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.
Findings Of Fact On April 17, 1987, petitioner, Gary L. Waldron, filed an application for a certificate of competency with respondent, Department of Insurance and Treasurer (Department). If granted, Waldron would be authorized to take an examination for a certificate of competency as a fire protection system contractor II. After reviewing the application the Department issued a letter on May 5, 1987 advising Waldron that his application had been denied on the ground he lacked the necessary "four years proven experience in the employment of a contractor, or educational equivalent thereto, or a combination thereof." The letter of denial prompted this proceeding. The Department has regulatory jurisdiction over contractors who install fire protection systems. Before engaging in such activities, a person must obtain a certificate of competency from the Department. For regulatory purposes, and depending on the nature of the work, there are four classes of contractors, those being Contractors I, II, III and IV. In this case, Waldron desires certification as a Contractor II. This would authorize him to "lay out, fabricate, install, inspect, alter, repair and service" certain types of fire protection systems, except those that are preengineered. To be eligible for licensure, Waldron must possess "four years proven experience in the employment of a contractor or educational equivalent thereto or a combination thereof." By rule, the agency has provided that such experience may be gained only with a contractor certified as a Contractor I, II, III or IV. This is consistent with its interpretation of the statute as explicated by the chief of the bureau of explosives and fire equipment. Waldron owns a contracting firm, Waldron's, Incorporated, in Fort Lauderdale, and is licensed as a mechanical contractor. Over the last ten years or so, he has installed a number of non-preengineered fire protection systems for various major oil companies at Port Everglades (in Broward County). The Port is one of the largest petroleum storage areas in the Southeast. It is undisputed that the systems installed by Waldron are the types that would ordinarily be installed by a Contractor II. Such systems met the fire safety standards at Port Everglades, which equalled or exceeded relevant state standards adopted by the Department. This was confirmed by the chief of fire and security at Port Everglades and corroborated by petitioner's composite exhibit 1, which documents a variety of jobs completed by Waldron in recent years. In early 1987 Waldron learned that a certificate of competency was required to do the work he had previously been performing. This resulted in Waldron filing his application. Although the application and other evidence of record establish that Waldron has had many years of experience in installing the type of system typically installed by a Contractor II, none was obtained "in the employment of a (licensed) contractor." Further, he does not possess the alternative educational equivalent prescribed by Department rules. Therefore, he is not eligible at this time to take examination for licensure as a Contractor II.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application to take the examination for licensure as a Contractor II be DENIED. DONE AND ORDERED this 13th day of October, 1987, 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 13th day of October, 1987.
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
Findings Of Fact The Respondents, Douglas S. Melvin and Janice Melvin, operate a motel under the name The Islander at 4300 Ocean Beach Boulevard, Cocoa Beach, Florida. This motel is licensed by the Florida Division of Hotels and Restaurants under license number 15-182H. In answer to the complaint of a guest, Wesley A. Blom went to The Islander motel to inspect it on September 10, 1981. The complaining guest was not present, but the complaint related in part to the lack of cleanliness of room 217. Wesley A. Blom is a state qualified and certified sanitarian and inspector of fire extinguisher devices. He has had nine years experience in such work with the State of Florida. When Wesley A. Blom inspected The Islander on September 10, 1981, its owners, Douglas S. Melvin and Janice Melvin, were not present. During this inspection Wesley A. Blom was shown room 217 by motel personnel, and he inspected the motel generally for compliance with all applicable Florida Statutes and rules relating to safety, sanitation, and maintenance of public lodgings. During the September 10, 1981, inspection of The Islander motel, Wesley Blom observed the following conditions: The fire extinguishers available to the public and occupants of The Islander were of the soda-acid type, requiring periodic service checks and recharging to remain in safe, reliable, and useable condition. These fire extinguishers did not have un- expired service tags, as required, but the service tags affixed showed that these fire extinguishers had been last inspected and recharged more than one year previously. Paint was peeling on the walls of the bathroom in room 217. The bed cover on the bed in room number 217 was torn and stained in several places with tar residue. The floor In room 217 was dirty, and trash was scattered about the floor of this room. At the time when the dirt and trash was discovered on the floor in room 217, the bed had been made up, indicating that the room had been serviced by the motel staff. No room rate notice of any kind was posted in room 217. On September 30, 1981, Wesley A. Blom returned to The Islander motel to determine whether the conditions observed there on September 10, 1981, had changed or been corrected. He did not reinspect room 217 at this time because it was occupied, but the fire extinguishers available at The Islander motel had not been serviced or recharged since February of 1979, as evidenced by their expired State Fire Marshal service tags. On February 22, 1982, Wesley A. Blom again returned to The Islander motel to determine if the conditions discovered on September 10, 1981, had been corrected or changed. He was not able to inspect room number 217 because it was occupied, but he did observe that previously available soda-acid fire extinguishers were no longer present. The only fire extinguishers available at The Islander motel on this occasion were different models of an undetermined type which were located in the lobby of the motel. This lobby is more than 100 feet from many of the rooms of the motel. The Respondents contend in their own behalf that room 217 had not been made up, and was not ready for occupancy when it was inspected; that the bed cover with the tar on it was being cleaned by the maid, and was not finished when inspected; that the carpet was not dirty, but simply had not been vacuumed when it was inspected; that rate sheets are usually posted, but the one in room 217 had been missing and was found in another room; and that a maintenance man responsible for painting the rooms was fired for using inferior paint which might have peeled off. However, both the Respondents were in Michigan on September 10, 1981, when the first inspection took place; thus, without testimony from motel personnel who were present at the time, the testimony of the Respondents is not of sufficient quality to support a finding of fact. The expired date on the fire extinguishers is admitted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner enter a Final Order finding the Respondents guilty of violating Section 509.221(2) and (6), and 509.201, Florida Statutes, and Sections 7C-1.04(1), 1.03(1), 3.01 and 3.02, Florida Administrative Code. And it is further RECOMMENDED that the Final Order of the Petitioner suspend license number 15-182H held by Douglas S. Melvin and Janice Melvin, authorizing them to operate The Islander motel, for a period of one year from the date of the Final Order, and that The Islander motel be closed pursuant to this suspension for one year. And it is further RECOMMENDED that the Final Order of the Petitioner provide that the suspension period of one year may be lifted upon a satisfactory demonstration to the Petitioner that approved fire extinguishers are maintained on the premises of The Islander motel in accordance with all applicable laws. And it is further RECOMMENDED that, in addition to the foregoing, the Final Order of the Petitioner assess an administrative fine of $200 for each of the four violations not relating to fire extinguishers, as enumerated above, for a total fine of $800 payable no later than 30 days after the date of the Final Order. THIS RECOMMENDED ORDER entered on this the 24th day of March, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Douglas S. Melvin and Janice Melvin 4300 Ocean Beach Boulevard Cocoa Beach, Florida 32931
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.
