The Issue Whether Respondent's renewal facilities licensure application for a group home contained a falsified fire inspection report, as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty?
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Rivero is an applicant for renewed licensure of a group home facility in Dania Beach, Florida. At all times material to the Administrative Complaint, Yitzhak Rivero was a corporate officer of Rivero. Mr. Rivero, was a psychiatrist in Cuba treating patients with mental and intellectual disabilities before he moved to the United States and became a citizen. He became a licensed mental health counselor, and for the past ten years has operated group homes in an effort to serve disabled persons, owning as many as seven group homes, employing 30 people at one time, and currently owning and operating three licensed group homes. On June 20, 2019, Sally Vazquez, then administrator for Rivero, submitted a license renewal application on behalf of Rivero’s Dania Beach group home to APD by hand delivering it to APD employee Patricia White, who was on the premises. On that same day, fire inspectors were also at the Dania Beach property to conduct an inspection. Prior to submitting the renewal application and supporting documents to APD on June 20, 2019, Ms. Vazquez prepared the application and compiled or prepared the supporting documents in the renewal application. The handwriting on pages 1 through 11 of the renewal application is that of Ms. Vazquez. Ms. Vazquez is listed as backup manager supervisor for Rivero on page 7 of the renewal application. After Ms. Vazquez prepared the renewal application and compiled the supporting documents, Mr. Rivero, as the group home owner, did a brief review of the application and supporting documents before he signed it. Before he signed it, Mr. Rivero identified nothing unusual in the application packet. When Mr. Rivero signed the attestation on the renewal application, which read, “Under penalty of perjury…all information contained in and submitted with application is true and accurate to the best of my knowledge,” he believed that the information in the application and supporting documents was true and correct. Unbeknownst to Mr. Rivero, the renewal application contained a document purporting to be a fire inspection report dated May 1, 2019, that was falsified. Mr. Rivero did not know the fire inspection was false when he reviewed the renewal application and signed it on June 7, 2019, or when Ms. Vazquez submitted it to APD on behalf of Rivero on June 20, 2019. In fact, the only email or communication Mr. Rivero received about the Dania Beach group home in regard to fire safety was a June 20, 2019, email sent by Fire Inspector Braun at 12:49 p.m., stating it was “From: Broward Sheriff’s Office Fire Rescue,” identified by the subject, “Inspection Report,” which contained an attachment related to the Dania Beach home from “Broward Sheriff’s Office Fire Rescue” bearing the agency’s logo that stated: “An annual fire inspection of your occupancy revealed no violations at the time of this inspection. Thank you for your commitment to maintaining a fire safe occupancy.” On August 21, 2019, when asked in an email from APD representative Kimberly Carty to provide the fire inspection report for Rivero, Mr. Rivero forwarded the email he had received from the Broward Sheriff’s Office Fire Rescue indicating no violations, the only fire inspection report for this home he had ever received, and the only fire inspection report regarding this property of which he was aware. On August 23, 2019, Ms. Carty sent Mr. Rivero a fire inspection report showing violations noted from the June 20, 2019, fire safety inspection of the Dania Beach group home. The report notes six, of what fire safety inspector Craig Braun described as less serious, non “critical-life” violations. Rivero was given 30 days to correct the violations.1 The day after he was sent the full fire inspection report for the Rivero Dania Beach group home, Mr. Rivero corrected the “easily corrected,” relatively minor violations in approximately three hours. Mr. Rivero then contacted the fire department to re-inspect the facility. When no fire inspector came to re-inspect for over a month, on September 30, 2019, Mr. Rivero sent an email to Mr. Zipoli, the fire inspector who had signed the inspection report showing the minor violations. Nevertheless, the fire department has never re-inspected the facility. Fire Prevention Officers Braun and Zipoli testified unequivocally and without contradiction that the document Mr. Rivero forwarded to APD’s Kimberly Carty on August 23, 2019 (the document indicating, “An annual fire inspection of your occupancy revealed no violations at the time of this inspection”), was a genuine and authentic document. Further, Officer Braun indicated that on June 20, 