuals had changed. In this instance, Ms. Selg admitted at hearing that that determination of deficiency is correct. She tried to get the Red Cross out to give the required training, but it was not done by the time of the re-survey on February 17. In her post-hearing submittal, however, she contended that her brother, who, she claims, is fully qualified, lived on the premises, "... and was never off the premises when there was any question as to the qualification of any employee scheduled to work alone." Since this assertion was not made under oath, and is contradicted by her previous admission under oath at hearing, it is found that the deficiency existed at the time of citation. Ms. Gonzalez also found, on her return visit, that the records pertaining to resident E.H., which had been identified on January 12 as not containing the appropriate medical examination, still failed to contain a completed assessment, notwithstanding the fact that the follow-up comments on the survey form reflects the deficiency had been corrected. That entry, she claims, is in error. Ms. Selg, however, believes the correction had been made timely. She claims this issue was not identified at the exit briefing on January 12, 1994. The required information is now in the file, and she is of the opinion it was there at the time of the follow-up survey, but she can't be sure. Since the Respondent convincingly asserts the required information had been inserted by the time of the follow-up inspection, and since the inspection form indicates it was, it is so found. Ms. Gonzalez also noted on February 17, 1994, that the facility's records still failed to contain the Order of Appointment of Guardian for one resident. This had been identified at the January 12, 1994 survey as a deficiency. Ms. Selg contends that though the original Order of Appointment was not available at that time, (though she had requested it of the guardian), a supplement Order of the Court maintaining the original appointment was included. According to Ms. Gonzalez, the Agency's rule requires resident contracts to contain certain provisions. On her visit of January 12, 1994, the contracts she reviewed did not contain all the required provisions. These included: The contracts did not identify any personal care services to be provided by the facility. The contracts did not indicate if and how resident funds will be safeguarded. The contracts did not call for a refund within 7 days if the facility went out of business. The contracts did not call for transfer of residents who needed advance care. When she came back to the facility on February 17, 1994, Ms. Gonzalez checked to see if the required language had been added to the contracts, but it had not. Ms. Selg admits the records were not complete as required as of the time of the follow-up survey. She claims the missing documents were at the facility but were not in the files as required. In her post-hearing submittal, Mrs. Selg admits that the instant complaint refers back to the original inspection of January 12, 1994 and the re- inspection on February 17, 1994, but she claims she thought the $1,150 she had previously paid in fines as a result of the prior complaints had finalized the matter since, she claims, those fines were for the same deficiencies. The Agency's post-hearing submittal indicates, however, that while the deficiencies may be the same, they were found on different inspections and were made the subject of different complaints. Respondent's payments were for prior complaint allegations and not those alleged in the instant complaint. The copies of the prior complaints, forwarded with the Agency's response, so indicate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued finding Respondent guilty of failing to ensure all resident contracts contained all qualified provisions; failing to ensure at least one staff member qualified in First Aid was at the facility at all times; and failing to insure the regular diet menus indicated residents received the required servings of milk, and imposing an administrative fine of $600. RECOMMENDED this 24th day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1995. COPIES FURNISHED: Thomas Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Susan M. Selg Administrator Gallo House I, Inc. 9110 Star Trail New Port Richey, Florida 34654 Sam Power Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 323080-5403 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue is whether Respondent should have a civil penalty in the amount of $1,600.00 imposed for allegedly failing to timely correct three violations of administrative regulations, as alleged in the Administrative Complaint filed by Petitioner on February 18, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Northpointe Retirement Community (Respondent), was licensed to operate an assisted living facility (ALF) at 5100 Northpointe Parkway, Pensacola, Florida. As an ALF, Respondent is subject to the regulatory jurisdiction of Petitioner, Agency for Health Care Administration (AHCA). One regulatory responsibility of AHCA is to conduct periodic licensure surveys of ALFs to ensure that they are complying with