Findings Of Fact Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department; (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents; (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida. DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Long Term Care Office Department of Health and Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146 Mr. Morton Francis c/o Francis Villa 1398 Northeast 156th Street North Miami Beach, Florida 33162
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Boley Manor, Incorporated, is licensed to operate Boley Manor Group Home #1, 214 Fourth Avenue South, St. Petersburg, Florida, as an Adult Congregate Living Facility in compliance with Chapter 400, Florida Statutes. On August 13, 1984, Mr. Mike Morris, a Fire Protection Specialist from the Department of Health and Rehabilitative Services, Office of Licensure and Certification, conducted a survey of Boley Manor Group #1. During the survey, Mr. Norris observed that the facility was using an area below the stairway as a storage space for several items, including linens, boxes and a metal trunk. An exit conference was conducted by Mr. Morris with two representatives of the facility, Ms. Moulton and Ms. Murphy. Mr. Morris told Ms. Murphy and Ms. Moulton that the combustible items under the stairway had to removed. A deadline of October 1, 1984, was established in conjunction with the facility by which time the space under the stairway would no longer be used for storage of combustible items. The representatives of the facility were told that the metal trunk was not a combustible item and could remain under the stairway. Subsequent to the initial survey and exit conference, the Respondent was mailed a list of the deficiencies noted during the survey and suggested action required for correction. The list contained other deficiencies not related to the fire safety aspect of the survey. In regard to the deficiency concerning stairway storage, the document read as follows: "A. Space under stairway used for storage. (Action to correct: Remove storage from under stairway)." On March 14, 1985, Mr. Bernard Dunagan, Fire Protection Specialist with the office of Licensure and Certification, conducted a follow-up survey of Boley Manor Group #1 and observed that the metal trunk was still stored under the stairway. Thereafter, the Respondent was cited with the alleged deficiency set forth in the Administrative Complaint. When the nature of the deficiency was clarified in March of 1985, the Respondent removed the trunk from under the stairway. All of the other deficiencies, not related to the fire safety aspect of the survey, had been corrected or were being corrected by Respondent. Mr. Mike Morris is no longer employed as a Fire Protection Specialist with the office of Licensure and Certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a final order be issued dismissing the Administrative Complaint. DONE and ORDERED this 29th day of April, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day April, 1986. COPIES FURNISHED: Carol Wind, Esquire HRS District V Asst. Legal Counsel 2255 East Bay Drive Clearwater, Florida 33546 Donna Varnadoe Residential Program Boley, Inc. 1236 Ninth Street North St. Petersburg, Florida 33705 William "Pete" Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX 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 of R.O. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Partially adopted in Findings of Fact 4 and 5. Matters not contained therein are rejected as not supported by competent substantial evidence. Partially adopted in Findings of Fact 5. Matters not contained therein are rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as not supported by competent substantial evidence. Rulings on Proposed Findings of Fact Submitted by Respondent Salutatory remarks and not a finding of fact. Adopted in findings of fact 2-8. Addressed in Recommendations Section of R.O.
