Findings Of Fact Respondent, Hugenna D. Outar, operates a twelve-bed adult congregate living facility (ACLF) under the name of Moorehead House Retirement Center at 1405 Northeast Eighth Street, Homestead, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. Outar serves as administrator of the facility. On or about August 15, 1987, Paul Grassi, an HRS fire inspector, conducted a routine annual inspection of respondent's facility. The purpose of the inspection was to determine if the facility was in compliance with the fire safety requirements of Chapter 10A-5, Florida Administrative Code (1987). The inspec- tion was made in the presence of Outar's mother since Outar was not at the facility that day. Grassi requested documentation showing that all facility fire alarms and smoke detectors had been checked by facility personnel on a quarterly basis. Also, he requested documentation to evidence that all employees had been given monthly training in procedures to be followed in the event of a fire. The former set of records is required by Department of Insurance Rule 4A-40.017, which has been adopted by reference by HRS. The latter requirement is imposed by Rule 10A-5.023(15)(b) and pertains to ACLF's having thirteen or more licensed beds. Because Outar's mother did not know where such documentation was kept, she was unable to comply with Grassi's request. Next, Grassi observed that Room D had a "pocket type" door with no hinges. According to Grassi, a state fire marshal regulation prohibits the use of this type of door in a resident's room and requires instead that a resident's room located by an exit have a door mounted on a hinge that swings outwardly to the corridor. The Classification of Deficiencies refers to the regulation imposing this requirement as "L.S.C. 85, 17-3.6.2" but the regulation itself is not of record or officially noticed. Finally, Grassi observed two residents' rooms with no door closures. According to Grassi, such closures are required on all residents' rooms, pursuant to a state fire marshal regulation, for the purpose of containing and confining a fire in the event of a fire in a room. The regulation was not identified at hearing nor made a part of the record but is referred to in the Classification of Deficiencies as "N.F.P.A. 101-85, 17.3.6.3." After noting these violations, Grassi explained them to the mother and gave her a brief explanation as to how they might be corrected. Each of the three deficiencies were categorized as Class III deficiencies. By letter dated September 24, 1987, HRS advised Outar in writing of the nature of the violations. Although the letter was not prepared until September 24, it instructed Outar to correct the deficiencies by September 14, 1987, or ten days earlier. Attached to the letter was a copy of the Classification of Deficiencies which identified the deficiencies, their class and the date by which they had to be corrected. On October 29, 1987 Grassi made a follow-up survey of respondent's facility. Since Outar was not at the facility that day, the survey was conducted in the presence of Outar's mother. Grassi found none of the deficiencies had been corrected. Accordingly, Outar was sent a letter by HRS on November 6, 1987 advising her that a second follow-up visit would be made. On December 14, 1987 Grassi returned for a third visit. This time Outar was present. Again, Grassi found none of the deficiencies corrected to his satisfaction. However, he conceded that the documentation pertaining to monthly fire drills and quarterly checks of fire alarms and smoke detectors was available for inspection but maintained it was unsatisfactory because all reports were identical and did not vary from month to month. He reasoned that this was contrary to the "intent" of the rule. During the inspection, Outar requested specific advice as to how to comply with the door regulations for which she had been cited. After receiving advice, these changes were made, and her doors now meet all fire safety requirements. Outar operates a small facility with only twelve beds. She pointed out that she had difficulty in installing closures on the two doors in question since two residents used walkers and had placed door "jams" on the doors to give them easy access through the doorway. As to the other door violation, the building was purchased with an archway leading into Room D which made it difficult to install a door mounted on hinges. Outar attempted to comply with Grassi's instructions but her carpenter was unable to make the necessary changes until Outar received specific advice from Grassi on December 14. Finally, Outar stated that the fire drill documentation was available for inspection on August 15 and October 29 but her mother did not know where it was. Outar did not learn it was filled out improperly until she personally spoke with Grassi on his third visit. She now has satisfactory records.