certain standards embodied in Chapter 58A-5, Florida Administrative Code. If standards are not being met, depending on their nature and severity, the deficiencies are classified as Class I, II, and III violations, with Class I being the most serious violation. After deficiencies are noted in a licensure survey, the facility is given a time certain in which to correct those violations. If no correction is made, AHCA normally imposes a civil penalty upon the erring facility. Respondent is charged with having failed to timely correct one Class II and two Class III violations. By law, a Class II deficiency is one which the agency determines to have a direct or immediate relationship to the health, safety, or security of nursing home residents. A Class III deficiency is a deficiency which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home residents. On October 5 through 7, 1998, an AHCA representative conducted a routine licensure survey of Respondent's facility. During the survey, the representative noted, among other things, that Respondent did not have a staff member within the facility at all times who was certified in first aid, including cardiopulmonary resuscitation (CPR). If true, this omission contravened the requirements of Rule 58A-5.019(5)(f), Florida Administrative Code, and constituted a Class III violation. On November 12, 1998, AHCA conducted a second licensure survey of Respondent's facility. During the survey, its consultant discovered two standards being contravened. First, Respondent failed to comply with good sanitary practices in its food preparation area in various respects, which constituted a violation of Rule 58A-5.020(1)(b), Florida Administrative Code. The specific deficiencies are described in detail in Petitioner's Exhibit 2, and collectively they constituted a Class II violation. The same survey also revealed that Respondent failed to maintain an adequate emergency supply of water for drinking and cooking purposes. While Respondent had a private well on its premises to meet these needs, the quality of the water had not yet been tested by the Escambia County Health Department. In the absence of such testing, or the presence of any other emergency supply of water, Respondent violated Rule 58A-5.020(1)(i), Florida Administrative Code, a Class III violation. After the foregoing inspections had occurred, Respondent was given a written report containing a list of all violations, and it was given until December 3, 1998, in which to make corrections. On February 5, 1999, AHCA conducted a follow-up survey of Respondent's facility and noted that Respondent had still failed to remediate the previously cited deficiencies. First, during the late evening shift (11 p.m.-7 a.m.) on January 29, 1999, there was no person on duty in Phase II of the complex who was certified in first aid, including CPR. Second, the well had still not been inspected and approved for human consumption, and there was an inadequate amount of water on hand for the residents in the event of an emergency. Finally, although the earlier sanitary violations had been corrected, the AHCA representatives discovered a new sanitary violation in the food preparation area involving the improper thawing of meat. Under AHCA policy, unless no sanitary violations are found in the follow-up inspection, a continuing violation of the rule has occurred. Except for the first-cited deficiency, which is discussed below, the foregoing deficiencies constituted an uncorrected Class II violation and an uncorrected Class III violation. While admitting that a person certified in first aid was not present in one of his buildings during the late shift on January 29, 1999, Respondent's owner contended that the AHCA rule was still satisfied. Under his interpretation, the rule only requires that he have one person trained in first aid, including CPR, within the entire facility, rather than in each building; AHCA, however, interprets the word "facility" as meaning each building within the facility, and because there was no person in Phase II of the facility, it maintains that the rule was violated. For the reasons given in the Conclusions of Law, this interpretation of the rule is found to be clearly erroneous. As to the second violation, which pertains to sanitary food practices, Respondent admits that the violation occurred, but suggested that it pertained to mildew which developed behind loose caulking in the kitchen, which was later corrected. At the hearing, however, the ACHA consultant pointed out that the violation occurred because of improper thawing of food, and not caulking, and thus there was a continuing sanitary violation in the food preparation area. As to the lack of an emergency water supply, Respondent's owner pointed out that he had made a good faith effort to comply with the regulation, but had difficulty in determining from the local disaster preparedness authority exactly how much water per resident was required in the event of an emergency. Shortly after the follow-up survey, he purchased adequate amounts of bottled water to meet the requirements of the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order