The Issue Whether Petitioner Agency for Health Care Administration properly assigned conditional license status to Respondent, Westminster Woods on Julington Creek, based upon its determination that Respondent had violated Florida Administrative Code, Rule 59A-4.130, and 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, due to the presence of two wide-spread Class I deficiencies cited at the most recent annual licensure survey of January 27-29, 2003. Whether Petitioner Agency for Health Care Administration properly assessed a $30,000.00 fine against Respondent for violating 42 CFR Section 483.70 via Florida Administrative Code Rule 59A-4.1288, as well as Florida Administrative Code Rule 59A-4.130, due to the presence of two wide-spread Class I deficiencies at the most recent annual survey on January 27-29, 2003. Whether the Agency for Health Care Administration is entitled to $6,000.00 in costs related to the investigation and prosecution of this case(s), pursuant to Section 400.121(10), Florida Statutes.
Findings Of Fact Pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code (2002), AHCA is the regulatory authority responsible for licensure of skilled nursing facilities and for enforcement of all applicable statutes and rules governing skilled nursing facilities, of which Respondent Westminster Woods at Julington Creek is one. On January 27-29, 2003, AHCA conducted an annual licensure and re-certification survey of Respondent's facility. As a result of that survey, the facility was cited for two Class I deficiencies related to failure of the facility's fire alarm system. Each of these deficiencies was cited upon the same underlying facts. AHCA represented that one was cited as a Federal "tag" and the other was cited as a State "tag." In the Administrative Complaints, AHCA alleged, in a single Count, two separate Class I deficiencies. Respondent is a 60-bed skilled nursing facility located in Jacksonville, Florida. Respondent houses more of the "older- old" or "elderly-elderly" residents than the average skilled nursing facility. Respondent is a second floor facility with two stairwells that provide direct outside egress from the facility and that can be used as fire exits. During the January 27-29, 2003, survey, the facility housed 58 residents. Respondent's 58 residents on those dates were fairly dependent in terms of their physical capabilities. More than one-half of them were over the age of 85, and a couple of the residents were over 100 years old. Only one of the residents on January 27-29, 2003, was independently ambulatory. The remainder of the residents were incapable of independent ambulation. One of the residents was bed-ridden. Thirty-eight residents required extensive assistance in transferring or ambulating. The remainder of the resident population required assistive devices such as canes or walkers to transfer or ambulate. Due to their age, physical condition, and inability to engage in self preservation, these residents were extremely vulnerable in the event of a fire. The survey team arrived at the facility at 6:00 a.m. on January 27, 2003. At around 8:00 a.m., the facility's maintenance supervisor, John Doran, conducted his usual rounds of the facility. Mr. Doran personally checks the fire alarm panel twice daily, and did so that morning. The panel has three lights: A green light which means that the panel is working; a yellow light which means a mechanical failure has occurred; and a red light which signifies an alarm. Mr. Doran noted that no light was on. The fire doors, which close automatically if the alarm is activated, were still open. Except for the absence of any alarm panel light, everything seemed to be normal. Therefore, on the morning of January 27, 2003, Mr. Doran believed that there was a problem with the fire alarm panel, not the fire alarm system. In addition to Mr. Doran's twice-daily checks, Respondent's alarm system is monitored by an outside monitoring company which is supposed to call the facility if any problem is detected with its fire alarm system. The monitoring company did not call, which also suggested that the system itself was not malfunctioning, but merely that a light was out on the alarm panel. Nonetheless, Mr. Doran called his secretary, who contacted "W. W. Gay," the contract repair company for the system, and asked that a technician come to the facility. Thinking there was no immediate danger, but only that there was a problem with the alarm panel lights, and believing that everything that could be done up to that point had been done, Mr. Doran did not mention the alarm panel/system to surveyor Patricia McIntire, R.N., when she interviewed him about hot water temperatures around 10:00 a.m. on January 27, 2003. W. W. Gay's technician arrived at the facility about 10:30 a.m. and began trouble shooting the fire alarm system. The first technician could not find the problem, so he called for a second technician. During the course of January 27, 2003, three technicians arrived at Respondent's facility and worked on the panel, in full view of staff and surveyors who were in and around the nurses' station. During the entire period that the fire alarm panel was not working, which ultimately amounted to at least three days, a large number of staff and other responsible people were around the resident areas. The January 27, 2003, morning shift had a minimum of 17 staff members directly assigned, with others coming and going from the unit. In all, there were around 25 people circulating in the nursing home during the day shift. After the surveyors had left, the evening shift had nine staff members assigned to the unit, with additional staff overlapping from the day shift. The night shift had six assigned staff members, plus "Ron," Respondent's security man, who was assigned to a fire watch, beginning late on the afternoon of January 27, 2003. (See Finding of Fact 32.) On Tuesday, January 28, 2003, there were 20 staff people directly assigned to the unit on the day shift. Counting the AHCA surveyors and ancillary staff, there were approximately 27 people on the floor. The evening shift had nine specifically assigned staff members, with others overlapping. The night shift had at least six staff members. On Wednesday, January 29, 2003, the numbers were similar. During the course of January 27, 2003, Mr. Doran did not tell Respondent's administrators, Don Wilson or Mike Sweeney, about the problem with the fire alarm panel because he thought the fire alarm panel problem was being resolved by the W. W. Gay technicians and because both administrators were very busy with the AHCA survey. Around 4:00 p.m., January 27, 2003, Mr. Doran found out that the problem with the fire panel was more serious than he had earlier thought. The AHCA surveyors had already left the facility. Mr. Doran went to Mr. Sweeney and Mr. Wilson. He told them at that time that W. W. Gay's third technician had told him that it would be the next morning before the fire alarm/system panel could be repaired. Mr. Sweeney and Mr. Wilson advised Mr. Doran that the situation was unacceptable. They instructed Mr. Doran to call W. W. Gay and tell that company to return and fix the panel immediately. Mr. Doran made the phone call, but as it ultimately turned out, the fire panel could not be fixed that night because a part had to be ordered. The facility had in-place a three-tiered system of evacuation in case of fire. First, residents in the room where the fire is located and those in the two adjoining rooms would be moved to safety. Second, if the fire continued to spread, all residents on the side of the fire doors where the fire was located would be moved to the other side of the doors and the fire doors closed. Third, and only if the fire were still not contained, would the residents be moved out of the building through the stairwells. The control panel of the fire alarm system is the "brains" of the facility's fire safety system. It has a direct connection to the local fire department and provides the fire department with direct, immediate notification if there is a fire in the facility. It provides immediate notification to the residents and staff of the facility through the sounding of bells, chimes, strobes, etc., of the existence of an emergency. It operates the smoke detectors. It automatically shuts down the air conditioning unit to prevent the spread of carbon monoxide, smoke, and fumes throughout the facility, and it automatically locks and unlocks the fire doors. It is the transfer of smoke and toxic gases generated during a fire which is the most common cause of casualty. The continued operation of the air conditioning system during a fire could make the lateral transfer of residents to another compartment on the same floor (tiers one and two of the facility's fire safety plan) ineffective because the continued operation of the air conditioning system could still transfer gases and smoke throughout the facility. However, in this case, although the facility's air conditioning system does move air, smoke being carried throughout the building was unlikely, since the intakes were located in common areas where smoke would be detected by staff. Fire drills are held by Respondent at least monthly. Staff is trained to respond to fires by Scott Fogg, a facility employee who has 23 years' United States Navy experience in training to fight fires, watching for fires, and fighting fires. Mr. Fogg has personally fought over 30 fires. He orients each