Findings Of Fact During times material hereto, Respondent, Ray C. Dorman, is the owner and administrator of Scarlet Manor. Scarlet Manor is an adult congregate living facility at 13009 Lake Carl Drive in Hudson, Florida. The facility has a census of 40 beds and of that census, two residents are elderly patients and the remaining 38 residents are "hard core" mental patients who require intensive and specialized nursing care. Ray Dorman (Respondent) is named as the confirmed perpetrator of neglect (FPSS No. 90-091417) based on a finding that Respondent neglected a resident at the ACLF. A certified letter from Petitioner dated September 22, 1990, which was received by Respondent on September 27, 1990, advised Respondent that he could challenge the confirmed finding of neglect if he considered that the classification was inaccurate or that it should otherwise be amended or expunged. Although Petitioner maintains that Respondent failed to challenge the confirmed finding of neglect, Respondent and his wife, Winifred Dorman, credibly testified that on October 10, 1990, she accompanied Respondent to an HRS office in Clearwater to deliver a written request to challenge the finding of neglect. While the office which would have addressed Respondent's challenge (Mr. Morton's office) is situated in St. Petersburg, on that point, it appears that Respondent's wife was either unclear as to exactly where the Respondent's challenge to the confirmed classification was delivered and nothing more. Respondent's facility has been the subject of regular survey reports wherein it was determined that Respondent's facility was deficient in maintaining minimum licensure requirements based on inspection surveys dating back to September, 1989. Mrs. Diane Cruz, a human services surveyor specialist employed by Petitioner, was part of a three (3) member team of surveyors at Respondent's facility during late September, 1989. During the September, 1989 survey, it was determined that Respondent's facility was deficient in several areas including fiscal policies, facility records, client records, medication records, staffing, food service standards, maintenance and housekeeping standards, resident care, admission criteria and fire safety standards. In all of the cited areas, Respondent corrected the deficiencies and no cited deficiency was outstanding at the time of the hearing herein. Significantly, of the numerous deficiencies that Respondent was cited, only three of the deficiencies were repeat deficiencies during the annual 1990 annual survey. Respondent's facility is a fairly new and modern facility and Respondent prides himself in providing his residents the high degree of nursing services which the residents of his ACLF require. In this regard, in each instance wherein Respondent was cited for deficiencies, the matter was corrected by the time that the follow-up survey was conducted with only two exceptions. Regarding those exceptions, Respondent credibly testified that he had undertaken a good faith effort to correct the deficiency by the time of the follow-up survey. In any event, all of the cited deficiencies were corrected and Respondent has abided by the terms of any restrictions including the payment of any administrative fines which were imposed by Petitioner. Such conduct evidences that Respondent is conscientious in the operation of his adult congregate living facility and, to his credit, more than one of and Petitioner's witnesses testified that Respondent operates a good ACLF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent a conditional license to operate Scarlet Manor as an adult congregate living facility. 1/ Afford Respondent an opportunity to challenge the confirmed classification naming him as the perpetrator in FPSS Report No. 90-091417 as soon as practical. DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991.
The Issue The issue in this case is whether the Agency for Health Care Administration should deny Petitioner's application for renewal of its standard assisted living facility license with a limited mental health component.
Findings Of Fact The Agency is responsible for licensing and regulating assisted living facilities in Florida pursuant to Part III, Chapter 400, Florida Statutes (2001). Pursuant to that responsibility, the Agency is authorized to conduct surveys and follow-up surveys, to make visits and inspections of assisted living facilities, and to investigate complaints. Oakland Manor is an assisted living facility located at 2812 North Nebraska Avenue, in Tampa, Florida, licensed and regulated pursuant to Part III, Chapter 400, Florida Statutes (2001), and Rule Chapter 58A-5, Florida Administrative Code. The facility's license has a limited mental health component. Rory and Lisa McCarthy have owned and operated Oakland Manor since about December 1999. Mrs. McCarthy is the administrator of the facility. Between the dates of December 14, 2000 and September 18, 2001, the Agency conducted three appraisal visits, a moratorium monitoring visit, a complaint investigation, and a biennial license renewal survey of the facility. The Agency noted the results of these inspections on a form referred to as Agency Form 3020-0001 ("Form 3020"). The Form 3020 is the document used to charge assisted living facilities with deficiencies that violate applicable law and rules. The Form 3020 identifies each alleged deficiency by reference to a tag number. Each tag of the Form 3020 includes a narrative description of the allegations against the facility and cites the relevant rule or law violated by the alleged deficiency. In order to protect the privacy of the residents, the Form 3020 and this recommended order refer to the subject resident by a number rather than by a name. There are 24 tags at issue in the proceeding, some having been cited as repeat or uncorrected deficiencies. An uncorrected deficiency is one that was previously cited and has not been corrected by the time designated or by the time of the Agency's follow-up visit. A repeat deficiency is one that the facility has been cited for and that has been corrected, but after the correction, the deficiency occurs again. Section 400.419, Florida Statutes, requires that the Agency assign a class rating to the deficiencies alleged in its Form 3020. The classification rating assigned to a deficiency is based on the nature of the violation and the gravity of its probable effect on facility residents. On December 14, 2000, the Agency conducted an appraisal visit of Oakland Manor. As a result of this visit, the Agency cited the facility with four Class III deficiencies, including a Tag A519 deficiency for failure to maintain minimum staffing to meet the residents’ needs, a Tag A1001 for failure to provide a safe environment, Tag A1024 for failure to provide beds for two residents, and Tag A1033 for failure to provide each bathroom with a door in good working order to ensure privacy for residents. The Agency conducted a second appraisal visit of Oakland Manor on March 12, 2001, and cited the facility for seven deficiencies, including three uncorrected deficiencies from the December 14, 2000, visit. According to the Form 3020 for the March 12, 2001, appraisal visit, the uncorrected deficiencies were cited as Tag A519, for failure to provide minimum staffing; Tag A1001, failure to provide a safe environment; and Tag A1024, for failure to provide clean, comfortable mattresses. In addition to the alleged uncorrected deficiencies, the Agency cited the facility for four new deficiencies under Tag A210, Tag A212, Tag A523, and Tag A1004. Tags A519, A523, and A1001 were rated as Class II deficiencies. The other tags cited were rated as Class III deficiencies. Because the Agency found new violations of Tags A519, A1001, and A1024, and deficiencies under those same tag numbers were identified in December 2000, the Agency deemed those violations or deficiencies to be uncorrected deficiencies. On March 13, 2001, the day after the second appraisal visit, the Agency entered an Order of Immediate Moratorium ("Order"). The Order was based on the alleged violations cited from the March 2001 appraisal visit and stated that the conditions at the facility presented a significant threat to the health, safety or welfare of the residents. Under the Order, Oakland Manor was prohibited from admitting any residents. On June 13, 2001, the Agency conducted a complaint investigation based on a complaint that the Agency had received. The Form 3020 summarizing the Agency's findings during the June 13, 2001, investigation did not cite Oakland Manor for any continuing violations, but alleged that there was a violation of Tag A1114, relating to staff records standards. The A1114 deficiency was assigned a Class II violation. The Agency conducted a biennial license and limited mental health renewal survey on June 28, 2001. This survey is required for continued licensure. As a result of the biennial survey, the Agency cited Oakland Manor with the following ten deficiencies, none of which had been previously cited: Tags L200, L201, L202, L203, L400, A525, A634, A1005, A1101, and A1103. All of these tags were assigned Class III ratings. On September 18, 2001, the Agency conducted an appraisal/monitoring visit. As a result of this visit, the Agency cited Oakland Manor with two violations, Tag A519, related to staffing standards, and Tag A1004, related to physical plant standards, both of which were assigned Class III ratings. Because Oakland Manor was cited for deficiencies under Tag 519 during the March 12, 2001, visit, the Agency noted that the deficiency of Tag A519 was a repeat violation. The Form 3020 for each survey or visit indicated when each alleged violation should be corrected. In some cases, a specific date was given. In other instances, the correction was to be implemented "immediately." DECEMBER 14, 2000, APPRAISAL TAG A519 Tag A519 requires a facility to maintain the minimum staffing hours set forth in Rule 58A-5.019(4), Florida Administrative Code. Because Oakland Manor had a resident census of 26 in November 2000 and through the first two weeks of December 2000, the facility was required to have minimum staff hours of 294 per week. Based on a review of the facility's staffing schedule for the time in question, the Agency