determining that Respondent has violated Rule 58A-5.020(1)(b) and (i), Florida Administrative Code, and that an $800.00 civil penalty be imposed. The remaining violation should be dismissed. DONE AND ENTERED this 10th day of February, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of February, 2000. COPIES FURNISHED: Sam Powers, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Mohammad H. Mikhchi, President Northpointe Community Retirement 5100 Northpointe Retirement Pensacola, Florida 32514 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Respondent was licensed for the years 1977 and 1978 with the current license No. 080018 valid until 1 January 1979. During an inspection of Adams Rooming House in Belle Glade, Florida on 20 April 1977 only one fire extinguisher was located on each floor of the two floors used for rental units, numerous extension cords running from the same outlet were observed in the rental units, in the public toilets on each floor the bulbs were missing from the lighting fixtures, screens on windows were torn or missing, window was missing in toilet, doors on toilet split, no designation of sex on any bathroom, some windows in units boarded up with full panel doors, other windows had torn screens and broken jalousies, trash, junk and garbage littered on ground in vicinity of dumpster, and there were areas on stairways, landings and porch with railing missing. Respondent was notified of these violations. At an inspection on November 14, 1977 the proper number of fire extinguishers were present but two were empty. There was a direct conflict in the testimony regarding the fire extinguishers with neither witness saying how he ascertained the extinguisher empty or not empty. Accordingly, this alleged violation will be disregarded hereafter in this Recommended Order. At this inspection all of the other violations previously noted were still extant and some doors were also boarded up. No windows had both good screens and unbroken panes. Respondent was notified of these violations. On January 3, 1978 another inspection was conducted in company with Gilbert Adams. All violations previously reported were still uncorrected at this time. The premises were again inspected January 24, 1978 and all violations previously found remained uncorrected. At an inspection on March 8, 1978 the fire extinguishers had been recharged. When inspected again on April 10, 1978 the violations were still uncorrected. On April 25, 1978 an inspection was conducted in company with Adams. At this inspection some screening had been replaced, some windows and railings corrected, the grounds around dumpster had been cleaned, the doors to the bathrooms had been repaired and they had been designated for use by sex. However, all doors and windows were not corrected, some windows were still fully boarded up, bulbs were missing from fixtures in bathrooms, some railings were still loose, and the basic violations remained but not as many as before. On 25 January 1978 (Exhibit 2) Respondent executed a stipulation in which he agreed to pay a civil penalty of $25 and to correct all the violations previously reported within 30 days. The inspection conducted on 8 March was the follow-up inspection to ascertain if the violations had been corrected pursuant to the stipulation. Respondent contends that the rooming house caters principally to transients and that every time he puts bulbs in the bathrooms they are removed by the tenants; that tenants and passersby throw trash at the dumpster rather than put the trash in the dumpster; that he has a man who does repairs and cleanup at the rooming house; that he can't keep screens in either the unit windows or the bathrooms; that some tenants asked him to have their window boarded up to provide greater security; and that tenants disregard the sex signs placed on the bathrooms and will use whichever bathroom is vacant. Respondent does not visit the units frequently but does come to collect rent when due. He also contends that it is virtually impossible to keep tenants from running numerous extension cords from the same fixture. This is undoubtedly true if there are insufficient outlets in the rental units. Additionally, Respondent testified that he has the walls washed occasionally and provided paint to one tenant who wanted to paint his unit. He further stated that the units have been painted but the frequency of this painting was unclear. Proposed findings of fact submitted by Petitioner and Respondent have been considered. Those inconsistent with the facts noted above were not supported by testimony deemed credible. Those proposed findings not included herein were deemed immaterial to the results reached.
