The Issue Whether a civil penalty should be assessed against the Respondent under the facts and circumstances of Case No. 89-2966. Whether Respondent should be denied licensure renewal under the facts and circumstances of Case No. 89-4890. Whether a civil penalty should be assessed against Respondent under the facts and circumstances of Case No. 89-5238.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to these proceedings, Sacred Heart was operating an Adult Congregate Living Facility (ACLF) under either a Standard license or a Conditional license issued by the Department in accordance with Chapter 400, Florida Statutes. FINDINGS AS TO CASE NOS. 89-2966 AND 89-5238 In DOAH Case No. 86-4065 (OPLC No. 86-474 ACLF) the Department and Sacred Heart entered into a stipulated settlement that was read into the record at the time of the final hearing (Petitioner's Composite Exhibit 1, Tab 6) on September 1, 1987 which provided: (a) that the Department was to perform a full survey (the same as an annual survey) of Sacred Heart beginning on September 1, 1987 and concluding on September 2, 1987; (b) that the parties would review the survey and establish a date for correcting any deficiencies noted; (c) that upon Sacred Heart timely correcting the noted deficiencies the Department would issue a renewal license for a period of one year from the date of issuance; (d) that substantial compliance of the noted deficiencies was a pre-condition to issuance of the renewal license; and (e) that Sacred Heart's failure to timely correct the noted deficiencies would result in the Department denying the renewal license. In accordance with the above-referenced stipulation the Department conducted a survey of the Sacred Heart facility on September 1 and 2, 1987. The survey was broken down into two parts: (a) operational deficiencies which are dealt with in Case No. 89-5238 and (b) fire safety standards deficiencies which are dealt with in Case No. 89-2966. That part of the survey concerning operational deficiencies was conducted on September 1 and 2, 1987. The Department noted 15 deficiencies of which 7 were Class III, 3 were part Class III and part Unclassified and 5 were Unclassified. Some of these deficiencies were required to be corrected by September 8, 1987, others to be corrected by October 2, 1987 and November 1, 1987 and the balance to be corrected by November 30, 1987. That part of the survey concerning fire safety standards deficiencies was conducted on September 2, 1987. The Department noted 18 Class III deficiencies which some were to be corrected by September 15, 1987 and the balance to be corrected by November 1, 1987. On December 1, 1987 the Department conducted a follow-up survey and noted that all operational deficiencies (Class III and Unclassified) listed on the September 1-2, 1987 survey had been corrected with the exception of the following: (a) ACLF 106 A(1), E(1), I, and J, Class III ; (b) ACLF 108F, Unclassified; (c) ACLF 109 H(18) and (19), Unclassified; (d) ACLF 111 A(1), Unclassified; and (e) ACLF 113(20) and (25), Unclassified. On December 8, 1987 the Department conducted a follow-up survey and noted that all of the fire safety standards deficiencies (Class III) had been corrected by Sacred Heart or withdrawn by the Department with the exception of ACLF 89, 107 A., B., C., F. and Q all of which had been partially corrected. Sacred Heart was operating with a conditional license with a termination date of October 7, 1987 at the time of the above-referenced stipulation and survey. This conditional license was extended until December 15, 1987. After the follow-up survey on December 1, 1987 and December 8, 1987 the Department notified Sacred Heart on January 6, 1988 that it was issuing Sacred Heart a Standard (regular) license with an effective date of December 16, 1987 without any conditions requiring Sacred Heart to correct the operational or fire safety standards deficiencies noted on the follow-up surveys of December 1 and 8, 1987. This standard license had an expiration date of October 7, 1988. Since the Department was aware of Sacred Heart's less than full compliance with correcting both the operational and fire safety standards deficiencies it can be assumed that the Department considered Sacred Heart in substantial compliance with correcting those deficiencies as required by the stipulation when it issued Sacred Hearth the Standard license without any conditions placed on the license requiring the correction of those deficiencies. Notwithstanding that it had issued a Standard license without any condition requiring Sacred Heart to correct any outstanding deficiencies, the Department conducted a follow-up survey on the operational and fire safety standards deficiencies on March 18, 1988 and March 25, 1988, respectively. On March 18, 1988 the Department conducted a follow-up visit of the annual survey conducted on September 1-2, 1987 and the follow-up visit of December 8, 1987 and found the following operational deficiencies that were noted in the September 1987 annual survey that had not been corrected: (a) ACLF 106(H) - Loose iron railing on entry of main building, Class III; (b) ACLF 109H (18) - cracked or peeling paint on wall in shower in room 18 of the main building, Unclassified; and (c) ACLF 113A (20) and (25) - stained or dirty ceiling panels in room 20 and 25 in the main building, Unclassified. Based on the follow-up survey of March 18, 1988 sanctions were recommended and approved for the uncorrected operational deficiencies. An administrative complaint was issued on March 16, 1989 and filed with the Division of Administrative Hearings on September 26, 1989 in Case No. 89-5238 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation. On March 25, 1988 the Department conducted a follow-up visit on the September 1987 annual survey and the December 1987 follow-up visit and found the following fire safety standards deficiencies that had been noted in the September 1988 annual survey that had not been corrected: ACLF 89, 107 - A. all resident sleeping rooms that open into corridors did not have self-closing or automatic closing devices installed - this deficiency had been partially corrected in December 1987 and remained partially corrected in March 1988; B. all stair well doors (2-story building) did not have self-closing or automatic closing devices installed - partially corrected in December 1987 but neither door operational in March 1988; C. - all sleeping rooms, common areas, hallways, corridors, sitting or lounge areas, T.V. rooms, dining room, kitchen areas, laundry rooms, furnace rooms, Chapel and office areas adjoining the resident use areas did not have electronic smoke detectors wired into household electrical current (heat detector acceptable in kitchen) - this was only partially corrected on December 1987 as it was in March 1988; and F. all electrical panel boxes did not have each circuit breaker identified and labeled showing the area each circuit breaker protected - all corrected except in cottage #8 which was not corrected in March 1988. Based on the follow-up survey of March 25, 1988 sanctions were recommended and approved for the uncorrected fire safety standards deficiencies. An administrative complaint was issued on March 31, 1989 in Case No. 89-2966 and filed with the Division of Administrative Hearings on May 30, 1989 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation. While the administrative complaint in Case No. 89-5238 indicates that deficiencies ACLF 109 and