surveyor properly concluded that the facility did not maintain the required minimum staff hours of 294 in November 2000 and the first two weeks of December 2000. As a result of this finding, the Agency properly cited Oakland Manor with a Tag A519, Class III deficiency. DECEMBER 14, 2000, APPRAISAL: TAG A1001 The second violation for which Oakland Manor was cited was a Tag A1001 deficiency, which requires that assisted living facilities "be located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents." See Rule 58A- 5.023(1)(a), Florida Administrative Code. The violation was rated as a Class III deficiency. The allegation that Oakland Manor failed to meet the requirements of Tag A1001 is based on the following observations noted on the Form 3020: there were electrical wires and light fixtures hanging loose from the ceiling in the hallway on the first floor; the residents' room walls were dirty, the rooms had a foul odor and the smell of urine; the floors of the facility were dirty; residents were observed smoking in their beds; the toilet tank lid was missing; and discharge water from the washing machine in the breezeway was running over the walkway in the patio area. At the time of the survey, one resident's room had dirty walls and also had a foul odor. The floors of the facility were dirty and had food particles on them, and the facility had an "unpleasant odor." Also, two residents were observed smoking in their bedrooms, despite the facility's no smoking policy. Contrary to the observation noted on the Form 3020, there were no light fixtures hanging loose from the ceiling, nor had that situation ever existed. At hearing, there was no evidence presented by the Agency that there were light fixtures hanging loosely from the ceiling. The electrical wires, referred to in the Form 3020, were slightly visible and coming from a 9-foot ceiling. However, there were wire nuts on the wires and, thus, the wires were not a danger to the residents. There was water coming from the washing machine as noted by the Agency surveyor. Mr. McCarthy does not deny that allegation, but the water coming from the washing machine was "feed" water going into the machine and not "discharge" water as noted in the Form 3020. This problem was resolved the following day when Mr. McCarthy purchased and had a new washing machine installed. The surveyor observed one toilet that did not have a toilet tank lid. The owners do not dispute this, but the lid was not "missing" as noted on the Form 3020, but had likely been removed by one of the residents. When a resident removes the toilet tank lid, staff members routinely replace the lid. The surveyor was unaware of any regulation that requires the facility to secure the lids to prevent the residents from removing them. DECEMBER 14, 2000, APPRAISAL: TAG A1024 The third alleged violation for which the facility was cited was Tag A1024, which refers to the physical plant standard set forth in Rule 58A-5.023(4)(e), Florida Administrative Code. That standard requires that each resident bedroom or sleeping area, where furnishings are supplied by the facility, shall at a minimum, be furnished with, among other things, a clean comfortable bed with a mattress. It is alleged that this standard was not met as evidenced by the observation that the mattress in Room No. 10 was torn, and the filler appeared to be coming out of the mattress. The undisputed testimony was that the torn mattress was not being used by any resident of the facility, but was a mattress that was not being used. The Notice of Intent to Deny mischaracterizes the surveyor's findings under Tag A1024 as "failure to provide beds for two residents." This allegation was not addressed or proven by the Agency. DECEMBER 14, 2000, APPRAISAL: TAG A1033 The fourth alleged violation, cited under Tag A1033, relates to the physical plant standard set forth in Rule 58A- 5.023(5), Florida Administrative Code. That standard requires that each bathroom have a door in working order to assure privacy and that the entry door to the bathrooms with a single toilet is required to have a lock which is operable from the inside by the resident, with no key needed. The Agency alleged that this standard was not met in that the bathroom door on the first floor was not operable because the door was missing the striker plate that keeps the door tightly closed into the frame. The Agency noted that as a result of this alleged defect, residents using that bathroom did not have privacy. Based on Mr. McCarthy's testimony, there was a door leading into the bathroom, which had a working lock. In addition, the door with the missing striker plate had a hook and eye that allowed the door to be secured from the inside. MARCH 12, 2001, APPRAISAL TAG A519 Tag A519 requires the facility to meet the minimum staffing required by Rule 58A-5.019(4), Florida Administrative Code. Based on the resident census of 25 for March 4-12, 2001, and the surveyor's review of the staff work schedule for that week, Oakland Manor was cited for a Tag A519 deficiency. According to the facility's staff work schedule, there were 208 total staff hours for that week and not the required minimum staffing hours. The Form 3020 stated that the "[l]ack of adequate staffing has resulted in a malfunctioning sewage system which poses an immediate risk to the residents, staff, and public." In making this allegation, the Agency apparently assumed that the residents caused the sewage system problems and that if there had there been adequate staffing, these problems would not have occurred. The Agency then alleged that the malfunctioning sewage system posed an immediate risk to the residents, staff, and public. However, these assumptions and allegations are not supported by any evidence. There is no evidence that the sewage system problems were caused by the residents and/or lack of staffing. Moreover, there is nothing in this record which supports the claim that the malfunctioning sewage system posed an "immediate risk" to the residents, staff, or public. Clearly, there was a Tag A519 deficiency in that the facility failed to maintain the weekly minimum staff hours required. Also, because the facility had been cited for a Tag A519 deficiency during the December 14, 2000, appraisal, the Agency properly found that the Tag A519 deficiency, cited during the March 12, 2001, appraisal was an uncorrected deficiency. However, in this instance, the violation did not "directly threaten the physical or emotional health, safety, or security of the facility residents." Accordingly, the violation is not a Class II deficiency, as alleged by the Agency, but is a Class III deficiency. MARCH 12, 2001 APPRAISAL: TAG A523 As stated on the Form 3020, Tag A523 requires that, notwithstanding the minimum staffing ratio, all facilities have enough qualified staff to provide resident supervision, and provide or arrange for resident services in accordance with resident scheduled and unscheduled service needs, resident contracts, and resident care standards. See Rule 58A- 5.019(4)(b), Florida Administrative Code. The Agency alleged that Oakland Manor failed to meet this standard. The determination that Oakland Manor failed to meet the standard required by Tag A523 was based on the surveyor's observation and interview with the facility administrator. On the day of the survey, from 9:30 a.m. to approximately 11:00 a.m., the surveyor noticed that there was a strong odor of sewage coming from the basement area and standing water on the basement floor. The surveyor learned from the administrator that the matter came to her attention that morning and that a plumber had been called and had corrected a similar problem a week earlier. Mr. McCarthy explained that the lift station malfunction and the overflow of sewage into the basement had occurred the day of the Agency inspection. After a plumber came to the facility to repair the lift station and was unable to do so, an electric company was called and came out and immediately repaired the lift station. The Form 3020 notes that when the lift station backed up the week before, the plumber found t-shirts, garbage bags, bandannas, and a stick of deodorant clogging up the lift station. From this alleged statement, the surveyor erroneously concluded that some of the residents had thrown these and possibly other items into the lift station. In view of this assumption, the surveyor alleged on the Form 3020 that: The lift station back up is occurring due to a lack of supervision of qualified staff to provide resident supervision and allowing the residents to freely access the lift station in the yard and put items in it. The size and accessibility of the lift station also poses a threat to residents due to the possibility of a fall while throwing in inappropriate items. The lift station was in the yard of the facility, but the residents do not have free access to the lift station, except the top external lid of the lift station. The residents can not remove the lid covering the lift station because the lid is made of steel and weighs over 200 pounds. Accordingly, the residents can not throw items in the lift station and, thus, there is no threat to the residents "due to the possibility of a fall while throwing" items into the lift station, as alleged by the Agency. The Agency deemed the Tag A523 violation as a Class II deficiency and required that the facility correct the deficiency immediately. The Agency failed to establish this allegation. MARCH 12, 2001, APPRAISAL: TAG A1001 The standards of Tag A1001 are stated in paragraph 20. Based on the surveyor's observations, Oakland Manor was again cited for a Tag A1001 deficiency. Tag A1001 was deemed by the Agency to be an uncorrected deficiency and designated a Class II violation. In the Form 3020, the Agency listed the following 12 alleged facts as the basis for the cited deficiency: Two large ladders were lying on the floor in the hallway, partially blocking access through the hallway. The bathtub and shower in the first floor shower room were badly stained and mildewed. In Room No. 1, the toilet was not working and there was an accumulation of feces in the toilet bowl. In Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. The wall and floors throughout the facility were dirty. In Room No. 8, there