The Issue Petitioner is charged pursuant to a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance with a violation of Section 386.04(1)(a) and (b), Florida Statutes (1997), which describes conditions that are prima facie evidence of a sanitary nuisance injurious to health.
Findings Of Fact It was stipulated that Petitioner, Ann B. Harvey, through her company Harvey Enterprises and Company, Inc., owns the home at 102 Williams Street, Palatka, Florida. At all times relevant to the alleged violation, the home was occupied by tenants. The tenants vacated the house on or about October 13, 1998. Kenneth F. Burnett, Environmental Specialist I, with the Putnam County Health Department, first investigated a complaint regarding the property at 102 Williams Street, Palatka, Florida, on August 5, 1998. He witnessed faulty plumbing in the home and ponded wastewater at the back of the home. On August 11, 1998, Mr. Burnett drafted and mailed a Notice to Abate. The notice was mailed by certified mail return receipt requested and received by Ann B. Harvey on August 25, 1998. Ann B. Harvey signed the return receipt for the Notice to Abate on August 25, 1998. Mr. Burnett again inspected the property on September 2, 1998, and found no change in the status of the faulty plumbing and ponded wastewater. On September 9, 1998, Mr. Burnett again inspected the property and determined there had been no changes. David Flowers, Environmental Specialist II, became involved in the case on September 18, 1998, when he inspected the property. Mr. Flowers observed that wastewater ponded on the ground at the back of the home, and that the plumbing inside the home was in disrepair. Ms. Laurey Gauch, Environmental Health Director for Putnam County Health Department testified. She inspected the property in question on September 18, 25, and 28, 1998. Ms. Gauch observed ponded wastewater in the backyard and plumbing in disrepair inside the home on each visit. Ms. Gauch opined that the condition of the property was a sanitary nuisance in violation of Section 386.041(1)(a) and (b), Florida Statutes (1997), because the ponded wastewater would breed disease (bacteria, viruses, etc.) and contamination. A Citation for Violation was received and signed for by Ronald Harvey on September 25, 1998, pursuant to statutory authority at Section 381.0065, Florida Statutes (1997). The citation cites the Petitioner for violation of Section 386.041(1)(a) and (b), Florida Statutes (1997). On September 25, 1998, Mr. Flowers again inspected the property, and observed that the sewage remained on the ground at the rear of the home. Mr. Flowers flushed dye in the toilet to determine if the standing water was coming from the toilet inside the home. The dye would run out onto the ground if the ponded water was from the toilet. Mr. Flowers inspected the problem on September 28, 1998. Sewage remained ponded on the ground at the rear of the home and the water bubbled when the toilet was flushed. Mr. Flowers re-inspected the property on September 29, 1998, and flushed dye in the toilet. He documented that the dye came to the ground surface. During the visit, Mr. Flowers was accompanied by a County Codes Enforcement Officer who condemned the home. On October 6, 1998, Mr. Flowers returned to the property with his supervisor, Geoff Batteiger. The tenants were still living in the home, but were reported to be leaving. The plumbing in the home remained unrepaired. When the toilet was flushed, water bubbled onto the ground surface. The problem had neither been abated, nor were there any signs that the problem was being corrected. No repairs were made to the premises between August 25, 1998, and October 6, 1998, a period of one and one-half months during which tenants lived in the home. On November 17, 1998, the property was reinspected by Mr. Burnett and Mr. Batteiger. They observed that the sanitary nuisance had been remedied. Ms. Lucille Harvey, property manager and sister-in-law to the Petitioner, testified for Petitioner. She collects rents and arranges for repairs. She had contacted one handyman who came to the home, but refused to do the work because of foul odor in the yard and fleas. Ms. Lucille Harvey did not contact anyone else for repairs until after the tenants had vacated the premises. The tenants kept dogs in the backyard where the problem was, and were uncooperative with the landlord. Ms. Lucille Harvey testified that she notified the Petitioner of the sanitary nuisance at the end of August 1998, and the problems she was having making repairs. Petitioner, Ann Harvey, testified she commenced eviction proceedings for the tenant at 102 Williams Street on or about July 12, 1998. The proceedings were on-going due to various legal exigencies until the tenants vacated the premises on or about October 13, 1998. Ms. Harvey was out-of-town from approximately July 22, 1998, through August 15, 1998, during which time a judge dismissed the eviction action. The action was recommenced. The tenant made a partial payment of one month, which Petitioner accepted. The judge again dismissed the eviction action. The sanitary nuisance at the property in question was not remedied until the Petitioner evicted the tenants and gained access to the premises. Mr. Thomas Harvey, handyman and brother Ron Harvey, testified that he began working on the repairs at the home at 102 Williams Street, on November 2, 1998. He testified that he replaced broken lines, cleaned a grease trap, and snaked the kitchen and bathroom. These repairs concluded on or about November 12, 1998.