The Issue Whether a civil penalty should be assessed against the Respondent under the facts and circumstances of Case No. 89-2966. Whether Respondent should be denied licensure renewal under the facts and circumstances of Case No. 89-4890. Whether a civil penalty should be assessed against Respondent under the facts and circumstances of Case No. 89-5238.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to these proceedings, Sacred Heart was operating an Adult Congregate Living Facility (ACLF) under either a Standard license or a Conditional license issued by the Department in accordance with Chapter 400, Florida Statutes. FINDINGS AS TO CASE NOS. 89-2966 AND 89-5238 In DOAH Case No. 86-4065 (OPLC No. 86-474 ACLF) the Department and Sacred Heart entered into a stipulated settlement that was read into the record at the time of the final hearing (Petitioner's Composite Exhibit 1, Tab 6) on September 1, 1987 which provided: (a) that the Department was to perform a full survey (the same as an annual survey) of Sacred Heart beginning on September 1, 1987 and concluding on September 2, 1987; (b) that the parties would review the survey and establish a date for correcting any deficiencies noted; (c) that upon Sacred Heart timely correcting the noted deficiencies the Department would issue a renewal license for a period of one year from the date of issuance; (d) that substantial compliance of the noted deficiencies was a pre-condition to issuance of the renewal license; and (e) that Sacred Heart's failure to timely correct the noted deficiencies would result in the Department denying the renewal license. In accordance with the above-referenced stipulation the Department conducted a survey of the Sacred Heart facility on September 1 and 2, 1987. The survey was broken down into two parts: (a) operational deficiencies which are dealt with in Case No. 89-5238 and (b) fire safety standards deficiencies which are dealt with in Case No. 89-2966. That part of the survey concerning operational deficiencies was conducted on September 1 and 2, 1987. The Department noted 15 deficiencies of which 7 were Class III, 3 were part Class III and part Unclassified and 5 were Unclassified. Some of these deficiencies were required to be corrected by September 8, 1987, others to be corrected by October 2, 1987 and November 1, 1987 and the balance to be corrected by November 30, 1987. That part of the survey concerning fire safety standards deficiencies was conducted on September 2, 1987. The Department noted 18 Class III deficiencies which some were to be corrected by September 15, 1987 and the balance to be corrected by November 1, 1987. On December 1, 1987 the Department conducted a follow-up survey and noted that all operational deficiencies (Class III and Unclassified) listed on the September 1-2, 1987 survey had been corrected with the exception of the following: (a) ACLF 106 A(1), E(1), I, and J, Class III ; (b) ACLF 108F, Unclassified; (c) ACLF 109 H(18) and (19), Unclassified; (d) ACLF 111 A(1), Unclassified; and (e) ACLF 113(20) and (25), Unclassified. On December 8, 1987 the Department conducted a follow-up survey and noted that all of the fire safety standards deficiencies (Class III) had been corrected by Sacred Heart or withdrawn by the Department with the exception of ACLF 89, 107 A., B., C., F. and Q all of which had been partially corrected. Sacred Heart was operating with a conditional license with a termination date of October 7, 1987 at the time of the above-referenced stipulation and survey. This conditional license was extended until December 15, 1987. After the follow-up survey on December 1, 1987 and December 8, 1987 the Department notified Sacred Heart on January 6, 1988 that it was issuing Sacred Heart a Standard (regular) license with an effective date of December 16, 1987 without any conditions requiring Sacred Heart to correct the operational or fire safety standards deficiencies noted on the follow-up surveys of December 1 and 8, 1987. This standard license had an expiration date of October 7, 1988. Since the Department was aware of Sacred Heart's less than full compliance with correcting both the operational and fire safety standards deficiencies it can be assumed that the Department considered Sacred Heart in substantial compliance with correcting those deficiencies as required by the stipulation when it issued Sacred Hearth the Standard license without any conditions placed on the license requiring the correction of those deficiencies. Notwithstanding that it had issued a Standard license without any condition requiring Sacred Heart to correct any outstanding deficiencies, the Department conducted a follow-up survey on the operational and fire safety standards deficiencies on March 18, 1988 and March 25, 1988, respectively. On March 18, 1988 the Department conducted a follow-up visit of the annual survey conducted on September 1-2, 1987 and the follow-up visit of December 8, 1987 and found the following operational deficiencies that were noted in the September 1987 annual survey that had not been corrected: (a) ACLF 106(H) - Loose iron railing on entry of main building, Class III; (b) ACLF 109H (18) - cracked or peeling paint on wall in shower in room 18 of the main building, Unclassified; and (c) ACLF 113A (20) and (25) - stained or dirty ceiling panels in room 20 and 25 in the main