The Issue The issue presented for decision herein is whether or not Petitioner's facility meets the standards and qualifications to be eligible for licensure as an Adult Congregate Living Facility (ACLF).
Findings Of Fact Petitioner is the owner/operator of Old Cutler Retirement Home (Old Cutler) which is located at 19720 Old Cutler Road in Miami, Florida. Old Cutler has been functioning as an ACLF since at least 1981 and has been the subject of citations for violations of the fire and health safety codes which Respondent enforce. (Respondent's Dade County Health Report dated June 9, 1981.) On October 7, 1985, Respondent conducted a survey of Old Cutler and found the following deficiencies: the income and expense records for the facility were not available for review. services delivered for the facility by a third party contractor were not documented and placed in the residents' records. the facility did not have personnel policies and work assignments. the facility failed to provide assurances that (1) at least one staff member was on duty at all times who was certified in an approved first aid course; (2) staff that provided hygiene assistance was properly trained, and (3) staff was free of communicable disease. the facility did not have written job descriptions available for review. the employees were not furnished written policies governing conditions of employment. full bedside rails were observed in one resident's bed room. notations concerning drug disposition of a former resident's medication were not entered into the resident's file. the facility did not have policies and procedures to insure minimal leisure services for residents. the facility did not have procedures for assisting residents in making medical and related health appointments. residents' bedrooms did not have adequate space for hanging clothes. the facility did not have an adequate number of bathrooms for the residents. furniture at the facility was not kept in good repair. the facility smelled of a strong urine odor. the facility grounds were cluttered with debris and garden/construction equipment. the facility did not have a written main- tenance and housekeeping plan. Food Service irregularities (observed on October 7, 1985): the facility did not have food service procedures to provide for resident's nutri- tional care. the employee designated responsible for providing food service failed to demonstrate proper training of food service personnel purchasing sufficient food, (3) food service coordinated with other services, (4) duties were performed in a safe and sanitary manner, and (5) a knowledge of food that meets regular diets. the therapeutic diets did not meet the residents nutritional needs. there was no documentation of standardized recipes. menus were not planned, dated or posted as required. a week's supply of food was not on hand at the facility. food was not served at a safe, palatable temperature, as example, ambrosia fruit salad was kept and served at room temperature. food service was not properly carried out and the service was unsanitary in that spoiled and rotten food was stored in the refrigerator; the sinks and shelves were soiled, greasy and coated with debris; food was improperly thawed with standing hot water; hair restraints were not used; and at least one food service employee was observed smoking while preparing food. Additionally, on October 7, 1985, the laundry area did not provide the required one hour flame separation from the remainder of the facility. Also, the following fire safety irregularities were noted during the October 1985 survey: a manually operated fire alarm system with activating handles at each exit were not provided. smoke detectors powered by the electric current and interconnected to the fire alarm system was not provided. reports were not provided showing that the fire alarm system was tested quarterly. two means of egress are not provided for rooms 1 and 6. twenty-minute fire rated doors are not provided at all residents' doors. a commercial hood vented to the outside with an automatic extinguishing system is not provided. a key operated lock from the inside appears on the door of Room No. 13. there are obstructions in front of egress doors in room 3 and the dining area. the electric source supply to emergency lighting is provided by an extension cord. Petitioner has placed a mobile home immediately alongside the main facility at Old Cutler and the mobile home is situated closer than ten (10) feet from all sides of Old Cutler. The curtains, drapes, interior walls and ceilings of the mobile home do not provide either the requisite flame spread or are not flame proof as required. The mobile home is not equipped with approved smoke detectors in each room and the east/west end exits are either blocked or difficult to egress. Finally, there are no approved steps at the east exit of the mobile home. These conditions have existed in the mobile home since at least April 1981 and Petitioner has failed to take any corrective action to bring the above-noted irregularities into compliance (Respondent Exhibit 5). Respondent sent its staff along with members of the Ombudsman Council to again survey Petitioner's facility on March 9, 1987. As of that date, Petitioner has not shown any intent to correct the numerous deficiencies noted herein. Additionally, Petitioner advised Human Services Program Supervisor Alvin Delaney that she did not intend to bring her facility into compliance. As noted in the Appearances section of this Recommended Order, Petitioner did not appear at the hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: Respondent enter a Final Order denying Petitioner's application for licensure as an Adult Congregate Living Facility and cancel the conditional license which was issued to Petitioner. RECOMMENDED this 2nd day of April 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 April 1987.