2019, he was Officer Zipoli’s supervisor, and that on that date Officer Braun and Zipoli “went together to inspect the Rivero Group Home.” “[U]sually…just [one] fire safety inspector goes,” and it was “not the norm” for two fire safety inspectors to go together. In this unusual situation, Fire Safety Inspector Zipoli wrote the report of the June 20, 2019, inspection, and Fire Safety Inspector Braun “wrote a report,” a separate report, indicating that he “assisted him [Zipoli] on another 1 These violations included: front and rear door of the group home (two doors) had a key lock instead of a “simple thumb turn or something that does not require special knowledge”; a fire alarm needed to be updated with its annual fire inspection from a private contractor; a fire extinguisher needed to be mounted on its mounting on the wall instead of placed on the ground beneath the mounting; the fire extinguisher needed to have its annual certification updated for 2019; the smoke detector located in the kitchen needed to be moved to a different location. form.” It was this other form that Officer Braun completed--this fire safety “Inspection Assist” for--that was emailed to Mr. Rivero on June 20, 2019. It was this form that stated, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection.” Officers Braun and Zipoli confirmed that the Broward Sheriff’s electronic streamline system “had a ‘glitch,’” “a default problem at that time,” the period including June 20, 2019, that caused the “template of an assist” ( i.e., an Inspection Assist form) to generate the statement indicating, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection,” and the system gave fire safety inspectors no option or ability to remove this statement. When APD’s Kimberly Carty requested that Mr. Rivero send the most recent fire inspection report for the Rivero Dania Beach group home, Mr. Rivero forwarded to Ms. Carty the document he received on June 20, 2019, from Broward Sheriff’s Office Fire Rescue without altering or changing the document in any way. The first time Mr. Rivero was notified that the fire inspection report submitted with the renewal application at issue here was false was when he received the Administrative Complaint in this case on October 23, 2019. In addition to the June 20, 2019, document Mr. Rivero received from Broward Sheriff’s Office Fire Rescue that indicated “no violations,” and the fire inspection report indicating six violations that was sent to Mr. Rivero by APD on August 23, 2019, this case involves a document dated May 1, 2019, purporting to be a Broward Sheriff’s Office Fire Rescue fire inspection that was fabricated (“the false fire inspection report”). The false fire inspection report was submitted to APD by Ms. Vazquez during APD’s June 20, 2019, inspection of the Rivero’s Dania Beach group home. At the time she submitted the application with the false fire inspection report, Ms. Vazquez had worked for Rivero for at least six years, and for at least two years as an administrator for between four and seven group homes. At the time she submitted the application at issue in this case to APD, Ms. Vazquez had prepared more than 20 APD renewal applications for Mr. Rivero’s group homes. In short, Ms. Vazquez was a “trusted employee,” whom Mr. Rivero relied on to accurately prepare applications and the documents submitted with the applications, and to handle the inspections conducted by APD. After Mr. Rivero learned, by receiving the Administrative Complaint in this case on October 23, 2019, that an altered or falsified document had been submitted as a fire inspection report with Rivero’s Dania Beach group home’s annual renewal application to APD, he conducted an investigation to determine how it had happened. When Mr. Rivero determined Ms. Vazquez was to blame for the false fire inspection report being submitted with the application, he fired her. The evidence presented indicates Ms. Vazquez created and submitted the falsified fire inspection report in violation of her job duties and professional obligations, and without the knowledge or consent of Mr. Rivero or Rivero.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons With Disabilities enter a final order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 17th day of April, 2020. COPIES FURNISHED: Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A. 1000 5th Street, Suite 223 Miami Beach, Florida 33139 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony Vitale, Esquire The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Daniel Ferrante, Esquire Health Law Offices Of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue for determination is whether the application for an initial license to operate an Adult Family Care Home ("AFCH") should be denied because the applicant submitted fraudulent or inaccurate information in the application.