Findings Of Fact Petitioner sat for the Civil/Sanitary Engineer Examination on April 15, 1988. He received a failing grade with an original score of 41 raw points. Since that time, he has been awarded an additional 3 raw points and has a score of 44 raw points. A passing grade is 48 raw points and is, therefore, 4 raw points from passage. Petitioner contests the score given him on three of the problems on the examination. They are problems 120, 122, and 421. He did not have the test booklet he used at the examination available to him at the hearing. Though he recognizes that the grader who assessed his scores was not allowed to look at his test booklet during the scoring process, many of his calculations for problems 120 and 122 were made in it. Problem 120 requires the examinee to compute 6 stations and the coordinates of the 6 points of the two involved curves on a railroad spur line. Petitioner computed the six points to what he considers an acceptable tolerance and had also started to compute the coordinates as required by Requirement (b). His solution page for Requirement (a) of this problem reflects only the six points, of which 5 are marked incorrectly, and bears the grader comment, "show computations." The second page, relating to Requirement (b), on which the first 3 calculations are marked as incorrect, reflects only cursory calculations and bears the grader comment, "Incomplete." Petitioner was awarded a score of "4" for his solution to problem 120. According to the National Council of Engineering Examiners Standard Scoring Plan Outline, the guideline relating to "4", "BORDERLINE UNQUALIFIED", reads: Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable but marginally so. The scorer's remarks concerning Petitioner's solution state: A solution which fails to demonstrate an adequate understanding of horizontal curve geometry as a result of logic errors, math errors, and failure to complete several parts. According to Petitioner, he used the Civil Engineering Reference Manual in his calculations. He also contends that Requirement (a) is far more important to the problem than is Requirement (b). Once the former is achieved, it is easy to achieve the latter. Admittedly, Petitioner did not complete Requirement (b) and, therefore, does not expect credit for it. However, he contends that having completed Requirement (a) correctly, he should have been awarded more than 40% credit. Petitioner also contends that the use of the term, "Not To Scale" in the test problem was deliberately deceptive which was not necessary to test engineers at this level of achievement. In this case, Petitioner contends the lack of availability of the examination test booklet in which he did many of his calculations hinders him in demonstrating the correctness of his solution. These computations, he contends, would show his computations in Requirement (a) were "close enough" to be graded correctly and without these computations, the scorer would not know if he did them or merely copied the answers. He would not, also, have any way of knowing if Petitioner has knowledge of horizontal curve geometry. Mr. Lippert, a licensed registered engineer testifying on behalf of Petitioner, believed that the answers to the problems to be more important than the computations. In a practical application he may be correct. However, in the instant case Petitioner is a candidate for certification as a Professional Engineer and was being examined on his qualifications for that status. In such a situation, it is not at all unreasonable to expect the candidate to demonstrate his method of arriving at his solution to demonstrate his understanding of the concept sufficiently to indicate his answer was neither copied nor a fluke. Since the candidate is seeking a higher degree of recognition, a requirement that he demonstrate a higher degree of professional skill is not unreasonable. Under the fact situation demonstrated here, the award of a "4" as a grade for Petitioner's solution to this problem is appropriate. In Problem 122, the candidate was required to use and show equations for his calculations of (a), the average maximum and minimum sanitary wastewater flows expected, in gallons per day, for the total complex in issue; (b), the theoretical full flow capacity and velocity with no surcharge; and (c), depth and velocity of flow for the estimated maximum flow rate. The candidate was instructed to conclude, if possible, that the sewer is not overloaded. The problem deals with a troublesome wastewater disposal system for a retirement community of 490 units with a population of 1,475. Here, Petitioner was awarded an a score of "8" and feels he should have received more. As to (a), Petitioner cited in his answer the reference manual he was using, a manual used by many engineers and one accepted in the profession, yet the grader apparently felt that the use of only the title was insufficient. He wanted the author's name, publisher, date of publication, and other salient information. Petitioner felt this was unnecessary in light of the well known status of the book. In (b), the problem calls for 10" UCP pipe. All pipe, depending upon the material from which constructed, has a different diameter. Petitioner's solution was marked at least partially incorrect because he assumed the interior diameter of the pipe as .83' when the problem stated the interior diameter was 10". Petitioner contends that even with that unnecessary calculation based on an incorrect assumption, his solution of 2.295 feet/second velocity was sufficiently close to the grader's solution of 2.35 feet/second to be marked correct. Similarly, Petitioner