ACLF 113 are Class III deficiencies, both of the surveys and the Recommendation For Sanctions list these deficiencies as Unclassified . The operational and fire safety standards deficiencies noted by the Department in its September 1987 annual survey did exist. Furthermore, those operational and fire safety standards deficiencies noted in the follow-up visits of December 8, 1987 and March 18 and 25, 1988 as not being corrected, were uncorrected on the dates of the follow-up visits. FINDINGS AS TO CASE NO. 89-4980 On June 10 and 14, 1988 the Department conducted an annual survey of the Sacred Heart facility and noted the following deficiencies: (a) ACLF 63, 64, 66 - Unclassified; (b) ACLF 67, 71, 96A, 97A, Class III; (c) ACLF 106, 109, 89 (1-14) (maintenance problems) Unclassified; (d) ACLF 107A and B, 108 A-E, Class III; (e) ACLF 110A and B, 111 and 113, Unclassified; and (f) ACLF 26 and 42, Class III. On June 16, 1988 the Department conducted a follow-up of the annual survey conducted on September 2, 1987 and found the following fire safety standards deficiencies noted in the 1987 annual survey and the March 25, 1988 follow- up survey that had not been corrected: (a) ACLF 89, 107A - had not installed automatic or self-closing devices on all doors of residents' rooms that open into hallway or corridor; (b) ACLF 89, 107B - failed to install automatic or self-closing devices on all stairwell doors; and (c) ACLF 89 107C - failed to have electric smoke detectors wired into household electric current in furnace room, others noted in earlier annual survey and follow-up survey had been corrected. Additionally, the Department conducted an annual survey of the fire safety standards on June 16, 1988 and noted several deficiencies which were corrected at the follow-up survey of August 16, 1988 with the exception of: (a) having improper ashtrays in use in various areas of the main building and cottages; and (b) failure to install automatic fire extinguishing (sprinkler) system in the 2-story (main) building in accordance with Rule 4A-40.007(1), Florida Administrative Code. The August 16, 1988 survey also noted the following new fire safety standards deficiencies: (a) the failure to encase alarm wires in protective casings in north and south cottages; (b) failure to install additional alarm bells and switches or pull boxes in north cottages; (c) failure to have additional fire alarm bells installed on the first floor of 2- story main building; and (d) the failure to have pull box alarm systems properly installed according to Rule 4A-40.004, Florida Administrative Code. By letter dated August 9, 1988 the Department imposed a moratorium on admissions at the Sacred Heart facility effective August 8, 1988 in accordance with Section 400.415, Florida Statutes, for severe deficiencies including, but not limited to, inappropriate placement and retention of residents, substandard cleanliness of residents and substantial cleanliness of the facility. On August 16, 1988 the Department conducted another follow-up survey on the Sacred Heart facility and noted the following operational deficiencies: (a) ACLF 26, 27, 41 (1-6), 51, 52, 53, 58, 67, 71 (2-8), 96 (a-s), 98, 104, 105, 106 (a-o), 107 A-C, 109 A-H, 110 A-V and 111 (a-c), Unclassified; and (b) 71 (1), 93 A (1-7) and B (1-4), 97 A-E, 108 A-N, 112-115, 117 and 89 (a-m), Class III. On the follow-up survey of August 16, 1988 it was noted that the following operational deficiencies noted in the annual survey of June 10 and 14, 1988 had not been corrected: (a) ACLF 67; (b) ACLF 96 A & B (partially corrected); (c) ACLF 106, 109, 89 (1-6 partially corrected and 9 not corrected); (d) ACLF 107 A partially corrected; (e) ACLF 110 A-B; and (f) ACLF 111. On September 6, 1988 the Department notified Sacred Heart that its application for renewal of its license was being denied pursuant to Section 400.414(1)(2)(a)(b) and (d), Florida Statutes, because Sacred Heart did not comply with the standards for operation of an ACLF pursuant to Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code. The specific reasons given by the Department were the inappropriate placement and retention of residents and substandard cleanliness of the facility and, "the failure to: provide adequate resident care; meet life safety standards; provide social, leisure and recreational activities and to correct numerous physical plant deficiencies" as demonstrated by the March 18, 1988, June 10, 14, 1988 and August 16, 1988 area office visits and surveys. As a result of this denial letter Sacred Heart filed a petition with the Department requesting an administrative hearing which was assigned PDRL No. I 88-899 and referred to the Division of Administrative Hearings which assigned Case No. 88-5177 to this request. On October 13, 1988 the Department conducted a survey of the Sacred Heart facility for the purpose of reconsidering the moratorium issued on August 8, 1988. The October 13, 1988 fire safety standards survey noted the same deficiencies as were noted on the August 16, 1988 survey, none had been corrected. The operational deficiencies survey noted that some of the operational deficiencies noted on the August 16, 1988 survey had been corrected but that a good number had not been corrected. Additionally, the operational deficiency survey of October 13, 1988 noted a large number of new deficiencies. On February 8, 1989, the Department conducted another follow-up survey on both the operational deficiencies and the fire safety standards deficiencies. This survey noted that all fire safety standards deficiencies noted on October 13, 1988 had been corrected with the exception of installing an automatic fire extinguishing system. This survey also noted that a large number of the operational deficiencies noted on the October 13, 1988 survey had not been corrected and also noted several new deficiencies. Sometime before May 25, 1989 the Department and Sacred Heart entered into a Joint Stipulation wherein the Department would again place Sacred Heart on a 60 day conditional license upon the execution and return of the Joint Stipulation and lift the moratorium imposed on August 8, 1988. In return, Sacred Heart agreed to: (a) correct all remaining deficiencies arising out of the surveys of March 18, June 10 and 14, August 16, 1988 and February 8, 1989; (b) a full and complete survey utilizing the new survey manual; and (c) the results of this new survey being used to determine whether the license would be denied and the matter referred to the Division of Administrative Hearings for licensure denial proceedings de novo. On May 25, 1989 in accordance with the stipulation the Department lifted the August 8, 1988 moratorium that it had imposed on the Sacred Heart facility and issued Sacred Heart a 60-day Conditional license effective April 16, 1989 with an expiration date of June 15, 1989 In accordance with the stipulation and, the need to conduct an annual survey for licensure, the Department conducted an annual survey of the Sacred Heart facility on June 13-14, 1989. There were no repeat fire safety standards deficiencies noted in the June 1989 annual survey. However, the following new fire safety standards deficiencies were noted in the June 1989 survey: (a) ACLF 700-801A kitchen - cooking range and fry grill needs to be certified as to their safety, and cooking range and fry grill need thorough cleaning, removing flammable burnt and crusted food and grease from burners, well and cooking surface, and (b) ACLF 700-901B, main