new employee for at least one and one-half to two hours. He also does annual training of staff. Part of the training provided by Mr. Fogg consists of going step by step through the facility's fire plan. The plan includes contacting the fire department. Once the charge nurse knows of a fire, it is her responsibility to call "911." The facility's plan requires that the charge nurse notify the fire department, regardless of whether or not the alarm system is functioning.1/ The facility's fire plan is kept at several locations, including in the possession of the charge nurse and at the nurses' station. Every individual who goes through orientation also receives a copy. There is a sprinkling system for the entire facility. The sprinkling system is not dependent on the alarm system functioning. Each resident's room has at least two sprinklers, and some rooms have three sprinklers. The bathrooms inside the residents' rooms have an additional sprinkler. The dining room, halls, common area, and stairwells have sprinklers. There are fire extinguishers located at each corner of the building and fire hoses on the walls. Mr. Fogg evaluates the monthly fire drills. If he notes a problem, he writes it up and does follow-up training. The building is made of concrete, and nonflammable paint is used. Smoking is not permitted in the facility building. Staff are required to smoke in a designated smoking area behind another building. Residents are not allowed to keep combustible materials in their rooms. The kitchen and laundry are located in another building. Evacuation routes are posted throughout the building. Upon learning at approximately 4:00 p.m. January 27, 2003, that the fire alarm/system could not be fixed that night, Messrs. Wilson and Sweeney instructed Mr. Doran to institute a one-hour fire watch. A fire watch involves dedicating an individual to go around the building at stated intervals (in this case, hourly) looking for potential fire, smoke, or fire risk. Mr. Sweeney is the facility's Executive Director. He is also a licensed nursing home administrator. Based on his 25 years of experience in health care and his knowledge of the properties of the facility's physical plant, he thought a one- hour fire watch was reasonable and appropriate. Mr. Wilson, the facility's Health Services Administrator, concurred. Respondent's security man, Ron, was instructed to perform the hourly fire watch. Mr. Doran walked Ron around the area and told him to use his eyes, ears, touch, and sense of smell to look for any signs of fire. Ron carried a cell phone so that he could quickly communicate with Messrs. Doran, Wilson, Sweeney, or the fire department, if necessary. There is no evidence that Ron failed in his instructed duties for an hourly fire watch. Most of the survey team returned about 7:00 a. m., on January 28, 2003. At approximately 8:30 a.m., another team member, Nicholas Linardi, AHCA's Life Safety Inspector, arrived at the facility for the first time. Mr. Doran met with Mr. Linardi in the administrative conference room at around 9:00 a.m. There is no dispute that the first order of business was Mr. Linardi's review of all of the facility's service and safety logs. Mr. Fogg was also present at that time. After this point, there are significant differences among the witnesses' respective testimonies as to the chronology of events and the time span involved. However, having weighed the credibility of the respective witnesses, it is found that no later than their arrival on the second floor skilled nursing unit at approximately 9:30 a.m., January 28, 2003, Mr. Doran told Mr. Linardi that there was a problem with the fire alarm panel/system. How clear Mr. Doran was in this first explanation of the extent of the problem or how much or how little of Mr. Doran's explanation Mr. Linardi appreciated at that time is not clear from the record, but Mr. Linardi inquired concerning what the facility was doing about solving the problem, and Mr. Doran told him. Mr. Linardi requested that Mr. Doran call W. W. Gay again. Mr. Linardi did not require that the facility shut off the air-conditioning, pending repair of the fire alarm system. He did not offer any immediate suggestions as to additional actions the facility staff should take to protect its residents. He did not state that the facility should increase the frequency of the fire watch. There also is no clear evidence that he told anyone at that time that the facility must notify the local fire department that the panel/system was inoperative. Mr. Linardi's testimony was clear that when he is on a facility's premises, he is one of the appropriate persons or entities to whom AHCA expects the facility will report a fire alarm/system malfunction, but he was also adamant that rigid enforcement of "tags and fire standards," means that the facility is required to report any malfunction to the local fire authority, in this case, to the St. Johns County Fire Department. It is Mr. Linardi's practice to issue a survey citation, regardless of the reason a fire alarm is out of commission. The rest of AHCA's survey team first became aware of the extent of the problem with the fire alarm system at approximately 2:45 p.m., on January 28, 2003, when Mr. Linardi conducted a fire drill in the facility for purposes of AHCA’s survey. During the fire drill, it became evident to the AHCA survey team that the alarm did not sound and the fire doors did not automatically close. During the fire drill, staff members had to yell out information to alert other staff members that there was a fire drill and to identify the location of the "pretend" fire. If the fire alarm system is working, it automatically closes the correct doors. If it is not working, staff members do not know which doors to close until told where the fire or pretend fire is, but during the fire drill, it took facility staff only four and one-half minutes to realize that the correct fire doors had not closed and to go to the north corridor to manually shut them. In general terms, Mr. Linardi felt that an incipient fire can start and be transferred throughout a facility within four minutes. He did not specifically discuss Respondent's facility. No one testified to what the response time should have been if an alarm had sounded. Beyond what could at most have been a half-minute response delay due to the absence of a functioning alarm, AHCA apparently found no fault with the staff's response to, and conduct of, the fire drill. Mr. Linardi was, in fact, complimentary of the results. After the fire drill on January 28, 2003, Mr. Linardi personally called W. W. Gay and verified that the part necessary to fix the panel/system was on order. Still later in the afternoon, Mr. Linardi notified the St. Johns Fire Marshal that Respondent's fire alarm system was not in service. The St. Johns Fire Marshal directed that the facility institute a 15-minute fire watch. Respondent immediately instituted the 15-minute fire watch on January 28, 2003. Mr. Linardi testified that he was concerned that the Fire Marshal's assigned fire watch frequency of 15 minutes was too liberal and that a fire watch perhaps should have been instituted at even shorter intervals, but since the regulations presume that the local authority shall set the protocol for fire watches, he said nothing. There was some surveyor commentary to the effect that laundry carts "stored" in Respondent's hallway near one of the exits to the stairs violated survey criteria and aggravated danger to residents, but Mr. Linardi conceded that laundry carts could legitimately be rolled through hallways as linen goods were transported in them from the linen closet to each resident's room. It was his opinion such carts should have been parked in residents' rooms for any extended period of time. No accurate measurements of acceptable time or unacceptable time that these carts remained in the hallways was advanced by any witness, so this survey criticism is not indicative of a citable flaw. A chair was found on the landing at the top of one of the two exit stairwells. The landing and stairwell are large. The chair was not blocking the door leading onto the second floor landing from the skilled nursing unit. The chair's location would not have prevented an ambulatory person or a person on a cane, assisted by another, from descending via the stairs. The only obstruction the chair might have represented would have been if a patient had to be carried on a stretcher or litter and the stretcher or litter had to be turned by two people on the landing. Mr. Linardi commented that actual egress was not at issue, but because survey criteria specifically prohibit furniture or any other object from being there, the chair's presence on the landing was still a citable offense. Renovations were ongoing in the facility during this period, and construction workers had temporarily stored some of the construction materials that they were using in the bottom recess of an exit stairwell. These supplies were stored without permission or knowledge of facility staff. The bottom of the stairwell is a large open area, 22 feet long by 10 feet wide. Most of the construction materials were stored beneath the stairs and were not blocking either a step down from the stairs or access to the outside exit door. However, one piece of flat molding protruded in front of the exit door, and had the potential of impeding egress. Although there was testimony that this molding could have been easily