was an electric space heater in front of full length curtains. In Room No. 10, there were cigarette butts on the floor and the resident in the room was observed smoking, although smoking is not allowed in the facility. In the second residential building, the first bathroom had a dirty floor and the vinyl was very worn and there was no lid on the "toilet back." In the second residential building television room, there was a resident smoking even though there is a no smoking sign posted. There was a strong sewer odor emanating from the facility basement and the basement had standing water. The staircase to the second floor of the main building was covered with dirt and grime. The overhead light in the second floor hallway was not working and the staircase was very dark. The ladders, referred to in the Form 3020, were not lying on the floor but were leaning against a recessed part of the wall in the hallway. They were not blocking the passageway and, even with the ladders in the hallway, there was enough room for a 215-pound man to walk through the hall into the adjacent room. The reason the ladders were in the hall was that Mr. McCarthy was painting the facility. At the end of each day, when Mr. McCarthy was finished painting, he stored the ladders in an office in back of the kitchen or in a shed in the back of the facility. The surveyor reported that the bathtub and shower in the first floor shower room were badly stained and mildewed. Mrs. McCarthy testified that the shower stall is made of heavy marble and is original to the 100-year-old house and that many of the stains can not be scrubbed off. The substance the surveyor described as mildew was shampoo. The toilet in Resident Room No. 1 was described in the Form 3020 as having an accumulation of feces and not working. The toilet was stopped up, but was working and was put back into flushing order that same day, immediately upon the problem being called to her attention. The residents in that room placed female products in the toilet and caused it to stop up. However, the toilet was functioning in all respects when it was not stopped up. In Resident Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. This was not disputed. Every shift, staff is suppose to sweep, mop, and make sure that the room is cleaned out, but sometimes the residents put their laundry on the bed. The walls and floors throughout the facility were dirty as reported in the Form 3020. In an effort to keep the walls clean, they are painted every three or four months. The Agency surveyor observed a space heater in Room No. 8, which she characterized as a fire hazard. However, the heater was not plugged in and was not in use at that time. When the heater is in use, it is in the middle of the room and not near the curtain. In Room No. 10, the surveyor observed cigarette butts on the floor and the resident in the room was observed smoking, even though the facility had a no smoking policy and all residents were given copies of that policy, upon admission. In Oakland Manor’s second residential building, the surveyor observed that the floor was dirty and the vinyl was torn, and there was no lid on the toilet back. Mr. McCarthy confirmed that the vinyl was worn and did not dispute that the floor was dirty. At the time of the Agency inspection, the worn dirty vinyl was in the process of being replaced. With regard to the toilet backs, the residents remove the toilet tank lids, but they are always put back on. The Agency surveyor observed a resident smoking in the television room, even though there was a “No Smoking” sign posted in the room. At Oakland Manor, smoking in violation of the house rules is a continuing problem that the administrator and staff make efforts to correct. The Agency surveyor observed that there was standing water in the basement and a strong sewer odor coming from the basement. Other facts related to this observation are discussed in paragraphs 35 and 36. Mrs. McCarthy does not dispute this allegation, but the problem was promptly correctly. Mr. Carthy corrected the problem within 48 hours; he went into the basement and “squeegeed” all the standing water and otherwise treated the floor to dry it and deodorize it. The surveyor determined that the overhead light in the second floor hallway of the main house was not working. She reached this conclusion after she first observed the dark hallway and then tried to turn on the light and was unable to do so. There is no indication that the surveyor asked facility staff to turn on the light or inquired as to how the switch worked. The light operates by a three-way switch, and although there are two switches, only one of them turns on the light. Also, there are two lights in the stairwell so that if one light is burned out, the other one still works, but it does not appear that the inspector knew how to operate the three-way switch. No testimony was presented by the Agency regarding the allegation concerning the staircase to the second floor of the main house. Based on the Agency’s findings in the paragraph 40-d, e, and j, above, the facility was properly cited for the Tag A1001 deficiency. This was an uncorrected deficiency. MARCH 12, 2001, APPRAISAL: TAG A1004 Tag A1004 requires that all windows, doors, plumbing, and appliances in assisted living facilities be functional and in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. According to the Form 3020, Oakland Manor failed to meet this standard as evidenced by windows in the facility that were not functional and in good working order and failing to promptly repair broken glass, which "may result in injury to residents or staff." The surveyor observed the following: a large window pane in the front door was broken, the lower window pane in the dining room window was covered over with plywood, the first floor rear bathroom window was hanging off the hinge and the screen was missing; and the window pane of the outside door leading to the ramp was broken and covered with a garbage bag. The owners do not dispute that the pane in the front door was broken, but testified that the material was not glass, but Plexiglas. The door had been broken by one of the residents the day of the survey. Mr. McCarthy replaced the Plexiglas pane the same day and, four or five days later, replaced the entire front door with a solid door. As to the allegation that the lower half of the dining room window was covered with plywood, that there was not a glass pane in the lower part of the window. Rather, the plywood was placed there instead of the glass and was put in with trim molding and sealed with caulking. It appears that the window was designed that way to serve as a "fixed" window. The Agency acknowledged that window had been like that before the McCarthys purchased the facility. Moreover, the Agency had not previously indicated that this was a violation of any regulation. Although the Agency offered no suggestions to address its concern with the “fixed” window, Mr. McCarthy replaced the plywood with Plexiglas in an attempt to comply with the Agency requirements. The surveyor's observation regarding the first floor rear bathroom window was reversed. There was a screen on hinges that opened and closed and the top hinge of the screen was pulled out and hanging over a bit. However, the screen was there and the window was functional. Mrs. McCarthy does not dispute that the outside door had a broken glass pane that was covered with a garbage bag. The glass pane had been broken out earlier that day and the entire door was replaced within a day or so of the Agency's appraisal visit. The observations noted in paragraph 61 constitutes a violation of Tag A1004. MARCH 12, 2001, APPRAISAL: TAG A1024 The Tag A1024 requires that each resident room in an assisted living facility be furnished with, among other things, a clean comfortable mattress. See Rule 58A-5.023(4)(e)1., Florida Administrative Code. According to the Form 3020, the Agency alleged that Oakland Manor failed to comply with this standard in that "the facility did not provide appropriate beds for two residents." No mention is made in the Form 3020 of which residents did not have appropriate beds. The alleged Tag A1024 deficiency was based on the two reported observations of the surveyor. First, the Form 3020 notes that in Room No. 10, the surveyor observed "a medical crutch being used as a mattress support on one bed." Second, the surveyor noted her observation that in Room No. 4, there was "a ripped mattress with the filling coming out of the rips." The owners testified that the crutch was not being used to support the mattress and that bed was not being used by any of the residents. Mr. McCarthy did not know why the crutch was under the mattress, but it was not there for support because of the construction of the bed. As to the second observation, the owners do not dispute that the mattress also in Room No. 4 was ripped. However, the bed with the torn mattress was not being used by anyone and has been replaced. Finally, there were appropriate beds for all the residents because at the time of this survey, there were 26 residents and 32 beds. This testimony was not disputed by the Agency. Tag A1024 was deemed by the Agency to be an uncorrected deficiency and was designated as a Class III violation. The Agency gave the facility until March 15, 2001, to correct the deficiency. MARCH 12, 2001, APPRAISAL: TAG A210 Four additional new violations were cited as a result of the Agency's March 12, 2001, appraisal visit. These violations or deficiencies were assigned Tag A210, Tag A212, Tag A523, and Tag A1004. Tag A210 requires compliance with the standards set forth in Rule 58A-5.024, Florida Administrative Code. That rule requires that assisted living facilities maintain the records prescribed therein "in a form, place and system ordinarily employed in good business practice and accessible to the department and [A]gency staff." Rule 58A-5.024(1)(m), Florida Administrative Code, requires that the facility maintain all fire safety inspection reports issued by the local authority having jurisdiction or the State Fire Marshal within the past 2 years. In an interview, which occurred during this visit, the facility administrator advised the Agency surveyor that the fire inspection reports were not