building - (1) sprinkler alarm bell not connected, (2) holes in ceiling and walls left by sprinkler contractor need to be sealed to prevent passage of toxic gases to other areas, (3) exit door (ground floor, south wing) does not swing outwardly in direction of escape travel, and (4) fire alarm "Pull Station" not loud enough to be heard throughout building on outside of building. These fire safety standard deficiencies are Class III deficiencies. The June 13-14, 1989 survey noted the following Class III operational deficiencies: ACLF 302 (ANC), ACLF 404-1001-1010, ACLF 504-507(4)-508 (a repeat deficiency), ACLF 602; ACLF 613, ACLF 617 (1-10), ACLF 700, ACLF 708, ACLF 800- 1010 (A-G, with G being a repeat deficiency), ACLF 803-806-808-1010 (A-F, with F being a repeat deficiency), ACLF 804-1010 (A-H, with H being a repeat deficiency), ACLF 810-811-1010 (A-B, with B being a repeat deficiency), ACLF 1002-1010, ACLF 1003-1010, ACLF 1005 and, ACLF 1105-1106 (A-B, with B being a repeat deficiency). Although several of the above operational deficiencies are listed as "repeat deficiencies", there is insufficient evidence to show that these exact deficiencies had been noted in an earlier annual survey or the earlier follow-up visits as deficiencies. The date for correcting the new fire safety standard deficiencies was July 14, 1989 and the date for correcting the operational deficiencies varied from June 14, 1989 thru August 14, 1989. The Department made no further visits to the Sacred Heart facility subsequent to the June 13-14, 1989 annual survey in an attempt to determine if Sacred Heart had corrected those deficiencies noted in the June 13-14, 1989 annual survey, notwithstanding that the Department had allowed Sacred Heart a period of time to correct these deficiencies. All of the deficiencies noted in the June 1989 annual survey were subsequently corrected within the time period prescribed in June 1989 annual survey report. All of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits conducted subsequent to March 25, 1988 did exist. Furthermore, all of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits beginning with the September 1987 annual survey and ending with the February 8, 1989 follow-up visit had been corrected before the June 1989 annual survey in accordance with the stipulation. On June 22, 1989 the Department entered a Final Order adopting the stipulation and ordering the parties to comply with its terms. Based on this Final Order the Department filed a Voluntary Dismissal in DOAH Case No. 88-5177 on July 10, 1989 and the file of the Division of Administrative Hearings closed on July 13, 1989. By letter dated June 29, 1989 the Department advised Sacred Heart that its application for renewal of its license which had expired on June 15, 1989 was denied pursuant to Section 415.103, Florida Statutes; Section 415.107(5)(b), Florida Statutes; Section 400.414(1)(2)(a)(b)(d) and 3, Florida Statutes and; Chapter 10A-5, Florida Administrative Code. The specific basis for the denial included but was not limited to: (a) the deficiencies cited during area surveys and follow-up with a September 2, 1987, March 18, June 10, June 14, June 16, August 12, October 13, 1988 and February 8, March 8, June 13 and June 14, 1989 which demonstrates continued non-compliance in correcting deficiencies (Section 400.414(d), Florida Statutes; (b) the August 8, 1988 moratorium imposed on admissions to the facility (Section 400.414(3), Florida Statutes; (c) failure to comply with the provisions of the joint stipulation in the DOAH Case No. 88- 5177, PDRL No. I-88-899 ACLF (Section 400.414(2)(d), Florida Statutes; and (d) the confirmed neglect of resident C. C. that occurred on September 15, 1988 (Section 400.414(2)(a), Florida Statutes). By letter dated August 7, 1989 Sacred Heart filed a petition with the Department requesting a formal hearing pursuant to Chapter 120, Florida Statutes. The petition, with attachments was referred to the Division of Administrative Hearings and assigned Case No. 89-4890. On August 11, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. C. N., Case No. 88-6455C wherein the Department denied the request of C. N. for expunction of the confirmed report of neglect involving C. C., a resident of the Sacred Heart facility at the time the incident of neglect occurred on September 15, 1988. Upon entry of the Final Order in this case Sacred Heart discharged C. N. and C. N. is no longer employed by Sacred Heart. On December 13, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. B. B. A., Case No. 88-6258C wherein the Department denied the request of B. B. A. for expunction of the confirmed report of neglect involving C. C., a resident of Sacred Heart at the time the incident of neglect occurred on September 15, 1988. B. B. A. at the time the incident of neglect occurred was a co-owner and was still a co-owner on the day of this hearing on August 6-7, 1990. The final order was on appeal to the District Court of Appeal on the day of hearing.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order in Case No. 89-4890 denying renewal of the ACLF license of Sacred Heart Retirement Villa, Inc. It is further recommended that the Administrative Complaints in Case Nos. 89-2966 and 89-5238 be dismissed. DONE and ORDERED this 15th day of February, 1991, in Tallahassee, 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 15th day of February, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the finding of fact which so adopts the proposed finding of fact: 2 (3, 14, 17); 3 (6, 17); 4 (12, 17); 6-7 (28-30, 34); 9 (5, 17); 10 (6, 17); 11 (14, 17); 12 (19, 34); 15 (21, 34); 16 (24, 34); 18 (19, 34); 19 (24, 34); 22 (12, 13, 17); 24 (28-31, 34); 26 (25, 34); 28 (28-31, 34); 31 (24, 34); 32 (25, 34); 35 (28- 31, 34); 38 (20); 39 (29); 40 (35); 43 (36); 46 (38); 47 (39) and 48 (19). 2. Proposed findings of fact 1, 5, 8, 13, 14, 17, 21, 25, 29, 30, 34-37, 42, 44, 45 and 49 are unnecessary. 3. Proposed findings of fact 20, 23, 27 and 41 are not material or relevant. Specific Rulings of Proposed Findings of Fact Submitted by Respondent 1. Adopted in findings of fact 26 and 35 but modified. 2. Adopted in findings of fact 3, 4, 6, 12, 13, 14, 17-21, 24, 25, 28-34 but modified. Although the alleged deficiencies, moratorium and confirmed neglect report arose prior to the June 22, 1989 Final Order, there is no substantial competent evidence in the report to support the position that this resolved all matters before the Department at that time. Not necessary. 5.-6. Not supported by substantial competent evidence in the record. Not necessary Not supported by substantial competent evidence in the record. Adopted in findings of fact 33 and 34 but modified. Adopted in findings of fact 32 and 33 but modified. Adopted in finding of fact 29, but modified. Not material or relevant. A restatement of testimony and not a finding of fact. However, if considered a finding of fact it is not supported by substantial competent evidence in the record. COPIES FURNISHED: Michael O. Mathis, Esquire HRS Office of Licensure and Certification 2727 Mahan Drive Tallahassee, FL 32308 Kurt Andrew Simpson, Esquire Ocean South 3500 South Third Street Jacksonville, FL 32250 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue for consideration in this proceeding is whether the Respondent’s license as an adult living facility should be subject to an administrative fine in the amount of five hundred dollars ($500.00) for repeated class III deficiencies.