stepped over, the photographs make clear that this item could have impeded the speed of an evacuation of the above-described frail, elderly and non-ambulatory population if an evacuation had been necessary. There is no persuasive evidence that a hinge on any exit door prevented its being opened or that any exit door was otherwise unreachable or otherwise out of commission. During the 15-minute fire watch on the third day of the survey, January 29, 2003, Ron (See Findings of Fact 13, 32, and 42) found a tray on top of the juice machine in the beverage area of the facility’s dining room and removed it. This area is within three feet of a sprinkler head and within six feet of a fire extinguisher. The juice machine has thermal overload protection to prevent electricity going to the motor if the motor gets hot. In short, if the motor gets hot, the machine cuts off. When the surveyors arrived on that date, a number of residents and staff members were in the dining room. The surveyors noted an odor similar to that of a burning motor in the vicinity of the juice machine. At that time, the tray had already been found and removed as part of the 15-minute fire watch. When a motor overheats, the smell lingers for a long time. There is no evidence that the incident did more than produce an unpleasant odor. AHCA gave Respondent a written mandated correction date of February 6, 2003, but before the survey team finally exited on January 29, 2003, the facility had changed the fire watch to every 15 minutes and had advised that the fire alarm system would be operational on January 30, 2003. Therefore, AHCA removed the "immediate jeopardy" classification on January 29, 2003, prior to the end of the survey, when it determined that fire watches were being conducted every 15 minutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of, it is RECOMMENDED that the Agency for Health Care Administration enter a final order Finding Respondent guilty of a single, isolated Class III deficiency, fining Respondent $1,000.00 therefore, and removing Respondent's conditional licensure status; and Remanding to the Division of Administrative Hearings the issue of the amount of any costs related to the investigation and prosecution of these cases, pursuant to Section 400.121(10), in the event the parties cannot stipulate to those costs. DONE AND ENTERED this 13th day of November, 2003, 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 13th day of November 2003.
The Issue Did the Respondent commit the offenses alleged in the Administrative Complaint Following Emergency Closure and, if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of licensing and regulating public lodging establishments. At all times pertinent to this proceeding, Respondent was a licensed public lodging establishment as that term is defined in Section 509.013(4)(a), Florida Statutes, license number 38-00194-H, located at 1720 US Highway 27, Avon Park, Florida. At all times pertinent to this proceeding, Richard Barnhart was employed by the Department as a Sanitation and Safety Specialist. At all times pertinent to this proceeding, Ed Madden was employed by the Department as a Sanitation and Safety Supervisor. On March 10, 2000, Barnhart performed a routine inspection of Respondent's public lodging establishment (Litto's Apartments) and observed two safety violations which were classified as violations of critical concern. A violation classified as of critical concern is required to be corrected immediately. The safety violations observed by Barnhart were: (a) fire extinguisher missing on north side of Units 1 an 2 which resulted in some of the apartments located in Units 1 and 2 not having a fire extinguisher available within a maximum distance of 75 feet; and (b) no smoke detectors in apartments 1, 3, and 8. On March 10, 2000, Barnhart prepared a Lodging Inspection Report advising Respondent of, among other things, the safety violations that had to be corrected by March 18, 2000. Eugene Riggs, Respondent's Apartment Manager, acknowledged receipt of the inspection report listing the violations and the date for correction of the violations of critical concern. On March 21, 2000, Barnhart performed a Call Back/Re- Inspection of Litto's Apartments and observed the same safety violations that were observed on March 10, 2000. On March 21, 2000, Barnhart prepared a Call Back/Re- Inspection Report advising Respondent that the violations observed on March 10, 2000, had not been corrected. This report advised Respondent that the report should be considered a warning and that Respondent would be issued a Notice to Show Cause why sanctions should not be assessed against Respondent's license. Eugene Riggs acknowledged receipt of a copy of the Call Back/Re-Inspection Report. During a routine inspection conducted on March 21, 2000, Barnhart observed that: (a) the apartments' water supply was less than 75 feet from a septic tank and drain field, a sanitation violation of critical concern not observed on March 10, 2000; (b) there was raw sewage in an open septic tank on the premises, a sanitation violation of critical concern not observed on March 10, 2000; and (c) a septic tank had been disconnected resulting in raw sewage being dumped on the ground, a sanitation violation of critical concern not observed on March 10, 2000. Barnhart prepared a Lodging Inspection Report listing the violations observed during his routine inspection on March 21, 2000. Eugene Riggs acknowledged receipt of a copy of this report which, among other things, advised Respondent of the deadline of March 28, 2000, for correcting the additional violations observed on March 21, 2000, and the deadline of March 21, 2000, for correcting the violation observed on March 10, 2000, and not corrected by March 21, 2000. On March 28, 2000, Barnhart performed a Call Back/Re-Inspection of Litto's Apartments and observed that the violations observed on March 10, 2000, and March 21, 2000, had not been corrected. Barnhart prepared a Call Back/Re- Inspection Report on March 28, 2000, advising Respondent that the violations had not been corrected and that a Notice to Show Cause why sanctions should not be assessed against Respondent's license would be issued. On April 7, 2000, Barnhart and Supervisor Madden conducted a joint routine inspection of Litto's Apartments and observed that the violations of March 10, 2000, March 21, 2000, and March 28, 2000, had not been corrected. On April 7, 2000, a Lodging inspection Report was prepared advising Respondent that the violations noted on March 10, 2000, March 21, 2000, and March 28, 2000, had not been corrected. Based on the testimony of Richard Barnhart and Ed Madden, whose testimonies I find to be credible, there is sufficient evidence to show that: (a) a fire extinguisher was missing from the north side of the Units 1 and 2 which resulted in some of the apartments in Units 1 an 2 not having a fire extinguisher available within a maximum distance of 75 feet at the time of the inspection on March 10, 2000, and no fire extinguisher had been installed on the north side of Units 1 and 2 at time of the inspection on April 7, 2000, or during the intervening time; (b) smoke detectors were not installed in apartments 1, 3, and 8 at the time of the inspections on March 10, 2000, and smoke detector had not been installed in apartments 1, 3, and 8 at the time of the inspection on April 7, 2000, or during the intervening time; (c) at the time of the March 21, 2000, inspection, there was raw sewage in an open septic tank and sewage on the ground due to a septic tank blowout which had not been corrected at the time of the inspection on April 7, 2000, or during the intervening time; and (d) the water supply was located less than 75 feet from septic tank and drain field at the time of the inspection on March 21, 2000, which had not been corrected at the time of the inspection on April 7, 2000, or during the intervening time. Respondent's failure to have sufficient fire extinguishers properly located on its premises and Respondent's failure to correct this violation resulted in a significant threat to the public safety and welfare in that the residents were not properly protected from the danger of fire. Respondent's failure to provide smoke detectors in all of the apartments resulted in a significant threat to the public safety and welfare in that the residents were not being properly protected from the danger of fire. Respondent's failure to correct the contaminated water supply, correct the situation concerning the raw sewage being dumped on the ground, and to correct the situation where raw sewage was being left in an open septic tank resulted in a significant threat to the public health, safety, and welfare in that not only were the tenants being subjected to those unsanitary conditions but the general public as well. An Order of Emergency Suspension of License and Closure was issued by Respondent and signed by Gary Tillman, District Administrator, having been delegated this authority by the Director of Hotels and Restaurants. The Order of Emergency Suspension of License and Closure is dated March 7, 2000. However, this appears to be scrivener's error in that the order alleges violation that are alleged to have occurred on March 10, 21, 28, 2000, and April 7, 2000. Also, the Certificate of Service is dated April 7, 2000. The Order of Emergency Suspension of License and Closure was still in effect on December 18, 2000, the date of the hearing.