The Issue Whether a civil penalty should be imposed upon the Petitioner for alleged violations of Chapter 400, Part II, Florida Statutes?
Findings Of Fact The Petitioner owns an adult congregate living facility. On May 28, 1985, Jim Temkin, an employee of the Respondent, inspected the Petitioner's facility. As a result of this inspection, Mr. Temkin noted four violations of the rules and regulations governing the operation of Florida adult congregate living facilities. (Other deficiencies, not relevant to this proceeding, were also noted). The deficiencies noted in Mr. Temkin's May 28, 1985, inspection report were as follows: ACLF 1 Styrofoam plastic ceiling is used in the dining room, sleeping rooms, hallway, bathrooms and laundry, the kitchen has a particle board ceiling all of which appear to be combustible. . . . . ACLF 2 The kitchen has a gas range and an electrical range without exhausts or automatic extinguishing systems. . . . . ACLF 3 The outside chimney stark [sic] for the gas heater in the resident dining room does not extend above the roof. . . . . ACLF 5 Bed No. 1 & No. 2 have unprotected windows into the dining room. The deficiencies quoted in finding of fact 3 (hereinafter referred to as "ACLF 1, 2, 3 or 5"), were discussed with the Petitioner by Mr. Temkin at the conclusion of his inspection. The Petitioner was given the opportunity to select reasonable dates for correction of the problems noted by Mr. Temkin. The Petitioner accompanied Mr. Temkin during his inspection on May 28, 1985. The following dates were agreed upon by the Petitioner and Mr. Temkin for the correction of the deficiencies noted in finding of fact 3: ACLF 1: February 1, 1986. ACLF 2: September 28, 1985. ACLF 3: July 8, 1985. ACLF 5: July 8, 1985. On March 24, 1986, Mr. Temkin returned to the Petitioner's facility to determine if the deficiencies noted in his May 28, 1985, report had been corrected. Deficiencies ACLF 3 and 5 had not been corrected. Deficiencies ACLF 1 and 2 had only been partially corrected. Therefore, as of March 24, 1986, the Petitioner had failed to correct the deficiencies within the correction periods agreed upon by the Petitioner and the Respondent. ACLF 1 involved the use of materials for the roofs of the rooms noted by the Respondent in violation of Section 6-5.1.3 of the Life Safety Code, National Fire Prevention Association Codes and Standards. Use of these materials constituted an indirect hazard to residents of the facility. As of March 24, 1986, the hazardous material had been replaced with sheet rock in only the back bedrooms. ACLF 2 involved the use of a range without proper fire protection. Failure to have the proper protection constituted an indirect hazard to residents because fire could easily spread from the kitchen to other parts of the facility. The Petitioner could have chosen from at least two methods to correct this problem. The Petitioner chose to install fire doors on the two exists from the kitchen. As of March 24, 1986, only one door had been installed. ACLF 3 involved an outside exhaust from a gas heater. Mr. Temkin estimated that the exhaust extended only 9 inches above the roof. Mr. Temkin did not measure the exhaust. Instead, Mr. Temkin merely observed the exhaust from the ground. Mr. Temkin's estimate is insufficient to prove that the exhaust was less than 2 feet above the roof. ACLF 5 involved two windows between two bedrooms and the "dining room." In fact, the windows were between two bedrooms and a sitting room; not the dining room. These windows did not, however, provide sufficient protection from fire outside the bedrooms to meet Chapter 17 of the Life Safety Code, National Fire Prevention Association Codes and Standards. The windows constituted an indirect risk to residents because fire could easily spread from the sitting room into the bedrooms. On May 1, 1986, Mr. Temkin inspected the Petitioner's facility again. ACLF 1, 3 and 5 had still not been corrected. Therefore, a new date was agreed upon for the correction of these items: August 1, 1986. The new date was not an extension of time. The new date was given simply because the Petitioner had failed to meet the originally prescribed date and a completion date had to be re-established. At no time before or after the original completion dates for ACLF 1, 2, 3 and 5 did the Respondent agree to a different completion date in substitution of the original dates or extend the original extension dates. The Petitioner took steps to correct ACLF 1, 2, 3 and 5. The steps taken by the Petitioner were not, however, successful in insuring that the deficiencies were corrected by the completion date originally agreed to by the Petitioner and the Respondent. The Petitioner has not been charged at any other time with a violation of the law applicable to the operation of an adult congregate living facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Petitioner be found guilty of, and a total civil penalty of $200.00 be imposed for, violating the Class III deficiencies identified by the Respondent as ACLF 1 and 2. It is further: RECOMMENDED: That the Petitioner be found not guilty of the Class III deficiencies identified by the Respondent as ACLF 3 and 5. DONE and ORDERED this 22nd day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 22nd day of January, 1988. COPIES FURNISHED: Narvel Armstrong, pro se Post Office Box 261 Vernon, Florida 32462 John R. Perry, Esquire Assistant District 2 Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 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