The Issue The issue is whether Petitioner's application for an initial license to operate an Assisted Living Facility should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensure dispute, Petitioner, Fosset Home for the Elderly, seeks an initial license to operate an Assisted Living Facility (ALF) in Jacksonville, Florida. In a preliminary decision issued on June 8, 1999, Respondent, Agency for Health Care Administration (AHCA), denied the application on the grounds that on April 8, 1998, Petitioner's owner had "pled guilty to operating an unlicensed [ALF] and [was] placed on 24 months' probation," and that her probation conditions prohibited her "from operating or maintaining an [ALF]." Petitioner denied the allegations and contended that its owner had met all terms of probation; that its owner had not been adjudicated guilty of the charges; that the denial was based on "erroneous facts"; and that AHCA had abused its discretion. Petitioner's owner is Shirley I. Fosset, a certified nursing assistant. Although the record is not altogether clear, it appears that several years ago, perhaps in 1994 or 1995, she assumed ownership of a licensed ALF known as Barlow Community Home in Jacksonville, Florida. It is undisputed that while operating that facility, Fosset was not cited for failing to adhere to AHCA regulations. Because the prior owner would not keep the facility's building in good repair, however, Fosset decided to move to a new location when it came time to renew the license, and to seek a new license under her own name. While seeking a new license, she continued to "knowingly" operate an ALF after her old license had expired. Sometime during the first half of 1997, but prior to June 19, 1997, Fosset was advised by AHCA to obtain a license within ten working days or else be subject to prosecution. Fosset then filed an application for licensure on an undisclosed date, but it was deemed incomplete because it lacked a legible fire marshal's report; zoning verification; sanitation and inspection reports; and a completed assets, liabilities, and statement of operation form. There were also unpaid license fees. Although she later submitted a legible fire marshal's report and paid the fees, the application was never determined to be complete and was therefore denied. On February 26, 1998, an information was filed by the Duval County State Attorney against Fosset charging that on June 19, 1997, she was operating an unlicensed ALF in Duval County, a third degree felony. On April 9, 1998, Fosset pled guilty to the charge, and adjudication of guilt was withheld. She was placed on supervised probation for 24 months, and one condition of probation prohibited her from "operating and maintaining an adult living facility" during her probationary period. According to Petitioner, her term of supervised probation was terminated on April 30, 1999, or prior to the original two-year period, and this was not contradicted. If this is true, then the condition that she not operate an ALF during her probationary period has also expired. The state attorney's office notified AHCA of Fosset's guilty plea by letter dated April 24, 1998. After receiving the letter, AHCA issued an Amended Administrative Complaint against Fosset on June 8, 1998, charging her with operating an unlicensed ALF. The parties eventually entered into a Joint Stipulation on July 7, 1998, wherein Fosset agreed to pay a fine, and a Final Order was entered on August 21, 1998, accepting the stipulation. On an undisclosed date in 1998, Fosset filed a second application for licensure. This application was preliminarily denied on May 20, 1998, on the ground she had "pled guilty to operating an unlicensed ALF." When no request for a hearing was made, a Final Order confirming this action was entered by AHCA on July 1, 1998. A third application was filed by Petitioner with AHCA on April 28, 1999, by which she again sought an initial license authorizing the operation of a five-bed ALF at 1244 Edgewood Avenue, West, Jacksonville, Florida. On May 25, 1999, the application was denied under Section 400.414(1)(m), Florida Statutes, on the grounds Fosset had pled guilty to operating an unlicensed ALF, and the terms of her probation prohibited her from operating such a facility. On June 8, 1999, AHCA amended its earlier letter and added Section 400.414(3), Florida Statutes, as an additional statutory ground for denying the application. The latter statute authorizes AHCA to deny an application whenever an applicant has been denied an application within the preceding five-year period. This controversy followed. Petitioner concedes that she operated a facility without a license after being told to cease operations, but she did so only because she did not wish to "throw [her clients] out on the street," especially since none of them had other family or another facility in which to be placed. Despite being well- intentioned, Fosset nonetheless violated the law by continuing to operate without a license. Petitioner also points out that she has attempted in good faith on no less than three occasions to obtain a license. However, the first application was denied for technical reasons (incompleteness), and there is no record evidence that all of the missing items were ever submitted. Her last two efforts were properly rebuffed because Petitioner had continued to operate an ALF without a valid license. Finally, there is no dispute that Petitioner desires a license because she is truly committed to assisting elderly persons.