Recommendation Having considered the serious nature of the offenses committed by the Respondent, that Respondent is presently under an Order of Emergency Suspension of License and Closure for these same offenses, and that the Department is requesting that only an administrative fine be imposed against Respondent, it is recommended that the Department enter a final order finding that Respondent committed the offenses alleged in the Administrative Complaint Following Emergency Closure and imposing an administrative fine of $1,200.00 as requested by the Department. DONE AND ENTERED this 15th of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Litto's Apartments 1720 U.S. Highway 27 Avon Park, Florida 33825-9589 Ahmed Anjuman 1720 U.S. Highway 27 Avon Park, Florida 32825-9589 Susan R. McKinney, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this proceeding is whether the Respondent’s license as an adult living facility should be subject to an administrative fine in the amount of five hundred dollars ($500.00) for repeated class III deficiencies.
Findings Of Fact The Respondent is the owner/operator of San Juan Retirement Home. The home is licensed to operate a 6-bed assisted living facility in Jacksonville, Florida. On March 5, 2003, AHCA conducted a survey of Respondent's facility. During that survey, Respondent did not have a fire safety inspection report within 365 days from an earlier fire safety inspection report. Because of the lack of a timely report the facility was cited for violating Tag A209, a Class III deficiency. Tag A209 requires that all licensed facilities have an annual fire inspection conducted by the local fire marshal or authorities having jurisdiction. In this instance the Agency interprets the word annual to mean 365 days from the last inspection report. Respondent had the facility inspected by the Fire Marshal on March 12, 2003. She received the report the same day. A follow-up survey was conducted on April 15, 2003. Tag A209 was noted as corrected in a timely manner by Respondent. Since this was the first Class III deficiency regarding the timeliness of the inspection report, no penalties were imposed by Petitioner on Respondent. On April 23, 2004, AHCA again inspected Respondent's facility. During the inspection, Respondent again did not have a fire safety inspection report completed within 365 days of the earlier inspection report of March 12, 2003. Because of the lack of the report, the facility was cited for a class III deficiency under Tag A209. Respondent admitted that she twice did not have a timely fire safety inspection report completed for her facility. The evidence demonstrated that, prior to the April 2004 inspection by AHCA, Respondent had called the Fire Marshal’s office to schedule an inspection for the facility. However, the call was not made until the expiration of the March 12, 2003, fire safety inspection report. For some unknown reason the Fire Marshal’s office did not schedule the fire safety inspection until after the April 2004 inspection. However, the Fire Marshal’s failure to schedule the inspection does not excuse Respondent’s lack of a timely inspection and report since Respondent remains responsible for obtaining the inspection and report in a timely manner and did not call the Fire Marshal’s office until the expiration of the earlier report. To her credit, Respondent obtained a new fire safety inspection report on May 4 or 5, 2004, after AHCA had inspected the facility.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED: That AHCA enter a final order imposing a $500.00 administrative fine for repeatedly failing to timely conduct or obtain an annual fire safety inspection report. DONE AND ENTERED this 9th day of November, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 November, 2004. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Mail Stop 3 Tallahassee, Florida 32308 Elvira C. Demdam San Juan Retirement home 6561 San Juan Avenue Jacksonville, Florida 32210 Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The Administrative Complaint alleges that Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, regarding the absence of required equipment, equipment not operative, and failure to post required signs for public information. Specifically, Respondent, after notice of specific violations and lapse of the allotted time to correct those violations, Respondent failed to do so.
Findings Of Fact On or about February 29, 2000, an employee of the Agency, Kenneth Phillips, supervised inspector trainee, Rick Decker, who performed the initial inspection of Respondent's establishment. A copy of the Public Lodging Inspection Report, citing specific violations noted in or about the establishment was prepared, and each violation was fully explained to Virgie Fowler. A copy of the inspection report was given to Mr. Fowler. Kenneth Phillips advised Mr. Fowler that a call-back re-inspection for correction of cited violations would be made on or about March 13, 2000. On or about March 13, 2000, inspectors Kenneth Phillips and Rick Decker undertook a call-back re-inspection. Previously cited violations not corrected were observed by both inspectors, and entries were made in their re-inspection report, which constituted the Administrative Complaint herein filed. The Agency is charged with the regulation of public lodging establishments and public food service establishments, pursuant to authority granted by Chapter 509, Section 509.032, Florida Statutes. Respondent, Gardenville Motel, is holder of State of Florida License No. 39-01017-H, with a last-known business address of 11549 US Highway 41, Gibsonton, Florida 33534-5210. Respondent is owned and operated by Virgie Fowler.1 Gardenville Motel has a total of 16 non-sequentially numbered rooms available to rent. The Division of Hotels and Restaurants has employed for four years Kenneth Phillips as a Sanitation and Safety Specialist. His primary duties are the inspection of hotels, restaurants, apartment complexes, and mobile vehicles, for the purpose of ascertaining licensees' compliance with safety and sanitation requirements provided by Chapter 509, Florida Statutes. Mr. Phillips has a four-year college degree in criminal justice and a two-year degree in environmental technology. He is a certified special fire inspector and receives ongoing training in food safety and inspection criteria. On or about February 29, 2000, Mr. Phillips and Rick Decker conducted an inspection of the Gardenville Motel (hereinafter "Motel"), following a consumer's complaint of not being satisfied with the conditions of his motel room and management's delay in refunding his money. Rick Decker recorded the results of their initial inspection in a "Food Service Inspection Report," under the supervision and direction of Kenneth Phillips. The Report noted 25 safety and sanitation violations. The Report contained the notification: "Warning: Violations in the operations of your establishment must be corrected by: Date: 2/13/00. Time: 8:00". The date for re-inspection was a scrivener's error. The corrected date is "3/13/00."2 On the day of the inspection, a copy of the report was provided to the owner/manager, Virgie Fowler, who acknowledged receipt, by his signature at the bottom of the report. Kenneth Phillips and Rick Decker discussed with Mr. Fowler, each cited violation contained in the report including the 15-day period before re-inspection for compliance (i.e. correct date of 3/13/00). On March 13, 2000, Mr. Phillips and Mr. Decker, conducted their re-inspection of the Motel to determine whether violations cited on February 29, 2000, were corrected. The two inspectors found eight uncorrected violations. A "Callback/Re- inspection Report" noting the uncorrected violations was completed. A copy of the Callback/Re-inspection Report was signed by and provided to Richard Mercurio, who signed the report as "Manager."3 Critical violations, noted on the initial report by an asterisk to the left of the cited violations, are considered dangerous. Critical violations present a risk to the personal health and safety of guests entering or staying at the motel. Respondent had three critical violations that were not corrected at the time of re-inspection. Violations cited were: no smoke detectors in Rooms 7 and 9; the smoke detectors in Room 5 were inoperative; no fire extinguishers in Rooms 20, 21, 22, 23, 24, 25, and 26; lack of hot water in Rooms 7 and 9; electrical wire exposure in Room 9; and current license not displayed nor available upon request. There was excessive trash in the rear of the premises. Every hotel, motel, and other public rental establishment is required by rule to post room rental rate cards in each room. The report cited Respondent for not posting a room rental rate charge card in each room offered for rent. At the time of the re-inspection Respondent had not corrected three critical violations and one non-critical violation. Respondent did not appear at the final hearing to present mitigating circumstances.