The Issue The issues to be resolved in this proceeding concern whether violations of Section 509.032, Florida Statutes, and Rule 61C-1.004(5), Florida Administrative Code, as well as Chapter 4A-3, Florida Administrative Code, had been committed by the Respondent in terms of two specific safety violations allegedly occurring at the Respondent's lodging establishment.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the operation of hotel or lodging establishments in accordance with Section 20.165, Florida Statutes, and Chapter 509, Florida Statutes. The Respondent, at all times material hereto, has been licensed or otherwise subject to the Petitioner's jurisdiction. On September 28, 2001, and again on October 16, 2001, an inspector of the Division of Hotels and Restaurants (Division) inspected the Respondent's lodging premises. The Division inspector noted certain deficiencies at her first inspection and that those deficiencies where still outstanding and uncorrected at the end of her second inspection at that location. In light of the deficiencies noted at both inspections, the Division issued its Administrative Complaint on November 16, 2001, alleging that the fire extinguisher near Apartment Number One was in the "re-charge zone," meaning that it was inoperable on September 28, 2001, and was missing on October 16, 2001. The Complaint also charged that the balcony railing near Apartment Number Four was loose and, therefore, in an unsafe condition in violation of Rule 61C-1.004(5) and (6), Florida Administrative Code. In response, the Respondent testified that he does not live on the premises and that, although the fire extinguisher deficiency has occurred repeatedly, it is because children who are present on the premises keep discharging it. He testified that whenever it has been discharged he, or his maintenance man, immediately has it recharged by the Daytona Fire and Safety Company. Mr. Rampersad also testified that he did everything in his power to bring the railing up to proper code requirements by re-drilling holes and re-anchoring the railing in concrete. He contends that an "inspection supervisor" observed the railing and opined that it had been brought up to code, but there is no direct evidence of that observation. He established that, as of the time of the hearing, all necessary repairs to the railing had been made and that the fire extinguisher was charged and fully operable. He testified that at the time the fire extinguisher was missing upon the re-inspection date, found above, that it was at the service company being recharged.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Business and Professional Regulation, imposing a fine in the amount of $750.00; That the Respondent's license be suspended for six months, but with the suspension held in abeyance contingent upon timely payment of the administrative fine being received upon a schedule agreed to between the Respondent and the Director of the Division of Hotels and Restaurants. The failure to continue to make timely payments of the fine amount should result in imposition of the suspension of the Respondent's license; and That the Respondent be required to attend a Hospitality Education Program class under the auspices of the Petitioner within 60 days of the date of the final order herein and to provide satisfactory proof thereof to the Division of Hotels and Restaurants. DONE AND ENTERED this 8th day of January, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2003. COPIES FURNISHED: Milton Rampersad 1201 Kennedy Road, Apartment 19 Daytona Beach, Florida 32117 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaints, the Respondent, Freed Towers, Ltd., was a business association between June E. Freed and Audley L. Freed, husband and wife, who owned and operated it as an Adult Congregate Living Facility, located at 1029 7th Avenue East, Bradenton, Florida. The facility was licensed for 50 apartments, (100 beds). Petitioner, Department, was and is the state agency responsible for licensing the operation of ACLFs in Florida. On January 10, 1989, Tami J. Smith, a human services program analyst with the Department Office of Licensure and Certification in Tampa, along with a team consisting of a dietitian and a fire inspector, inspected the Respondent's facility located in Bradenton. During the course of the inspection, Ms. Smith noted that Respondent's records on six employees failed to include the statement that the employees were free from disease or other communicable illnesses. Ms. Smith also noted that a portion of the carpet in the dining room was dirty and displayed numerous coffee stains. During the same inspection, another member of the team, Mr. Scharnweber, the fire protection specialist, noted that the quarterly smoke detector inspections and tests had not been conducted or documented; the quarterly fire alarm pull station tests had not been conducted or documented; the automatic sprinkler system had not been inspected or documented quarterly; several portable fire extinguishers had not been inspected within the past year; and the fixed extinguishing system for the protection of cooking equipment in the kitchen did not display a current semiannual inspection tag. The team consisting of