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Department of Health enter a final order waiving the fine and payment as stated in the Citation for Violation. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 9th day of April, 1999. COPIES FURNISHED: Ron Harvey Route 2, Box 1650 Palatka, Florida 32177 Ann B. Harvey 102 Williams Street Palatka, Florida 32177 Susan E. Lindgard, Esquire Department of Health 1000 Northeast 16th Avenue Box 19 Gainesville, Florida 32601 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact On March 6, 1991, Mr. Leonard Baldwin, an inspector for the Department of Professional Regulation, inspected the salon known as Wonderful Hairweaving #2, located at 1439 Northeast 4th Avenue, Fort Lauderdale, Florida 33304. At the time he entered, the owner of the establishment, Kettly Guilbaud, was not present. Mr. Baldwin found two persons working at the salon; one person, a lady who identified herself as Rachel Guillaume, was placing chemicals on the hair of a patron as part of giving a permanent to the patron. The gentleman, who identified himself as St. Armond Iout, was cutting the hair of another patron. Both acknowledged that they had no license from the Department of Professional Regulation to perform cosmetology. Ms. Rachel Guillaume stated that she had only been at the salon for two days and was just there to help out a friend. It is not clear whether this was meant to mean that she was helping Ms. Guilbaud, the owner of the shop, or the person whose hair was being permed. It is more likely that she meant that she was helping Ms. Guilbaud. See Finding 6, below. Mr. Baldwin was not able determine how long Mr. Iout had been working there because of Mr. Iout's great difficulty with English. A customer translated for Mr. Iout, who told Mr. Baldwin through the customer that although he was cutting a man's hair, he did not work there. This is not believable. Mr. Baldwin also found sanitation violations at the salon, in that the implements available for use had not been sanitized, and they were kept in a drawer which was not clean. The sanitation rules were not displayed at the shop. Ms. Guilbaud testified that Rachel Guillaume was there only to answer the telephone and to make appointments for customers who would either call or come to the shop. Ms. Guilbaud was away at another location which she was preparing to open as an additional salon. She also testified that St. Armond Iout was there because the electrical inspector from the City of Fort Lauderdale was to come to the salon to look at some electrical wiring and that Mr. Iout was there only to meet the inspector. In view of Mr. Iout's very limited fluency in English this is unlikely, for he could have been no assistance to the electrical inspector. Rachel Guillaume could have admitted the inspector to the shop. I find the testimony of Mr. Baldwin persuasive, that both Ms. Guillaume and Mr. Iout were either perming or cutting hair. Neither were at the salon for the limited purposes described by Ms. Guilbaud. I accept Ms. Guilbaud's testimony that both Ms. Guillaume and Mr. Iout are not fluent in English, but Mr. Baldwin has not been confused by difficulties in understanding either Ms. Guillaume or Mr. Iout. What is significant is what Mr. Baldwin observed, not what Ms. Guillaume or Mr. Iout tried to explain to him.
Recommendation It is RECOMMENDED, based upon the foregoing findings of fact and conclusions of law, that a final order be entered by the Board of Cosmetology finding Kettly Guilbaud, doing business as Wonderful Hairweaving #2, to be guilty of the acts alleged in Counts I and II of the Administrative Complaint, and that a fine of $600 be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June 1992. WILLIAM R. DORSEY, JR. 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 19th day of June 1992. Copies furnished: Roberta Fenner, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kettly Guilbaud, pro se 1439 Northeast 4th Avenue Fort Lauderdale, Florida 33304 Ms. Kaye Howerton Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Petitioner was wrongfully terminated from his position at the City because of his physical handicap, diabetes, in violation of Section 760.10(1(a), Florida Statutes. Whether Petitioner could be reasonably accommodated to perform the essential functions of his duties as an Engineer I position with the City Sewer Department.