Recommendation It is recommended that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine in the amount of $1,000 per critical violation per day beginning on March 13, 2000, forward until each of the three critical violations has been corrected. It is recommended that the Board impose a separate and additional fine in the amount of $500 per non-critical violation per day from beginning on March 13, 2000, forward until the one non-critical violation has been corrected. It is recommended that the Board suspend License No. 39- 0107-H until full compliance with all sanctions herein imposed is made. Finally, it is recommended that the Board impose upon Virgie Fowler, owner of the motel, the requirement to attend, at personal expense, an appropriate Education program to be designated by the Hospitality Educational program director prior to renewal or reinstatement of license No. 39-01017-H. DONE AND ENTERED this 25th day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 25th day of January, 2001.
The Issue Whether the Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence and testimony of the witness presented and the entire record in this proceeding, the following findings of fact are made: On February 15, 2001, Angela Carragher, Safety and Sanitation Supervisor, conducted an initial inspection of Respondent. Ms. Carragher conducted re-inspections of Respondent on February 16, 2001, and March 5, 2001. During the inspections, Ms. Carragher observed numerous rodent droppings in the backside storage closets, as well as in the food storage area on the shelves. Rodent droppings are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. Ms. Carragher observed moldy vegetables in the walk- in cooler. Moldy vegetables in the walk-in cooler are a critical violation because spoiled food is not safe to serve to a customer. Ms. Carragher observed raw beef stored over some lettuce and cheese that were in the walk-in cooler. Raw beef stored over ready-to-eat foods like lettuce and cheese are a critical violation because raw beef can have bacteria, which could contaminate or cross-contaminate those ready-to-eat items. Ms. Carragher observed that Respondent did not have proof of a certified food manager at the facility. The certified food manager is the person who has the responsibility to ensure that all of the food workers are trained in food safety and proper food handling and that the facility is following all requirements of the Food Code. Proof that a certified food manager at the facility is critical because, otherwise, there is no way to know if somebody is supervising and overseeing the establishment. Ms. Carragher observed that the fire suppression system was not currently tagged and certified and that an emergency light did not light when tested. The fire suppression system is required to be inspected and certified every six months. The fire suppression system was last inspected in March 2000. A certified and tagged fire suppression system is critical because in the event of a fire, the system may fail to automatically discharge and put the fire out. Ms. Carragher observed an unlabeled spray bottle containing some unidentifiable green chemical solution. Restaurants often use a number of different chemicals in their kitchen, such as window cleaners, degreaser, and sanitizers. An unlabeled spray bottle is a critical violation because an employee may mistakenly use a wrong chemical on the wrong surface, which could create a contamination hazard for food items. Ms. Carragher observed dried food debris on the slicer and inside the three-door, reach-in cooler. Dried food on the slicer and cooler surfaces is a violation because dried food can harbor bacteria which can potentially contaminate fresh food. Ms. Carragher observed that the heat lamp bulbs on the cook's line were not shielded. Unshielded heat lamp bulbs are a violation because should a lamp break, the shattered glass may fall into the food to be served causing a physical hazard. Ms. Carragher observed that the ice scoop was stored on the top of the ice machine and not on a clean surface. The ice scoop is used to scoop the ice that is going to be used for beverages and food. The ice scoop stored on the top of the ice machine is a violation because the top of the machine contains dust and debris, which may cause potential physical contamination. Ms. Carragher observed holes in the walls in the backside storage closet, and grime accumulated on the floor underneath the sink and on the walls in the dishwashing area. Holes in walls and accumulated grime on sinks and walls are a violation because the dirt may contaminate clean dishes and holes may permit access by vermin. Ms. Carragher observed that the gasket on the door on the reach-in cooler was torn. A torn gasket is a violation because the gasket forms a barrier between the outside and inside of the cooler preventing hot air from the kitchen from getting into the cooler. It also creates a place where mildew can grow and contaminate food. Ms. Carragher observed that the carbon dioxide tank in the kitchen was not secured. A carbon dioxide tank which is not secured is a safety violation because a pressurized tank may be propelled violently by the compressed gas if the valve is damaged, hurting people in the restaurant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered for suspension of Respondent's license until he pays a fine in the amount of $2,000. DONE AND ENTERED this 21st day of December, 2001, 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 21st day of December, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Lewis Pace Ramada Inn Restaurant 20349 North U.S. Highway 27 Clermont, Florida 34711 Manohar Jain Ramada Inn Restaurant 4800 South Apopka Vineland Road Orlando, Florida 32819 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violations set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Division), is a state agency charged with the duty and responsibility of regulating the operation of hotel and restaurant establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. Respondent is a rooming house located in Pensacola, Florida. At all times material to the allegations of the Administrative Complaint, Respondent held license numbers 2705932 for food service and 2705800 for operation of a rooming house issued by the Division. Russell Crowley is a Senior Sanitation and Safety Specialist employed by the Division. Mr. Phelan has a two- year degree in environmental technology. He has been employed by the Division for eight years. Prior to working for the Division, he was in the Air Force, Public Health Service, for 26 years. He also received training in laws and rules regarding public food service and lodging, and is a certified special fire inspector. Case Nos. 06-3292, and 06-3293 On February 28, 2006, Mr. Crowley conducted an inspection of Respondent's premises and issued a food service inspection report and a lodging service inspection report while on the premises. Harrison Anderson an employee of Respondent, signed for the inspection reports. During the February 28, 2006 inspection, Mr. Crowley observed six food service violations and four lodging violations and issued a warning that the violations must be corrected by March 28, 2006. Mr. Crowley conducted a call-back inspection on March 29, 2006, during which he observed that four of the violations noted on February 28, 2006 had not been corrected. At the time of the first inspection, Mr. Crowley observed that the fire extinguishers were out of date. During the call-back inspection, he again found the fire extinguishers to be out of date, in that they had last been inspected in April 2005. This is a critical violation because if a fire extinguisher is not inspected to be sure it is in proper working condition, it could malfunction causing a fire safety hazard. During the original inspection, Mr. Crowley also observed that the stove hood in the kitchen was not cleaned. This was listed as a violation because it is a vermin control issue. This is a critical violation because grease buildup in the stove hood system can cause a fire. This violation had not been corrected at the time of the call-back inspection. During the original inspection, Mr. Crowley observed that the hood suppression system