Findings Of Fact The Respondent is the owner/operator of San Juan Retirement Home. The home is licensed to operate a 6-bed assisted living facility in Jacksonville, Florida. On March 5, 2003, AHCA conducted a survey of Respondent's facility. During that survey, Respondent did not have a fire safety inspection report within 365 days from an earlier fire safety inspection report. Because of the lack of a timely report the facility was cited for violating Tag A209, a Class III deficiency. Tag A209 requires that all licensed facilities have an annual fire inspection conducted by the local fire marshal or authorities having jurisdiction. In this instance the Agency interprets the word annual to mean 365 days from the last inspection report. Respondent had the facility inspected by the Fire Marshal on March 12, 2003. She received the report the same day. A follow-up survey was conducted on April 15, 2003. Tag A209 was noted as corrected in a timely manner by Respondent. Since this was the first Class III deficiency regarding the timeliness of the inspection report, no penalties were imposed by Petitioner on Respondent. On April 23, 2004, AHCA again inspected Respondent's facility. During the inspection, Respondent again did not have a fire safety inspection report completed within 365 days of the earlier inspection report of March 12, 2003. Because of the lack of the report, the facility was cited for a class III deficiency under Tag A209. Respondent admitted that she twice did not have a timely fire safety inspection report completed for her facility. The evidence demonstrated that, prior to the April 2004 inspection by AHCA, Respondent had called the Fire Marshal’s office to schedule an inspection for the facility. However, the call was not made until the expiration of the March 12, 2003, fire safety inspection report. For some unknown reason the Fire Marshal’s office did not schedule the fire safety inspection until after the April 2004 inspection. However, the Fire Marshal’s failure to schedule the inspection does not excuse Respondent’s lack of a timely inspection and report since Respondent remains responsible for obtaining the inspection and report in a timely manner and did not call the Fire Marshal’s office until the expiration of the earlier report. To her credit, Respondent obtained a new fire safety inspection report on May 4 or 5, 2004, after AHCA had inspected the facility.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED: That AHCA enter a final order imposing a $500.00 administrative fine for repeatedly failing to timely conduct or obtain an annual fire safety inspection report. DONE AND ENTERED this 9th day of November, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 9th day of November, 2004. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Mail Stop 3 Tallahassee, Florida 32308 Elvira C. Demdam San Juan Retirement home 6561 San Juan Avenue Jacksonville, Florida 32210 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue is whether Respondent has violated various provisions governing public lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a public lodging establishment known as First Street Apartments at 220 South First Street in Immokalee. The license to operate this establishment, which is number 21-00721-H, expired December 1, 1997. However, Petitioner has allowed Respondent to continue to operate under this license until the resolution of pending proceedings against the license. First Street Apartments comprise 84 residential units in buildings not greater than three stories. At the time of the inspection, about 60 units were occupied. The buildings were constructed in 1963, and Respondent acquired the property in 1984. The controlling owner of Respondent was formerly a professional football player, and he formed Respondent to acquire First Street Apartments while still playing football. He has since retired, and he assumed direct responsibility for managing the property in 1994. First Street Apartments generate a net cash flow of $25,000 to $35,000 annually. Respondent has no formal policy setting the frequency of inspections of apartment units. However, the weekend prior to the hearing, Respondent's owner and his family moved into one of the apartments. Petitioner’s inspector conducted inspections of First Street Apartments on July 30 and August 19, 1997. The July inspection resulted in the issuance of a warning for 38 violations. The inspector allowed Respondent 30 days to correct these violations. The findings below describe the conditions at First Street Apartments on August 19, when Petitioner’s inspector and a local fire inspector returned to the site for the reinspection. As to the first alleged violation, apartments 30, 32, 40, and 79 lacked smoke detectors. As to the second alleged violation, apartment 31 had a smoke detector, but it was inoperative. As to the third alleged violation, an undetermined number of apartments had hasps affixed to the outside doors, so as to permit them to be latched. Most if not all of these hasps were affixed to the screen door. Most but not all of these hasps were unlocked. There is no evidence that any hasps were locked with occupants inside. The evidence suggests that tenants used the hasps to secure the contents of their premises while they were gone. However, the evidence does not establish that all of these hasps were attached to the doors and doorframe so securely as to present more than a momentary impediment to someone from the inside or outside trying to force the hasp open without unlocking it. The doorframes appear to have secured so many hasps that the wood is pitted and incapable of securing the hasp against much force. The clear appearance of numerous screwholes in the doors and doorframes supports Respondent’s contention that its representatives have frequently removed the hasps, only to find them reaffixed a short time later. As to the fourth alleged violation, one of the apartments had uninsulated wiring, unprotected by conduit, running from the ceiling to a water heater. This uninsulated wiring ran within eight feet of the floor. The proximity of this exposed wiring to the water in the water heater rendered this violation especially hazardous. However, Petitioner failed to prove its allegation of a broken electrical socket with a hot plate plugged into it. As to the fifth alleged violation, occupants of apartments 31, 32, and 33 used extension cords for other than intermittent purposes, such as cleaning, maintenance, or other temporary activities. These more ongoing, permanent uses included cooking and playing radios and televisions. As to the sixth alleged violation, there was no public lighting in the alley between the north building and a fenced area to the next property. However, Respondent or Lee County has since added more exterior lighting, and the record does not permit a finding as to the effect of the former condition. As to the seventh alleged violation, Respondent conceded that Respondent did not provide heat at the time of the inspections. As to the eighth alleged violation, the original design of the guardrail along the balcony contains openings greater than four inches. To remedy this hazardous situation, Respondent or a prior owner placed chain-link fence behind the guardrail, so as to reduce the openings to the size of the openings in the chain- link fence. The chain-link fence may have been missing on the west side of the building, but this fact does not emerge clearly from the record. There is some evidence that the chain-link fence elsewhere had loosened from the guardrail, but the evidence fails to establish the extent to which any separation had occurred and the extent to which such separation presented a hazard to persons falling between the openings in the guardrails and then between the guardrails and the chain-link fence. Respondent has since repaired the guardrails, in any event. As to the ninth alleged violation, apartments 30 and 32 had broken windows, torn screens, and a broken faucet in the kitchen sink repaired with duct tape; apartments 30 and 31 had leaky ceilings with structural damage and falling plaster; walls were pulling away from the ceiling; the south building had exposed interior beams; exterior areas had structural damage with worn concrete revealing the metal foundation; the exterior wall of the southeast end of the building had a 15-foot crack; and the concrete pillar supporting the second-floor landing on the northeast side of the building was worn and cracked. As to the tenth alleged violation, apartment 32 had a rotten shower wall and leaky toilet, and apartment 31 had an inoperative shower. As to the eleventh alleged violation, there were roaches and flies around the premises, but there is no evidence of "noxious small animals or parasitic insects, such as lice, fleas, worms, rats, or mice." As the administrative law judge advised at the hearing, he took official notice of this dictionary definition of "vermin" taken from a Funk and