The Issue Whether respondent should be administratively fined $500.00 for allegedly operating an Adult Congregate Living Facility without obtaining a license in violation of Section 400.407(1) Florida Statutes (1981).
Findings Of Fact Respondent, Edith Bartholomew is licensed to operate a boarding house in her home located at 201 Gould Road, Dade City, Florida. (Testimony of Cruz, R-1.) On March 24, 1982, Dr. Frederick Timmerman, Chairman of the Long Term Care Ombudsman Committee, and Diane Cruz, Adult Congregate Living Facility Licensure Specialist, inspected respondent's boarding home. Six residents, unrelated to respondent, were receiving meals, care, and lodging at respondent's home. Five residents were present during the inspection. Dr. Timmerman talked with each patient for the purpose of determining their physical and mental condition and the kind and level of physical services provided them. Only one of the five residents was capable of caring for herself during an emergency, the other four were incapable of taking care of themselves during an emergency and required physical services beyond room and board. (Testimony of Timmerman, Cruz.) Respondent explained that she kept the residents' medication locked in a kitchen cabinet. At mealtime, she would retrieve their medications from the cabinet and distribute them to the residents making sure they took the correct amount. (Testimony of Timmerman.) Respondent also admitted that she assisted her residents in bathing. The residents confirmed to Dr. Timmerman that she helped them bathe. There is conflicting evidence on whether the residents are capable of caring for themselves during emergencies, whether respondent dispenses medications to them, and whether she helps them to bathe. The testimony of Dr. Timmerman is considered the most credible and worthy of belief. He is a professional physician with no discernable bias or interest in the outcome of this proceeding. Dr. Timmerman told respondent to apply for an Adult Congregate Living Facility License, a request that had previously been made by other Department personnel. Respondent declined, responding that it involved too much paperwork. (Testimony of Timmerman.) Respondent has consistently operated a home which furnishes excellent care and services to its residents. For a reasonable fee, she provides food, lodging, personal services, and loving care to the elderly people who reside there. Department officials are convinced that she provides a valuable and essential service; they have even recommended that older persons be placed in her facility. She has always been courteous and cooperative with Department personnel. (Testimony of Cruz, Timmerman.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500.00. DONE and RECOMMENDED this 10th day of November, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1982.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about 1:00 p.m. on September 2, 1978, a Saturday, Deputy Reder from the Hillsborough County Sheriff's Office went to the "Sweet Magnolia Boarding Home," a licensed adult congregate living facility (ACLF) operated by the petitioner, as a result of a call from either the petitioner's daughter or a relative of one of the residents. Upon his arrival, Deputy Reder found four elderly boarders or residents, petitioner's, fifteen or sixteen year old daughter and her female friend of about the same age. The petitioner's daughter and the residents were upset, but none of the residents needed emergency medical assistance. The relatives of the residents and the respondent were notified that the four residents were without adult supervision, and the residents were removed from the facility that day. On the Monday preceding Saturday, September 2, 1978, petitioner received a telephone call informing her that her husband had had an accident in Detroit, Michigan and had injured his back. Petitioner left Tampa on that day and flew to Detroit. It was her testimony that she left Mary Ann Cowley, who had worked for her for about one year, in charge of the "Sweet Magnolia Boarding Home" while she was gone. She further testified that she left approximately $700.00 with her fifteen or sixteen year old daughter to pay the rent and buy food for the residents during her absence. When she returned to the facility late Saturday night on September 2, 1978, no one was there and many of her belongings were gone. Petitioner did not contact the respondent regarding this incident. Her husband was not hospitalized for his back injury. On or about September 22, 1978, an administrative complaint against petitioner was filed by the respondent seeking to revoke her ACLF license. Having failed to respond to the complaint, respondent, on October 18, 1978, entered a "Judgment of Revocation of License" by default. Said judgment found that petitioner voluntarily discontinued operation of the facility without providing advance notice to respondent and without surrendering her license, that she left residents boarded at the home without adult supervision while she left the state and that a deputy reported that there was no food in the premises on September 2, 1978, and that the residents had not been fed for two days. Deputy Reder did not check the premises for food and one of the boarder's daughter did not hear her mother complain of being hungry on the day she removed her from the petitioner's facility. Petitioner testified that she never received the administrative complaint or notice that her ACLF license had been revoked. Petitioner applied for another ACLF license in March of 1980. Before this was processed, and in April of 1980, she was hospitalized for two or three days for elbow surgery and left her husband in charge of the unlicensed facility. Her husband had never assumed this responsibility in the past. On Monday, April 14, 1980, petitioner's husband prepared a bath for one of the residents who was approximately eighty-nine years old and frail, helped her into the bathtub and then left the bathroom to complete some chores in the kitchen. While he was gone, this elderly resident drowned in the bathtub. The incident was described