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against respondent be dismissed with prejudice. DONE AND ORDERED this 30th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent William C. Widner has been with the City of Clearwater Fire Department for 21 years. For the past ten years, he has been assigned to Engine 48 as a fire lieutenant. His record is free from any type of disciplinary action. When a call is received concerning a medical emergency, it is proper to dispatch both a rescue unit and a fire engine to the scene. The standard operating procedure for emergency calls for fire vehicles is that the time to clear the station should not exceed 45 seconds. If there are questions concerning the dispatch, the officer in charge is to contact the dispatcher while in route to the scene of the emergency and make inquiry at that time. Also, a lieutenant, by himself, cannot change, modify or refuse to respond to a dispatch. Only a captain or the dispatcher can change the required response, or, another unit can announce that they are closer to the scene and will respond. The average response time between dispatch and arrival at the scene is four minutes. When a dispatch is given, a grid number for the destination is announced. All fire engines are equipped with map books demonstrating the location of the scene in relationship to the grid number given. On August 5, 1985, at approximately 2050 hours, the Clearwater Police Department Communications Center received an emergency call reporting a subject having a heart attack at 2720 Morningside Drive. Safety Harbor Rescue 52 and an ambulance were dispatched by telephone. At approximately 2055 hours, Engine 48 was radio dispatched to 2720 Morningside Drive. Respondent advised by radio that Engine 48 was responding to the call. Approximately 22 seconds after receiving the dispatch and 14 seconds after initially responding to the dispatch, respondent Widner telephoned the dispatcher and advised him that 2720 Morningside Drive was Engine 49's territory. Respondent did offer to go, however. The dispatcher stated that "this was a screwed up mess," but advised respondent that the computer recommended Engine 48. Respondent replied that he should go if Engine 49 was out. After further conversation, the dispatcher stated, "it made sense to me that 49 would go but it said 48." When respondent inquired as to who was to go, the dispatcher said "Oh hell, I might as well page somebody else." This conversation between the respondent and the dispatcher lasted 43 seconds and concluded 1 minute, 9 seconds from the end of the original dispatch. The dispatcher then radio-dispatched Engine 49 to 2720 Morningside Drive. Engine 49 advised that it was responding at approximately 2057 hours, 38 seconds, or two minutes, 22 seconds after the original dispatch was given to Engine 48. After speaking with the dispatcher, respondent and his superior officer, Captain Evans, checked the map for the 2720 Morningside Drive address. Upon learning that that address was, indeed, within Engine 48's territory, respondent and his crew immediately got in the truck and left the station. Captain Evans notified the dispatcher at 2059 hours that Engine 48 was responding to the call. When respondent arrived at the scene, Engine 49 and the rescue unit were already there. He attempted to radio in his arrival as soon as he got there, but the air waves were busy. He announced his arrival on his portable unit as he was walking up to the house. The evidence does not conclusively establish the exact time that respondent's arrival on the scene was reported to the dispatcher. Engine 49 did report its arrival before Engine 48's arrival was reported. Based upon the totality of the evidence, it is found that between 7 1/2 and 8 1/4 minutes elapsed between the time of the original dispatch to Engine 48 and the time of Engine 48's arrival at the scene. There are two Morningside Drives in the City of Clearwater. The residence located at 2720 Morningside Drive is within Engine 48's response zone, and is located 2.1 miles from Engine 48 and 3.0 miles from Engine 49. The other Morningside Drive is located in Morningside Estates and is within the response zone of Engine 49. When respondent first received the dispatch, he thought the address was located within the Morningside Estates subdivision. Upon leaving the station, an immediate right or left turn is required, dependent upon which Morningside Drive is being sought. Respondent's Captain Evans immediately conducted a fact finding session upon respondent's return to the station, and determined that