Findings Of Fact Petitioner is a 40 year old male. Petitioner was diagnosed with Diabetes Mellitus in 1979. This is a Type I Classification of diabetes which required that Petitioner must take insulin from its onset. Petitioner is further classified as a "brittle" diabetic, which is a type that is difficult to control. Additionally, Petitioner has hypothyroidism (underactive thyroid) and an adrenal insufficiency. This combination is rare. Petitioner is a handicapped person. Petitioner worked steadily at a variety of jobs in the engineering construction field from 1979 to the time he was hired by the City of Tampa on December 12, 1990. Petitioner's diabetic condition did not place any restrictions on his ability to fulfill his job responsibilities at any of his places of employment between 1979 and December 12, 1990. Petitioner was hired by the City of Tampa, an employer, as an Engineer Tech 2 on December 12, 1990. As an Engineer Tech 2, Petitioner was responsible for monitoring the electrical and instrumentation construction at a sanitary sewage treatment plant, and for sewage pumping stations throughout the city. He was essentially an inspector. Prior to accepting employment with the City, Petitioner talked with his prospective supervisors, Jack Kulik and Jeff Taylor, about his diabetic condition. During the period Petitioner was employed as an Engineer Tech 2, he had some insulin reactions on the job in the office. Those reactions were caused by a lowering of Petitioner's blood sugar level. When these reactions occurred, office personnel would assist Petitioner by encouraging him to eat a food product containing sugar. The episodes would take 15-30 minutes to subside. During the period Petitioner was employed as an Engineer Tech 2, he drove a City car alone while at work, and drove his personal car to and from work. When at a construction site, Petitioner went near high voltage panels, into manholes, and also into open pits with open wells on a regular basis. The supervisor, Jack Kulik, did not have any concerns about Petitioner's ability to drive a car. Petitioner received a good performance evaluation for his work as an Engineer Tech 2 on June 12, 1990. He was rated as either "Excellent" or "Fully meets Expectations" in all 13 rating categories. Petitioner's diabetes did not prevent him from performing the essential functions of his job. Petitioner was promoted to an Engineer I position in August 1990. From August 1990 through early February 1991, Petitioner worked half- days at the Hookers Point facility, and then commuted to downtown Tampa to work a half-day. The Engineer I position was primarily an office job, with 80% of the responsibilities in-office and 20% at various job sites. During the period between August 1990 and February 1991, Petitioner had several insulin reactions in the office of the Engineer I position. His new supervisor Korchak did not recognize the symptoms of Petitioner's reaction. He characterized Petitioner as being "asleep" on the job on three occasions, and was impaired on numerous other occasions. Due to his physical handicap, Korchak lost confidence in Petitioner's ability as an engineer. Petitioner ate food to counteract the reactions, which took 20 to 30 minutes to subside. In August 1990, shortly after Petitioner was promoted to an Engineer I position, he was involved in an automobile accident, while driving his personal car. The accident resulted from a diabetic reaction. When he was able, Petitioner called his supervisor, Mr. Korchak, and reported the accident. Mr. Korchak relayed the information about the accident to Andy Cronberg, a deputy director, second in command of the department, who was in an office adjacent to Mr. Korchak when he received the call from Petitioner. Mr. Cronberg made a decision, at that moment, in August 1990, based solely on his conversation with Mr. Korchak, to revoke petitioner's privilege to drive a City car. The decision to revoke Petitioner's driving privileges was made in accordance with a general policy of the City, and not on individualized analysis of Petitioner's condition. The decision to restrict Petitioner's driving privileges was not communicated to Petitioner until a performance review on February 8, 1991. In addition, during this same period, Korchek began tailoring and limiting Petitioner's position to in-office functions only, based on what Korchek believed Petitioner could accomplish safely, and downgraded his evaluation when he rated him on his performance review. Prior to the implementation of the decision to restrict Petitioner's driving privileges on February 8, 1991, the City's representatives did not speak to Petitioner about his driving abilities; they did not speak or consult in any way with Petitioner's doctors; nor did they speak with Petitioner's previous supervisor with the City, Jack Kulik. The first contact the City had with Petitioner's doctor was a response to a questionnaire sent to Dr. Sumesh Chandra and, received by the City on February 27, 1991, wherein Dr. Chandra indicated that Petitioner could safely and effectively operate an automobile. The City's representative Mr. Rice indicated that Dr. Chandra's response raised more questions than it answered, and the City did not restore Petitioner's driving privileges. Neither Mr. Rice, nor any other City employee ever consulted with Dr. Chandra to clear up the confusion they had over Dr. Chandra's statement that Petitioner could safely and effectively drive a car. Petitioner is licensed to drive by the State of Florida. His license has never been revoked, either in Florida or any other state. Dr. Chandra stated that, in his opinion, Petitioner could safely and effectively operate an automobile because, "He's capable, dexterous, and coordinated. He's like any normal individual except that he is unfortunately diabetic. So for routine capacity his skills are like any other normal individual." Twenty percent of the Engineer I position required travel to various job sites. Because Petitioner was not allowed to drive an automobile on city time, and was restricted in in-office functions while performing his