Wagnall's Dictionary present in the courthouse at which the hearing took place. As to the twelfth alleged violation, there was a car seat under a stairwell and about a dozen five-gallon plastic pails. However, the tenants stored these items, on a temporary basis, for their work. They remove car seats to increase the passenger-carrying capacity of their motor vehicles, and they use the pails while picking fruits and vegetables. As to the thirteenth alleged violation, there was no concrete pad under one of the two dumpsters. As to the fourteenth alleged violation, a dumpster lid remained open for the entire 1.5-hour inspection. As to the fifteenth alleged violation, a broken sewer line had leaked a pool of gray water, and a sewer cap was missing from the sewer line as it left a residential unit. In sum, Petitioner proved the following violations, with critical violations marked with an asterisk: 1*, 2*, 4* (unprotected wiring, but no broken socket), 5*, 7*, 9, 10 (except for water leaking from under the sinks) 13, 14, and 15*. By Ordinance No. 92-72, the Collier County Commission adopted National Fire Protection Association Life Safety Code 101, Life Safety Code, effective October 21, 1992. NFPA 5-2.2.4.6(c) provides: "Open guards shall have intermediate rails or an ornamental pattern such that a sphere 4 in. (10.1 cm) in diameter cannot pass through any opening." NFPA 19-3.4.4.1 provides: Approved single station or multiple station smoke detectors continuously powered from the building electrical system shall be installed in accordance with 7-6.2.9 in every living unit within the apartment building regardless of the number of stories or number of apartments. When activated, the detector shall initiate an alarm that is audible in the sleeping rooms of that unit. This individual unit detector shall be in addition to any sprinkler system or other detection system that may be installed in the building. Section 5-402.14, 1995 Food Code, as adopted by the Food and Drug Administration, Public Health Service, United States Department of Health and Human Services (Food Code), provides: "Sewage shall be conveyed to the point of disposal through an approved sanitary sewage system or other system, including use of sewage transport vehicles, waste retention tanks, pumps, pipes, hoses, and connections that are constructed, maintained, and operated according to law." Section 5-501.11, Food Code, provides: "If located within the food establishment, a storage area for refuse, recyclables, and returnables shall meet the requirements specified under Parts 6-1 and 6-2." Section 5-501.12, Food Code, provides: "An outdoor storage surface for refuse, recyclables, and returnables shall be constructed of nonabsorbent material such as concrete or asphalt and shall be smooth, durable and sloped to drain." Section 5-501.113(B), Food Code, provides: "Cardboard or other packaging material that does not contain food residues and that is awaiting regularly scheduled delivery to a recycling or disposal site may be stored outside without being in a covered receptacle if it is stored so that it does not create a rodent harborage problem." Section 5-501.114(B), Food Code, provides: "Equipment and receptacles for refuse, recyclables, and returnables shall be kept covered . . . [w]ith tight-fitting lids or doors if kept outside the food establishment."
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order imposing an administrative fine against Respondent in the amount of $2750 and requiring Respondent's controlling owner to undergo additional education. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 8th day of December, 1998. COPIES FURNISHED: Daniel R. Biggins Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 D. Nathan Hoskins Peck & Peck First Union Building, Suite 103 5801 Pelican Bay Boulevard Naples, Florida 34108 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether the application for an initial license to operate an Adult Family Care Home ("AFCH") should be denied because the applicant submitted fraudulent or inaccurate information in the application.
Findings Of Fact Petitioner is owned by Ms. Marvell Lawton, R.N. (the "applicant"). On June 3, 1996, the applicant applied for a license to operate an AFCH at 550 East Division Street, Deland, Florida (the "facility"). Respondent is the state agency responsible for licensing AFCHs. Respondent requires several documents to be submitted with the application including: a Florida Department of Health and Rehabilitative Services ("HRS") Community Residential Homes Sponsor Certification Form (the "HRS Form"); a statement by the local zoning office that the facility is properly zoned (the "zoning approval"); and a fire inspection report. The applicant altered the HRS Form, the zoning approval, and the fire inspection report to indicate that the facility was approved for a maximum capacity of five residents. Respondent initially denied the license application solely on the basis of the fire inspection report. However, the basis of denial was amended to include the HRS Form and the zoning approval pursuant to an order entered by Judge Stephen F. Dean on October 16, 1996. By letter dated July 11, 1996, Respondent notified the applicant that her application was denied. The letter stated, in relevant part, that the specific basis for denial was: . . . Submission of fraudulent or inaccurate information to the agency. The fire safety inspection report submitted with the application package was altered to indicate approval for five residents when the fire marshal's office had only approved three residents. The local fire marshal's office has verified that the original approval was for three residents because Ms. Lawton did not want to install a manual alarm system which is required for four or five residents. Submission of fraudulent or inaccurate information to the agency is grounds for denial of the AFCH application, s. 400.619(11)(e),F.S. On April 2, 1996, the applicant obtained a fire inspection report from the City of Deland Fire Department (the "Fire Department"). The fire inspection report limited the maximum capacity of the facility to three residents because the applicant did not have the manual alarm system required for four or five residents and did not wish to install such a system. The applicant altered the fire inspection report that she submitted with her application. She changed the number "3" to a "5" so that the fire inspection report appeared to approve the facility for a maximum capacity of five residents. As part of its review of the application, Respondent attempted to verify the fire inspection report included in the application by calling the Fire Department. When the Fire Department did not verify that the maximum capacity was five residents, Respondent obtained a copy of the original fire inspection report from the Fire Department. On March 22, 1996, the applicant obtained a zoning approval from the City of DeLand stating that the maximum capacity of the facility is three residents. The applicant added the phrase "to 5" after the number "3" in the zoning approval so that the zoning approval authorized a maximum capacity of "3 to 5" residents. On June 3, 1996, the applicant submitted the HRS Form to Respondent. The applicant amended the portion of the HRS Form requiring a designation of capacity for facilities with six or fewer residents as well as that for facilities with 7-14 residents. The latter category does not apply to Petitioner. The applicant did not submit fraudulent information to Respondent. The applicant did not intend to defraud Respondent. She misunderstood the application process. The facility has space for only three residents. It is physically impossible to house more than three residents in the facility. The applicant would have gained nothing from an authorized capacity of more than three residents. The applicant's refusal to add the manual alarm system required for four or five residents is consistent with the facility's limit of three residents. The applicant assumed that Respondent's minimum license category is for a license of 1-5 residents. The applicant altered the HRS Form, the zoning approval, and the fire inspection report under the mistaken belief that the capacity designation in each document should conform to the maximum capacity in Respondent's license category. In the HRS Form, the applicant even altered the licensed capacity for facilities with 7-14 residents. The applicant mistakenly submitted inaccurate information to Respondent within the meaning of Section 400.619(11)(e), Florida Statutes.1 The maximum licensed capacity of the facility must be consistent with fire safety requirements for the welfare of the residents. The licensed capacity of the facility must also conform to applicable zoning laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinGRANT a license to operate an AFCH for three residents. RECOMMENDED this 21st day of February, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1997.