in the kitchen was out of date. This had not been corrected at the time of the call- back inspection. Hood suppression systems should be inspected every six months. This is a critical violation because the hood suppression system is how grease fires are put out. Mr. Crowley also observed an accumulation of food debris on the kitchen floor and under the stove and refrigerator. This had not been corrected at the time of the call-back inspection. Another violation that Mr. Crowley found that had not been corrected is that the manager lacked proof of a food manager certification. This is a critical violation because a food manager who has received training in proper food handling procedures must be on the premises. Mr. Crowley gave Respondent a time extension of 60 days to correct this violation. Additionally, Mr. Crowley gave a 60-day time extension for a related violation, in that there was no proof of employee training in proper food handling procedures. A lodging violation that had not been corrected between inspections is that the central heat and air conditioning was inoperable. Mr. Crowley observed space heaters in some but not all rooms. The central air system was still inoperable on the call-back inspection and there were only four space heaters for 15 rooms. On June 6, 2006, Mr. Crowley made a call-back inspection of Respondent's facility and found that there still was no proof of anyone having received food manager training and no proof of employee training. Case No. 06-3294 During the March 29, 2006, call-back inspection of Respondent's facility, Mr. Crowley observed that no room rate schedule was filed with the Division and that no room rate was posted in each room or unit. He wrote an inspection report finding these two lodging violations, issuing a warning about these two violations, and notifying Respondent that the violations needed to be corrected by April 29, 2006. Mr. Crowley went back to Respondent's facility on May 5, 2006, and found that these violations had not been corrected at the time of the call-back inspection. His call- back re-inspection report noted that the owner stated that she sent the room rate schedule to the Division for filing, but that when he called to verify this, there was no record of Respondent's room rate schedule with the Division. In any event, the room rate schedule was not posted. Case Nos. 06-3698 and 06-3699 On April 11, 2006, Mr. Crowley again inspected Respondent's facility. As a result of this inspection, he wrote a lodging inspection report on which he noted nine violations. He noted on the inspection report a call-back date of April 12, 2006. On April 12, 2006, he returned to Respondent's facility to make a joint inspection with an inspector from another agency, the Agency for Health Care Administration. As a result of the April 12, 2006, inspection, he found two violations that had not been corrected: he observed an insufficient number of fire extinguishers and observed 10 live gnats in a resident's room. He also gave a 30-day time extension for the seven other violations found, indicating a call-back date of May 13, 2006. During the April 12, 2006 inspection, Mr. Crowley also observed an expired fire sprinkler inspection tag, indicating it had been last inspected on April 11, 2005. The inspection report again shows a call-back date of May 13, 2006. Mr. Crowley made a call-back inspection of Respondent's facility on June 6, 2006, and found two violations that had not been corrected from the April 2006 inspections: the smoke detector in the common area was not working and there was rotted wood in the restroom. The smoke detector not working is a critical violation; the rotted wood in the bathroom is not. Mr. Crowley did note in his report that the air conditioning/heating system was now working. On May 15, 2006, Mr. Crowley made a call back inspection and found that the fire sprinkler had still not been inspected since April 2005. This is a critical violation. Mitigation Ms. Finkley offered mitigating circumstances regarding some of the deficiencies noted by Mr. Crowley. Regarding the allegation that no food service manager had a certification, Ms. Finkley asserts that before the house was licensed to be a rooming house, it was an assisted living facility. She and others who had previously worked there had received training and were not aware they needed additional training when the facility became a rooming house. Further, Ms. Finkley took the training class on July 17, 2006. Regarding the allegation that the stove hood had a grease buildup, Ms. Finkley asserted that she did have the hood cleaned, and showed the inspector the receipt for the cleaning. Mr. Crowley disputes this and insists that had he been shown the receipt, he would have given her credit for having it. Mr. Crowley's testimony in this regard is more persuasive and accepted. Ms. Finkley explained that the house and floor are very old. Therefore, she feels that it was more the condition of the floor as opposed to uncleanliness. In any event, she has installed a new floor since Mr. Crowley's inspections. Regarding the room rates, Ms. Finkley insists that she mailed the room rates to the Division. It was returned to her from the Division within a couple of days after Mr. Crowley was there, and she then posted it. Her assertion in this regard is accepted as credible. Regarding the allegations about the fire extinguishers, Ms. Finkley asserted that she had taken two fire extinguishers to be inspected and tagged the day Mr. Crowley made his reinspection. According to Ms. Finkley, Mr. Crowley was still in the yard of the facility when she returned with the fire extinguishers and attempted to show them to Mr. Crowley. This apparently happened after he had written his report, as Mr. Crowley recalls passing her in the driveway as he was leaving. Her assertion in this regard is accepted as credible. Regarding the allegation about the smoke detector, Ms. Finkley asserts that it was brand new and had just been installed that day (the day of Mr. Crowley's inspection) by the maintenance man. She was not present during the inspection but retuned to the facility that day and found the smoke detector to be working. Her testimony in this regard is accepted as credible. Regarding the sprinkler system, the utility company was working on the road outside the facility and had cut the water line to the facility due to work being done on the day the inspector inspected the system. This is corroborated by Wesley Perdue's testimony and is accepted as credible. Again, this correction to the cited violation was made after the callback inspection. Wesley and Vicki Perdue lease the facility to Ms. Finkley and perform maintenance on the facility. Regarding the allegation about the rotten wood in the bathroom, they remodeled the entire bathroom including putting in new walls, a new commode, and a new vanity with a new sink. The Perdues also installed the new kitchen floor. According to Mr. Perdue, they repaired many things that were written up by Mr. Crowley after he had cited Ms. Finkley for the deficiencies, and he believes that the repairs were completed during the call-back time frame of Mr. Crowley's inspection reports. While Mr. Perdue believes this, the weight of the evidence is that repairs were not completed before Mr. Crowley's reinspection.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Division enter a final order that imposes an administrative penalty in the amount of $3,000, places Respondent under probation for a period of two months after issuance of the Final Order, and requires Respondent to attend a Hospitality Education Program. DONE AND ENTERED this 28th day of December, 2006, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings 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 this 28th day of December, 2006 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-1015 Fannie Finkley House of Love 5191 Zachary Boulevard Pensacola, Florida 32526 William Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether Florida Administrative Code Rules 69A- 62.001, 69A-62.003, 69A-62.006, and 69A-62.007, constitute an invalid exercise of delegated legislative authority as defined in Sections 120.52(8)(d), 120.52(8)(e), and 120.52(8)(f), Florida Statutes (2004).