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 denying Petitioner's application for an initial license to operate an Assisted Living Facility. DONE AND ENTERED this 10th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of September, 1999. COPIES FURNISHED: William Roberts, Jr., Esquire 816 Broad Street Jacksonville, Florida 32202-4754 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact The Respondent, Lori Engelleiter, advertised in the Island Trader, a local shopper publication, and in the newspaper, holding herself out to provide regular care for the elderly, the handicapped and the retarded in her private home for unspecified monthly rates. In response to these advertisements, at least two individuals were taken into the Respondent's home for care, as arranged by relatives of these clients. The Respondent provided regular personal care for not more than three residents at a time. This personal care consisted of housing, meals, help with bathing, and with dressing and changing clothes. In the cases of the two clients of the Respondent whose stays at the facility were detailed at the hearing, the personal care was provided by the Respondent for a period of three weeks in one instance, and for more than four weeks in the other instance.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that the Respondent is guilty of operating an Adult congregate Living Facility without a license, and imposing a fine of $500 as penalty therefor. THIS RECOMMENDED ORDER entered this 12 day of April, 1984. 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 12th day of April, 1984. COPIES FURNISHED: Douglas E. Whitney, Esquire 400 East Robinson Street Suite 911 Orlando, Florida 32801 Lori Engelleiter Post Office Box 24 Melbourne Beach, Florida 32951 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact After seeing an advertisement in the newspaper Soliciting boarders, Mrs. Gail Graham, HRS Program Specialist, visited the boarding home operated by Martha Callahan. and advised her that licensure was required and that certain preliminary inspections, viz. fire and health department, were necessary before application for licensure could be made. Mrs. Callahan had these inspections conducted and applied for licensure. In June or July, 1978, Mrs. Graham visited the home, conducted an inspection and gave Mrs. Callahan (who married Mark LaGue in July, 1978) a packet containing forms of various records required to be maintained by an Adult Congregate Living Facility and copies of various rules and regulations pertaining thereto. Mrs. Callahan had previously held a temporary license at another home which she sold before a permanent license became necessary. By letter dated 26 July 1978, the DHRS denied Petitioner's application for full licensure, but granted Petitioner a conditional license for a period of three months. The letter listed numerous requirements with which the LaGue home was not currently in compliance. In effect, the conditional license authorized the home to continue serving the residents during the three months grace period within which the home would have to bring its records and reporting requirements into line with the laws and regulations. Shortly thereafter, a resident of the LaGue home, a Mr. Reiber, registered a complaint against Mr. LaGue with HRS. Mrs. Graham visited the home in the early afternoon, and found Reiber had been moved. She observed that LaGue appeared to have been drinking and was slightly intoxicated. When she accused LaGue of having been drinking, he did not deny it. Mrs. Graham then sought out Mrs. LaGue, inspected the home and told Mrs. LaGue that LaGue was never to be left alone with the residents. Mrs. LaGue agreed that she would not leave the home without obtaining a qualified replacement during her absence. Several days thereafter, Mrs. LaGue was called to Ohio on an emergency and LaGue was left in charge of the home. During this period, LaGue called HRS to demand that Mrs. Hickman, an 88-year old resident be removed immediately because she was causing dissension. When Mrs. Graham visited the home on August 18, 1978, Mrs. Hickman had already been removed. Mrs. Zela Hickman stayed at the LaGue boarding home for about one and one-half months. During the period in August, 1978, while Mrs. LaGue was in Ohio, Mrs. Hickman testified that LaGue struck her, locked her in her room, and forced her to miss supper. On two occasions another resident of the home opened the door for Mrs. Hickman which was not locked but fitted with a hasp, the hinge part of which was placed over the staple but otherwise unsecured. Another door to this room existed which could not be locked from the outside. After being thoroughly frightened if not actually abused by LaGue, Mrs. Hickman wrote a letter to Dr. Futch, her physician, asking him to get her out of the home. She gave this letter to the cleaning woman to mail. The same day the letter was mailed, the maid (or some other unidentified person) called Dr. Futch's office to report Mrs. Hickman was being abused. The following day, Dr. Futch received Mrs. Hickman's letter. Mrs. Hickman was brought to Dr. Futch's office that day by LaGue. Upon arrival, she was examined by Dr. Futch, found to be very upset emotionally but with no marks showing physical abuse. In view of her history of heart problems and emotional condition, Dr. Futch had Mrs. Hickman hospitalized. Jimmy Murray was a resident at the LaGue home for two or three months. He, too, complained of being abused by LaGue, by being struck with a belt, and of Mrs. LaGue making sexual advances towards him. Murray also testified that LaGue threatened to put something in his food so he wouldn't awake the next morning. Shortly before the conditional 90-day license was due to expire Mrs. Graham conducted a final inspection of the LaGue home and found no admission and discharge register was being maintained as required, that residents had not received X rays as required, and, by letter dated 29 November 1978 (Exhibit 2), the application for licensure was denied on these grounds plus the allegation that a person serving in an official capacity had not conducted himself in a personable manner with all residents and refrained from all abuse. At the hearing, Petitioner introduced into evidence completed resident admission and discharge forms and evidence that all residents had received chest X rays. Mrs. LaGue has operated boarding houses for the elderly for several years and appears to have valid concern for their well-being. She was aware of the various requirements for licensure prior to the incidents involving the 16th Street home as she previously owned another home on 57th Avenue which had held a temporary license for six months. A permanent license for the home was not applied for because the home was sold. Without the presence of Mr. LaGue on the premises, it would appear that Mrs. Lague is capable of, and for years did, operate satisfactorily a boarding house. His advent onto the scene has been inimical to the well-being of the residents. Although LaGue vehemently denied all allegations of misconduct against him and testified that he is an ordained minister, it appears that he is a mail- order theologian without congregation or parish. After testifying that he was building a local parish, in response to the question, Where?, LaGue replied that he was looking for a location. Mrs. LaGue, in a letter dated 1-6-79 (Exhibit 7) addressed to Mrs. Graham, advised that "My husband Mark is returning to business as an auctioneer."