Findings Of Fact During the period November 14 - 16, 1985, DHRS conducted a life safety survey of the Sanchez Retirement Apartments located at 1400 S.W. 26th Street, Ft. Lauderdale, Florida. As a result of that survey, certain deficiencies were discovered which were discussed with Mrs. Sanchez, then the owner and operator of the facility. Some deficiencies were to be corrected by December 15 and others by January 15, 1986. Those due to be corrected by December 15, 1985 were, in fact, corrected, but because of the impending sale of the property by Mrs. Sanchez to Mr. Holck, Mrs. Sanchez requested an extension of the time for correction of the January 15, 1986 deficiencies until February 15, 1986. On January 30, 1986, Mr. Leroy C. Dykes, Area Supervisor for DHRS, advised Mrs. Sanchez that a 30 day extension was granted so that the prospective new owners could complete the fire safety deficiencies by February 15, 1986. Mr. Holck took over ownership and operation of the facility on February 7, 1986. This was somewhat later than had been anticipated and made it impossible for him to rectify the remaining deficiencies by February 15. He requested of DHRS that someone come to the facility to explain to him what exactly had to be done since he was not present during the original inspection. He wanted to know with detailed clarification, what had to be done and how, and consistent with this request, was advised that someone from DHRS would be there, he contends in April, 1986. As a result, he took no additional action to remedy the remaining deficiencies then. However, before this individual could come, Mr. Bravo of DHRS conducted a follow-up survey on March 18, 1986, and again, wrote up several of the deficiencies that had been cited on the original inspection report. These form the basis of the violations outlined in the Administrative Complaint, and include: smoke detectors not powered by the house electric current and interconnected to the fire alarm system, paneling in the means of egress is not fire rated as Class A or B, doors in the facility between the resident rooms and common areas are not solid core doors, doors between resident rooms and common areas are not self-closing, and the kitchen and storage area is not separated from other parts of the facility with a material having a one hour fire rating including a one hour self-closing fire rated door. Mr. Bravo recommended sanctions to include a $250.00 fine for each of the five deficiencies with the exception of (c) for which he recommended a $200.00 fine. This recommendation was approved by the area supervisor, Mr. Dykes; the Human Services Program Director, Mr. Chastain; and by Amy Jones, Director of the Office of Licensure and Certification. All of the violations were classified as Class III violations and all were ultimately corrected before the final follow-up inspection on July 15, 1986. Respondent contends that he did not take immediate corrective action when he took over the property because, due to his prior experience dealing with DHRS as the operator of an adult congregate living facility, he had come to the conclusion that when there was any question as to the exact meaning of a DHRS write-up, it was best to have clarification from the agency in detail prior to commencing any corrective action. He requested an explanation visit from DHRS and, he claims, was visited by a Mr. Grassi in April, 1986, who, answered his questions. Thien Grassi returned for a follow-up in June, he found all the deficiencies to be corrected. This latter Grassi visit is subsequent to Mr. Bravo's follow-up inspection in March, 1986. Petitioner contends, on the other hand, that it is Respondent's responsibility to get the work done. If he could not get the previous owner to make the corrections prior to the transfer of the property, it was his responsibility to have requested clarification earlier on and that if he did not get an answer that would satisfy him and answer his questions, he should have gone higher up in DHRS to get one. The agency claims, "He should have shaken DHRS up," and tried to negotiate more time. It is DHRS policy to grant an extension if there is a showing that Respondent has already taken some affirmative step to effect corrective action. Here Respondent had not done so but was apparently waiting until he got clarification from the agency before even beginning to solicit bids for corrective construction or before issuing any purchase or work orders to acquire the materials necessary to do so. The majority of deficiencies identified on the original write-up were corrected by either Mrs. Sanchez prior to transfer of the property or by the Respondent after transfer but before the follow-up visit by Mr. Bravo. It, therefore, cannot be said that Respondent had not made some substantial effort to correct the deficiencies. If Respondent's allegation is correct, and there is no reason to believe it is not, based on his prior experience, it was to his benefit to not proceed with the remaining corrective action until such time as DHRS had given a definitive clarification of the actual work that needed to be done. DHRS contends that no additional clarification was required since the violations are violations of the standard safety code and anyone familiar with the code, including the fire department, could have given the Respondent the information he needed. DHRS, therefore, contends it was not necessary for Respondent to wait for its agent to come out and give the clarification requested. This is specious reasoning since the citation was issued by DHRS and it is not at all unreasonable for Respondent to request clarification from the agency writing up the alleged violation in the first place.
Recommendation Rased on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the citations be upheld but that the civil penalties be waived. RECOMMENDED this 5th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1987. COPIES FURNISHED: Ronald J. Holck, Administrator Sanchez Retirement Apartments 1400 Southwest 26th Street Fort Lauderdale, Florida 33315 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether violations of Section 509.032, Florida Statutes, and Rule 61C-1.004(5), Florida Administrative Code, as well as Chapter 4A-3, Florida Administrative Code, had been committed by the Respondent in terms of two specific safety violations allegedly occurring at the Respondent's lodging establishment.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the operation of hotel or lodging establishments in accordance with Section 20.165, Florida Statutes, and Chapter 509, Florida Statutes. The Respondent, at all times material hereto, has been licensed or otherwise subject to the Petitioner's jurisdiction. On September 28, 2001, and again on October 16, 2001, an inspector of the Division of Hotels and Restaurants (Division) inspected the Respondent's lodging premises. The Division inspector noted certain deficiencies at her first inspection and that those deficiencies where still outstanding and uncorrected at the end of her second inspection at that location. In light of the deficiencies noted at both inspections, the Division issued its Administrative Complaint on November 16, 2001, alleging that the fire extinguisher near Apartment Number One was in the "re-charge zone," meaning that it was inoperable on September 28, 2001, and was missing on October 16, 2001. The Complaint also charged that the balcony railing near Apartment Number Four was loose and, therefore, in an unsafe condition in violation of Rule 61C-1.004(5) and (6), Florida Administrative Code. In response, the Respondent testified that he does not live on the premises and that, although the fire extinguisher deficiency has occurred repeatedly, it is because children who are present on the premises keep discharging it. He testified that whenever it has been discharged he, or his maintenance man, immediately has it recharged by the Daytona Fire and Safety Company. Mr. Rampersad also testified that he did everything in his power to bring the railing up to proper code requirements by re-drilling holes and re-anchoring the railing in concrete. He contends that an "inspection supervisor" observed the railing and opined that it had been brought up to code, but there is no direct evidence of that observation. He established that, as of the time of the hearing, all necessary repairs to the railing had been made and that the fire extinguisher was charged and fully operable. He testified that at the time the fire extinguisher was missing upon the re-inspection date, found above, that it was at the service company being recharged.