in the police report as an "accidental death" and no charges were brought against petitioner or her husband. Respondent was not notified of the drowning incident until several weeks later. During this same general time period, from March through early July, 1980, negotiations were had between petitioner and respondent regarding her March application for ACLF licensure. Respondent's Aging and Adult Services Program Office had many concerns regarding the issuance of a license to petitioner, including the prior incidents of lack of supervision, inappropriate placements and the drowning incident. Respondent did not feel that a legal basis existed for denial of petitioner's application for licensure, so they offered her a compromise. Petitioner was told that if she removed her present residents, respondent would issue her a license and she could start over with more appropriate residents or boarders. On June 25, 1980, petitioner notified respondent that it was her decision to discontinue her operation as a boarding home and not accept the license to operate as an ACLF. By letter dated June 26, 1980, respondent notified petitioner that she had thirty days to remove the residents from her facility and that legal action would be brought against her if she reopened another unlicensed facility in Hillsborough or Manatee Counties. By letter dated July 3, 1980, respondent again informed petitioner that her decision not to accept the license was considered as final and that a license could not be issued to her at that time. On February 3, 1981, at approximately 3:00 p.m., employees of the respondent made an unannounced visit to petitioner's unlicensed facility. They found that petitioner was not on the premises and that the only people there were petitioner's father, approximately 70 years of age, and two elderly residents. One of the residents was in a hospital bed and was being fed by means of a tube down her throat. Respondent's employees remained on the premises for about 30 minutes and petitioner did not appear during this time. During the time of the unannounced visit by respondent's employees, petitioner had gone to the store. It was her testimony, which was corroborated by her father, that she had asked another person to stay at the facility while she went to the store. That other person was not there when petitioner returned from the store. Betty P. Steiger, R.N., who specializes in geriatric nursing, observed the tube-fed resident in petitioner's facility on February 4, 1981. She was described as an elderly black woman who was incontinent, unable to ambulate, incoherent and a candidate for round-the-clock skilled nursing care. An ACLF was not an appropriate placement for this person. Feeding tubes should be changed only by a registered nurse or a physician and a suction machine should be available in case of aspiration. Ms. Steiger did not observe a suction machine on the petitioner's premises. This tube-fed resident had been living in petitioner's facility for four or five months and had been tube-fed since her arrival. Petitioner is a licensed practical nurse. In February of 1981, she had no other employees. Petitioner again applied for an ACLF license on March 5, 1981. By letter dated May 14, 1981, she was notified by the respondent's Aging and Adult Services Program Office that her application was being denied for the following reasons: You have exhibited a disregard for, and a failure to assume appropriate responsibility for, the welfare of residents under your care. This is evidenced by the following: On October 18, 1978, your license to operate "Sweet Magnolia Boarding Home", an adult congregate living facility, was formally revoked due to your having left the boarders at the facility without any adult supervision during or about September, 1978 while you left the state. When discovered on September 2, 1978, the residents had not been fed for two days and there was no food on the premises. In April, 1980, an elderly resident at your unlicensed facility at 822 Whatley Place, Tampa, Florida, drowned in the bathtub while not receiving proper supervision. On or about February 3, 1981, a resident at your home at 822 Whatley Place, Tampa, Florida, was discovered by the Department's employees to be bedridden and to be in need of full time skilled nursing care. Said resident was being fed through a tube and such condition, without appropriate full time skilled nursing care, materially affected the health, safety, and welfare of said resident in that had such resident regurgitated, this resident, being elderly and very debilitated, would have been unable to clear herself and would have "drowned" in her own bodily fluids. Your retention of this resident, without ap- propriate full time skilled nursing care, constituted a disregard for her welfare. On or about February 3, 1981, employees of the Department made an unannounced visit to your unlicensed facility and discovered that you were not present and that you had not provided for adequate supervision of the residents. Besides the residents, the only person present was your elderly father who, due to his age and physical condition, could not provide safe and adequate supervision to the residents. The actions referred to in paragraphs 1(a) through (d) constitute intentional and/or negligent acts which seriously affected the health, safety, and/or welfare of residents of your facility and constitute grounds to deny your application for a license pursuant to section 400.414(2)(a), Florida Statutes (1980). Your physical plant is short one toilet and one sink. According to Rule 10A-5.11(3)(a)1, Florida Administra- tive Code, there must be a bathroom exclusively for the use of the residents. Since you fail to meet the minimum standards for Adult Congregate Living Facilities, your license is being denied on that basis also. The parties stipulated that petitioner's physical plant was short one bathroom. It was agreed that if all other bases for denial of the license were found to be without merit; petitioner would have 60 days to install a bathroom and, if completed, respondent would issue petitioner a license.