on the premises, but at the administrator's home. Based on this statement by the administrator, the Agency properly concluded that this standard was violated because the fire inspection records were maintained at the owner/administrator's home, and were not in a place accessible to Agency staff as required by the applicable rule. MARCH 12, 2001, APPRAISAL: TAG A212 The Tag A212 relates to facility records standards. According to the Form 3020, Oakland Manor failed to meet this standard in that it violated Rules 58A-5.020(3) and 58A- 5.024(1)(n), Florida Administrative Code. The former rule requires that "copies of inspection reports [relating to food hygiene] issued by the county health department for the last two years . . . be on file in the facility." The latter rule requires that all sanitation inspection reports issued by the county health department within the past two years be maintained in a form, place, and system ordinarily employed in good business practice and accessible to department or agency staff. The Form 3020 indicates and it is undisputed that the most recent copy of the sanitation inspection report was not on the premises, but at the administrator's home. MARCH 13, 2001, ORDER OF IMMEDIATE MORATORIUM On March 13, 2001, the day following the Agency’s March 12, 2001, appraisal visit to Oakland Manor, the Agency imposed a Moratorium on Admissions to the facility, which has remained in effect. JUNE 12, 2001, MORATORIUM MONITORING VISIT TAG A528 In the Notice of Denial, the Agency alleged that a Moratorium monitoring visit was made to Oakland Manor on June 12, 2001, during which the facility was cited for violating Tag A528. The Agency failed to establish this violation. JUNE 13, 2001, COMPLAINT INVESTIGATION TAG A1114 On June 13, 2001, the Agency conducted a complaint investigation of Oakland Manor. As a result of the investigation, the Agency alleged that the facility violated Tag A1114 by failing to include in an employee’s file documentation of compliance with Level 1 screening. The standards under Tag A1114 are set forth in Section 400.4275(2), Florida Statutes, and Rules 58A-5.019(3) and 58A-5.024(2)(a)3., Florida Administrative Code. Pursuant Rule 58A-5.019(3), Florida Administrative Code, a Level 1 screening is required for all employees hired after October 1, 1998, to provide personal services to residents. Also, personnel records for each staff member should include documentation of compliance with Level 1 background screening for all staff. See Subsection 400.4275(2), Florida Statutes, and Rule 58A-5.024(2)(a)3., Florida Administrative Code. Mr. and Mrs. McCarthy did not dispute this allegation. According to the Form 3020, the employee in question had been hired by the facility on or about May 15, 2001. Mrs. McCarthy told the surveyor that she had applied for the background screening about two weeks prior to the June 13, 2001, complaint investigation, but it had not yet been received. Later that day, the administrator provided the surveyor with a copy of an arrest report from the Tampa Police Department. The arrest report did not satisfy the standards required under Tag A1114. The deficiency constituted a failure to comply with the requirements of Tag A1114, and was properly designated a Class II deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG L200 Tag L200 requires assisted living facilities with a limited mental health license, such as Oakland Manor, to have a copy of each mental health resident’s community living support plan. See Subsection 400.4075(3)(a), Florida Statutes. In addition, Tag L200 requires that the mental health case manager and the mental health resident, in conjunction with the facility administrator, prepare the community living support plan within 30 days of admission to the facility or within 30 days after receiving the appropriate placement assessment. See Subsection 400.402(8), Florida Statutes, and Rule 58A.5.029(2)(c)3.a., Florida Administrative Code. According to the Form 3020, the surveyor reviewed the file of Resident 1, a limited mental health resident who was admitted to the facility on November 23, 1993, and did not find the resident’s community living support plan. The resident’s record did have the annual community living support plan, but the surveyors simply missed or inadvertently overlooked the document. There was a community living support plan in Resident 1’s file that was signed by the resident, the resident’s counselor, and the former facility administrator, and dated February 17, 1999. Attached to the community living support plan were progress notes, with the last entry dated October 14, 1999. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS L201, L202, L203, AND L400 Oakland Manor was cited for violating standards under Tags L201, L202, L203, and L400, all of which relate to community living support plans. Tag L201 requires that the community living support plan include the components enumerated in Rule 58A- 5.029(2)(c)3.a.(i)-(vi) and (viii), Florida Administrative Code. Tag L202 requires the assisted living facility to make the community living support plan available for inspection by the resident, the resident’s legal guardian, the resident’s health care surrogate, or other individuals who have a lawful reason to review the plan. See Subsection 400.4075(3)(c), Florida Statutes. Tag L203 requires that the community living support plan to be updated annually in accordance with See Rule 58A- 5.029(2)(c)3.a.(vii), Florida Administrative Code. Finally, Tag L400 requires the facility to assist the mental health resident in carrying out the activities identified in the individual’s community living support plan. See Subsection 400.4075(3)(d), Florida Statutes. The alleged deficiencies cited under Tags L201, L202, L203, and L400 were all based on the surveyor’s finding that the file of Resident 1 did not contain a community living support plan. In light of the finding in paragraph 80, that the annual community support plan was in the resident’s file, the Agency did not establish the deficiencies listed under Tags L201, L202, and L400. Oakland Manor failed to comply with the standards of Tag L203, in that the community living support plan had not been updated annually as required by the foregoing rule. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A525 Tag A525 was assigned to Oakland Manor based on the Agency's determination that for two facility employees, scheduled to work alone on the 11:00 p.m. to 7:00 a.m. shift, there was no documentation that they had received first aid training. This alleged deficiency constitutes a failure to comply with the staffing standards in Rule 58A-5.019(4)(a)4., Florida Administrative Code, which requires that at least one member who is trained in first aid and CPR be in the facility at all times. Oakland Manor was properly cited for a violation of Tag A525 which was designated a Class III deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A634 The Agency assigned a Tag A634 deficiency to Oakland Manor based on its determination that Oakland Manor failed to meet the medication standards set forth in Section 400.4256(1), Florida Statutes. That provision requires the facility to advise the resident or the resident's guardian or surrogate that the resident may receive assistance with self-administration of medication from an unlicensed person and that such assistance will not be overseen by a licensed nurse. As support for this violation, the Form 3020 noted that based on a review of three residents' files, there was no documentation that the facility had informed the residents as required by Section 400.4256, Florida Statutes. The facility does inform residents appropriately, based on documents included in the admissions package. However, the surveyors did not look anywhere except the residents’ files for that documentation. The residents also signed a letter giving their informed consent to comply with the Agency regulations, and a copy of that letter was faxed to the Agency soon after the citation. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A1005 As part of this survey, the Agency assigned a Tag A1005 deficiency, alleging that the facility failed to meet the physical plant standard required by Rule 58A-5.023, Florida Administrative Code. That rule requires that all furniture and furnishings be clean, functional, free of odors, and in good repair. This deficiency was based on a surveyor's observation of the main bathroom on the first floor of the main building. During a tour of the facility, the Agency surveyor observed human excrement on the bathroom floor, on the outside of the toilet bowl, and on the toilet seat. The surveyor also observed that an adult brief, filled with human excrement, had been thrown against the wall. After this was brought to the administrator's attention, the bathroom was cleaned immediately. However, several hours later, when the surveyor returned to the area, human excrement again had been smeared on the toilet seat. A few minutes prior to the surveyor returning to the bathroom, a resident exited the bathroom. Therefore, it is very likely that the resident who was in the bathroom soiled the toilet seat after it had been cleaned. The facility staff has a regular cleaning schedule and, pursuant to that schedule, the bathrooms are checked and cleaned several times, as necessary. However, the residents are entitled to their privacy in the bathrooms and staff does not check the bathroom every time a resident uses it. Tag A1005 was designated a Class III deficiency, and the facility was required to and did correct this deficiency immediately after it was discovered. In light of the totality of the circumstances, the Agency did not properly cite the facility for a violation of this tag. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS A1101 AND A1103 The Agency cited Oakland Manor for a Tag A1101 deficiency for failure to adhere to the staff record standards in Rule 58A-5.024(2)(a), Florida Administrative Code. That rule requires that the personnel records of each facility staff member contain the verification of freedom from communicable disease, including tuberculosis. The Tag A1101 deficiency was based on a review of eight personnel files, which revealed three files that contained no documentation that the respective employees were free from communicable disease. The three employees, for whom there was no documentation, had been hired two or three months prior to the June 28, 2001, re-licensure survey, on March 20, April 4, and April 20, 2001. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG A1103 The Agency cited Oakland Manor for a deficiency under Standards of Tag A1103. That tag requires that, within 30 days of being hired, a facility staff member must "submit a statement from a health care provider, based on an examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis." See Rule 58A-5.019(2)(a), Florida Administrative Code. The rule further provides that such "freedom from tuberculosis must be documented on an annual basis." The Tag A1103 deficiency was assigned based on the Agency's review of the personnel files of eight of the facility’s staff members. The Form 3020 states that the files of four employees, W.W., L.M., J.V., and M.J., hired July 5, 1992, November 1999, April 23, 2001, and March 20, 2001, respectively, did not contain documentation of freedom from tuberculosis, obtained from a test in the last 365 days. The Agency's finding that the facility failed to comply with the staffing standards in Rule 58A-5.019(2)(a), Florida Administrative Code, is well-founded as it relates to the staff members employed on July 5, 1992, and November 1999. However, the requirement that freedom from tuberculosis must be documented annually can not be the basis for the Tag A1103 deficiency, as it relates to the two employees hired on March 20, 2001, and on April 23, 2001, only two or three months from the date of the survey. SEPTEMBER 18, 2001, APPRAISAL VISIT TAG A519 On September 18, 2001, the Agency conducted an appraisal visit of the facility and cited it for a Tag A519 deficiency, which relates to failure to maintain minimum staffing standards required in Rule 58A-5.019, Florida Administrative Code. The cited deficiency was based on the fact that the facility census was sixteen. In accordance with the foregoing rule, on the day of the September visit, the resident facility was required to have a weekly minimum of 253 staffing hours, but the facility only had 208 hours. Based on its review of records proved by the facility, the Agency properly concluded that the facility did not meet the minimum staffing standards for the first two weeks of September 2001. The Agency designated the Tag A519 as a Class III deficiency and properly noted that this was a "repeat deficiency." SEPTEMBER 18, 2001, APPRAISAL TAG A1004 Tag A1004 requires that the windows, doors, plumbing, and appliances of the facility be in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. The Agency found that Oakland Manor was in violation of this standard. According to the surveyor, the basis for this alleged violation was that "certain light fixtures throughout the facility were being maintained in an unsafe manner" and that "numerous bare (uncovered by globe or shade) light bulbs were observed, specifically in the dining area and in the main building bathrooms." The Agency concluded that the "unprotected bulbs are in danger of being broken, putting the residents at risk." Although the Agency cited the facility for the exposed light bulbs, the surveyor testified that there is not a specific tag that addresses the hazards of a light bulb, but the designated Tag A1004 “was the best available citation, quite frankly.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order revising the survey reports to delete and/or modify the deficiencies described in the Forms 3020 that are not supported by the record and granting Oakland Manor's application for renewal of its assisted living facility license. DONE AND ENTERED this 4th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 4th day of October, 2002. COPIES FURNISHED: A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP 400 North Ashley Drive Tampa, Florida 33602 Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 Lisa McCarthy, Administrator Oakland Manor ALF 2812 North Nebraska Avenue Tampa, Florida 33602 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Retirement Life Center, Inc., is licensed to operate Inverrary Retirement Center Annex at 5640 N.W. 28th Street, Lauderhill, Florida as an adult congregate living facility in compliance with Chapter 400, Part II, Florida Statutes. On October 27, 1985, at approximately 11:46 a.m. the Broward County Emergency Services received a call in reference to a person bleeding from the mouth at Inverrary Retirement Center Annex. Two paramedics with Broward County Emergency Services responded to the call and immediately went to the Respondent's adult congregate living facility. Upon arrival, the paramedics went to the fence but were unable to enter the premises because a locked padlock was on the gate. There were no staff members from the facility waiting for the emergency unit. The paramedics yelled out and rang a bell in an attempt to get someone to unlock the gate. One female staff member went to the gate, but she did not have a key so she left to get someone else. At least two minutes were wasted while the paramedics attempted to gain entry into the facility. When the gate was finally unlocked, the paramedics found the victim prone on the floor of the cafeteria, cyanotic and in cardiopulmonary arrest. The Respondent had previously performed an administrative inspection of Inverrary Retirement Center Annex on February 22, 1985. At that time, one of the deficiencies cited included the fact that locks were on the fence gate. When the facility was re-inspected on June 11, 1985, the deficiency had been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered assessing an administrative fine of $500.00 against Retirement Life Center, Inc., d/b/a Inverrary Retirement Center Annex. DONE and ORDERED this 8th day of May, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4214 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Addressed in Conclusions of Law section. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 7. Rejected as a recitation of testimony and/or contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Findings of Fact 3, 4 and 5. Adopted in Finding of Fact 7. COPIES FURNISHED: Dr. Martin Marenos Inverrary Retirement Center Annex 2057 North University Drive Sunrise, Florida 33322 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Suite 210 Miami, Florida 33014 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether or not Thomas Singleton, Jr. should have the ACLF license application denied for incidents alleged to have occurred on January 13, 1978, when the Respondent spoke with slurred speech and was inarticulate in trying to discuss matters of the care and protection of the residents of his licensed facility and further for the reason that later in the day on January 13, 1978, members of the Petitioners staff went to the licensed premises and found insufficient qualified staff to assure the safety and proper care of the residents; found that the Respondent, or the person acting in the official capacity was not on duty, alert and appropriately dressed; found that the administrator had failed to insure that the staff as mentally and physically capable of performing their assigned duties and found that the facility failed to have at least one staff member on call at all times for the benefit of the residents. Whether or not the Respondent, Thomas Singleton, Jr. should have his ACLF license application denied for allegedly issuing certain checks, to wit: check no. 138, dated January 13, 1978, in the amount of $40.00; check no. 149, dated January 13, 1978, in the amount of $10.00, drawn on the Atlantic Hank of Springfield and unpayable due to "insufficient funds"; and issuance of a check in the amount of $50.00, on January 15, 1978, and alleged to be nonpayable due to insufficient funds.
Findings Of Fact Thomas Singleton, Jr. is the holder of ACLF License No. P-4-l6-0089C held under the provisions of Chapter 400, Part II, Florida Statutes. This is a form of temporary license for operating adult congregate living facilities. Mr. Singleton is also an applicant for a permanent license for operating an adult congregate living facility. Carolyn Bothwell, is a social worker with the Department of Health and Rehabilitative Services, who specifically works in the field of aging and adult services. Some of her clients were residents of Tom's Rest Home, 1834 Silver Street, Jacksonville, Florida, which is owned and operated by Thomas Singleton, Jr. On January 10, 1978, Ms. Bothwell received a call from Mr. Singleton In which Mr. Singleton expressed some consternation about trying to collect money owed by one of his former boarder's at Ton's Rest lone. In Ms. Bothwell's opinion, Mr. Singleton's speech was slurred and he seemed very different than for prior contacts with him. On January 15, 1978, Mr. Singleton came to her office to further discuss the problem about the payment by the boarder. His appearance was disheveled and his speech was incoherent. In this conversation of January 13, Singleton also mentioned that his wife had left him and that he wanted Ms. Bothwell to be at the boarding home when he told the boarders of his wife's departure. Ms. Bothwell went to the location of the boarding hone around 12:00 noon on the date, January 13, 1978, in the presence of other members of the Department of Health and Rehabilitative staff. When she arrived at the boarding home, she discovered that the boarding home was locked and the boarders were on the front porch, locked out of the hone. Mr. Singleton had difficulty remembering why he had gone to meet with Ms. Bothwell earlier that day and made no mention of the fact that his wife had left. In Ms. Bothwell's opinion he appeared very vague and confused. Ms. and the other members departed the premises a short time later. On that same date, January 13, 1978, June K. Frye, a District Program Specialist, with the Department of Rehabilitative Services dealing with adult congregate living facilities, spoke with Mr. Singleton. This conversation apparently took place in the morning. In the course of the conversation Ms. Frye mentioned that she had called Mr. Singleton to advise him of an upcoming reinspection on