The Issue Relating to Case No. 89-2757 Whether Respondent failed to assure that a sufficient number of staff members were certified in an approved First Aid course (a repeat violation), in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(f), Florida Administrative Code. Whether Respondent failed to sanitize multi-use eating and drinking utensils in accordance with the food service standards (a repeat violation), in violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A-5.020(1)(n)6, Florida Administrative Code Relating to Case No. 89-3411 Whether Respondent failed to have in its files the inspection reports for the years 1984 and 1985, in violation of Sections 400.419(3)(c)4. and 400.435(1), Florida Statutes and Rule 10A-5.024(1)(d)(2a), Florida Administrative Code. Whether Respondent failed to assure compliance with physical plant standards, by not providing a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area for one (1) sleeping room window that serves as a second means of escape, in violation of Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code. Whether Respondent failed to have a fire and evacuation route plan to assure compliance with fire safety standards, in violation of Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.
Findings Of Fact Case No. 89-2757: At all times relevant the dates and alleged occurrences referred to in these proceedings, Respondent, Henderson's Retirement Home, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). Respondent's facility was staffed without assurance of at least one staff member within the facility at all times who is certified in an approved first aid course. Tina Porterfield, the granddaughter of Dee Henderson, owner of Henderson's Retirement Home, although certified in an approved first aid course, was not a full time staff member. This violation occurred on September 30, 1987 and was not corrected on February 2, 1988. There was no competent evidence to show that Respondent's multi-use eating and drinking utensils were not being properly sanitized in accordance with food service standards. Case No. 89-3411: At all times relevant to the dates and alleged occurrences referred to in these proceedings, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF). HRS inspection reports relating to the Respondent's ACLF facility were not provided to Respondent for the years 1984 and 1985, and therefore could not be retained in its files at the time the facility was inspected in February, 1986 and February 18, 1987. HRS inspection of the premises on February 16, 17 and 18, 1987 revealed that a window that serves a second means of escape did not provide a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area. It was not proven where this window was located or if it was a sleeping room. Respondent was given until April 1, 1987 to correct the deficiency and the window was removed and replaced by a fire exit door when inspected on June 4, 1987. As of February 18, 1987, Respondent had a written fire and evacuation route plan prepared. A copy was posted during the time the HRS inspectors were completing their survey on February 18, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner impose a civil penalty in the total amount of $300 against Respondent pursuant to Section 400.419, Florida Statutes. DONE AND ENTERED this 15th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2757, 89-3411 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact: As to Case No. 89-2757: Adopted in substance. As to Case No. 89-3411: Paragraphs 1 and 3 adopted in substance. Paragraph 2 rejected as against the weight of the evidence. COPIES FURNISHED: Linda L. Parkinson, Esquire District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson Street Suite 701 Orlando, Florida 32801 Raymond A. McLeod, Esquire McLeod, McLeod and McLeod, P.A. Post Office Drawer 950 Apopka, Florida 32704 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