Recommendation Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for an adult congregate living facility license be DENIED. Respectfully submitted and entered this 10th day of November, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1981. COPIES FURNISHED: Robert A. Warner, Esquire Caltgirone & Warner, P.A. 238 East Davis Boulevard, Suite I Davis Island Tampa, Florida 33606 Janice Sortor, Esquire District VI Assistant Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Vinder Homes, Inc., d/b/a The White House of Vinder Homes, Palm Harbor, Florida, is an 8-bed licensed adult congregate living facility. The Petitioner was licensed on February 5, 1986. On January 29, 1986, the Respondent, the Department of Health and Rehabilitative Services, sent an inspection team to the Petitioner's facility to conduct the initial survey. Accompanying the team was Earl T. Wright, an employee of the Respondent. Present at the Petitioner's facility during the initial survey was Robert A. Jones, and James C. Vinson, the owner and applicant for the license. During the survey, the HRS survey team identified several violations of rules or statutes governing an adult congregate living facility. At the end of a survey conducted by HRS of adult congregate living facilities, HRS normally follows the procedure of orally describing and explaining the rule violations that have been found to those persons representing the facility who are present during the survey. The representative of the facility is then asked to sign an "exit letter." The "exit letter" is a form that is given to the facility representative to explain the procedures and deadlines that must be followed to correct the violations. HRS exhibit 1 is a copy of the "exit letter" given to the representatives of the Petitioner on January 29, 1986, at the conclusion of the survey. The letter was signed by Mr. Jones, who was expressly authorized by Mr. Vinson to sign the letter on that date on behalf of the Petitioner, and to receive a copy on behalf of the Petitioner. The Petitioner, through its duly authorized agent, was reminded by HRS exhibit 1 that it had been advised of the deficiencies and had been requested to write them down. It was further advised that a time frame had been established for correction of each deficiency and that it could request additional time, if needed. It was further advised that an unannounced revisit would be conducted after the date of correction to determine if the corrections had taken place. It was further advised by the exhibit that it was required to correct each deficiency by the date established, and that failure to do so might result in the assessment of an administrative fine. At the conclusion of the survey on January 29, 1986, Mr. Jones, the authorized representative of the Petitioner, was told by the HRS survey team the nature of each of the violations found, and was advised concerning the period of time established for correction of each asserted violation. Mr. Vinson had thee opportunity to learn about the violations as well, but it is unclear whether he availed himself of the opportunity. At some time after January 29, 1986, and before April 1, 1986, the Respondent mailed a copy of HRS exhibit 2 to the Petitioner. It was mailed to the Petitioner at the address of the facility. This was the address given to HRS in the license application by Mr. Vinson. HRS exhibit 3. Mr. Vinson had not requested that notices be sent by HRS to any other address. HRS exhibit 2 is a form used by the Respondent to give written follow-up notice to the adult congregate living facility of the violations and correction schedule. It is intended to give written notice of that which had already been orally discussed with the facility representative at the time of the survey. The violations listed on HRS exhibit 2 are the same violations which were orally described and explained to the authorized representative of the Petitioner on January 29, 1986. On April 1, 1986, Mr. Wright conducted an unannounced reinspection of the Petitioner's facility. A copy of HRS exhibit 2 was present at the facility on April 1, 1986, when Mr. Wright