the question of considering his probationary license status. Ms. Frye felt that Mr. Singleton was incoherent and unable to give concrete information about the license situation. She asked to speak to someone else at the facility but Mr. Singleton was unable to assist her in that request. Prior to this conversation with Mr. Singleton, Ms. Frye had never noticed any slurred speech or inability on the part of Mr. Singleton to respond to requests or to give information. Later that afternoon, Ms. Frye, in the presence of Mr. Otto G. Hrdlicka, went to the facility at 1834 Silver Street. When they arrived they found that Bertie Mae Baldwin was in charge of the facility. Mr. Singleton's wife was not at the-facility and Mr. Singleton was on the bed in his room, out of contact with the boarders. Several attempts were made to awaken Mr. Singleton, but none of those attempts were successful. It should be mentioned that Mrs. Baldwin was hired as a housekeeper whose hours were from 9:00 a.m. to 3:00 p.m. each day and at the time of the visit by Mrs. Frye and Mr. Hrdlicka, Ms. Baldwin was preparing to leave the facility. Ms. Baldwin had no responsibility in terms of cooking the food or attending to the overall needs of the boarders in the home. Testimony was also given in the course of the hearing that Mr. Singleton had written a check for insufficient funds to April Russel on January 15, 1978. This check was in the amount of $50.00. Restitution was made on the check, however. Testimony was also given that Mrs. Frye had been approached by Marion Thomas, a cab driver who claimed that Mr. Singleton had written him checks on January 13, totaling $50.00, for which there were no sufficient funds. Again restitution was made for those checks. A representative of the Atlantic Hank of Springfield, Jacksonville, Florida, testified in the course of the hearing and indicated that the operating account of Mr. Singleton for his business Tom's Rest Hone had been closed out in February at a time when the account was overdrawn $151.90. Subsequent to the January 13, 1978, incidents at the rest home, the boarders have been moved and placed in other facilities. Part of the motivation for such removal was due to the fact that some of the patients had cone to the boarding home after being released from the Northeast Florida State Hospital, at Macclenny, Florida, an institution for the treatment of patients with mental illness. It was felt by the program coordinators of the adult congregate living facilities that Mr. Singleton would be unable to properly care for those individuals and others in his boarding home and in view of the fact that no other employees were in a position to take care of the needs of the individual boarders, the decision was made to remove them from Tom's Rest Hone. Mr. Singleton gave testimony in the course of the hearing and indicated that he had suffered a severe stomach disorder beginning in April, 1977 and had undergone an operation to remove part of his colon. He says this caused him to take a number of pills as treatment. In addition he indicated that he had had some domestic problems with his wife. He also stated that on January 19, 1978 through January 23, 1978, he received psychiatric treatment in a local hospital, in Jacksonville, Florida, for his condition. He described the condition as a collapse of his nerves, which was brought on, according to Mr. Singleton, by failure of the treating physician who dealt with his colon problem to respond to a need to control his blood pressure. The events of January 13, 1978, and the state of Mr. Singleton's finances have lead to a complaint letter of January 19, 1978. Mr. Singleton has received that letter and been given an opportunity to respond to it. The complaint letter falls into two broad categories. The first category pertains to the matters of January 13, 1970 and the second category pertains to the financial situation of Mr. Singleton. Under the matters of January 13, 1978, the Department of Health and Rehabilitative Services has alleged violations of Chapter 10A-5.06(5)(b)(2); 10A-5.00(1), (4)(a), and (6), Florida Administrative Coda, and Section 400.414(2)(a)(d) and Section 400.441(2), Florida Statutes. Those provisions read respectively: 10A-5.06 Operational Standards. Facilities shall offer close supervision and living conditions as is necessary to the condition of the resident. This includes supervision of diets as to quality and quantity, and watchfulness ever the general health, safety and wellbeing of residents. There shall be daily awareness of the residents by designated staff of the facility as to the apparent well-being of the individuals with sufficient provision for contacting the resident's physician, if the resident has not already done so, at any time there appears to be significant deviation from his normal appearance or state of health and well-being. Appropriate notice of such instances shall be recorded in the personal records of the individual. * * * (5) The minimum personnel staffing for adult congregate living facilities shall be: * * * 2. There shall be at least one staff member on call at all times when residents are in the facility. 10A-5.09 Personnel Standards. The administrator of a facility shall: Provide such qualified staff as are necessary to assure the safety and proper care of residents in the facility. * * * (4) Assure that each person serving in any official capacity in the facility shall: (a) Be on duty, alert and appropriately dressed during the entire tour of duty. In smaller facilities it is permissible for the administrator to he on call during normal sleeping hours. * * * (6) Insure that the staff is mentally and physically capable of performing their assigned duties. They shall be free of any communicable diseases which would present the hazard of transmission to resident or other staff member. If any staff member is found to have or is suspected of having such disease, ha will be removed from his duties until the administrator determines that such risk no longer exists. 400.414 Denial, suspension, revocation of license; grounds. * * * Any of the following actions by a facility or its employee shall be grounds for act ion by the department against a facility: An intentional or negligent act materially affect- ing the health or safety of a resident of the facility * * * (c) Violation of the provision of this act or of any minimum standard or rule promulgated hereunder. 400.441 Rules establishing minimum standards. Pursuant to the intention of the Legislature to provide safe and sanitary facilities, the department shall promulgate, publish, and enforce rules to implement the provisions of this act, which shall include reasonable and fair minimum standards in re- lation to: * * * (2) The number and qualifications of all personnel having responsibility for the care of residents. It is established through the evidence that at all times on January 13, 1978, when the events as described took place, those boarders who had been assigned to Tom's Rest Home were living in that facility. Therefore, an examination of the events of January 13, 1978, as reported above, in view of the requirements set forth in the Florida Administrative Code which are related herein; demonstrates that Thomas Singleton, Jr. was in violation of those conditions and is subject to the penalties for such violation, to include revocation of the temporary licence ACLF License no. P-4-l6-009C and the denial of an unrestricted license. Moreover, the financial disarray of Mr. Singleton's business account for Tom's Rest Home, which was shown in the months of January and February, 1978, demonstrates a violation of Rule 10A-5.08(1), Florida Administrative Code, which reads: 10A-5.08 Fiscal Standards. The administrator of a facility shall maintain fiscal records in accordance with the requirements of Chapter 400 F.S., Part II. There shall be a recognized system of accounting used to accurately reflect details of the business including residents' "trust funds" and other property. The fiscal and "trust fund" records shall reflect a verified statement. The facility shall: Be administered on a sound financial basis consistent with good business practices. Evidence of issuance of bad checks or accumulation of delinquent bills for such items as salaries, food, or utilities shall constitute prima facie evidence that the ownership lacks satisfactory proof of financial ability to operate the facility in accordance with the requirements of Chapter 400 F.S., Part II. This would also establish a sufficient basis for denying any application for an unrestricted license, because it would show that the applicant has failed to demonstrate satisfactory proof of financial ability to operate and conduct the facility as required by Section 400.411(2), Florida Statutes.
Recommendation It is recommended that the permanent license to operate an ACLF facility as requested by Thomas Singleton, Jr. be denied. DONE AND ENTERED this 17th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Department of HRS Post Office Box 24l7F Jacksonville, Florida 32231 Thomas Singleton, Jr. Ton's Rest Hone 1834 Silver Street Jacksonville, Florida 32206
The Issue The issues presented here concern two administrative complaint letters filed by Petitioner against Respondent. Both complaint letters are dated March 26, 1982. The initial charges contain allegations concerning records keeping by Respondent related to patients and staff, and employee training, per Chapter 10A, Florida Administrative Code, and Chapter 400, Florida Statutes. The second prosecution letter alleges that one of the owners of the Respondent corporation acted as legal guardian for a resident in Respondent's facility, contrary to Chapter 400, Florida Statutes. EXHIBITS AND WITNESSES Petitioner presented two witnesses, Orey William Crippen, II, Adult Congregate Living Facility Licensing Office, State of Florida, Department of Health and Rehabilitative Services, District IV, and Charles H. Carter, Supervisor of Licensure and Certification, State of Florida, Department of Health and Rehabilitative Services, District IV. Petitioner offered ten exhibits which were admitted. Respondent presented Lynn Costner, co-owner of Lynn's Care Center, Inc. Respondent's four exhibits were admitted.