Engineer I position, he was not able to fulfill the essential functions of the Engineer I position. Following a request by Phil Rice of the Sewer Department, the City received a letter from Dr. Jai H. Cho, a physician on May 15, 1991, that Petitioner had seen for a short period of time. Dr. Cho's letter indicated, among other things, ". . . it is inevitable, that he will develop hypoglycemia with loss of consciousness in the future because of his concurrent illness with diabetes and adrenal insufficiency." Dr. Cho never specifically addressed the issue of whether Petitioner could safely drive an automobile or work alone at job sites, either in writing or in phone conversations with Mr. Rice. No City representatives ever discussed Petitioner's ability to drive a car or work alone on a job site with Petitioner, Dr. Chandra, Dr. Cho, Petitioner's previous supervisors with the City, or Petitioner's previous supervisors with other employers. On May 20, 1991, the City terminated Petitioner's employment. Petitioner was informed of his termination by Mr. Korchak, Mr. Hoel, and Mr. Rice. Mr. Rice told Petitioner that the reason for the termination was the City's concern about its potential liability. Following his termination, Petitioner was unemployed for nine months. Petitioner was then hired in September, 1992, by Omega Tech in Hardee County, Florida, to work at the Hardee Power Station, performing the same duties as he performed as an Engineer Tech 2 for the City of Tampa. Petitioner commutes the 68 miles each way from Tampa to Hardee County every day in his own car. At the Hardee Power Plant, Petitioner is exposed to the same conditions to which he was exposed while working for the City of Tampa. During the 13 years since Petitioner was diagnosed with diabetes, he has never injured any other person as a result of his diabetes, nor received any serious injury to himself. At the present time, the position of Engineer I with the City of Tampa has been eliminated, and has been replaced by a person holding a contractors license. If Petitioner had remained employed with the City of Tampa, he would have earned $36,294.44 from the period June 20, 1991, through September 18, 1992, exclusive of health benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered that Petitioner was discriminated against on the basis of his handicap when his employment was terminated; The Petitioner receive back pay and health benefits in accordance with applicable law; and The Petitioner be awarded the attorney's fees and costs incurred as a result of this action. DONE and ENTERED this 28th day of December, 1992, in Tallahassee, 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 28th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39(in part), 40, 41, 42, 43 Rejected as against the greater weight of evidence: paragraph 15, 39 (Petitioners was hired by Omega Tech) Rejected as hearsay: paragraph 33 Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10,11(in part), 12,13,14(in part),15,17,18,19,20(in part),22(in part),23,25,26,30,31 Rejected as irrelevant or immaterial or argument: paragraphs 8,9,11(in part),14(in part), 20(Petitioner's written comment),21,24(in part),27,28,29 Rejected as hearsay: paragraphs 16,22(in part),24(in part) COPIES FURNISHED: Mark Herdman, Esquire KELLY, McKEE, HERDMAN & RAMUS, P.A. 1724 E. Seventh Avenue Tampa, Florida 323605 Margaret A. Jones, Clerk Commission On Human Relations 325 John Knox Rd. Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Kenneth C. Perry City of Tampa 306 East Jackson Street 7N Tampa, Florida 33602 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $5,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed November 7, 2012 1:32 PM Dipision of Administrative Hearings ORDERED at Tallahassee, Florida, on this b day of /V 6 Va be , 2012. ‘, - Sy At, * q Elizabeyh Dudek, ae Agency for Healt! e Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_gopy of this Final Order was served on the below-named persons by the method designated on this Z lay of _ LY Loe , 2011. Richard Shoop, Agency Cler! Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) David Selby, Esq. Haifa Harb, Administrator and Registered Agent Office of the General Counsel Bloomfield Manor Agency for Health Care Administration 2774 Wesleyan Dr., (Electronic Mail) Palm Harbor, FL 34684 (U.S. Mail) John D. C. Newton, II B. Kyle Morley, Esq. Administrative Law Judge Kelley, Kronenberg, et al Division of Administrative Hearings 8201 Peters Rd, Ste 4000 (Electronic Mail) Ft. Lauderdale, FL 33324 L (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Vv. Case No. 2012005357 BLOOMFIELD MANOR, INC. d/b/a BLOOMFIELD MANOR Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Bloomfield Manor, Inc. d/b/a Bloomfield Manor (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of $5,000.00 based upon one State Class II deficiency (Count I) and to assess a survey fee of five hundred dollars ($500.00) (Count Il). The total assessment is for $5,500.00. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part Il, and 429, Part L Florida Statutes (2011). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of assisted living facilities and enforcement of all applicable federal regulations, state statutes and rules governing assisted 1 EXHIBIT 1 living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Flonda Statutes, and Chapter 58A- 5, Florida Administrative Code (‘F.A.C.’), respectively. 