The Issue The issues in this case are whether Respondent violated Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and , and 489.531(1)(a), Florida Statutes (1995), 1/ and, if so, what, if any, penalty should be imposed in accordance with Florida Administrative Rule 61G4-17.001. 2/
Findings Of Fact Petitioner is the state agency responsible for regulating contractors in the state. Respondent is not licensed as a general contractor and is not the qualifying agent for Freeman Associates ("Freeman"). In April 1995, Respondent entered into a contract with Charles and Lenore Brunty to renovate the Brunty residence located at 1301 Kanab Avenue North West, Palm Bay, Florida. The contract price for the renovation was $48,494.86. Respondent provided the Bruntys with a written estimate of cost. The written estimate bears the headings, "Freeman Associates," "General Contracting," and "Property Improvements." It describes the type of work to be performed and separate costs for "Roofing," "Exterior Paint," "Exterior Windows/Screens," "Interior Woodwork," "Interior Cabinets," "Plumbing," "Electrical," "Air Conditioning/Hearing," "Interior Paint," "Flooring," and "Addition-Kitchen, Breakfast, Bath." Respondent represented to the Bruntys that he would oversee or supervise all of the renovations to their residence and would provide all permits. The contract states: Any and all work requiring permits shall be obtained by me and/or subcontractors prior to starting of any work on this project. Petitioner's Exhibit 2. Respondent obtained bids from subcontractors, oversaw their work, and charged the Bruntys for the work performed by the subcontractors. Respondent agreed to begin work on June 12, 1995. However, he performed no work before July 21, 1995. The work performed by Respondent did not comply with industry standards. Respondent removed the roof without providing adequate protection for the interior of the home. The weather damaged the ceilings and the Mexican tile. The ceilings had to be replaced by the Bruntys. The Mexican tile has not been replaced because of cost. On September 9, 1995, the Bruntys cancelled the contract. On September 19, 1995, Respondent presented a bill to the Bruntys for $16,826.38. The Bruntys telephoned the suppliers and discovered that Respondent had not paid the suppliers. The tile supplier's invoice was altered. The price had been exaggerated by $2,120, or more than 100 percent. The Bruntys refused to release any funds to Respondent until Respondent provided a full accounting. On October 6, 1995, Respondent filed a mechanic's lien against the Brunty property for $16,826.38. Thereafter, Respondent filed a second lien for $34,835.33. Respondent certified in the liens that he had paid for materials and performed all work. However, the two liens overstate the work performed and the cost of materials. Respondent in fact failed to pay all liens. The combined total of the two liens exceeds the contract price by $3,166.85. Respondent did not complete the renovations to the Brunty property and is not entitled to full payment of the contract price. The liens caused the lender to withhold construction funds for the renovations until the matter was resolved in civil court. In the interim, the Bruntys paid materials, subcontractors, and legal fees out of their own funds. In May 1995, Respondent acted as a general contractor in a second transaction. Respondent contracted with Mr. Curt Iffinger, a licensed air conditioning contractor, to install an air conditioning system at the home of Mr. Albert Bresch located at 4149 Sherwood Boulevard, Melbourne, Florida. Respondent represented to Mr. Iffinger that Respondent was a general contractor. Mr. Bresch paid Respondent for the installation. Mr. Iffinger performed the required installation. Respondent refused to pay Mr. Iffinger. Mr. Iffinger filed a mechanic's lien against the Bresch property. Respondent failed to cause the lien to be removed within 75 days and executed an affidavit stating that all liens were paid in full.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 455.228, 489.127(1)(a) and (f), 489.129(1), (h), (m) and (o), and 489.531(1)(a) and imposing an administrative fine of $8,500. DONE AND ENTERED this 18th day of November, 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 18th day of November, 1997.