respondent had failed to follow a direct order. A follow-up interview was conducted. It was determined that, upon receiving the initial dispatch, respondent should have proceeded directly to the engine and looked at the grid map, should have cleared the station within 45 seconds in accordance with standard operating procedures, should have reached the scene within 4 to 4.5 minutes and that, due to respondent's phone conversation with the dispatcher, two fire engines were sent on a call that required only one engine. Based upon those findings, the Fire Department concluded that respondent's productivity, workmanship, and efficiency with regard to the emergency response were not up to required standards for performance, and a two-day suspension was requested. The request for a two-day suspension was referred to the Affirmative Action Office, which conducts a fairness review of proposed disciplinary action and makes a recommendation to the City Manager, who takes final disciplinary action. After interviewing respondent concerning the August 5th incident, the Affirmative Action Office initially concluded that a two-day suspension was very harsh under the circumstances and recommended a letter of reprimand instead. Thereafter, Assistant Fire Chief Meyer contacted the Affirmative Action Office and provided the investigator with further information. The investigator was informed by Assistant Chief Meyer that respondent had been at that station for 10 years and should have been familiar with the addresses within his territory. He further advised her that the computer system utilized to determine which station should receive a particular call had been in effect for two years and discrepancies had been corrected. Meyer informed the investigator that lieutenants had been instructed not to argue with the dispatcher, to immediately respond to a call and that the proper response time in this instance should have been 4 minutes. This information from Meyer caused the Affirmative Action Office to amend its recommendation for disciplinary action to a suspension for 11.2 hours. The City Manager followed that recommendation and gave Notice of Suspension in accordance therewith. The Notice listed the three charges referenced in the Introduction as grounds for the disciplinary action taken, and established the date and time for the suspension to occur. In a separately related incident occurring in 1983, Lieutenant Handura with the City of Clearwater Fire Department received a letter of reprimand for not responding to a dispatch. In that incident, Handura was dispatched but, because he had a tour group of school children at his station and knew that a rescue unit had also been dispatched, he called the rescue unit and determined that he was not needed. He thereupon called the dispatcher and advised him that the rescue unit was responding to the call and that he would not respond.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent's appeal be dismissed and that a Final Order be entered confirming the disciplinary action of an 11.2 hour suspension, without pay. Respectfully submitted and entered this 30th of July 1986, 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 30th day of July 1986. APPENDIX (CASE NO. 86-0236) The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 11. Partially rejected as being argumentative as opposed to a factual finding. Respondent 3-5. While these findings are partially correct, they are an incomplete recitation of the events which transpired. 6. Rejected; See Paragraph 5 in Findings of Fact. 7 and 8. Rejected as a legal conclusion as opposed to a factual finding. COPIES FURNISHED: Miles A. Lance Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Stuart M. Rosenblum, P.A. 220 South Garden Avenue Clearwater, Florida 33516 City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Civil Service Board City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748
Findings Of Fact At all times material hereto, Respondent was employed as a fire inspector by the City of Clearwater with permanent status in the civil service system. Respondent has approximately nine years experience with the City of Clearwater as a fire inspector, and prior to this incident had never been the subject of disciplinary action. As a permanent civil service employee, Ordinance 1831 of the City of Clearwater, Guidelines of Disciplinary Action dated October 23, 1978, and Civil Service Rule 14 dealing with Suspensions, Demotions and Dismissals are applicable to the facts of this case and govern disciplinary action taken against Respondent. On September 17, 1985, Respondent was suspended for three (3) working days, without pay, and given forty (40) disciplinary points. In the Notice of Suspension the grounds