Findings Of Fact At all times pertinent to this case, Lynn and Ronny Costner were the owners of Lynn's Care Center, Inc., Respondent. In the relevant time sequence, that corporation operated through its co-owners. The business of Lynn's involved Adult Congregate Living Facilities, Phase II, by license issued by Petitioner in accordance with Chapter 400, Part II, Florida Statutes. One of the facilities was located at 1562 Garden Avenue, Holly Hill, Florida. The second facility was located at 1529 Ridge Avenue, Holly Hill, Florida. On January 25, 1982, the Garden Avenue facility was inspected by Orey William Crippen, II, a facility inspector for Petitioner. The purpose of the inspection was to monitor Respondent's compliance with regulatory provisions set forth in Chapter 10A, Florida Administrative Code, which was enacted to effectuate the purposes of Chapter 400, Florida Statutes. Crippen's inspection revealed that required documentation to demonstrate that facility residents Schofield and Thomaszewski had been examined by a physician or nurse practitioner to certify acceptability of their health status to reside in the center was not available in the facility at the time of the inspection. The information that was necessary would have had to demonstrate medical examination of the residents within thirty days of admission to the facility. Schofield had been admitted into the facility on November 30, 1981, and Thomaszewski had been admitted to the facility on November 6, 1981. In Schofield's case, there was no date of X-ray or examination shown in his file. Required medical information on the patient Thomaszewski was not available at the facility. Crippen also spoke with the co-owner Lynn Costner on January 25, 1982, to ascertain the whereabouts of the aforementioned medical information for the patients Schofield and Thomaszewski. This inquiry took place in the central office of Respondent at 73 West Granada Avenue, Ormond Beach, Florida. Although Schofield and Thomaszewski had been admitted to the hospital with medical examination information, this information was not available at the central office on the inspection date. Effective March 31, 1981, the necessary medical information was replaced by employees of the Respondent and the Schofield and Thomaszewski files were complete on the subject of the necessary documentation of health status. This replacement entailed the updating of material related to Thomaszewski, in that the medical examination information that accompanied him at the time of his admission to the facility was not current. While at the facility on January 25, 1982, Crippen was unable to find requisite information to establish that two persons working in the facility on the inspection day were free from communicable diseases. Nor was he provided necessary documentation demonstrating a negative tuberculosis test, via chest X- ray or physician statement certifying no tuberculosis, or information dealing with these employees related to communicable diseases detectable by skin tests. The employees were Judy Russell and Rick Costner, son of the owners of the facility. Again, Crippen's conversation with Lynn Costner in her Ormond Beach office on the date of inspection did not lead to the production of the necessary information to demonstrate that Judy Russell and Rick Costner were free from communicable diseases. Judy Russell and Rick Costner were no longer employed by Respondent on March 31, 1982. The facility did not have an employee on duty at the time of the January 25, 1982, inspection who was certified in an approved course in first- aid, which would include cardiopulmonary resuscitation, training in bleeding and seizure control or training in antidotes for poisons. By March 31, 1982, certain employees of Respondent had achieved first-aid training. Crippen's January 25, 1982, inspection did not uncover an employment application for Judy Russell or Rick Costner, either at the Garden Avenue facility or Respondent's office in Ormond Beach, Florida. Finally, Crippen's January 25, 1982, inspection did not reveal a signed contract between the residents Bateman and Thomaszewski and the facility at Garden Avenue. Bateman had been admitted to the facility on November 26, 1981. Those contracts were not made available by Lynn Costner when Crippen spoke to her in the Respondent's Ormond Beach office on the date of the inspection. The patients had entered the facility with contracts. Mrs. Bateman's contract had been signed by her nephew and Thomaszewski's contract had been signed by a relative. The missing contract problem was subsequently rectified, effective March 31, 1982, through efforts of employees of Respondent. On January 29, 1982, Charles H. Carter, Licensure and Certification Supervisor for District IV, wrote to Lynn and Ronny Costner, owners of Lynn's Care Center, and attached a deficiency statement document to that correspondence. A copy of the letter and deficiency statement may be found as Petitioner's Exhibit No. 1, admitted into evidence. The purpose of the letter and statement was to allow Respondent to offer corrections by written indication of steps to be taken to resolve problems discovered in the course of Crippen's inspection and the deficiency document contained a column for offering written corrections. It afforded the Respondent through February 15, 1982, to satisfy the problem related to employment applications for Judy Russell and Rick Costner. Respondent was allowed, until March 1, 1982, to correct all other violations alluded to in these findings, with the exception of the first-aid certification. On the subject of first-aid certification, Respondent was given through March 31, 1982, to verify certification. All corrections which were made related to allegations spoken to in the administrative complaint and reported in these facts date from March 31, 1982, and notification of those corrections in writing was received by Petitioner on April 5, 1982. The statement of corrections was reported on the deficiencies and corrections form mailed on January 29, 1982. Corrections were not verified by Petitioner. See Respondent's Exhibit No. 4. The corrections were made subsequent to an exit conference on January 25, 1982, held between Crippen and Lynn Costner in Respondent's Ormond Beach Office in which Costner was made aware of the related problems. With the exception of the matter related to first-aid, the written notification of corrections was not timely. By the letter of transmittal of the statement of deficiencies, Carter had advised Respondent that the failure to submit the plan of corrections within the time specified would lead to a finding of noncompliance by Respondent and the possibility of administrative fine. On March 5, 1982, not having heard from Respondent on the topic of the March 1, 1982, deadline for certain corrections, Carter again wrote the Costners, as owners of Lynn's Care Center at Garden Avenue, requesting that the response by statement of corrections be made no later than March 18, 1982. See Petitioner's Exhibit No. 2, which is a copy of the Carter correspondence. There being no reply to the March 5, 1982 correspondence, an administrative complaint letter was forwarded to Respondent, in the person of the Costners, Lynn's Care Center, at 1562 Garden Avenue, Holly Hill, Florida. This item was sent certified mail, return receipt requested. It set forth violations related to the deficiencies which have been discussed in this Recommended Order. The complaint was received by an employee of Respondent on April 2, 1982. See Petitioner's Exhibit No. 3 Respondent disputed the factual allegations in the complaint and a Subsection 120.57(1), Florida Statutes, hearing was conducted to resolve the dispute. On March 26, 1982, a second administrative complaint letter was served on the Costners reference a resident in their facility at 1529 Ridge Avenue, Holly Hill, Florida. That complaint was received on April 2, 1982, as shown by the certified mail return receipt request form. The administrative complaint and certified mail return receipt docket may be found as Petitioner's Exhibit No. 10, admitted into evidence, a copy of the complaint and receipt item. The complaint letter charged that Ronny Costner had acted as the legal guardian of Margaret Wells, a resident in the Ridge Avenue facility, and in doing so violated Chapter 400, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. On January 19, 1982, letters of guardianship of the property of Margaret Wells had been presented to Ronny Costner, through action in the Circuit Court in and for Volusia County, Florida. See Petitioner's Exhibit No. 4, a copy of the order issuing letters of guardianship. On March 8, 1982, Charles Carter wrote to inquire of Ronny Costner on the subject of whether Costner was indeed the legal guardian of the property and suggested the impropriety of such guardianship. See Petitioner's Exhibit No. 9, which is a copy of the Carter correspondence. Resident Wells had been admitted to the Ridge Avenue facility upon referral by Dr. John Hall, D.O. At the time of admission, the Costners were unable to find family to serve as Wells' guardian. Wells was suffering from Organic Brain Syndrome. Following examination by two physicians and with the assistance of Patty Butcka, an Adult Caseworker with Petitioner, and her husband, serving as legal counsel, petition was made leading to the guardianship appointment of Ronny Costner for the benefit of Wells. During the time that he served as legal guardian he received no compensation. The guardianship of Wells was in view of the fact that no close relatives resided in the area where Wells was living. At the guardianship hearing no family member appeared or objected to the appointment of Costner as guardian. Following receipt of the March 8, 1982, letter from Carter, Costner employed counsel and petitioned the court to remove him as guardian for Margaret Wells, in view of the provision of Chapter 400, Florida Statutes, which would not allow Costner to act as guardian of a resident in his Adult Congregate Living Facility. An order was entered removing Costner as Wells' guardian and Ronny Costner no longer served in that capacity at the time of the final hearing in this cause.
Findings Of Fact The respondent was licensed in 1976 as a foster home, and obtained a license to operate an adult congregate living facility on May 31, 1981. This was the first ACLF license issued in Gadsden County. On September 12, 1983 two representatives of the Department visited the Fletcher Group Home in response to an abuse complaint. Although the abuse complaint was not substantiated, they found unsanitary conditions which led to a concern about the general cleanliness of the facility, and they found that the noon meal was being served around 3:50 in the afternoon. The facility's cleanliness and the late mealtime became a concern because the residents are non-verbal or have low verbal skills, and are in the facility because they are unable to care for their basic personal needs. Because of these conditions, the Department's representatives brought their supervisor to the facility on an unannounced visit at noon on September 14, 1983, to do a complete investigation. When they arrived, the noon meal was just beginning to be prepared, and was not ready until about 1:00 p.m. The conditions of the facility were found to be a potential threat to the health, safety and welfare of the residents in that flies were observed in the kitchen area; the entire kitchen was generally dirty and unsanitary; roaches were found in the refrigerator; food containers in the refrigerator had no covers; there was unwrapped meat stored in the refrigerator; and the refrigerator was generally unclean. The medicine cabinet was unlocked. In the bedroom areas, beds were dirty and unmade; there were roach droppings found in the beds and in the dresser drawers; the ceiling and walls were wet from rain due to the roof leaking; the ceiling sheetrock had fallen out in one of the closets with the clothes still in there, and the clothes were wet because of the leak; the facility had mold and mildew on the walls and ceilings; and generally smelled musty. In the bathroom, the toilet was stopped up and had been used until it was filled with feces; the bathtub was dirty; the sink was dirty; the hot water did not work in the sink; and the cold water tap would not turn off. Outside the facility, the kitchen sink drained into an open pipe which discharged onto the ground. The linoleum in the facility was not tacked down properly, and the metal trim was exposed so that a resident could be injured. 4.. Another visit was made on September 15, at approximately 1:30 p.m. During this investigation, the menus had not been kept on a weekly basis nor corrected with changes in the meals. The records were incomplete or were missing from their folders. There was no indication of any special diets for two of the residents who had diabetes. The contracts between the facility and the residents were out of date. Roaches were still found to be present in the closets and in the refrigerator and the kitchen waste water was still being piped onto the ground behind the facility. On September 16 the Department made another inspection. This revealed that the facility had improper wiring, and did not meet the requirements of the standard building code. Plates were off the wiring receptacles making it possible for residents to come in contact with electrical wiring; exterior wiring was done improperly; interior lighting fixtures were put on the exterior of the building; LP gas heaters were improperly installed; and the beds were too close to the gas heaters. Neither the plumbing, nor the wiring, nor the building itself were in compliance with the applicable building codes. The-respondent either denied that the conditions found by Department representatives existed, or she contends that those which existed have been corrected. However, there was no evidence presented by the respondent to show that the plumbing, electrical wiring or the building itself is in compliance with the applicable building codes. Thus, there is substantial, competent evidence to support a finding that the violations alleged existed on September 12, 14, 15 and 16, 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the license of Carrie Fletcher to operate the adult congregate living facility known as the Fletcher Group Home, be revoked. THIS Recommended Order entered this 4 day of June, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 4 day of June, 1984. COPIES FURNISHED: John L. Pierce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Conrad C. Bishop, Jr., Esquire Post Office Box 167 Perry, Florida 32347
The Issue The issue in this case is whether Respondents, Liang Jian and Doinghui Lee (Owners), discriminated against Petitioner, Gabriel Sauers (Sauers), through actions of the Owners’ representative, Joseph Palmer (Palmer), on the basis of Sauers' purported handicap in violation of the Florida Fair Housing Act.