4. Respondent operates a six bed assisted living facility (‘ALF’) located at 2774 Wesleyan Dr., Palm Harbor, FL 34684, and is licensed as an ALF, license number 9893. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT I — CLASS TI FINE 5. The Agency re-alleges and incorporates paragraphs one through five as if fully set forth herein. 6. Florida regulatory law states the following concerning resident care and elopement standards at an ALF: 58A-5.0182 Resident Care Standards. An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION. Facilities shall offer personal supervision, as appropriate for each resident, including the following: (a) Monitor the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. (b) Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the individual. (c) General awareness of the resident’s whereabouts. The resident may travel independently in the community. (d) Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. (e) A written record, updated as needed, of any significant changes as defined in subsection 58A-5.0131(33), F.A.C., any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services. (8) ELOPEMENT STANDARDS (a) Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement shall be identified so staff can be alerted to their needs for support and supervision. 1. As part of its resident elopement response policies and procedures, the facility shall make, at a minimum, a daily effort to determine that at risk residents have identification on their persons that includes their name and the facility’s name, address, and telephone number. Staff attention shall be directed towards residents 2 assessed at high risk for elopement, with special attention given to those with Alzheimer’s disease and related disorders assessed at high risk. Rule 58A-5.0182, FAC. 7. A-complaint survey, CCR # 2012000332, was performed on 9 February, 2012, in conjunction with a biennial state licensure survey of this ALF with extended congregate care. 8. The Agency’s surveyor reviewed facility records and interviewed facility staff and determined that the facility failed to provide adequate supervision to ensure the health and safety of a vulnerable 97 year old female resident, which resulted in her eloping from the facility in the early morning hours on 5 January, 2012, a very cold morning where the temperature dropped to as low as 39-42° F. She was found early that morning by law enforcement with a broken nose and bruised eyes. She had no identification on her and she was too confused to state her name. She was identified by law enforcement only after the caregiver called law enforcement at between 7:00 — 7:45 am to report the missing resident. 9. The following information was learned from the records review and staff interviews during the Agency’s survey: a. This resident was admitted to the facility as a respite (short stay) resident by her son on 1/1/12 to stay for a week while he was going to be away. b. A formal health assessment was not required for respite care for a stay of less than 30 days. The facility administrator/owner’s brief notes indicated that he had asked the son questions about his mother’s routine, behaviors, diet, and her general needs regarding her activities of daily living. The notes included no milk, no smoking, some confusion, no wandering, regular diet, no falling and supervision with dressing. He listed her age as 97. c. Additional unsigned handwritten notes on resident observation log sheets stated that she was confused, and she had stated that she was leaving and her son was going to come and get her. When the administrator came to the facility on 1/1/12, he and the live in caregiver (#1) (she stayed there five days a week) agreed to activate the front door alarm as a preventative step because of this particular resident's confusion. This was done the following day. There was no documentation of a plan to provide closer supervision. After the new door alarm was installed the next day, there was no documentation indicating that this resident had ever gone out the door and set off the alarm but it was documented that she continued to be confused and kept saying she was going to leave, that her son was coming for her. After a day of the alarm going off frequently due independent residents coming and going, the caregiver removed it the next day, 1/3/12, and contacted the administrator to let him know. The administrator acknowledged during his interview that he had been contacted as indicated by this caregiver. This caregiver said that she removed the door alarm because residents said it bothered them. Additionally, she did not see exit seeking behaviors from this respite resident, only confusion, and she stayed in the living room and kept a close eye on her. However, the caregiver did describe seeing the resident going from room to room, touching different doors and having difficulty finding the restroom. At one point during the night, the caregiver heard noise from the resident’s room and found her fooling with her travel bag which she had put on top of her bed. She described the inability of the resident to follow simple commands such as putting on clean clothes that had been selected for her to put on after she showered. Instead, she put on the same clothes she had worn previously. Her