for this action are stated as follows: Inspector Christopher Kingsley violated Rule 14, Section 1, Paragraph (k) of the Civil Service Rules and Regulations: "Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public. * * * On June 15, Captain Yaudes dispatched Inspector Kingsley to 1468 Belleair Road to observe and assist Inspector Mattheus with the fire investigation. When Inspector Kingsley arrived at the fire scene he more or less worked independently. He did not provide the assistance or opinion to Inspector Mattheus when requested. This is further violation of the Guidelines for Disciplinary Action, Level 4, #3 offense: "Insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force." Based upon the testimony and documentary evidence presented, the following findings of fact are made about Respondent's actions relative to the fire at 1468 Belleair Road on June 15, 1985: Between approximately 7:30 a.m. and 7:40 a.m. on June 15, 1985 Respondent arrived at work, although his shift did not begin until 8:00 a.m. When Respondent arrived, Captain Gordan Yaudes was talking with Captain Coleman about a radio transmission they had just overheard indicating that Inspector Harry Mattheus had been dispatched to investigate the Belleair Road fire. Since neither Captain Yaudes or Captain Coleman knew Inspector Mattheus, Captain Yaudes called Respondent into the office to see if Respondent knew anything about Mattheus' qualifications or background. Although Respondent and Mattheus had been working out of the same office for two months at the time, Respondent had only a brief acquaintance with Mattheus. They had never been introduced after Mattheus had been hired, their shifts and assignments were different and Mattheus had not yet done a fire scene investigation in the City of Clearwater. Therefore, Respondent told Captain Yaudes he did not know about Mattheus' qualifications. Captain Yaudes ordered Respondent to go to the Belleair fire scene, find out what was going on, and assist Inspector Mattheus, if necessary. Captain Yaudes testified that he wanted Respondent to take command of the investigation if Respondent determined that Mattheus was not properly certified. He specifically denied that he ordered Respondent to do a joint investigation with Mattheus. This order was given prior to 8:00 a.m., and thus prior to either Respondent or Captain Yaudes being on duty. Captain Coleman, who was on duty at the time, concurred in the order. Mattheus had been on the scene for thirty minutes before Respondent arrived. When Respondent arrived he put on protective pants, boots and gloves and entered the premises, a small flower shop. The fire had already been extinguished. Fire damage was confined to a twelve foot by twelve foot area at the front of the store where the cash register had been. Mattheus was not wearing protective gear since he had not been issued any at the time, although he was wearing his own steel reinforced boots. Upon approaching Mattheus at the scene, Respondent asked why he was there and on whose authority. Mattheus indicated he had been placed on the "call list" the night before by Fire Marshal Nic Lewis, and he was responding to a call to investigate the scene he received that morning at home. In making this inquiry, Respondent was responsive to Captain Yaudes' order that he go to the scene, find out what was going on and assume command of the investigation if he determined Mattheus was not qualified. Inspector Mattheus had been employed as a life safety inspector approximately two months prior to this incident. He is a certified fire inspector and was therefore qualified to be on the "call list" and to investigate fires. This was his first investigation for the City of Clearwater. After determining what was going on at the scene and that Mattheus was qualified to do the investigation, Respondent proceeded to assist Mattheus in several ways, including: surveying and discussing the scene together examining electrical wire and sockets, as well as the floor at the scene for possible causes of the fire clearing the area where the cash register had been and suggesting initially that Mattheus keep an aerosol can that had been punctured by a nail as possible evidence. Later, when arson was ruled out, he concurred in Mattheus' decision to discard the can. Respondent also helped clean up the scene since he was wearing protective clothing and Mattheus was not, and discussed an early morning thunderstorm with Mattheus as a possible cause of the fire. In this manner Respondent was responsive to Captain Yaudes' order that he render assistance, if necessary. On several occasions during the approximately thirty minutes when Respondent was at the fire scene, Inspector Mattheus asked him his