building, Unclassified. Based on the follow-up survey of March 18, 1988 sanctions were recommended and approved for the uncorrected operational deficiencies. An administrative complaint was issued on March 16, 1989 and filed with the Division of Administrative Hearings on September 26, 1989 in Case No. 89-5238 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation. On March 25, 1988 the Department conducted a follow-up visit on the September 1987 annual survey and the December 1987 follow-up visit and found the following fire safety standards deficiencies that had been noted in the September 1988 annual survey that had not been corrected: ACLF 89, 107 - A. all resident sleeping rooms that open into corridors did not have self-closing or automatic closing devices installed - this deficiency had been partially corrected in December 1987 and remained partially corrected in March 1988; B. all stair well doors (2-story building) did not have self-closing or automatic closing devices installed - partially corrected in December 1987 but neither door operational in March 1988; C. - all sleeping rooms, common areas, hallways, corridors, sitting or lounge areas, T.V. rooms, dining room, kitchen areas, laundry rooms, furnace rooms, Chapel and office areas adjoining the resident use areas did not have electronic smoke detectors wired into household electrical current (heat detector acceptable in kitchen) - this was only partially corrected on December 1987 as it was in March 1988; and F. all electrical panel boxes did not have each circuit breaker identified and labeled showing the area each circuit breaker protected - all corrected except in cottage #8 which was not corrected in March 1988. Based on the follow-up survey of March 25, 1988 sanctions were recommended and approved for the uncorrected fire safety standards deficiencies. An administrative complaint was issued on March 31, 1989 in Case No. 89-2966 and filed with the Division of Administrative Hearings on May 30, 1989 charging Sacred Heart with failure to correct these deficiencies and attempting to discipline the license issued to Sacred Heart, notwithstanding Sacred Heart's substantial compliance with the stipulation. While the administrative complaint in Case No. 89-5238 indicates that deficiencies ACLF 109 and ACLF 113 are Class III deficiencies, both of the surveys and the Recommendation For Sanctions list these deficiencies as Unclassified . The operational and fire safety standards deficiencies noted by the Department in its September 1987 annual survey did exist. Furthermore, those operational and fire safety standards deficiencies noted in the follow-up visits of December 8, 1987 and March 18 and 25, 1988 as not being corrected, were uncorrected on the dates of the follow-up visits. FINDINGS AS TO CASE NO. 89-4980 On June 10 and 14, 1988 the Department conducted an annual survey of the Sacred Heart facility and noted the following deficiencies: (a) ACLF 63, 64, 66 - Unclassified; (b) ACLF 67, 71, 96A, 97A, Class III; (c) ACLF 106, 109, 89 (1-14) (maintenance problems) Unclassified; (d) ACLF 107A and B, 108 A-E, Class III; (e) ACLF 110A and B, 111 and 113, Unclassified; and (f) ACLF 26 and 42, Class III. On June 16, 1988 the Department conducted a follow-up of the annual survey conducted on September 2, 1987 and found the following fire safety standards deficiencies noted in the 1987 annual survey and the March 25, 1988 follow- up survey that had not been corrected: (a) ACLF 89, 107A - had not installed automatic or self-closing devices on all doors of residents' rooms that open into hallway or corridor; (b) ACLF 89, 107B - failed to install automatic or self-closing devices on all stairwell doors; and (c) ACLF 89 107C - failed to have electric smoke detectors wired into household electric current in furnace room, others noted in earlier annual survey and follow-up survey had been corrected. Additionally, the Department conducted an annual survey of the fire safety standards on June 16, 1988 and noted several deficiencies which were corrected at the follow-up survey of August 16, 1988 with the exception of: (a) having improper ashtrays in use in various areas of the main building and cottages; and (b) failure to install automatic fire extinguishing (sprinkler) system in the 2-story (main) building in accordance with Rule 4A-40.007(1), Florida Administrative Code. The August 16, 1988 survey also noted the following new fire safety standards deficiencies: (a) the failure to encase alarm wires in protective casings in north and south cottages; (b) failure to install additional alarm bells and switches or pull boxes in north cottages; (c) failure to have additional fire alarm bells installed on the first floor of 2- story main building; and (d) the failure to have pull box alarm systems properly installed according to Rule 4A-40.004, Florida Administrative Code. By letter dated August 9, 1988 the Department imposed a moratorium on admissions at the Sacred Heart facility effective August 8, 1988 in accordance with Section 400.415, Florida Statutes, for severe deficiencies including, but not limited to, inappropriate placement and retention of residents, substandard cleanliness of residents and substantial cleanliness of the facility. On August 16, 1988 the Department conducted another follow-up survey on the Sacred Heart facility and noted