The Issue The issue for consideration in this case is whether Petitioner should receive additional credit for his answers to questions 121 and/or 222 on the civil/sanitary engineer examination administered on April 18 and 19, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency in Florida responsible for the licensing of professional engineers in this state and for the regulation of the engineering profession. Petitioner graduated from the University of South Florida in December 1990, with a degree in geo-technical engineering, a sub-specialty of civil engineering. He is not, nor does he claim to be, a structural engineer. He has practiced in the field of geo-technical engineering since his graduation and has taught soil mechanics at the master’s level at the university. He sat for the professional engineer’s examination administered by the Respondent in April 1997. Thereafter, by grade report dated July 29, 1997, the Department’s Bureau of Testing notified Petitioner that he had earned a score of 69.00 on the examination he had taken. Since a passing score for the examination which Petitioner took is 70.00, Petitioner failed the examination. Petitioner requested a formal hearing to challenge the grading of examination questions numbers 121 and 222, on each of which he earned a score of four. The maximum obtainable score on each question is ten. On question 121, the candidate is given a situation involving a sheet-pile wall section, and is asked to (a) sketch and dimension the earth pressure diagram acting on the wall after the proposed dredging has been completed; and (b) determine the factor of safety against the kick-out after the dredging. Scoring of the Petitioner’s examination was done by the National Council of Examiners for Engineering and Surveying (Council). The Council determined that, with regard to requirement (a), Petitioner’s pressure distribution was of the correct form, but the labeling of the distribution had a major error. Petitioner assumed an incorrect factor which was deemed to be a major error calling for, under the approved scoring plan, a minimum four-point deduction. With regard to requirement (b), Petitioner chose not to solve for the factor of safety as he was required to do. This resulted in a minimum reduction of two additional points. This evaluation was concurred by Mr. Adams, the Board’s expert witness, in his testimony at hearing. Mr. Adams noted that where, as here, the engineer is dealing with soil mechanics, the at-rest conditions are one thing. The active and passive (A and P) conditions are the more dynamic, and here, where the problem calls for removal of soil from in front of a retaining wall, A and P pressures should have been used instead of at-rest pressures. Adams also concluded that Petitioner’s cited authority was not valid in this case. This authority used the at-rest pressure coefficient when all the authorities Mr. Adams could find used the A and P pressure coefficient. Petitioner admits that the coefficients utilized in determining earth pressures are A, P and at-rest (O). In this case, the whole problem must be considered. A tie-back system is presented, and in that case the sheet pile and the tie-back are assumed to hold the soil behind the wall in an at-rest condition so long as the sheet-pile wall does not move or deflect. Petitioner contends that Mr. Adams’ determination that removing the soil would destroy stasis and cause the wall to move is erroneous. In fact, he contends, the sheet-pile wall and the anchor system must move before the Board’s argument holds. He cites an authority in support of his position which was also cited to the Council scorer who, at Petitioner’s request, rescored his answer. The Council official who rescored Petitioner’s answer did not have access to Petitioner’s cited authority but rejected the citation as either incorrectly cited or incorrect in itself. Petitioner’s error called for a four-point reduction in score as to (a). Further, as to requirement (b), Petitioner, though asked to solve for the factor of safety against rotation, chose not to do so. This calls for an additional two-point reduction. Independent review of Petitioner’s answer, including an evaluation of his cited authority, and consideration of the other evidence pertinent to this issue, including his testimony, that of his witness, and the rescoring results by the Council, does not satisfy the undersigned that Petitioner’s answer merits additional credit. The score of four, as awarded, is appropriate. Question 222 deals with a cantilevered retaining wall with a wide foundation and piling in two rows, some in front and some in back, to support it. The candidate is required to determine the total lateral thrust per