contends his velocity in (c) was within a "tolerable" margin and that his conclusions is "OK". While the grader considered his method in this section as "OK", he marked the calculation almost entirely wrong. This may be related to the formula used by Petitioner in (b) which, he admits, is wrong. He contends he must have brought the wrong number over from his calculations which he accomplished in his test booklet. This booklet is not now available, but, in any case, would not have been seen by the scorer. Petitioner also claims that the gallons per capita per day figure of 100 is the standard "everyone uses" to calculate problems involving sewage. Here, because he was taking an examination, he used a figure of 112.5 gallons per day, a compromise between 100 and 125, which he took from the reference manual without citing page number from which taken. Consequently, he contends the grader's comment that his figure is too high is in error but even if it was too high, he ran the calculations correctly and should be given full credit. It is his position that in a case like this, error on this high side, which would give greater capacity, is better than being short. Being correct would be even better, and Petitioner's solutions was not correct. In the scoring plan outline for this problem, an "8" is described as: QUALIFIED; All categories satisfied, errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking, Results reasonable though not correct. and a "9" is described as: QUALIFIED: All categories satisfied, correct solutions but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc. The scorer's comments were: CQ. Fundamentals are correct. Solutions are basically correct and complete but contain math, unit, or tolerance errors making answers unacceptable; or the record is different, or in combination. Here, Petitioner contends that his ultimate solution, only .05 feet/second off in velocity is so close that the error is insignificant. It is close but the difference between an "8" and a "9" lies in the correctness of the ultimate solutions. "Close" is not "correct" and Petitioner's errors are not attributable to misread equations or devices but to his own improper assumptions. Because his calculations were done in a test booklet which is not now available it cannot be determined where the error originates which caused (c) to be marked as it was. Under the circumstances shown here, the score of "8" awarded is not inappropriate. Problem 421 calls for the candidate to find the required volume in cubic feet of on site storage so that post development flows on the parcel of land in question do not exceed the pre-development flows to the existing stream for the 25 year frequency rainfall. Petitioner determined the pre and post development numbers correctly but did the retention area in the old fashioned way resulting in his solution equating to 1/2 of the correct solution. The grader indicated that Petitioner's "procedures [sic] [were] in error here." Petitioner has a one page solution to the problem and got credit for his answer of "4.22" to the first stage of the problem as well as his answer to the second part. He admits, however, that his third step was wrong and that threw the problem answer off. He contends, however, that he was undergraded when awarded a "4" and while he admits to not deserving a "6", feels he should have received a "5". Grades for this problem were awarded on a 2-4-6-8-10 point scale. A "5" was not an authorized score. The scoring plan for this problem describes a "4" as: BORDERLINE UNQUALIFIED; Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable but marginally so. A grade of "6" is described as: MINIMALLY QUALIFIED: All categories satisfied at a minimally adequate level. Here the scorer indicated: Pre and post calculation OK. An attempt at detention calculation made but no significant progress toward conclusion. Fails to demonstrate knowledge necessary to calculate detention as existing. Detention calculations fail to demonstrate knowledge of hydrograph [sic] nature of storage calculations. Only one data point obtained. The comments of the grader on the Petitioner's answer sheet clearly indicate that the answer given was incorrect and that the Petitioner failed to demonstrate adequate knowledge of the procedures in issue. Since there is no provision made to award any grade between "4" and "6", and since Petitioner's answer clearly, and by his own admission, does not qualify for a "6", the awarded score of "4" is appropriate. Based on the above, it is found that Petitioner has failed to demonstrate that the scores given him on the problems in issue were incorrect, unsupported, or inappropriate.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered affirming the score awarded to Petitioner on questions 120, 122, and 421, respectively, of the Civil/Sanitary Engineer Examination administered to him on April 15, 1988. RECOMMENDED this 4th day of April, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1989. COPIES FURNISHED: Leonard A. Smally Longboat Key, Incorporated 501 Bay Isles Road Longboat Key, Florida 33548 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