Findings Of Fact Petitioner is owned by Ms. Marvell Lawton, R.N. (the "applicant"). On June 3, 1996, the applicant applied for a license to operate an AFCH at 550 East Division Street, Deland, Florida (the "facility"). Respondent is the state agency responsible for licensing AFCHs. Respondent requires several documents to be submitted with the application including: a Florida Department of Health and Rehabilitative Services ("HRS") Community Residential Homes Sponsor Certification Form (the "HRS Form"); a statement by the local zoning office that the facility is properly zoned (the "zoning approval"); and a fire inspection report. The applicant altered the HRS Form, the zoning approval, and the fire inspection report to indicate that the facility was approved for a maximum capacity of five residents. Respondent initially denied the license application solely on the basis of the fire inspection report. However, the basis of denial was amended to include the HRS Form and the zoning approval pursuant to an order entered by Judge Stephen F. Dean on October 16, 1996. By letter dated July 11, 1996, Respondent notified the applicant that her application was denied. The letter stated, in relevant part, that the specific basis for denial was: . . . Submission of fraudulent or inaccurate information to the agency. The fire safety inspection report submitted with the application package was altered to indicate approval for five residents when the fire marshal's office had only approved three residents. The local fire marshal's office has verified that the original approval was for three residents because Ms. Lawton did not want to install a manual alarm system which is required for four or five residents. Submission of fraudulent or inaccurate information to the agency is grounds for denial of the AFCH application, s. 400.619(11)(e),F.S. On April 2, 1996, the applicant obtained a fire inspection report from the City of Deland Fire Department (the "Fire Department"). The fire inspection report limited the maximum capacity of the facility to three residents because the applicant did not have the manual alarm system required for four or five residents and did not wish to install such a system. The applicant altered the fire inspection report that she submitted with her application. She changed the number "3" to a "5" so that the fire inspection report appeared to approve the facility for a maximum capacity of five residents. As part of its review of the application, Respondent attempted to verify the fire inspection report included in the application by calling the Fire Department. When the Fire Department did not verify that the maximum capacity was five residents, Respondent obtained a copy of the original fire inspection report from the Fire Department. On March 22, 1996, the applicant obtained a zoning approval from the City of DeLand stating that the maximum capacity of the facility is three residents. The applicant added the phrase "to 5" after the number "3" in the zoning approval so that the zoning approval authorized a maximum capacity of "3 to 5" residents. On June 3, 1996, the applicant submitted the HRS Form to Respondent. The applicant amended the portion of the HRS Form requiring a designation of capacity for facilities with six or fewer residents as well as that for facilities with 7-14 residents. The latter category does not apply to Petitioner. The applicant did not submit fraudulent information to Respondent. The applicant did not intend to defraud Respondent. She misunderstood the application process. The facility has space for only three residents. It is physically impossible to house more than three residents in the facility. The applicant would have gained nothing from an authorized capacity of more than three residents. The applicant's refusal to add the manual alarm system required for four or five residents is consistent with the facility's limit of three residents. The applicant assumed that Respondent's minimum license category is for a license of 1-5 residents. The applicant altered the HRS Form, the zoning approval, and the fire inspection report under the mistaken belief that the capacity designation in each document should conform to the maximum capacity in Respondent's license category. In the HRS Form, the applicant even altered the licensed capacity for facilities with 7-14 residents. The applicant mistakenly submitted inaccurate information to Respondent within the meaning of Section 400.619(11)(e), Florida Statutes.1 The maximum licensed capacity of the facility must be consistent with fire safety requirements for the welfare of the residents. The licensed capacity of the facility must also conform to applicable zoning laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinGRANT a license to operate an AFCH for three residents. RECOMMENDED this 21st day of February, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1997.