Findings Of Fact Sauers is a young Caucasian male with purported disabilities, including post-traumatic stress disorder, ADHD, Oppositional Defiance Disorder, and others. He is a high school graduate, having received his education in an exceptional student education class. Sauers did not testify as to whether he is currently employed. He receives food stamps and Supplemental Security Income from the Social Security Administration. That income appears to be his sole means of support. The Owners (who did not appear at the final hearing) are Asians. The property at issue (referred to herein as the Apartments) is a multi-family residential building located at 419 North Wild Olive Avenue. At all times relevant hereto, Sauers was residing in Apartment #7, an efficiency apartment. In October 2012, Sauers rented a one-bedroom apartment from the Owners. Palmer was the manager of the Apartments and handled the negotiations with Sauers for the apartment. After a short time living in the apartment, Sauers asked to rent the efficiency apartment instead of the apartment he had originally leased. There was a difference of about $100 per month in rent between the two apartments. On or about November 1, 2012, Sauers moved into the efficiency apartment, i.e., Apartment #7. Sauers had inspected the apartment and did not list any concerns on his written lease agreement. After living for a short time in the efficiency, Sauers asked for a different refrigerator because the one in the efficiency was too small. He asked that the refrigerator from his prior apartment be moved down to the efficiency or that one be purchased for the efficiency as a replacement. Palmer told Sauers that he (Sauers) could purchase a refrigerator and Palmer would give him a $100 credit on his rent. Sauers never purchased a refrigerator and Palmer did not take any further action on Sauers’ request. While living in the efficiency, Sauers heard loud music being played in one of the other apartments on a regular basis. Sauers’ efficiency was in a building other than where the other apartments were located, but it was in close proximity. Sauers also reported seeing drug transactions taking place around the Apartments. He reported his findings to Palmer, but Palmer just told him to call the police. Sauers called the police on multiple occasions. Sauers had arguments and disagreements with other residents residing in the apartment complex. He admitted that his psychological conditions caused him to argue with other residents from time to time, but said he was singled out by some residents. Sauers raised complaints about the presence of palmetto bugs and roaches in his efficiency. However, the entire complex was under an extermination contract and Ryan’s Pest Control came out regularly to spray for insects. Some invoices and statements from Ryan’s were offered into evidence, but Sauers maintains they only address a few days of his residence at the Apartments. It is likely there were bugs in the efficiency; it is also true that Palmer and the Owners attempted to minimize the problem by having regular pest control service. The stove/oven in the efficiency was improperly grounded when Sauers moved in. He received several electrical shocks when touching the stove. Palmer was made aware of the problem and contracted with Parks Electric Company to remedy the situation. On April 25, 2013, the stove was rewired to alleviate the electrical problem. The Owners had a policy in place that tenants would pay their rent by way of a certified check or money order. Sauers often requested and was allowed to pay in cash. Sauers complained frequently to Palmer about the condition of the efficiency, the dangerous environment around the apartment complex, and other real or imagined problems. Sauers’ father, who helped Sauers move into the apartment complex and notified Palmer about some of Sauers’ disabilities, agreed that the area around the Apartments seemed unsafe. The father, a large man, was accosted on one of his visits to the Apartment, by some unknown person. Sometimes Sauers’ mother would call Palmer to ask questions or raise concerns. She was never able to reach him via telephone, but Palmer returned her calls--to Sauers’ father’s phone--on many occasions. It is abundantly clear that Sauers and Palmer do not get along well. When Sauers was absent from his apartment for several weeks in the summer of 2013, Palmer assumed that the efficiency had been abandoned. He placed a three-day notice on the door of the efficiency, telling Sauers he had to pay the rent which was due or that eviction proceedings would be commenced. When notified that Sauers did not plan to return to the apartment, Palmer went in--only to find that the efficiency was filthy and required significant cleaning. Sauers claims discrimination on the part of the Owners because Palmer had asked him to vacate the apartment at one point in time. The suggestion, made by Palmer, was based on Palmer’s perception that Sauers was extremely unhappy living at the apartment complex. Sauers failed to show that any other residents at the complex were treated differently or that Sauers was denied any reasonable accommodations for his needs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Gabriel Sauers in its entirety. DONE AND ENTERED this 9th day of May, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael Paul Kelton, Esquire Paul, Elkind and Branz 142 East New York Avenue Deland, Florida 32724 Gabriel P. Sauers Unit 1 1111 Ocean Shore Boulevard Ormond Beach, Florida 32176 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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
Findings Of Fact Darlington House is an adult congregate living facility owned and operated by Darlington Corporation under a license issued by the Department of Health and Rehabilitative Services. Darlington House has approximately five full-time residents and had five residents at all times relative to the events set forth in the administrative complaint. On January 22, 1985, personnel of the Department of Health and Rehabilitative Services conducted an inspection of Darlington House. A report of that inspection contained the following annotation: Medications were being administered by an unlicensed employee as evidenced by the employee placing medication in a spoon and dispensing it to residents. On March 6, 1985, the Department of Health and Rehabilitative Services issued a Notice of Deficiencies indicating that there was insufficient supervision of administration of medication. On March 14, 1985, the Respondent responded to the notice of deficiency indicating that all medications would be administered by or under the supervision of a person who would be either licensed as a practical nurse or registered nurse. On April 8, 1985, the Department conducted an inspection of Darlington House. A list of the deficiencies included the following entries. ACLF 28. The facility did not have job descriptions available for review. ACLF 55. The facility did not have food service policies and procedures providing for the nutritional care of the residents. On July 31, 1985, the Petitioner conducted an inspection of Darlington House. Gail Stanback, the temporary employee on duty, was unable to produce written copies of the job descriptions and nutritional policies and procedures during that inspection. The inspector also found on the kitchen counter plastic cups containing medication which had been transferred from original storage containers into the plastic cups by a licensed nurse in preparation for giving the medication to the residents. Darlington Corporation had written a job description for the position of the full time employee of Darlington House responsible for providing personal care to residents. This job description was located at the corporate offices of the corporation in Holiday, Florida, at the time of the agency's inspection. Similarly, Darlington Corporation had written policies and procedures pertaining to nutrition at Darlington House. At the time of the inspection, a copy of these policies and procedures was located at the corporate offices of Darlington House. Copies of the job description and policies and procedures for food service were received into evidence. The report of inspection of the agency for April 8, 1985, does not reference any deficiency involving the supervision or administration of medication.
Recommendation Having found the Respondent guilty of failing to maintain on the premises as required by rule copies of its nutritional policies and procedures, contrary to Rule 10A-5.20, Florida Administrative Code, it is recommended that the Respondent be fined One Hundred Dollars ($100.00). DONE AND ORDERED this 2nd day of June 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0307 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. All of Petitioner's and Respondent's Proposed Findings of Fact were adopted except for the following: Respondent's Proposed Findings of Fact: 5. Rejected; irrelevant. 12. Rejected; irrelevant. Petitioner's Proposed Findings of Fact: 10. Rejected; conclusion of law. COPIES FURNISHED: Mr. William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Steven W. Huff, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Barbara McPherson, Esquire District V. Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518 Scott L. Knox, Esquire 1017 Bartelt Road Holiday, Florida 33590