Findings Of Fact Petitioner is and, at all times material to this case, was a volunteer firefighter. The size of the volunteer firefighter population is dependent on the ability of volunteer fire departments to attract and keep volunteers. People are willing to volunteer as firefighters if the experience is rewarding, training is not excessive, and conflict is minimized. However, the greater weight of the evidence indicates that the subject rules do not detract from the volunteer experience, impose excessive training, or create between conflict between professional and volunteer firefighters. Petitioner testified that a reduction in volunteer population will result in increased hazards to volunteers and a reduction in the delivery of services to citizens. This testimony is not persuasive for two reasons. First, there is no persuasive testimony that the subject rules will result in a reduction of the number of volunteer firefighters. Second, the most persuasive evidence indicates that the subject rules will reduce hazards to volunteers without impairing the delivery of services to Floridians. Some labor unions that represent career firefighters discourage their members from volunteering their services with volunteer fire departments. The competition between the unions and the volunteer fire departments is commonly referred to as the "turf-war." There is no persuasive evidence that the subject rules contribute to the tension between the two groups of firefighters. The firefighter labor unions are usually very active in the political arena. It is undisputed that the unions support legislation that benefits their members. However, the subject rules were not promulgated to eliminate or place hardships on volunteer fire departments and volunteer firefighters. The safety needs and concerns of firefighters have evolved over time. Technology has improved firefighting equipment to such an extent that the greatest threat to firefighters is from heart attacks and transportation accidents. Nevertheless, the fact that the subject rules focus on safety enhancement at the scene of a fire instead of firefighter health and transportation safety does not render them invalid. Florida Administrative Code Rule 69A-62.003 provides as follows in pertinent part: (3) With respect to 29 C.F.R. Section 1910.134(g)(4), the two individuals located outside the immediately dangerous to life and health atmosphere may be assigned to an additional role, such as incident commander, pumper operator, engineer, or driver, so long as such individual is able to immediately perform assistance or rescue activities without jeopardizing the safety or health of any firefighter working at an incident. (a)1. Except as provided in subparagraphs 2., 3., and 4., no firefighter or any other person under the authority of the firefighter employer at the scene of a fire is permitted to participate in any operation involving two-in, two-out as one of the two or more persons inside the IDLH atmosphere or as one of the two or more persons outside of the IDLH atmosphere unless such firefighter or other person at the scene of a fire is certified in this state by the division as a Firefighter I or a Firefighter II, as established in subsections (1) and (2) of Rule 69A-37.055, F.A.C. Such training shall consist of the training described in subsection (6) of Rule 69A-37.055, F.A.C. This requirement specifically applies to volunteer fire departments and volunteer firefighters but is also applicable to any other person working under the authority of the Firefighter Employer at the scene of a fire. 2.a. A volunteer firefighter who possesses the State Basic Volunteer certificate previously issued by the division is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1. The training encompassed in the basic volunteer certificate in itself may not meet “trained commensurate to duty” as defined depending upon duties or tasks assigned or undertaken in the exclusionary zone. A volunteer firefighter who provides evidence of having completed curriculum equivalent to the Florida Firefighter I course of study as provided in subsection 69A-37.055(6), F.A.C., prior to January 1, 2004, is exempt from the Firefighter I and Firefighter II requirement in subparagraph 1., if The fire chief or other chief administrative officer of the fire department of which the firefighter is a member files with the State Fire Marshal form DFS-K4-1594, “Firefighter I Training Exemption Application,” which is hereby adopted and incorporated by reference, and The said form is accepted by the State Fire Marshal after confirmation of the evidence provided. Form DFS-K4-1594 may be obtained by writing the Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Any volunteer exempted by sub- subparagraph a.or b. is permitted to take the Florida Firefighter I examination until December 31, 2005, upon the completion and filing with the division of form DFS-K4- 1380, “Firefighter I Training Record,” Rev. 03/00, adopted in Rule 69A-37.039, F.A.C., by a Florida certified instructor that verifies equivalent training and demonstration of competency. The above-referenced rule sets forth ways that a firefighter, trained prior to the current regulations, may keep his or her interior-firefighter status without becoming certified as a Firefighter I or Firefighter II. The rule will not disqualify all previously qualified firefighters as long as they are "trained commensurate to duty" for any type of work they are requested to perform. There is no persuasive evidence that Florida Administrative Code Rule 69A-62.003(3)(a) will cause a reduction in the number of volunteer firefighters due to newly created administrative hurtles. The rule, which has its basis in safety enhancement, clearly is not arbitrary or damaging to the safety of volunteers. Florida Administrative Code Rule 69A-62.003(3)(a)4. states as follows: 4. Volunteer firefighters having NWCG S- 130, S-190, and Standards for Survival certification by the Florida Division of Forestry are permitted to participate in wild land fire suppression without the Firefighter I certification. The above-referenced rule allows a volunteer to fight wild-land fires without earning Firefighter I certification. The rule sets forth an exception to the Firefighter I certification requirement; it does not mandate that the NWCG courses are the exclusive means to qualify as a wild-land firefighter. Florida Administrative Code Rule 69A-62.003(3)4. is not invalid or arbitrary because it requires volunteers to pass training courses that are accepted as setting national standards or because the training courses teach firefighting techniques that are applicable across the nation as well as Florida. Petitioner presented no persuasive evidence to the contrary. Florida Administrative Code Rule 69A-62.006 states as follows: 69A-62.006 Requirements for Recognition as a Fire Department. To be recognized as an organized fire department by the division, compliance with the following must be documented: Capability of providing fire protection 24 hours a day, seven days a week; Responsibility for response in an area capable of being depicted on a map; and Staffing with a sufficient number of qualified firefighters who are employed full-time or part-time or serve as volunteers and who shall have successfully completed an approved basic firefighting course recognized by the Bureau of Fire Standards and Training. (2)(a) A fire department shall meet the requirements of the Insurance Services Office (ISO) for Class 9 Protection, the 2003 edition, the Fire Suppression Rating Schedule, effective February, 2003, which is hereby adopted and incorporated by reference and which may be obtained from Insurance Services Office (ISO), 545 Washington Blvd., Jersey City, NJ 07310-1686 or at www.iso.com. If the fire department does not meet the requirements of this section, the fire department shall submit a plan of compliance which provides for meeting these requirements within 90 days of the date of submission of the plan. ISO measures the major elements of a community’s fire-suppression system and develops a numerical grade ranging from 1 to 10. Class 1 represents the best public protection rating and Class 10 indicates no recognized protection. The requirements for ISO 9 may be obtained at the ISO website located at www.iso.com, or it may be obtained by writing to the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486. Florida Administrative Code Rule 69A-62.006(1)(a) is not invalid because it requires fire departments to document their capability of providing fire protection 24 hours a day/seven days a week. The requirement for full-time availability will provide significant safety enhancement for the communities being served. This is true because some voluntary fire departments in rural communities historically have provided only part-time service. There is no persuasive evidence that requiring full- time fire protection will result in the following: (a) the creation of a fire-suppression performance standard that is unauthorized by law; (b) the closing of some volunteer fire departments; (c) a reduction in services to the public; and (d) uncorrectable rule-violations; an increase in conflict between professional and volunteer firefighters. Florida Administrative Code Rule 69A-62.006(1)(c) requires that each fire department be staffed with a sufficient number of qualified firefighters. The rule is not vague because it uses the word "sufficient" to determine the number of firefighters that are required. One must read the applicable rules in their entirety and consider the needs of each community to determine adequate staffing. There is no persuasive evidence that the staffing requirement fails to establish adequate standards for determining compliance. Florida Administrative Code Rule 69A-62.006(2) requires fire departments to meet certain requirements of the Insurance Services Office (ISO) for Class 9 protection. This requirement determines the minimum equipment that is necessary to safely fight a structure fire. There is no persuasive evidence that requiring