The Issue The issue is whether Respondent committed the violations alleged in the Administrative Complaint dated October 4, 2005, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following findings of fact are made: At all relevant times, the Division is the state agency responsible for licensing, regulating, and inspecting public lodging establishments. With particular relevance to this case, it is the Division's responsibility to establish and enforce rules pertaining to sanitation and public health and safety in accordance with relevant provisions of the Florida Statutes; to ensure compliance with its rules; and to impose discipline in appropriate circumstances. At all relevant times, Green Terrace was licensed by the Division as a public lodging establishment under license number 1605642. At all relevant times, Green Terrace was located at 260 Southwest 8th Street, Pompano Beach, Florida 33060, and was owned by Peter Sporea (Mr. Sporea). At all relevant times, Larry Torres (Mr. Torres), a certified food manager and specialized fire safety inspector, was employed by the Division as a sanitation and safety inspector. Mr. Torres' duties include conducting inspections of Division licensees, including Green Terrace. On or about August 5, 2005, Mr. Torres conducted a routine inspection of Green Terrace. Based upon his inspection he documented various sanitation and safety violations and issued a written warning to Green Terrace which directed that the violations be remedied within 30 days. On September 29, 2005, Mr. Torres returned to Green Terrace to conduct a re-inspection. His re- inspection revealed that the violations documented at the time of the inspection had not been remedied. Two violations observed by Mr. Torres were "critical" in that they are more likely than other violations to pose an immediate threat to public health or safety; the remaining violations were deemed by Mr. Torres to be “non-critical.” Non-critical violations are violations which pose risk to the public health or safety, but are not considered to present an immediate threat. The violations which Mr. Torres observed and documented at the inspection, and again at the re-inspection were: Violation 01-09, based upon Mr. Torres' observation that a portable fire extinguisher located near apartment four was not charged. Failure to provide and maintain fire extinguishers in an operational condition is a critical violation. Violation 12-02, based upon Mr. Torres' observation of a loose railing on the second floor balcony by apartment seven; all building structural components, attachments and fixtures shall be kept in good repair. This violation is a critical violation due to the risk of serious injury if a person were to fall from a second floor balcony. Violation 13-01, based upon Mr. Torres' observation of a door in disrepair and a broken window in or near apartment 10. This is a violation because building structural components must be kept in good repair. Violation 25-01, based upon Mr. Torres' observation that excessive trash was observed in various places on the property grounds. For example, discarded equipment such as stoves was observed in hallways on the second floor. Violation 26-01, based upon Mr. Torres' observation that garbage was lying loose on the ground in the fenced area where garbage cans are available for community use. This is a violation because proper disposition of garbage is necessary to prevent nuisance conditions. Violation 26-14, based upon Mr. Torres' observation that trash receptacles lacked covers. This is a violation because uncovered trash receptacles could attract pests and constitute a public nuisance. Violation 26-18, based upon Mr. Torres' observation of a soiled waste receptacle that was attracting pests. This is a violation because dirty receptacles may attract pests, as they did here, and constitute a public nuisance. Mr. Torres and Mr. Sporea were the only witnesses at hearing. The trier of fact closely observed each, and evaluated such factors as their demeanor under oath; their candor with the fact-finder and with the opposing party under cross-examination; their opportunity to speak from personal knowledge concerning relevant facts; and their respective backgrounds, training and experience. Mr. Torres was forthright, direct and entirely credible. Mr. Sporea dissembled, and provided no persuasive testimony with respect to any of the material allegations of the Administrative Complaint. Upon a finding that a public lodging establishment licensee has operated in violation of relevant provisions of the Florida Statutes or rules promulgated thereuder, the licensee is subject to fines not to exceed $1,000.00 per offense; mandatory attendance at an educational program sponsored by the Hospitality Education Program; and the suspension, revocation or refusal of a license. In this case the Division has proposed that Respondent pay an administrative penalty in the amount of $2,700.00, and attend, at personal expense, a Hospitality Education Program approved by the Division. The proposed penalty is well within the Division's authority and is reasonable and generous under the facts and circumstances of this case.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a final order finding the violations described and imposing an administrative fine on Green Terrace in the amount of $2700 due and payable on terms prescribed by the Division; and requiring the owner and/or manager of Green Terrace to attend, at the licensee's personal expense, an educational program sponsored the Hospitality Education Program or other educational program approved by the Division, within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 24th day of July 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 24th day of July, 2006.