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Business and Professional Regulation, imposing a fine in the amount of $750.00; That the Respondent's license be suspended for six months, but with the suspension held in abeyance contingent upon timely payment of the administrative fine being received upon a schedule agreed to between the Respondent and the Director of the Division of Hotels and Restaurants. The failure to continue to make timely payments of the fine amount should result in imposition of the suspension of the Respondent's license; and That the Respondent be required to attend a Hospitality Education Program class under the auspices of the Petitioner within 60 days of the date of the final order herein and to provide satisfactory proof thereof to the Division of Hotels and Restaurants. DONE AND ENTERED this 8th day of January, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 8th day of January, 2003. COPIES FURNISHED: Milton Rampersad 1201 Kennedy Road, Apartment 19 Daytona Beach, Florida 32117 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Galilee was licensed by the Department. Galilee's last known address is 4685 Haverhill Road, West Palm Beach, Florida. Galilee is a lodging establishment, consisting of rental apartments. It was originally constructed in 1995 as an assisted living facility but, as a business decision, the owner subsequently converted it to rental apartments. The Department's inspector inspected the outside of Galilee on December 18, 2002, and again on January 17, 2003. The inspector found deficiencies at the first inspection, and at the second inspection three deficiencies remained uncorrected. The uncorrected deficiencies were (1) the current report of the annual inspection for the fire sprinkler system was not available; (2) fire extinguishers failed to have state certification tags affixed; and (3) no backflow prevention device on the exterior hose connection to the apartment building. The failure to have available the current report of the annual inspection for the fire sprinkler system was a critical violation. The deficiency was classified as a critical violation because the annual report is the only way that an inspector can ascertain that the fire sprinkler system is operational. The inspector requested the current annual report at the first visit but it was not available. The failure of the fire extinguishers to have state certification tags affixed was a critical violation. The deficiency was classified as a critical violation because the state certified tag verifies that an extinguisher is in proper working order and is being properly maintained. The failure to have a backflow prevention device on the exterior hose connection to the apartment building was not a critical violation. The backflow prevention device stops negative water pressure. At the first inspection, the inspector explained the violations to the owner and gave him a 30-day warning to have the violations corrected, advising the owner that she would return on January 17, 2003, for a follow-up inspection. The violations were not corrected at the follow-up inspection 30 days later. The evidence shows that all the violations were corrected within a month to a month and a half after the second inspection. Galilee provided mitigating circumstances for the violations not being corrected at the time of the second inspection. As to the deficiency regarding availability of the current report of the annual inspection for the fire sprinkler system, Galilee has a current report dated February 27, 2003. Also, Galilee suggests that the inspector did not request the report. The undersigned finds the inspector's testimony credible that she requested the report. Further, the evidence shows that Galilee confused the requested report with the report of the fire department's inspection. The inspector testified, and her testimony is found credible, that the report of the annual inspection for the fire sprinkler system is generated by a private company, not the fire department, because the fire department does not perform the inspection required for the requested report. As to the deficiency regarding tagging of the fire extinguishers, Galilee's owner purchased fire extinguishers from Home Depot and was not aware that the extinguishers were required to be tagged at the time of the first inspection. Subsequent to the second inspection, the fire extinguishers were tagged by the AAC United Fire and Safety Department, with which Galilee has a contract to inspect the fire extinguishers. As to the deficiency regarding backflow prevention device, it too was corrected subsequent to the second inspection. Furthermore, even though the deficiencies were corrected subsequent to the second inspection, Galilee began the process to correct the deficiencies after the first inspection. Galilee was not ignoring the deficiencies. The deficiencies were not timely corrected because Galilee's owner was attempting to obtain, whom he considered, the proper people to perform the tasks involved and have the tasks performed at a reasonable expense. No evidence of prior disciplinary action being taken against Galilee by the Department was presented.
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: Finding that Galilee violated NFPA Life Safety Code 25, 1-8.2 and Food Code Rule 5-204.12. Dismissing the violation of Florida Administrative Code Rule 61C-1.004(5). Imposing an administrative fine of $1,500.00, payable under terms and conditions deemed appropriate. S DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. ____ ERROL H. POWELL 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 31st day of October, 2003.
The Issue Did the Respondent commit the offenses alleged in the Administrative Complaint Following Emergency Closure and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of licensing and regulating public lodging establishments. At all times pertinent to this proceeding, Respondent was a licensed public lodging establishment as that term is defined in Section 509.013(4)(a), Florida Statutes, license number 38-00194-H, located at 1720 US Highway 27, Avon Park, Florida. At all times pertinent to this proceeding, Richard Barnhart was employed by the Department as a Sanitation and Safety Specialist. At all times pertinent to this proceeding, Ed Madden was employed by the Department as a Sanitation and Safety Supervisor. On March 10, 2000, Barnhart performed a routine inspection of Respondent's public lodging establishment (Litto's Apartments) and observed two safety violations which were classified as violations of critical concern. A violation classified as of critical concern is required to be corrected immediately. The safety violations observed by Barnhart were: (a) fire extinguisher missing on north side of Units 1 an 2 which resulted in some of the apartments located in Units 1 and 2 not having a fire extinguisher available within a maximum distance of 75 feet; and (b) no smoke detectors in apartments 1, 3, and 8. On March 10, 2000, Barnhart prepared a Lodging Inspection Report advising Respondent of, among other things, the safety violations that had to be corrected by March 18, 2000. Eugene Riggs, Respondent's Apartment Manager, acknowledged receipt of the inspection report listing the violations and the date for correction of the violations of critical concern. On March 21, 2000, Barnhart performed a Call Back/Re- Inspection of Litto's Apartments and observed the same safety violations that were observed on March 10, 2000. On March 21, 2000, Barnhart prepared a Call Back/Re- Inspection Report advising Respondent that the violations observed on March 10, 2000, had not been corrected. This report advised Respondent that the report should be considered a warning and that Respondent would be issued a Notice to Show Cause why sanctions should not be assessed against Respondent's license. Eugene Riggs acknowledged receipt of a copy of the Call Back/Re-Inspection Report. During a routine inspection conducted on March 21, 2000, Barnhart observed that: (a) the apartments' water supply was less than 75 feet from a septic tank and drain field, a sanitation violation of critical concern not observed on March 10, 2000; (b) there was raw sewage in an open septic tank on the premises, a sanitation violation of critical concern not observed on March 10, 2000; and (c) a septic tank had been disconnected resulting in raw sewage being dumped on the ground, a sanitation violation of critical concern not observed on March 10, 2000. Barnhart prepared a Lodging Inspection Report listing the violations observed during his routine inspection