conducted his unannounced reinspection. By April 1, 1986, the Petitioner had corrected some of the rule violations listed on HRS exhibit 2. The Petitioner, through its authorized representatives present at the facility, in fact received a copy of HRS exhibit 2 before April 1, 1986. The Petitioner presented no evidence that HRS exhibit 2 was received by its authorized representative in an untimely manner, i.e., at some time after the deadline had passed for correction of violations. Mr. Vinson testified that he never received a copy of the exhibit, but his authorized representative, at the address he had given to HRS as the address of the licensed facility, did receive it. The following are the four violations contained in HRS exhibit 2 that are in dispute in this case. Each is alleged to have occurred on January 29, 1986, and to still to have not been corrected on April 1, 1986: A copy of the Resident Bill of Rights was not posted in the facility. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department. The facility did not have back-flow devices to prevent contamination from entering the water supply. The fire alarm system was not continuously maintained in reliable operating condition. A copy of the Resident Bill of Rights was not posted in the facility on January 29, 1986, or on April 1, 1986. Mr. Vinson's testimony that he "thought" it was posted is insufficient to overcome the proof presented by the Respondent. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department on either January 29, 1986, or April 1, 1986. Mr. Vinson's testimony that he thought Mr. Jones would have completed the course is not sufficient. Mr. Vinson did not produce Mr. Jones to testify, nor did he produce any record of completion of the course. The facility did have back-flow devices to prevent contamination from entering the water supply on January 29, 1986, or on April 1, 1986. The testimony of Mr. Vinson is credited over the contrary testimony of Mr. Wright. Mr. Wright did not explain how he conducted the inspection of the back-flow devices, and did not explain what he found and how that resulted in the conclusion that back-flow devices were not present. Mr. Vinson, on the other hand, stated that he built the building himself, that he installed back-flow devices, that such devices were required by his building permit, and that he obtained a certificate of occupancy following construction. The Department has not proved the point by a preponderance of the evidence. The proof that the facility did not have a fire alarm system that was continuously maintained in reliable operating condition on January 29, 1986, was not adequate to prove this fact by a preponderance of the evidence. Mr. Wright acknowledged that a fire inspector (who did not testify) accompanied him on the survey and conducted that portion of the initial survey. Although Mr. Wright testified that he heard the fire inspector attempting to work the fire alarm system, this second hand evidence is not sufficient to prove that the system was not in good and operable mechanical order on January 29, 1986. Moreover, the proof is not adequate that the system was not mechanically operable on April 1, 1986. Mr. Wright asked the young woman present during the revisit to work the system, and she was not able to do so because she did not know how to operate it. Mr. Wright did not try to work it either. Thus, no one conducted a test of the system, and there is, therefore, no evidence in the record to show that the deficiency that existed on January 29, 1986, had not been corrected. It must be remembered that the deficiency that existed on January 29, 1986, was not that the manager or administrator of the facility could not operate the fire alarm system, but that the system was mechanically inoperable. There were no elderly persons present in the Petitioner's facility during the initial survey on January 29, 1986, but on April 1, 1986, the young woman in charge of the facility was serving breakfast to four elderly persons. None of the violations discussed above were considered by HRS to be of sufficient gravity to deny issuance of the license.