The Issue Whether Respondent is guilty of violating Sections 509.221(1) and (7) and 509.032, Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5), (6), and (13), 61C- 3.001(2), as set out in the Administrative Complaint dated March 24, 2003.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants (DHR) is the State Agency charged with regulating the operation of hotel establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. At all times material hereto, Respondent has been licensed by DHR or otherwise subject to DHR's jurisdiction, pursuant to issued License No. 26-00783. Respondent's last known business address is Clark Apartment and Rooms, 9762 Bayview Avenue, Jacksonville, Florida 32208. On February 3, 2003, and again on March 10, 2003, a DHR sanitation and safety specialist, John Phelan, inspected Respondent's premises. On February 3, 2003, the initial inspection, Mr. Phelan was accompanied by his superior, David Futlon. At the February 3, 2003, initial inspection, the following deficiencies were observed by both inspectors and noted for Respondent by Mr. Phelan: No proof was observed that the smoke detectors were interconnected as required by law and as stated by management. The door of a gas oven was held in place by a garden spade. Live roaches were on the floor and climbing the walls around the oven. The inspectors observed a stained mattress and a missing mattress pad on the bed in room They also observed that the second floor bathroom was out- of-order, and that shower curtains and shower stalls were dirty with soap scum. On March 10, 2003, Mr. Phelan returned to Respondent's premises by himself and noted that the foregoing problems/violations remained. According to both inspectors, the most serious violation was that there was no documentation that the smoke detectors were interconnected. This is a critical violation because it could present a potential fire hazard. The next violation that was found to be critical was that there was "a garden spade holding the oven door closed." This was seen as a violation because of the potential for fire. Next down the urgent and critical scale was the presence of live roaches around the oven. The absence of a mattress pad on room 17's mattress and the stain on the mattress were of somewhat less concern. However, these bedding problems are violations because they pose a sanitary issue. The next-ranked violation was that the second floor bathroom was out-of-order. The bathroom also presented a lesser sanitary issue, which was that the shower curtain and shower stall were dirty with soap scum. Based on the foregoing uncorrected deficiencies, Mr. Phelan caused an administrative complaint to be issued against Respondent on March 24, 2003, alleging Respondent's violation of Chapter 509, Florida Statutes, and/or the administrative rules promulgated thereunder. Although it was demonstrated at hearing that Mr. Clark, Respondent's principal, had been attempting, between the two inspections, to fix the originally-cited deficiencies, and although some progress at renovation had been made, most problems had not been fully addressed as of the date of the follow-up inspection on March 10, 2003. The credible evidence and testimony as a whole show that Mr. Phelan had recognized that a gas heater which had been cited at the initial inspection had been disconnected by the date of the second inspection and that it was no longer in use at the time of the second inspection. Therefore, the gas heater had been crossed off the notification to Respondent by Mr. Phelan and had not been cited as a violation in the administrative complaint. The stove also had been disconnected prior to the re-inspection. The gas heater and gas stove were disconnected at the same time, so propping the stove door open or closed with a spade had no significance with regard to fire hazard. Like the heater, the stove should have been removed from the premises as a safety precaution, but because Mr. Phelan did not know that the stove had been disconnected when he made his re-inspection, it was cited and included in the administrative complaint. The reason the disconnected stove was still present on the premises was because Respondent was fumigating for roaches by setting off "roach bombs" inside it. The fumigation of the roaches in an area where all other exit holes for them were intentionally sealed had resulted in some dead roaches, but many live roaches had fled into the kitchen in the vicinity of the stove. The live roaches were observed by all the witnesses who saw the kitchen on or about the re-inspection date. The testimony of several witnesses was credible that the upstairs bathroom's sink and tub had been repaired prior to the re-inspection. Mr. Musselwhite recalled credibly that he had screwed the faucet handles back on the tub between the two inspections. However, the testimony of Mr. Musselwhite that he was using the tub and sink upstairs at the time of the re- inspection is not credible. The greater weight of the credible evidence is that the tub and sink upstairs might have been repaired, but they were not actually in working order at the time of the March 10, 2003, re-inspection, because the water had not yet been turned back on. The evidence is clear that plaster board had been installed in the shower by the date of the re-inspection and that this was done to deal with the prior notice concerning discoloration. A dispute among the witnesses as to whether the discoloration on the old shower walls was soap scum, discoloration by scum removers, or mildew cannot be resolved. However, it was proven that, despite several changes of shower curtains between the two inspections, the shower curtains present on the re-inspection date remained covered with soap scum and/or mildew. Respondent admitted that the lack of a mattress pad