linear foot acting on the wall in issue; to determine the vertical load on a front row pile; and to explain possible ways that the pile foundation can resist the lateral thrust. According to Mr. Adams, Petitioner incorrectly calculated the lateral load by omitting the proper depth of the wall. With regard to the vertical loading, the Petitioner did not get to the proper vertical load on the front pile but received partial credit for other calculations he performed. As for the last requirement, one part of Petitioner’s answer was incorrect in that he did not explain passive pressures properly. What Petitioner mentioned was incorrect, and he did not mention battering of the piles, which was expected to be noted. According to Mr. Adams, Petitioner got two parts of the question correct, each of which is worth two points. Therefore, he received a score of four points. Petitioner contends that the Board and the Council are being too restrictive in their approach to the problem and not taking into account the whole problem. He claims that though he arrived at the wrong figure in calculating the lateral load, that does not justify his receiving no credit for that segment since the method he used for calculating the thrust was correct. He admits to having erroneously neglected the weight of the soil, but contends that his method of determining the solutions to resist lateral thrust is as good as that of the Board and the Council. Petitioner was given only partial credit for his use of the correct equation to calculate the lateral thrust because he used the wrong depth. His answer to the second part was wrong in that he completely neglected the weight of the soil and calculating the pile load, even though he used the correct figure to multiply the load per foot of the wall. His answer to the third requirement, dealing with lateral resistance of the pile, was insufficient to warrant a full award. Taken together, his answer, in the opinion of the Council’s scorer, merited only an award of four points. Petitioner did not show sufficient basis for increasing this award. The evidence presented by the Board clearly established that both questions in issue provided enough information to allow the candidate to answer them correctly, and both are questions that a candidate for licensure should be able to answer. The scoring plan for these questions was not shown to be inappropriate, and there is no evidence that it was not properly utilized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to Questions 121 and 222 on the April 1997 Civil Engineer Examination. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Henri V. Jean 3273 Tanglewood Trail Palm Harbor, Florida 34685 R. Beth Atchison, Esquire 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 Angel Gonzalez Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's license as a certified general contractor should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 489, Florida Statutes as set out in the January 18, 1984 Administrative Complaint. Petitioner presented the oral testimony of Louis P. Gilner, Peter Max Christianson, Jr., Catherine M. Edwards, John Owen Thompson, Jack W. Rainford, and Annie Gilner and had admitted in evidence Petitioner's exhibits 1, 3, 4, 5, 6, 7, 7A, 7B, 8, 9, 10, 11, 12 and 13. Exhibit 2 is clearly hearsay and inadmissible but has be considered as a stipulation of counsel and is discussed under the Conclusions of Law as a jurisdictional argument of counsel. Neither Respondent nor Chester A. Trow, Esquire appeared for formal hearing. Petitioner filed transcript of the proceedings November 14, 1985 and proposed findings of Fact and Conclusions of Law on November 18, 1985, and waived time for entry of this recommended Order. These proposals have been considered in this recommended Order and are ruled upon in the Appendix hereto.
Findings Of Fact Respondent, Patton N. Roberts, is a certified general contractor, license number CG C015023 and qualifying agent for Roberts Construction and Development, Inc. Although Respondent failed to renew his license in June, 1985, and his license is now on inactive status, it can be renewed at any time before June 1988 by payment of late renewal fee. In June 1982, Respondent entered into a contract for $68,242.00 with Louis Gilner to construct home in Putnam County, Florida. The charges against Respondent arise out of the use of the funds associated with construction of this home pursuant to contract. On June 30, 1982, Respondent obtained Putnam County building permit #6107 for the construction. Respondent commenced construction and completed the home to the dry-in stage by approximately early August 1982. Mr. Gilner paid Respondent a $50.00 deposit and two "draw" payments