Recommendation It is therefore recommended that the Department of Health and Rehabilitative Services enter its final order finding that Vinder Homes, Inc., d/b/a the White House of Vinder Homes, Palm Harbor, Florida, has failed to correct the first two violations described above in the time established by the Department, and assessing a total civil penalty of two hundred dollars ($200). DONE and ENTERED this 21st day of July, 1987. WILLIAM C. SHERRILL, JR. 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 21st day of July 1987. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary 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 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 John Brook, Esquire 695 Central Avenue Suite 213 St. Petersburg, Florida 33701
Findings Of Fact Darlington House is an adult congregate living facility owned and operated by Darlington Corporation under a license issued by the Department of Health and Rehabilitative Services. Darlington House has approximately five full-time residents and had five residents at all times relative to the events set forth in the administrative complaint. On January 22, 1985, personnel of the Department of Health and Rehabilitative Services conducted an inspection of Darlington House. A report of that inspection contained the following annotation: Medications were being administered by an unlicensed employee as evidenced by the employee placing medication in a spoon and dispensing it to residents. On March 6, 1985, the Department of Health and Rehabilitative Services issued a Notice of Deficiencies indicating that there was insufficient supervision of administration of medication. On March 14, 1985, the Respondent responded to the notice of deficiency indicating that all medications would be administered by or under the supervision of a person who would be either licensed as a practical nurse or registered nurse. On April 8, 1985, the Department conducted an inspection of Darlington House. A list of the deficiencies included the following entries. ACLF 28. The facility did not have job descriptions available for review. ACLF 55. The facility did not have food service policies and procedures providing for the nutritional care of the residents. On July 31, 1985, the Petitioner conducted an inspection of Darlington House. Gail Stanback, the temporary employee on duty, was unable to produce written copies of the job descriptions and nutritional policies and procedures during that inspection. The inspector also found on the kitchen counter plastic cups containing medication which had been transferred from original storage containers into the plastic cups by a licensed nurse in preparation for giving the medication to the residents. Darlington Corporation had written a job description for the position of the full time employee of Darlington House responsible for providing personal care to residents. This job description was located at the corporate offices of the corporation in Holiday, Florida, at the time of the agency's inspection. Similarly, Darlington Corporation had written policies and procedures pertaining to nutrition at Darlington House. At the time of the inspection, a copy of these policies and procedures was located at the corporate offices of Darlington House. Copies of the job description and policies and procedures for food service were received into evidence. The report of inspection of the agency for April 8, 1985, does not reference any deficiency involving the supervision or administration of medication.
Recommendation Having found the Respondent guilty of failing to maintain on the premises as required by rule copies of its nutritional policies and procedures, contrary to Rule 10A-5.20, Florida Administrative Code, it is recommended that the Respondent be fined One Hundred Dollars ($100.00). DONE AND ORDERED this 2nd day of June 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0307 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. All of Petitioner's and Respondent's Proposed Findings of Fact were adopted except for the following: Respondent's Proposed Findings of Fact: 5. Rejected; irrelevant. 12. Rejected; irrelevant. Petitioner's Proposed Findings of Fact: 10. Rejected; conclusion of law. COPIES FURNISHED: Mr. William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Steven W. Huff, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Barbara McPherson, Esquire District V. Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518 Scott L. Knox, Esquire 1017 Bartelt Road Holiday, Florida 33590
The Issue Relating to Case No. 89-2757 Whether Respondent failed to assure that a sufficient number of staff members were certified in an approved First Aid course (a repeat violation), in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(f), Florida Administrative Code. Whether Respondent failed to sanitize multi-use eating and drinking utensils in accordance with the food service standards (a repeat violation), in violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A-5.020(1)(n)6, Florida Administrative Code Relating to Case No. 89-3411 Whether Respondent failed to have in its files the inspection reports for the years 1984 and 1985, in violation of Sections 400.419(3)(c)4. and 400.435(1), Florida Statutes and Rule 10A-5.024(1)(d)(2a), Florida Administrative Code. Whether Respondent failed to assure compliance with physical plant standards, by not providing a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area for one (1) sleeping room window that serves as a second means of escape, in violation of Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code. Whether Respondent failed to have a fire and evacuation route plan to assure compliance with fire safety standards, in violation of Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.