opinion on the cause of the fire. Respondent responded by saying he did not know, or by shrugging his shoulders. He told Mattheus to list the cause as "unknown" if Mattheus could not determine a cause. Respondent also said to Mattheus on several occasions, "This is your fire." When Mattheus asked if Respondent was going to write a report on this fire, Respondent replied in the negative since this was Mattheus' fire. It is standard operating procedure for the first inspector on the scene to be the primary investigator who writes the report, and for other inspectors to assist the primary investigator. Mattheus was the primary investigator in this fire, and was in charge of the investigation. The terminology, "It's your fire," is commonly understood among firefighters and inspectors to mean that "you are in charge and will write the report." Respondent's use of this phrase in responding to Mattheus was therefore accurate and in recognition of standard operating procedures, and does not indicate any lack of cooperation on his part. Respondent was not ordered to conduct a "joint investigation," according to Captain Yaudes. When the term "joint investigation" is used, it is understood by firefighters and inspectors to mean an investigation which involves another agency, such as the State Fire Marshal's Office or the Electrical Department, in which the other department assists the Fire Department in trying to determine the cause of a fire. On June 14, 1985, the day prior to the Belleair fire, Respondent had called Inspector Jeff Daniels and expressed concern that life safety inspectors would be used to investigate fires since he felt they were not qualified. He also expressed concern about Inspector Mattheus' qualifications. Despite this prior expression of concern, when Respondent was ordered to the fire scene the next day, he did determine that Mattheus was qualified and assisted him as ordered. The testimony of Lieutenant Frank Hill and Firefighters John Milano and Charles Daniels, who were all at the scene on June 15, 1985, specifically confirms that Respondent and Mattheus worked together on the investigation without discord.
Recommendation Based upon the foregoing, it is recommended that the disciplinary charge against Respondent be dismissed, and that Respondent receive three days back-pay and the removal of all disciplinary points in his record arising from this charge. DONE and ENTERED this 27th day of January, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 27th day of January, 1986. COPIES FURNISHED: Miles Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Stuart M. Rosenblum, Esquire, 220 South Garden Avenue.C3 Clearwater, Florida 33516 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in part in Finding of Fact 4(c) and rejected in part in Finding of Fact 4(g). Adopted in Finding of Fact 4(a). Adopted in Finding of Fact 4(f). 4-6 Adopted in part in Finding of Fact 8, but otherwise rejected as irrelevant, unnecessary and not based on competent substantial evidence. Rejected in Finding of Fact 4. Adopted in Findings of Fact 4(h) and 6. Rejected in Finding of Fact 4(g). 10,11 Adopted in part in Finding of Fact 4(h), but otherwise rejected as irrelevant. Adopted in Finding of Fact 4(i). Rejected in Finding of Fact 4. Respondent did cooperate and assist as necessary. Adopted in Finding of Fact 4(h) and 6, but otherwise rejected as erroneously stating Respondent failed to aid Inspector Mattheus. 15,16 Rejected as simply a summation of testimony rather than a proposed finding of fact. 17 Adopted in part in Finding of Fact 4(e), but otherwise rejected as irrelevant and unnecessary. 18,19 Rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 8 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Rulings on Respondent's Proposed Findings of Fact, as contained in Sections A and B of Respondent's Memorandum, Proposed Findings and Conclusions of Law: Adopted in part in Finding of Fact 4 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. 4,5 Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 1 and 2. Rejected as irrelevant and unnecessary. 8-12 Adopted in Findings of Fact 4(a)-(e). Adopted in part in Finding of Fact 4(g), but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 4(h), (i). Adopted in Finding of Fact 6, but otherwise rejected as irrelevant. Adopted in Finding of Fact 3.
The Issue The issue in this case is whether the bachelor's degree curriculum by which the Petitioner, James E. Dalrymple, earned his degree "includes a major study concentration area readily identifiable and applicable to fire-related subjects," as set out in Section 633.382(2)(a)2., Fla. Stat. (1991), so as to entitle him to the firefighter supplemental compensation for which he has applied.