of $20,472.00 each, making total payments to Respondent of $40,995.00. These "draws" against the total amount of $62,242.00 which was contracted-for were paid on July 20, 1982 and August 5, 1982, respectively. Approximately July 15, 1982, Respondent ordered trusses for the Gilner residence from Landmark Truss, Inc. The trusses were delivered on July 23, 1982. Respondent failed to pay for the trusses, although he had received the draw payment for the trusses. Landmark Trusses, Inc. filed a lien on the Gilner residence for $2,490.00. On July 9, 1982, Respondent ordered 16 loads of fill dirt for the Gilner residence from Chesser & Strickland Sand Co., Inc. The Respondent's failure to pay $950.00 for the dirt and the labor in spreading it resulted in a lien being filed against the Gilner property for that amount. Mr. Jack Rainford testified that Respondent subcontracted the heating and air conditioning work to A-1 Air and A-1 plumbing for $5,806.00 ($3,550 plumbing and $2,556 air conditioning); that Respondent paid A-1 Air and A-1 Plumbing the first draw on the plumbing in the amount of $1,128.00 on August 17, 1982; that the Gilners had, on January 3, 1983, paid A-1 Air and A-1 Plumbing $1,128.00 on the air and $1,183.34 on the plumbing, and that Respondent has failed to pay $1,183.34 on the plumbing and $1,128.00 on the air conditioning. No matter how these figures are worked, they do not fairly support Mr. Rainford's conclusion that Respondent only owes A-1 $1,183.34 plus $1,12800. It is more mathematically logical that the original total owed was $6,106.00; the Respondent paid $1,128.00 on August 17, 1982 reducing the remaining amount to $5,806.00; thereafter Mr. and Mrs. Gilner, on January 3, 1983, paid A-1 $1,128.00 for the air conditioning work and $1,183.34 for the plumbing package and that Respondent actually owes the Gilners $2,311.34 for their having to pay twice, and owes A-1 $3,464.66; which is the balance of A-1's bill after all payments the Respondent and the Gilners have been deducted. However, the undersigned will accept Mr. Rainford's unrefuted testimony that Respondent owes A-1 only $1,128.00 plus $1,183.34 for a total of only $2,311.34. On or about September 6, 1982, Gilner terminated Respondent for lack of progress toward completion. At that date of termination the Respondent and his crew had been absent from the premises for five to six weeks. At the time of the Respondent's termination, the project was, by Mr. Gilner's estimation, only 40 percent completed. Although the predicate for Mr. Gilner's knowledge in this regard is less than might normally be characterized as "expert" testimony, it is still credible and based on Mr. Gilner's testimony concerning his usual employment as an installer of traffic controls involving other construction projects, and in conjunction with the testimony of Mrs. Gilner, his estimation that the extent of the household construction total led only 40 percent is accepted for purposes of this finding of fact. At this stage, based on the draws paid. 60 percent of the construction should have been completed by Respondent. The Gilners both testified that they completed the home after Respondent's termination at a total cost of $82,000, or $14,000 over the contract price. There is no evidence to support the actual amount paid or what it was paid for, nor is there any evidence to establish what relationship there may have been between Respondent's behavior and the increased cost. Although Mrs. Gilner testified that there was some misinstallation of the trusswork and that rain had damaged the roof prior to Respondent's final termination, this information, without more, will not support the $14,000 figure. Approximately August 25, 1982, in a conversation with Catherine Edwards, an employee of Landmark Truss, Respondent had explained that the reason he had not paid the Landmark Truss bill was because he had elected to use the draws he had received from the Gilners to buy some lots upon which to build ""spec" (speculation) Respondent stated to Ms. Edwards that he originally intended to get the lots "subordinated" but due to the early death of an elderly man up north, he had had to use the (5) Gilner draws to buy his lots and was awaiting profit from the speculation homes to pay landmark Trusses bill. Because this conversation occurred after Landmark Trusses had served its Notice of Claim on Mrs. Gilner, the undersigned construes this conversation to be an admission against interest by Respondent and draws the inference there from that failure of Respondent to pay the other necessary owed costs from the draws received from the Gilners resulted from the same misapplication of draw funds as Respondent described to Ms. Edwards.