appetite was described as good. The caregiver further stated that she had verbally briefed the incoming replacement staff member (caregiver #2) on 1/4/12 before getting off at 9:00 am. She did not mention anything to her replacement about the door alarm being activated and then deactivated 4 i. but she did relate that the resident was confused. She did not say that this resident needed more supervision than the other residents. There were no written notes in the resident's file to describe for the benefit of the replacement the behaviors that had been observed that would have called for constant supervision or possible discharge to a higher level of care than could be provided at this facility. A confidential interview during the survey with a different resident revealed he had heard and felt someone touch his feet during the early hours of 1/5/12 and thought it was a burglar in his room but then realized it was the respite resident who immediately left his room. He recalled this happening between 3:00 - 3:30 am. He said he got up and rolled into the living room and found the caregiver (#2) asleep on the chair. Shortly after that he said he heard noises coming from behind his closet where the respite resident's closet backed up to his but the noises stopped and he did not think any more about it. He said the caregiver (#2) came into his room sometime around 5:00 am he thought and asked him if he had seen the respite resident. He told her that he had not seen her since earlier that morning when she had come into his room. He said the caregiver then began a full search. Review of the 1 day and 15 day Adverse Incident reports submitted on 1/15/12 and 2/5/12 (submitted late and cited as a separate deficiency) revealed the respite resident was discovered missing on 1/5/12 at approximately 7:30 am at which time the administrator was notified. By that time, the resident had already been picked up by law enforcement and taken to a nearby hospital with a fractured nose. Review of the facility's elopement drills revealed they were completed timely. Caregiver #1’s personnel file reflected all required training. 1. Caregiver #2’s personnel file was missing so it could not be reviewed. The administrator thought that that caregiver might have taken it from his office when she returned for the rest of her personal items on 1/20/12 after being terminated on 1/5/12. 10. The information set forth above reflects Respondent’s failure to ensure care and services appropriate to the needs of a resident accepted for admission to the facility including personal supervision where Respondent knew of or should have known of the resident’s confusion, risk of elopement, and possible injury, but nevertheless deactivated the alarm needed to ensure the continued safety of an obvious at-risk resident. 11. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class I violations. 12. The same constitutes a State Class II offense, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients. ... Violations shall be classified on the written notice as follows: (b) Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation. Section 408.813, Florida Statutes (2011) 13. The fine for a Class II violation is set forth as follows: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part I of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the ... actions of a facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a 6 resident of the facility. (2) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (b) Class “If” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. (3) For purposes of this section, in determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. (c) Any previous violations. (d) The financial benefit to the facility of committing or continuing the violation. (e) The licensed capacity of the facility. (7) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3) (c) to verify the correction of the violations. Florida Statute 429.19, Florida Statutes (2011). WHEREFORE, the Agency intends to impose an administrative fine in the amount of $5,000.00 against Respondent, an ALF in the State of Florida, pursuant to Section 429.19 (2) (b) and (3), Florida Statutes (2011). COUNT II- ASSESSMENT OF A SURVEY FEE 14. The Agency re-alleges and incorporates paragraphs 1 through 5 and Count | as if fully set forth herein. 15. Pursuant to Section 429.19 (7), Florida Statutes (2011) (paragraph 13 above), in addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under Section 429.28 (3) (c), Florida Statues, to verify the correction of the violations. 16. The citation of the Class II deficient practice based on the 9 February, 2012, survey was the subject of a complaint. 17. Respondent is therefore subject to a survey fee of $500.00, pursuant to Section 429.19 (7), Florida Statutes (2011). WHEREFORE, the Agency intends to impose a survey fee of $500.00 against Respondent, an ALF in the State of Florida, pursuant to Section 429.19 (7), Florida Statutes (2011). Submitted this 7 day of June, 2012. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebring Building 525 Mirror Lake Dr. N., Suite 330H St. Petersburg, FL 33701 Ph: (727) 552-1942 Fax: 552-1440 L. 7 . CO ; py Cher O. /' Edwin D. Selby, Esq. Fla. Bar No. 262587 Attorney for Petitioner