Findings Of Fact The Petitioner has a bachelor's degree in Communication Arts awarded by Judson College in Illinois on or about June 11, 1978. Judson College is accredited. The Petitioner's official sealed transcript from Judson College reveals that the Petitioner took no "fire-related" courses to get his degree. He did take courses in language arts and communication arts, such as: "English Language: Uses and Resources"; "Oral Interpretation and Mass Media"; "Language and Society"; "Man and Women"; "Analysis of Literature"; and "Mass Media in Contemporary America." Courses such as these are certainly compatible with and useful for work in the field of firefighting. But they, along with his other general study courses, do not reflect a "major study concentration area readily identifiable and applicable to fire-related subjects."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Insurance Commissioner, in his capacity as State Fire Marshal, and agency head of the Department of Insurance and Treasurer, Division of State Fire Marshal, enter a final order denying the application of the Petitioner, James E. Dalrymple, for firefighters supplemental compensation. RECOMMENDED this 22nd day of June, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 22nd day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2150 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department of Insurance and Treasurer's proposed findings of fact: 1.-5. Accepted but subordinate and unnecessary. 6.-7. Accepted and incorporated. 8. Accepted but conclusion of law. 9.-12. Accepted but unnecessary. COPIES FURNISHED: James E. Dalrymple 2816 Weston Terrace Palm Harbor, Florida 34685 Elizabeth J. Gregovits, Esquire Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times relevant to this matter, the Respondent was appropriately licensed by the Petitioner to operate an adult congregate living facility (ACLF), Enon Country Manor, in Pensacola, Florida. CASE NO. 88-5652 On October 9, 1986, an authorized representative of the Petitioner, James H. Temkin, a fire protection specialist, performed a complete routine fire safety inspection of Enon Country Manor. Mr. Temkin testified at the hearing following qualification as an expert witness in fire safety. During the October 9 inspection, Mr. Temkin found eleven deficiencies in the facility's compliance with fire safety regulations of the Petitioner. Mr. Temkin discussed the deficiencies with the Respondent and established a timeframe for the correction of the deficiencies. On December 9, 1986, Mr. Temkin again inspected the facility to determine whether the previously identified deficiencies had been timely corrected. At that time three deficiencies remained uncorrected. The remaining deficiencies were the lack of a documented fire safety plan including fire drills and alarm tests, the lack of steel supports for ceiling access panels, and the lack of one-hour fire rated construction of certain walls and ceilings including the inability to inspect certain locked rooms to which entry was not made available. The lack of a documented fire safety plan is a violation of Rules 10A- 5.023(15)(a), 4A-40.013, 4A-40.014 and 4A-40.017, Florida Administrative Code. The lack of steel supports for ceiling access panels is a violation of Rules 10A-5.023(15)(a) and 4A-40.005, Florida Administrative Code. The lack of one-hour fire rated construction is a violation of Rules 10A-5.023(15)(a) and 4A-40.005, Florida Administrative Code. The three deficiencies are classified as Class III violations under Section 400.419(3), Florida Statutes, which provides for the classification of violations of the ACLF operational standards established by the Department. Class III violations, are subject to a penalty of not less than $100.00 or more than $500.00 for each violation. The Petitioner has determined that in light of the nature of the violations and the prior history of the facility that a penalty of $250.00 for each of the three violations, or a total of $750.00, should be imposed. No evidence was presented to indicate that such a penalty was not warranted. CASE NO. 88-5649 On October 29, 1986, an authorized representative of the Petitioner, Richard Glover, performed a general operational inspection of Enon Country Manor for relicensure purposes. Mr. Glover testified at the hearing following qualification as an expert witness in general ACLF operations. During the October 29 inspection, Mr. Glover identified seventeen deficiencies in the facility's compliance with the operational standards regulations of the Petitioner. Mr. Glover discussed the deficiencies and established a timeframe for the correction of the deficiencies. On or about December 11, 1986, Mr. Glover again inspected the facility to determine whether the previously identified deficiencies had been timely corrected. At the time four deficiencies remained uncorrected. The remaining deficiencies included the failure of the facility to make fiscal records available for inspection, the failure to maintain a