Findings Of Fact Case No. 89-2757: At all times relevant the dates and alleged occurrences referred to in these proceedings, Respondent, Henderson's Retirement Home, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). Respondent's facility was staffed without assurance of at least one staff member within the facility at all times who is certified in an approved first aid course. Tina Porterfield, the granddaughter of Dee Henderson, owner of Henderson's Retirement Home, although certified in an approved first aid course, was not a full time staff member. This violation occurred on September 30, 1987 and was not corrected on February 2, 1988. There was no competent evidence to show that Respondent's multi-use eating and drinking utensils were not being properly sanitized in accordance with food service standards. Case No. 89-3411: At all times relevant to the dates and alleged occurrences referred to in these proceedings, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF). HRS inspection reports relating to the Respondent's ACLF facility were not provided to Respondent for the years 1984 and 1985, and therefore could not be retained in its files at the time the facility was inspected in February, 1986 and February 18, 1987. HRS inspection of the premises on February 16, 17 and 18, 1987 revealed that a window that serves a second means of escape did not provide a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area. It was not proven where this window was located or if it was a sleeping room. Respondent was given until April 1, 1987 to correct the deficiency and the window was removed and replaced by a fire exit door when inspected on June 4, 1987. As of February 18, 1987, Respondent had a written fire and evacuation route plan prepared. A copy was posted during the time the HRS inspectors were completing their survey on February 18, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner impose a civil penalty in the total amount of $300 against Respondent pursuant to Section 400.419, Florida Statutes. DONE AND ENTERED this 15th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2757, 89-3411 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact: As to Case No. 89-2757: Adopted in substance. As to Case No. 89-3411: Paragraphs 1 and 3 adopted in substance. Paragraph 2 rejected as against the weight of the evidence. COPIES FURNISHED: Linda L. Parkinson, Esquire District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson Street Suite 701 Orlando, Florida 32801 Raymond A. McLeod, Esquire McLeod, McLeod and McLeod, P.A. Post Office Drawer 950 Apopka, Florida 32704 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department; (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents; (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida. DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Long Term Care Office Department of Health and Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146 Mr. Morton Francis c/o Francis Villa 1398 Northeast 156th Street North Miami Beach, Florida 33162
Findings Of Fact By letter dated February 3, 1986, which was sent certified, returned receipt requested, Petitioner was advised that her application for an initial license to operate an ACLF was denied based on Respondent's determination that the facility Administrator, Margaret Staggers, was not of suitable character to operate an ACLF pursuant to Sections 40-0.414(2)(a) and (b), Florida Statutes. Petitioner was specifically advised that the determination was based on the fact that on September 16, 1985, Margaret Staggers pled no contest to a felony charge of adult abuse, pursuant to Section 827.09(1), Florida Statutes, and was convicted of the offense. (State v. Margaret Staggers, Case No. 85-8490). In fact, Petitioner entered a plea of nolo contendere to the felony charge of adult abuse and adjudication was withheld. The thrust of Petitioner's challenge to denial of her license application is that since adjudication was withheld, there was no conviction and therefore for Respondent to state that she was convicted, as a basis for denials was improper. It is true, as Petitioner urges, that she pled no contest to the charge of adult abuse and adjudication was withheld rather than the stated reasons that Petitioner was convicted of the charge of adult abuse. However, Respondent also alleges in its denial letter dated February 3, 1986, that the Department determined that Petitioner's initial license to operate an ACLF was being denied based on its determination that Petitioner is not of suitable character to operate an ACLF pursuant to Sections 400.414(2)(a)(b), Florida Statutes.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Fina1 Order denying Petitioner's application for licensure to operate an Adult Congregate Living Facility. RECOMMENDED this 23rd day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1987. COPIES FURNISHED: Michael O. Mathis, Esquire Office of Licensure & Certification Department of HRS Post Office Pox 210 Jacksonville, Florida 32231 Ira M. Witlin Esquire Suite 107 17555 South Dixie Highway Miami, Florida 33157 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12- 0128-BPS, issued by the Florida Department of Health and Rehabilitative Services. In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility. On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and 30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications. On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City. Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital. Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison. Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was. Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare. Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could. Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English. Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of $1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded. Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of the Department of Health and Rehabilitative Services enter a final order revoking the Adult Congregate Living Facility License of Cirilo Alvarez, doing business as Briar's Haven Adult Care Center. RECOMMENDED this 1st day of April, 1983 in 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 1st day of April, 1983. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 NW 13th Street, 4th Floor Gainesville, Florida 32601 Mr. Cirilo Alvarez Post Office Box 2392 Lake City, Florida 32055 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