Ms. Smith and Mr. Scharnweber returned to the facility on a follow-up inspection on May 1, 1989. At that time Ms. Smith noted that of the six employee records which had previously failed to contain the required health certificate, four had been corrected but two had not. At the same time, she noted that on the May 1 visit, an effort had been made to clean the carpet but it was not done correctly. Because an effort had been made, however, she noted that on the inspection report and indicated that the deficiency was under correction. On July 12, 1989, Ms. Smith returned to the facility for a second follow-up inspection. At that time she noted that one of the previously noted employee files still did not have the required health certificate, and the carpet was still unsatisfactorily dirty. As a result, she wrote up both deficiencies. Mr. Scharnweber conducted a follow-up inspection in his area on April 28, 1989 and found at that time that no corrective action had been taken. A follow-up conducted at the same time as that done by Ms. Smith on July 12, 1989 indicated the required tag was still not on the cooking equipment, but the other discrepancies had been corrected. When the initial inspection was concluded on January 10, 1989, prior to leaving the facility the inspection team met with the facility operators and went over each of the noted discrepancies, identifying the problem and giving suggestions as to how each could be corrected. They also discussed with the operators an appropriate time for correction and entered into an agreement as to that matter. On January 23, 1989, the Department sent a copy of the inspection report, with proposed correction dates, to the operators and on January 30, 1989, Gary C. Freed, then the Administrator of the facility and the son of the Mr. and Mrs. Freed previously identified, signed and returned to the Department an acknowledgment of receipt of the list of discrepancies and the agreed upon correction dates. The testimony of Ms. Smith and Mr. Scharnweber, as included in the above Findings of Fact, clearly establish that the initially identified deficiencies were not corrected in full consistent with the time frame agreed upon by the parties. The Freeds opened the facility in May, 1988 with their son, Gary, as Administrator. Gary ran it until April, 1989. It was obvious to the Freeds at that time that he was not properly operating it and he was removed as Administrator in April, 1989. At that time, Mrs. Freed took over as Administrator and was certified in that position at the earliest possible time. When Mrs. Freed took over she found the business was unable to afford to hire a trained Administrator and was unable to expend the monies necessary for immediate and full correction of the deficiencies identified by the inspectors. In fact, she recognized there were many discrepancies which needed correction and claims it was overwhelming to anticipate doing all which had to be done in the time frame given. With regard to the medical certificates, Mrs. Freed claims that she made considerable effort to convince her employees to comply with the requirement for proper certification. She states that each employee had a doctor's certificate but those certificates did not contain the required statement that the employee was free of communicable disease. It was only when she threatened to fire any employee who did not provide the appropriate certificate that she was able to secure everyone's compliance. Unfortunately, she missed one. As for the carpet deficiency, she claims the carpet is constantly being cleaned and an effort made to insure it is within compliance. A cleaner is rented periodically, but she admits many of the employees and residents are careless and spill on the rug and that it is impossible to keep the rug in a pristine condition. This argument is not persuasive as justification for the failure to bring the carpet within standards. As licensees and operators, the Freeds are bound to insure that employees meet state requirements and that the facility meets state standards. Mr. Freed claims that when he first took over the facility, even though county fire authorities had inspected and found his fire protection system to be adequate, upon notification by the Department of the need for additional fire extinguishers, he immediately purchased five new ones. With regard to the kitchen equipment, Mr. Freed claims it was of the proper kind and properly installed, and that if any deficiency exists, it was solely in the failure to display the proper tag. This is all that is alleged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Secretary issue a Final Order as to both consolidated files, assessing a total Administrative Fine of $500.00 against the Respondent. RECOMMENDED this 21 day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21 day of July, 1990. COPIES FURNISHED: Edward A. Haman, Esquire DHRS Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 June E. Freed Audley L. Freed Freed Towers 1029 7th Avenue East Bradenton, Florida 34208 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Division assess against Fader t/a Fader's Rooming House an administrative fine in the amount of $100.00. DONE and ORDERED this 30th day of March, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-3575 FILED with the Clerk of the Division of Administrative Hearings this 30th day of March, 1984.