Recommendation That the Construction Industry Licensing Board enter a final order providing that Respondent's certified general contractor's license shall be suspended for a five year period with the provision that the suspension shall be lifted after one year upon the Respondent providing proof to the Construction Industry Licensing Board that he has made restitution of $2,311.34 to the Gilners, $2,490.00 to Landmark Trusses, Inc., $950.00 to Chesser & Strickland Sand Co., and $2,311.34 to A-1 Air and A-1 Plumbing. DONE and ORDERED this 20th day of December 1985 in Tallahassee Florida. ELLA JANE P. DAVIS 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 20th day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2857 Petitioner's Proposed Findings of Fact: Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted but expanded to conform to the evidence as a whole. Accepted but expanded to conform to the evidence as a whole. Rejected as not supported by the competent substantial evidence in the record as a whole. Accepted but rephrased to reflect the competent substantal evidence in the record as a whole. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Chester A. Trow, Esquire P. O. Box 1450 Ocala, Florida 32678 Patton N. Roberts 2442 Jackson Street Hollywood, Florida 33202
The Issue Whether Petitioner is entitled to licensure as an orthotic fitter.
Findings Of Fact Chapter 468, Florida Statutes, regulates miscellaneous professions and occupations in Florida. Chapter 97-284, Laws of Florida, created Sections 468.80-468.813, Florida Statutes. These provisions, referred to as Part XIV of Chapter 468, regulate the practice of orthotics, prosthetics, and pedorthics. Respondent is the agency of the State of Florida responsible for administering the provisions of Chapter 468, Florida Statutes. Section 468.80(5), Florida Statutes, provides the following definition pertinent to this proceeding: (5) "Orthotic fitter" means a person who is licensed to practice orthotics, pursuant to a licensed physician's written prescription, whose scope of practice is limited to fitting prefabricated cervical orthosis 1/ not requiring more than minor modification; pressure gradient hose; trusses; custom-molded therapeutic footwear; prefabricated spinal orthoses, except for those used in the treatment of scoliosis, rigid body jackets made of thermoformable materials, and "halo" devices; and prefabricated orthoses of the upper and lower extremities, except for those used in the treatment of bone fractures. Section 468.803, Florida Statutes, sets forth certain criteria for licensure as an orthotic fitter. The parties to this proceeding stipulated that Petitioner has met all criteria for licensure as an orthotic fitter except the criteria found at Section 468.803(3)(c)3., Florida Statutes, which requires two years of experience in orthotics, as approved by the board. Section 468.805, Florida Statutes, is the following grandfathering provision: A person who has practiced orthotics in this state for the required period since July 1, 1990, who, before March 1, 1998, applies to the department for a license to practice orthotics may be licensed as a orthotic fitter, as determined from the person's experience, certification, and educational preparation, without meeting the educational requirements set forth in s. 468.803, upon receipt of the application fee and licensing fee and after the board has completed an investigation into the applicant's background and experience. The board shall require an application fee not to exceed $500, which shall be nonrefundable. The board shall complete its investigation within 6 months after receipt of the completed application. The period of experience required for licensure under this section is 2 years for an orthotic fitter. On July 21, 1998, Petitioner filed an application for licensure as an orthotic fitter. The application, on a form adopted by Respondent as a rule, required the applicant to state whether the applicant was seeking licensure based on examination (pursuant to Section 468.803, Florida Statutes) or pursuant to Section 468.805, Florida Statutes. Since the deadline for filing pursuant to the grandfathering provision expired March 1, 1998, Petitioner marked the application to reflect that the licensure was to be based on examination, the only option available to her at that time. Along with the application form, Respondent sends to applicants for licensure copies of the relevant statutes and rules with instructions that an applicant should read those statutes and rules prior to completing the application. Petitioner admitted that she had received those statutes and rules and that she had read them before completing her application for licensure. Chapter 99-158, Laws of Florida, became effective on May 13, 1999, and provides as follows: Any person who met the period of experience requirement set forth in section 468.805(1), Florida Statutes, prior to March 1, 1998, may apply for licensure pursuant to section 468.805(1), Florida Statutes, prior to July 1, 1999. This provision was the basis for the Order of Abeyance entered May 5, 1999, which placed the proceeding in abeyance until July 1, 1999. Petitioner did not apply for licensure pursuant to the provisions of Section 468.805(1), Florida Statutes, after the enactment of Chapter 99-158, Laws of Florida, nor did she request that her pending application be amended to reflect that she was seeking licensure pursuant to the grandfathering provision. 