on March 21, 2000. Eugene Riggs acknowledged receipt of a copy of this report which, among other things, advised Respondent of the deadline of March 28, 2000, for correcting the additional violations observed on March 21, 2000, and the deadline of March 21, 2000, for correcting the violation observed on March 10, 2000, and not corrected by March 21, 2000. On March 28, 2000, Barnhart performed a Call Back/Re-Inspection of Litto's Apartments and observed that the violations observed on March 10, 2000, and March 21, 2000, had not been corrected. Barnhart prepared a Call Back/Re- Inspection Report on March 28, 2000, advising Respondent that the violations had not been corrected and that a Notice to Show Cause why sanctions should not be assessed against Respondent's license would be issued. On April 7, 2000, Barnhart and Supervisor Madden conducted a joint routine inspection of Litto's Apartments and observed that the violations of March 10, 2000, March 21, 2000, and March 28, 2000, had not been corrected. On April 7, 2000, a Lodging inspection Report was prepared advising Respondent that the violations noted on March 10, 2000, March 21, 2000, and March 28, 2000, had not been corrected. Based on the testimony of Richard Barnhart and Ed Madden, whose testimonies I find to be credible, there is sufficient evidence to show that: (a) a fire extinguisher was missing from the north side of the Units 1 and 2 which resulted in some of the apartments in Units 1 an 2 not having a fire extinguisher available within a maximum distance of 75 feet at the time of the inspection on March 10, 2000, and no fire extinguisher had been installed on the north side of Units 1 and 2 at time of the inspection on April 7, 2000, or during the intervening time; (b) smoke detectors were not installed in apartments 1, 3, and 8 at the time of the inspections on March 10, 2000, and smoke detector had not been installed in apartments 1, 3, and 8 at the time of the inspection on April 7, 2000, or during the intervening time; (c) at the time of the March 21, 2000, inspection, there was raw sewage in an open septic tank and sewage on the ground due to a septic tank blowout which had not been corrected at the time of the inspection on April 7, 2000, or during the intervening time; and (d) the water supply was located less than 75 feet from septic tank and drain field at the time of the inspection on March 21, 2000, which had not been corrected at the time of the inspection on April 7, 2000, or during the intervening time. Respondent's failure to have sufficient fire extinguishers properly located on its premises and Respondent's failure to correct this violation resulted in a significant threat to the public safety and welfare in that the residents were not properly protected from the danger of fire. Respondent's failure to provide smoke detectors in all of the apartments resulted in a significant threat to the public safety and welfare in that the residents were not being properly protected from the danger of fire. Respondent's failure to correct the contaminated water supply, correct the situation concerning the raw sewage being dumped on the ground, and to correct the situation where raw sewage was being left in an open septic tank resulted in a significant threat to the public health, safety, and welfare in that not only were the tenants being subjected to those unsanitary conditions but the general public as well. An Order of Emergency Suspension of License and Closure was issued by Respondent and signed by Gary Tillman, District Administrator, having been delegated this authority by the Director of Hotels and Restaurants. The Order of Emergency Suspension of License and Closure is dated March 7, 2000. However, this appears to be scrivener's error in that the order alleges violation that are alleged to have occurred on March 10, 21, 28, 2000, and April 7, 2000. Also, the Certificate of Service is dated April 7, 2000. The Order of Emergency Suspension of License and Closure was still in effect on December 18, 2000, the date of the hearing.
Recommendation Having considered the serious nature of the offenses committed by the Respondent, that Respondent is presently under an Order of Emergency Suspension of License and Closure for these same offenses, and that the Department is requesting that only an administrative fine be imposed against Respondent, it is recommended that the Department enter a final order finding that Respondent committed the offenses alleged in the Administrative Complaint Following Emergency Closure and imposing an administrative fine of $1,200.00 as requested by the Department. DONE AND ENTERED this 15th of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Litto's Apartments 1720 U.S. Highway 27 Avon Park, Florida 33825-9589 Ahmed Anjuman 1720 U.S. Highway 27 Avon Park, Florida 32825-9589 Susan R. McKinney, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulation of hotels and restaurants pursuant to Chapter 509, Florida Statutes. The Respondent is a restaurant located at 29 North Boulevard of the Presidents, Sarasota, Florida 34236. Giuseppe Casadio owns and operates the restaurant. On March 25, 2002, an employee representing the Petitioner performed a routine inspection of the Respondent restaurant. Violations of applicable food and fire safety regulations, adopted and enforced by the Petitioner, were noted during the inspection. The inspector identified the violations to the owner and scheduled a re-inspection for March 27, 2002. On March 27, 2002, the Petitioner's employee re- inspected the Respondent restaurant and determined that some of the violations remained uncorrected. The uncorrected violations are related to refrigeration problems, pest control issues, inadequate fire extinguishers, and improper use of an electrical extension cord. The refrigeration problems resulted in a failure to maintain food at appropriate temperatures. The walk-in refrigerator was not chilling properly, and food items including salmon and ham were not chilled to the 41 degrees Fahrenheit required pursuant to regulation. The required storage temperature is intended to retard spoilage and the development of bacteria. At the time of the initial inspection, the Respondent's walk-in refrigerator unit was malfunctioning. The day after the initial inspection, repairs were made to the unit, but the repairs were inadequate and the food storage temperatures remained excessive at the time of the re-inspection. After the re-inspection, additional repair work was required. Another uncorrected violation was the improper storage of a prepared garlic and oil mixture in a "reach-in" refrigerator on the cook's line. The temperature of the mixture was 56 degrees, in excess of the 41 degrees Fahrenheit required pursuant to regulation. Prepared garlic and oil mixtures present the potential for development of botulism if not chilled and stored appropriately. The pest control issue cited in the inspection related to the detection of roaches around the dishwashing machine. The restaurant has a contract with a pest control company, but the measures being taken to reduce the roach population are apparently inadequate. Fire prevention regulations require that an appropriate fire extinguisher be within a travel distance of 30 feet from "high hazard" cooking equipment. The Respondent was not in compliance with the regulations at the time of either inspection because the fire extinguisher was improperly located. Fire prevention regulations prohibit use of electrical extension cords except for temporary use during cleaning. At the time of both inspections, an extension cord was being used to power the reach-in refrigerator unit at the end of the cook's line. The Petitioner has prosecuted similar allegations against the Respondent in a prior administrative proceeding. Pursuant to a Final Order issued in 2001 based on an agreed stipulation and consent order, the Petitioner has previously identified code violations related to improper food storage temperature and inadequate fire suppression equipment during inspections in 1999 and 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order imposing a fine of $5,600, and requiring that the Respondent attend a Hospitality Education Class at his own expense within 60 days of the date of the Final Order. DONE AND ENTERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 17th day of October, 2002. COPIES FURNISHED: Joseph Casadio Osteria Incorporated 29 North Boulevard of the Presidents Sarasota, Florida 34236 Giuseppe Casadio 934 Boulevard of the Arts Sarasota, Florida 34236 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