on the mattress in room 17 on the date of re-inspection was an oversight. It was proven that a mattress from a first floor room had been moved upstairs to room 17. In the opinion of Respondent's witnesses, this constituted, a "new" mattress which was not stained. In this situation, Mr. Phelan's observation of the mattress stain is more credible. On his first inspection, Mr. Phelan told Mr. Clark that in the absence of other documentation, Mr. Clark needed to have the State Fire Marshall inspect Respondent's smoke detectors, in order to provide documentation that they were interconnected. By "interconnectedness" the parties meant that if one smoke detector sounded, then all of the smoke detectors throughout the hotel should also sound. Mr. McGee and Mr. Clark testified that between the two inspections the issue of the smoke detectors had been "looked into" with employees of Home Depot and at the local fire department. Mr. Clark stated that he had contacted the Jacksonville Fire Department, which would not give him any documentation, but its employees agreed to come and inspect his smoke detectors. Mr. Clark testified convincingly that he had purchased and installed smoke detectors from the Home Depot which did not provide written documentation of interconnectedness but which could be tested for interconnectedness by pushing their buttons. He maintained that if the inspector had punched the button on any single smoke detector on the re-inspection date, the interconnectedness of all the smoke detectors would have been demonstrated by their all "going off" at once. The inspectors did not punch the smoke detectors' buttons during the two inspections because they could not reach the buttons, as they had no ladders. Respondent was written-up by DHR on both occasions because written documentation of interconnectedness was not provided and because interconnectedness was not otherwise demonstrated. In other words, Respondent provided neither papers showing interconnectedness nor a physical demonstration of interconnectedness during the second inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, shall enter a final order: Finding Respondent guilty of violating Sections 509.221(1) and (7), Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5) and (6), and 61C-3.001(2), and not guilty of violating Florida Administrative Code Rule 61C- 1.004(13); Ordering Respondent to pay an administrative penalty in the amount of $2,500.00, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399, within 30 days of the final order; Requiring Respondent to attend a Hospitality Education Program class within 60 days of the date of the final order and provide proof thereof to the Department of Business and Professional Regulation Division of Hotels and Restaurants; and Requiring that Respondent pass a re-inspection of its premises within the same 60 days set out in (3), above. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 14th day of July, 2004.
The Issue The issue presented for decision in this case is whether Respondent violated Section 509.032, Florida Statutes, as set forth in the Administrative Complaint dated August 15, 2000.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made. At all times relevant to this proceeding, Petitioner is the state agency charged with licensing, regulating, and inspecting public lodging establishments to protect public safety. To accomplish this purpose, Petitioner employs persons trained to inspect public lodging establishments to ensure compliance with health and safety regulations. Such inspectors visit and inspect these premises making routine inspections or, in response to complaints, to gather facts and make reports documenting their findings. At all times relevant to this proceeding, Petitioner employed Susan Cecilione ("Cecilione") as an Inspector assigned to its Division of Hotels and Restaurants. At all times relevant to this proceeding, Respondent, Hidden Cove Apartments, was a licensed public lodging establishment within the meaning of Subsection 509.013(4)(a), Florida Statutes, operating under license control number 15-04455H 000, and located at 1951 Southeast Convair Street, Palm Bay, Florida, 32909. During a routine inspection on or about July 14, 2000, Cecilione visited Hidden Cove Apartments. Cecilione's inspection revealed various violations. Specifically, Cecilione observed: The 2A10BC fire extinguisher at building 1961 was discharged; In apartment 101, building 1961, the electricity flickered on and off in the dining room area; Fire ant hills were observed along the walkways around buildings 1951 and 1961; The shower in apartment 103, building 1951, leaked behind the wall into the closet; The cement driveway was caving in and broken apart; There were no back flow prevention devices on hose bibbs at buildings 1951 and 1961; The laundry room had a heavy accumulation of lint and dirt on floor beside, behind, and beneath the dryer; (i) The front windows in many apartments had been either bolted closed or sealed so they could not be opened without the window falling out; There were broken screens on the sliding glass doors at apartments 103 and 104, building 1951; In apartment 102, building 1951 and apartment 101, building 1961, the front door sweeps and seals (gaskets) around the doors were loose fitting, leaving large gaps. Respondent was informed that all violations must be corrected by July 27, 2000. On or about July 28, 2000, Cecilione made a callback/reinspection visit for the purpose of determining whether Respondent had corrected the violations noted on the previous visit. One of the violations previously noted had been corrected. The laundry room had been cleaned. Each of the uncorrected violations listed in paragraph 5 hereinabove constitutes a separate and distinct potential hazard to the health and/or safety of individuals on the premises.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding Respondent guilty of violating the above-specified provisions of the Florida Statutes and Florida Administrative Code; that Respondent be required to pay a fine in the amount of $2,400; and that Respondent's license be suspended until the fine is paid. DONE AND ENTERED this 11th day of September, 2001, in Tallahassee, Leon County, Florida. ___________________________________ JEFF B. CLARK 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 16th day of September, 2001. COPIES FURNISHED: Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David Moallem Hidden Cove apartments 2115 Palm Bay Road, Northeast No. 3 Palm Bay, Florida 32909