Findings Of Fact The Hospital Cost Containment Board has adopted a policy known as the "outlier" policy. Generally speaking, the policy is a credit available to a hospital as a result of the hospital's having experienced a higher level of outlier experience compared to total admissions in one period as compared to another period. The policy has an exception in which a hospital can receive credit in an amendment for a change in outlier experience in a previous year if it files an amendment to its budget within the first ninety days of its current fiscal year. For such amendments, the comparison is between changes in outlier experience which have occurred between two specific timeframes. The first is the change between outlier experience during all the fiscal year two years prior to the current year and the first half of the year prior to the current year. The second is the change between outlier experience in all the fiscal year two years prior to the current year and all of the year prior to the current year. If the second change is greater than the first change, the difference is the outlier credit that is allowed. For an amendment filed after the first ninety days of a hospital's current fiscal year, no credit is allowed for changes in outlier experience from the prior year because in such cases the comparison is between outlier experience which has actually occurred in the current year-to- date compared to the hospital's prior year actual outlier experience. The "outlier" policy described above has been adopted by the Hospital Cost Containment Board as a policy that it generally applies to all hospitals subject to its regulation. The "outlier" policy described above has not been promulgated as a rule in accordance with the procedures established by Section 120.54, Fla. Stat. (1987).
The Issue Whether the Respondent's license for the Egret Motel should be suspended or revoked and whether a fine should be imposed upon the Respondent?
Findings Of Fact At all times relevant to these proceedings Harshada Nagda has been the holder of license 52-69H, a license for a public lodging establishment known as the Egret Motel (hereinafter referred to as the "Egret"). The Egret is located at 300 S.W. 18th Street, Ocala, Marion County, Florida. There are five septic tanks on the property where the Egret is located. Three of those septic tanks have not created any problems during the period of time at issue in this proceeding. As early as September 10, 1986, problems with two of the septic tanks and the waste disposal system of the Egret have bean experienced. As a result of the problems with the Egret's waste disposal system, an Official Notice to Abate a Sanitary Nuisance was issued by the Marion County Public Health Unit on May 6, 1987. This Notice was hand delivered to the Manager of the Egret. The following violation was reported on the Notice: "An inspection on 9/10/86, 2/11/87, 5/5/87 disclosed the discharge of untreated or improperly treated human waste onto the ground surface." On June 8, 1987, the Respondent signed the following letter to Mr. David L. Townsend, Environmental Health Director, Marion County Public Health Unit: This letter shall serve as consent order that I will keep the existing septic tank system and drain field pumped and maintained until, [sic] January 1, 1988, by which time the existing buildings will be torn down and the new buildings will be hooked up to the City of Ocala Sewer System. On October 5, 1987, the Marion County Public Health Unit received a complaint from a neighbor of the Egret about the sewage system. On October 5, 1987, Robert Wade Varnadore, an Environmental Health Supervisor of the Marion County Public Health Unit, and William B. Dickson, an Environmental Health Specialist with the Petitioner, inspected the Egret property. They discovered raw, untreated sewage leaking onto the surface of the grounds of the Egret in three different places. The sewage from these locations ran along the surface of the Egret property toward the back of the property. The ground around the leaks and the run off was saturated with effluent (human liquid waste), there was fecal material (human solid waste) and tissue paper in standing effluent and a bad odor permeated the area. The conditions were similar to those found on October 13, 1987, as described further, infra. Mr. Dickson completed a Public Lodging Inspection Record on October 5, 1987, at the end of the inspection and gave it to Lenora Cox, who signed the Record as manager of the Egret. The Record reported a "Major" problem with "sewerage or disposal system" and indicated the following: "Failure to maintain an adequate and approved sewage disposal system as evidence [sic] by failing septic systems leaking raw sewage to the surface of the ground." Mr. Varnadore reported the condition of the Egret on October 5, 1987, to Mr. Townsend and recommended that action be taken to close the Egret. Mr. Townsend and Mr. Varnadore then met with Nathan Grossman, M.D., Marion County Health Director. Dr. Grossman was informed of the present condition of the Egret and the history of the problem. Based upon this report, Dr. Grossman condemned the property by letter dated October 5, 1987, "as an imminent threat to the health, safety and welfare of the public." On October 8, 1987, Mr. Dickson returned to the Egret and conducted an inspection. Mr. Dickson completed a Public Lodging Inspection Record. A copy of the Record was given to Al