a fire department to provide Class 9 protection will make it impossible to start a new voluntary fire department. The rule clearly is not arbitrary in setting this minimum standard. Florida Administrative Code Rule 69A-62.007(1) states as follows in pertinent part: 69A-62.007 Minimum Requirements for Class 9 Protection. To be considered for Class 9 protection, the following minimum facilities must be available: Organization: The fire department shall be organized on a permanent basis under applicable state or local laws. The organization shall include one person responsible for operation of the department, usually with the title of chief. The fire department must serve an area with definite boundaries. If a municipality is not served by a fire department solely operated by or for the governing body of that city, the fire department providing such service shall do so under a contract or resolution. When a fire department’s service area involves one or more jurisdictions, a contract shall be executed with each jurisdiction served. Membership: The department shall have a sufficient number of firefighters/members to assure the response of at least 4 firefighters/members that can assemble at the scene of a fire as contemplated by subsection (1) of Rule 69A-62.003, F.A.C., to be compliant with Rule 69A-62.003, F.A.C., the two-in, two-out rule. The fire chief may be one of the 4 responding firefighters/members. The above-referenced rule does require fire departments to have four "interior-qualified" firefighters at the scene of a structure fire. The requirement is necessary to comply with the longstanding "two-in, two-out" rule. However, the rule does not preclude a fire department from relying on mutual-aid from other fire departments in order to comply with the rule. The rule clearly is not vague. Florida Administrative Code Rule 69A-62.007(4)(a) states as follows in relevant part: (4)(a) The chief of any fire department that includes volunteer firefighters shall annually submit a Roster of Volunteer Firefighters to the State Fire Marshal utilizing form DFS-K4-1581, effective 05/04, which is hereby adopted and incorporated by reference, no later than June 30 of each year. Form DFS-K4-1581 may be obtained by contacting the Division of State Fire Marshal, Bureau of Fire Standards and Training, 11655 Northwest Gainesville Road, Ocala, Florida 34482-1486 or at the division’s website located at http://www.fldfs.com/SFM/. The roster shall include: The fire department name, The fire department identification number (FDID), The complete fire department address, The fire department contact person, telephone number and the fire department fax number, if any, The certification level for each firefighter reported and, if any equivalency exemption has been issued, the number of persons for whom such exemption has been issued, and The firefighter certification number, the issue date of the certification, the status of the certification, i.e., volunteer or career, and the status of each firefighter who has been issued an equivalency exemption, i.e., volunteer or career, if any. The above-referenced rule requires the chief of a fire department to submit an annual roster of volunteer firefighters. Petitioner objects to the rule because some career firefighters volunteer their off-duty hours with the local volunteer fire department. Career firefighters who also perform volunteer work may do so contrary to their union rules. Publication of the roster might keep some professional firefighters from volunteering their services. Nevertheless, there is no persuasive evidence that losing some speculative number of career/volunteer firefighters will undermine the safety of firefighters or the public. The information that the roster contains is a public record. The information is necessary so that Respondent can perform statutorily-mandated studies involving injuries to firefighters. The rule clearly is not arbitrary.
Findings Of Fact During the period November 14 - 16, 1985, DHRS conducted a life safety survey of the Sanchez Retirement Apartments located at 1400 S.W. 26th Street, Ft. Lauderdale, Florida. As a result of that survey, certain deficiencies were discovered which were discussed with Mrs. Sanchez, then the owner and operator of the facility. Some deficiencies were to be corrected by December 15 and others by January 15, 1986. Those due to be corrected by December 15, 1985 were, in fact, corrected, but because of the impending sale of the property by Mrs. Sanchez to Mr. Holck, Mrs. Sanchez requested an extension of the time for correction of the January 15, 1986 deficiencies until February 15, 1986. On January 30, 1986, Mr. Leroy C. Dykes, Area Supervisor for DHRS, advised Mrs. Sanchez that a 30 day extension was granted so that the prospective new owners could complete the fire safety deficiencies by February 15, 1986. Mr. Holck took over ownership and operation of the facility on February 7, 1986. This was somewhat later than had been anticipated and made it impossible for him to rectify the remaining deficiencies by February 15. He requested of DHRS that someone come to the facility to explain to him what exactly had to be done since he was not present during the original inspection. He wanted to know with detailed clarification, what had to be done and how, and consistent with this request, was advised that someone from DHRS would be there, he contends in April, 1986. As a result, he took no additional action to remedy the remaining deficiencies then. However, before this individual could come, Mr. Bravo of DHRS conducted a follow-up survey on March 18, 1986, and again, wrote up several of the deficiencies that had been cited on the original inspection report. These form the basis of the violations outlined in the Administrative Complaint, and include: smoke detectors not powered by the house electric current and interconnected to the fire alarm system, paneling in the means of egress is not fire rated as Class A or B, doors in the facility between the resident rooms and common areas are not solid core doors, doors between resident rooms and common areas are not self-closing, and the kitchen and storage area is not separated from other parts of the facility with a material having a one hour fire rating including a one hour self-closing fire rated door. Mr. Bravo recommended sanctions to include a $250.00 fine for each of the five deficiencies with the exception of (c) for which he recommended a $200.00 fine. This recommendation was approved by the area supervisor, Mr. Dykes; the Human Services Program Director, Mr. Chastain; and by Amy Jones, Director of the Office of Licensure and Certification. All of the violations were classified as Class III violations and all were ultimately corrected before the final follow-up inspection on July 15, 1986. Respondent contends that he did not take immediate corrective action when he took over the property because, due to his prior experience dealing with DHRS as the operator of an adult congregate living facility, he had come to the conclusion that when there was any question as to the exact meaning of a DHRS write-up, it was best to have clarification from the agency in detail prior to commencing any corrective action. He requested an explanation visit from DHRS and, he claims, was visited by a Mr. Grassi in April, 1986, who, answered his questions. Thien Grassi returned for a follow-up in June, he found all the deficiencies to be corrected. This latter Grassi visit is subsequent to Mr. Bravo's follow-up inspection in March, 1986. Petitioner contends, on the other hand, that it is Respondent's responsibility to get the work done. If he could not get the previous owner to make the corrections prior to the transfer of the property, it was his responsibility to have requested clarification earlier on and that if he did not get an answer that would satisfy him and answer his questions, he should have gone higher up in DHRS to get one. The agency claims, "He should have shaken DHRS up," and tried to negotiate more time. It is DHRS policy to grant an extension if there is a showing that Respondent has already taken some affirmative step to effect corrective action. Here Respondent had not done so but was apparently waiting until he got clarification from the agency before even beginning to solicit bids for corrective construction or before issuing any purchase or work orders to acquire the materials necessary to do so. The majority of deficiencies identified on the original write-up were corrected by either Mrs. Sanchez prior to transfer of the property or by the Respondent after transfer but before the follow-up visit by Mr. Bravo. It, therefore, cannot be said that Respondent had not made some substantial effort to correct the deficiencies. If Respondent's allegation is correct, and there is no reason to believe it is not, based on his prior experience, it was to his benefit to not proceed with the remaining corrective action until such time as DHRS had given a definitive clarification of the actual work that needed to be done. DHRS contends that no additional clarification was required since the violations are violations of the standard safety code and anyone familiar with the code, including the fire department, could have given the Respondent the information he needed. DHRS, therefore, contends it was not necessary for Respondent to wait for its agent to come out and give the clarification requested. This is specious reasoning since the citation was issued by DHRS and it is not at all unreasonable for Respondent to request clarification from the agency writing up the alleged violation in the first place.
Recommendation Rased on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the citations be upheld but that the civil penalties be waived. RECOMMENDED this 5th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 5th day of August, 1987. COPIES FURNISHED: Ronald J. Holck, Administrator Sanchez Retirement Apartments 1400 Southwest 26th Street Fort Lauderdale, Florida 33315 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