facility staff work schedule, the failure to maintain employee time sheets, and the failure to maintain a written kitchen cleaning schedule. The failure to make available the fiscal records of the facility is a violation of Rule 10A-5.024(1)(f), Florida Administrative Code. The failure to maintain a facility staff work schedule is a violation of Rule 10A-5.024(1)(a)(6), Florida Administrative Code. The failure to maintain employee time sheets is a violation of Rule 10A-5.024(1)(a)(7), Florida Administrative Code. The failure to maintain a written kitchen cleaning schedule is a violation of Rule 10A-5.020(1)(m), Florida Administrative Code. The failure to maintain a written kitchen cleaning schedule is a Class III violation under Section 400.419(3), Florida Statutes, and is subject to a penalty of not less than $100.00 or more than $500.00 for each violation. The Petitioner has determined that a fine of $100.00 is appropriate and no evidence was received which would indicate otherwise. As to the remaining violations, under the provisions of Section 400.419(4), Florida Statutes, they are unclassified and subject to a penalty not to exceed $500.00 for each violation. The Petitioner has determined that a fine of $250.00 should be imposed for the failure to make available the fiscal records, and that fines of $150.00 should be imposed for each of the two remaining violations. There was no evidence received which would indicate that such penalty was not appropriate.
Recommendation Based on the foregoing findings of fact, conclusions of law and failure of the Respondent to appear at hearing, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order imposing against the Respondent an administrative fine of $750.00 in Case No. 87-5652 and an administrative fine of $650.00 in Case No. 87-5649. DONE and ENTERED this 4th day of October, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 4th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5649 AND 87-5652 The Petitioner's proposed findings of fact were accepted as modified and reflected in the findings of fact in the Recommended Order. COPIES FURNISHED: Michael O. Mathis, Esquire Senior Staff Attorney Department of Health and Rehabilitative Services Office of Licensure and Certification 2727 Mahan Drive Tallahassee, Florida 32308 Alfred Q. Gregory Enon County Manor 7000 Lindskog Street Pensacola, Florida 32506 Sam Power, HRS 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
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
Findings Of Fact On September 3, 1992, petitioner, James Cardova, filed an application for certification as a firefighter with respondent, Department of Insurance and Treasurer, Division of State Fire Marshal (Department). Such application included a report of medical examination which reflected that petitioner was without vision in his left eye. Indeed, the proof at hearing confirmed that due to a childhood injury, petitioner had lost the use of his left eye, and it had been replaced by a glass prosthesis. By letter of September 21, 1992, the Department notified petitioner that his application was denied because he did not meet the medical standards established by the National Fire Protection Association (NFPA) in its pamphlet NFPA No. 1001, adopted by reference in Rule 4A-37.037(4), Florida Administrative Code. Specifically, Section 2 of NFPA pamphlet No. 1001 provides: 2-2 Medical Requirements for Fire Department Candidates. The candidate shall be rejected when the medical examination reveals any of the following conditions: * * * 2-2.7.1.9 Miscellaneous Defects and Disease. The causes for rejection of appointment shall be: * * * (b) Absence of an eye. In response to the Department's letter of denial, petitioner filed a timely request for formal hearing to contest the Department's decision. Here, the gravamen of petitioner's case is his contention that, notwithstanding the absence of his left eye, he is qualified to perform the duties of a firefighter and, therefore, under the provisions of the Americans with Disabilities Act, 42 USC 12101, et seq., the Department is obligated to grant his request for certification. Regarding petitioner's abilities, the proof demonstrates that petitioner has reasonably compensated for the absence of his left eye such that its absence does not significantly limit any of his major life activities. Moreover, petitioner has satisfactorily completed all of the basic firefighting school requirements, as well as the written and practical state examination. Indeed, among the firefighting instructors who know of him, petitioner's ability to perform the skills required of a firefighter is not deemed to be adversely affected by his loss of vision in one eye.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioner's application for certification as a firefighter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April 1993. WILLIAM J. KENDRICK 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 April 1993.
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.