Cox, who signed the Record as "manager" of the Egret. Mr. Dickson noted the following -major" problems in the following general categories at the Egret: Electrical deficiencies, proper locking devices, building repair/painting; toilet/lavatory facilities, household furnishings, plumbing, ventilation, garbage and refuse, sewerage or disposal system, room rates posted and smoke detector. The specific problems discovered by Mr. Dickson were noted on a sheet of paper which has been accepted into evidence as exhibit 4. Mr. Dickson's description of the specific problems at the Egret in exhibit 4 is hereby adopted as a correct characterization of problems existing at the Egret. Among the problems existing at the Egret on October 8, 1987, was the failing sewerage at the same locations noted during the October 5, 1937, inspection of the Egret. As a result of the inspection on October 8, 1987, Mr. Dickson requested an emergency order closing the Egret. On October 13, 1987, Mr. Varnadore, Mr. Dickson and Mr. Townsend went to the Egret and served an Emergency Order of Suspension and a Notice to Show Cause. The Emergency Order of Suspension orders the suspension of the Respondent's license until the Order is lifted or a Final Order is issued pursuant to the Notice to Show Cause. The Emergency Order also ordered the Respondent to cease and desist from the sale or rental of lodging units at the Egret. The Notice to Show Cause notified the Respondent that the Petitioner may assess a civil penalty against her or suspend or revoke her license with the Petitioner based upon the condemnation by the Marion County Public Health Unit of the Egret, the condition of the sewage system of the Egret on October 3, 1987, and other problems noted by Mr. Dickson as a result of his October 8, 1987, inspection. The Notice to Show Cause also notified the Respondent that, if she wished to contest the charges against her, she could inform the Petitioner that she intended to attend an emergency hearing scheduled to commence on October 16, 1987, or she would be given at least fourteen days notice of a final hearing to be conducted at a later date in accordance with Section 120.57(1), Florida Statutes. At the time that the Emergency Order of Suspension and the Notice to Show Cause were served, nine pictures were taken on the property of the Egret reflecting the condition of part of the Egret's sewage system. The conditions reflected in the pictures are representative of the conditions in existence on October 5, 1987. Sewage was found to be leaking to the surface in at least three locations. There were exposed and broken pipes connecting the sewage system to the Egret, standing effluent and saturated ground, floating tissue paper and fecal matter. If a hotel has raw sewage on the ground and people are on the property, those people are in danger. Anyone coming into contact with human waste can contract hepatitis, a liver disease, or any number of other diseases. Although the Respondent indicated that the problem with the sewage system had been corrected, the weight of the evidence fails to support such a finding of fact. The Respondent indicated that she believed that the problem discovered with the sewage system in October had been caused by excessive rain and roots clogging the system. She indicated that the roots had now been cleared. Removing roots, however, will not stop broken pipes from leaking and the evidence failed to support a conclusion that the system will not fail again when it rains or otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's license number 52-69H be suspended for a period of 12 months for violating Sections 509.211(1) and 509.215(1), Florida Statutes (1986 Supp.), Section 509.221(2) and (5), Florida Statutes (1985), and Rules 7C-1.004 (4) and (7), and 7C-3.00l(1) and (9), Florida Administrative Code. It is further RECOMMENDED that a total fine of $500.00 be imposed on the Respondent for violating Sections 509.201(1), and 509.221(2), Florida Statutes (1985), and Rules 7C-1.003(1), and 7C-3.002(i) and (2), Florida Administrative Code. DONE and ENTERED this 4th, day of November, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4484 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2. 4 and 5. The first paragraph is unnecessary. It only affects the weight to be given Mr. Varnadore's testimony. The last two para- graphs are technically not findings of fact; are statements about the witnesses' testimony. It will be assumed that such statements about testimony are intended to reflect the facts. See 7, 8 and 10. 8 and 9. 11. Mr. Dickson's "opinion" is irrelevant. 14 and 17. The last sentence is a con- clusion of law. 7. 17. 8. Irrelevant. 9. 17. 10. The last sentence is irrelevant. Irrelevant. 10. The last sentence is irrelevant. 8, 10 and 18. Dr. Grossman did not, how- ever, testify about a facility of "more than 30 units." Although Dr. Grossman was asked about a 30 unit facility he specifically indicated that his conclusion about the Egret had nothing to do with the size of the facility. 14. 5. 15. 6. 16. 3 and 19. 17-19. Irrelevant. COPIES FURNISHED: Van B. Poole, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 R. Hugh Snow, Director Division of Hotels and Restaurants Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harshada Nagda Egret Motel 300 Southwest 18th Street Ocala, Florida 32674