Findings Of Fact Respondent, Hugenna D. Outar, operates a twelve-bed adult congregate living facility (ACLF) under the name of Moorehead House Retirement Center at 1405 Northeast Eighth Street, Homestead, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. Outar serves as administrator of the facility. On or about August 15, 1987, Paul Grassi, an HRS fire inspector, conducted a routine annual inspection of respondent's facility. The purpose of the inspection was to determine if the facility was in compliance with the fire safety requirements of Chapter 10A-5, Florida Administrative Code (1987). The inspec- tion was made in the presence of Outar's mother since Outar was not at the facility that day. Grassi requested documentation showing that all facility fire alarms and smoke detectors had been checked by facility personnel on a quarterly basis. Also, he requested documentation to evidence that all employees had been given monthly training in procedures to be followed in the event of a fire. The former set of records is required by Department of Insurance Rule 4A-40.017, which has been adopted by reference by HRS. The latter requirement is imposed by Rule 10A-5.023(15)(b) and pertains to ACLF's having thirteen or more licensed beds. Because Outar's mother did not know where such documentation was kept, she was unable to comply with Grassi's request. Next, Grassi observed that Room D had a "pocket type" door with no hinges. According to Grassi, a state fire marshal regulation prohibits the use of this type of door in a resident's room and requires instead that a resident's room located by an exit have a door mounted on a hinge that swings outwardly to the corridor. The Classification of Deficiencies refers to the regulation imposing this requirement as "L.S.C. 85, 17-3.6.2" but the regulation itself is not of record or officially noticed. Finally, Grassi observed two residents' rooms with no door closures. According to Grassi, such closures are required on all residents' rooms, pursuant to a state fire marshal regulation, for the purpose of containing and confining a fire in the event of a fire in a room. The regulation was not identified at hearing nor made a part of the record but is referred to in the Classification of Deficiencies as "N.F.P.A. 101-85, 17.3.6.3." After noting these violations, Grassi explained them to the mother and gave her a brief explanation as to how they might be corrected. Each of the three deficiencies were categorized as Class III deficiencies. By letter dated September 24, 1987, HRS advised Outar in writing of the nature of the violations. Although the letter was not prepared until September 24, it instructed Outar to correct the deficiencies by September 14, 1987, or ten days earlier. Attached to the letter was a copy of the Classification of Deficiencies which identified the deficiencies, their class and the date by which they had to be corrected. On October 29, 1987 Grassi made a follow-up survey of respondent's facility. Since Outar was not at the facility that day, the survey was conducted in the presence of Outar's mother. Grassi found none of the deficiencies had been corrected. Accordingly, Outar was sent a letter by HRS on November 6, 1987 advising her that a second follow-up visit would be made. On December 14, 1987 Grassi returned for a third visit. This time Outar was present. Again, Grassi found none of the deficiencies corrected to his satisfaction. However, he conceded that the documentation pertaining to monthly fire drills and quarterly checks of fire alarms and smoke detectors was available for inspection but maintained it was unsatisfactory because all reports were identical and did not vary from month to month. He reasoned that this was contrary to the "intent" of the rule. During the inspection, Outar requested specific advice as to how to comply with the door regulations for which she had been cited. After receiving advice, these changes were made, and her doors now meet all fire safety requirements. Outar operates a small facility with only twelve beds. She pointed out that she had difficulty in installing closures on the two doors in question since two residents used walkers and had placed door "jams" on the doors to give them easy access through the doorway. As to the other door violation, the building was purchased with an archway leading into Room D which made it difficult to install a door mounted on hinges. Outar attempted to comply with Grassi's instructions but her carpenter was unable to make the necessary changes until Outar received specific advice from Grassi on December 14. Finally, Outar stated that the fire drill documentation was available for inspection on August 15 and October 29 but her mother did not know where it was. Outar did not learn it was filled out improperly until she personally spoke with Grassi on his third visit. She now has satisfactory records.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against respondent be dismissed with prejudice. DONE AND ORDERED this 30th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988.