2/ At the final hearing, Petitioner, through counsel, asserted that her application should be considered to be pursuant to either examination or to the grandfathering provision. Under the grandfathering provision, an applicant must demonstrate that he or she had practiced orthotics in the State of Florida for two years between July 1, 1990, and March 1, 1998. At all times pertinent to this proceeding, Petitioner has been the owner and operator of Ultra Tech Medical Supply and Equipment, Inc., a company she founded in 1991. Ultra Tech's primary business is the selling and renting of durable medical equipment such as wheelchairs, canes, and crutches to patients and to physicians. As will be discussed in more detail below, Ultra Tech occasionally sells orthotic devices. On those occasions, Petitioner has served as the fitter for those devices. Ultra Tech has never had a licensed or certified orthotist or medical doctor on its staff. Petitioner has never worked under the direct supervision of a certified orthotist or medical doctor. At the times pertinent to this proceeding, Petitioner never worked under anyone else's supervision. She has never served as an orthotic fitter assistant. 3/ Petitioner's exhibits include numerous invoices, some of which represent orthotic devices she purchased and subsequently fitted between November 1994 and January 2000. Some of the invoices in the composite exhibits are duplicates while others are for purchases of supplies or equipment that are not orthotic devices. The invoices for orthotic devices established that fitting orthotic devices was a very minor part of Petitioner's work week in that she fitted an average of less than two orthotic devices per week. The testimony established that Petitioner spent much less than thirty hours per week fitting orthotic devices.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for licensure as an orthotic fitter. DONE AND ENTERED this 19th day of April, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2000.
The Issue The issues in this case are whether the violations alleged in the Administrative Complaint occurred, and whether the Respondent should be fined $5,000.
Findings Of Fact Washington Manor is a skilled nursing home licensed by the Department of Health and Rehabilitative Services. It expanded its existing facility by the construction of a new wing with 15 additional beds. Approval of the construction of the addition was granted by the Petitioner Department as indicated by Exhibit 5. The addition was inspected by the Department's Medical Facility Architect on October 4, 1979. At that time the Department's architect discovered that several of the beds in the new facility were being used. In addition the architect discovered several construction deficiencies. The architect discovered that the partitions designed to be fire resistant and smoke proof had many holes in them which would have permitted smoke to penetrate these walls, which were to be constructed as barriers. The architect discovered that smoke dampers on the ducts were not properly secured. Unsecured, such dampers can be knocked aside by the forces generated in a fire. The architect discovered that "tents" (ventilated and insulated enclosures) had not been constructed over recessed lighting fixtures in a manner to prevent fire from penetrating the fire resistant ceiling tile. In addition to these major deficiencies listed above, the bathrooms did not have bedpan flushing devices, the tamper switch on the fire alarm was not functioning properly, double doors did not have magnetic door closures, and the air conditioners in the patients' rooms did not have their vents locked in the open position. The Department's architect offered uncontroverted and unrebutted testimony that the conditions in the foregoing Paragraphs 3, 4, 5 and 6 violated the provisions of the Southern Standard Building Code. The deficiencies described in Paragraphs 3, 4 and 5 directly related to the safety of the residents notwithstanding the prohibitions of these conditions by the code. An October 8, 1979, a second inspection was conducted by a Department administrative inspector based on the architect's report of premature occupancy. This inspection revealed that ten of the 15 new beds were occupied and had been occupied for a total of more than 55 patient days without proper licensure, which includes the period the safety deficiencies existed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the $5,000 fine be levied against the Respondent, Washington Manor Nursing and Rehabilitation Center. DONE and ORDERED this 2nd day of July, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold L. Braynon, Esquire Department of HRS 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311 Myron J. Sponder, Esquire Washington Manor Nursing and Rehabilitation Center 4200 Washington Street Hollywood, Florida 33021