the following operational deficiencies: (a) ACLF 26, 27, 41 (1-6), 51, 52, 53, 58, 67, 71 (2-8), 96 (a-s), 98, 104, 105, 106 (a-o), 107 A-C, 109 A-H, 110 A-V and 111 (a-c), Unclassified; and (b) 71 (1), 93 A (1-7) and B (1-4), 97 A-E, 108 A-N, 112-115, 117 and 89 (a-m), Class III. On the follow-up survey of August 16, 1988 it was noted that the following operational deficiencies noted in the annual survey of June 10 and 14, 1988 had not been corrected: (a) ACLF 67; (b) ACLF 96 A & B (partially corrected); (c) ACLF 106, 109, 89 (1-6 partially corrected and 9 not corrected); (d) ACLF 107 A partially corrected; (e) ACLF 110 A-B; and (f) ACLF 111. On September 6, 1988 the Department notified Sacred Heart that its application for renewal of its license was being denied pursuant to Section 400.414(1)(2)(a)(b) and (d), Florida Statutes, because Sacred Heart did not comply with the standards for operation of an ACLF pursuant to Chapter 400, Part II, Florida Statutes and Chapter 10A-5, Florida Administrative Code. The specific reasons given by the Department were the inappropriate placement and retention of residents and substandard cleanliness of the facility and, "the failure to: provide adequate resident care; meet life safety standards; provide social, leisure and recreational activities and to correct numerous physical plant deficiencies" as demonstrated by the March 18, 1988, June 10, 14, 1988 and August 16, 1988 area office visits and surveys. As a result of this denial letter Sacred Heart filed a petition with the Department requesting an administrative hearing which was assigned PDRL No. I 88-899 and referred to the Division of Administrative Hearings which assigned Case No. 88-5177 to this request. On October 13, 1988 the Department conducted a survey of the Sacred Heart facility for the purpose of reconsidering the moratorium issued on August 8, 1988. The October 13, 1988 fire safety standards survey noted the same deficiencies as were noted on the August 16, 1988 survey, none had been corrected. The operational deficiencies survey noted that some of the operational deficiencies noted on the August 16, 1988 survey had been corrected but that a good number had not been corrected. Additionally, the operational deficiency survey of October 13, 1988 noted a large number of new deficiencies. On February 8, 1989, the Department conducted another follow-up survey on both the operational deficiencies and the fire safety standards deficiencies. This survey noted that all fire safety standards deficiencies noted on October 13, 1988 had been corrected with the exception of installing an automatic fire extinguishing system. This survey also noted that a large number of the operational deficiencies noted on the October 13, 1988 survey had not been corrected and also noted several new deficiencies. Sometime before May 25, 1989 the Department and Sacred Heart entered into a Joint Stipulation wherein the Department would again place Sacred Heart on a 60 day conditional license upon the execution and return of the Joint Stipulation and lift the moratorium imposed on August 8, 1988. In return, Sacred Heart agreed to: (a) correct all remaining deficiencies arising out of the surveys of March 18, June 10 and 14, August 16, 1988 and February 8, 1989; (b) a full and complete survey utilizing the new survey manual; and (c) the results of this new survey being used to determine whether the license would be denied and the matter referred to the Division of Administrative Hearings for licensure denial proceedings de novo. On May 25, 1989 in accordance with the stipulation the Department lifted the August 8, 1988 moratorium that it had imposed on the Sacred Heart facility and issued Sacred Heart a 60-day Conditional license effective April 16, 1989 with an expiration date of June 15, 1989 In accordance with the stipulation and, the need to conduct an annual survey for licensure, the Department conducted an annual survey of the Sacred Heart facility on June 13-14, 1989. There were no repeat fire safety standards deficiencies noted in the June 1989 annual survey. However, the following new fire safety standards deficiencies were noted in the June 1989 survey: (a) ACLF 700-801A kitchen - cooking range and fry grill needs to be certified as to their safety, and cooking range and fry grill need thorough cleaning, removing flammable burnt and crusted food and grease from burners, well and cooking surface, and (b) ACLF 700-901B, main building - (1) sprinkler alarm bell not connected, (2) holes in ceiling and walls left by sprinkler contractor need to be sealed to prevent passage of toxic gases to other areas, (3) exit door (ground floor, south wing) does not swing outwardly in direction of escape travel, and (4) fire alarm "Pull Station" not loud enough to be heard throughout building on outside of building. These fire safety standard deficiencies are Class III deficiencies. The June 13-14, 1989 survey noted the following Class III operational deficiencies: ACLF 302 (ANC), ACLF 404-1001-1010, ACLF 504-507(4)-508 (a repeat deficiency), ACLF 602; ACLF 613, ACLF 617 (1-10), ACLF 700, ACLF 708, ACLF 800- 1010 (A-G, with G being a repeat deficiency), ACLF 803-806-808-1010 (A-F, with F being a repeat deficiency), ACLF 804-1010 (A-H, with H being a repeat deficiency), ACLF 810-811-1010 (A-B, with B being a repeat deficiency), ACLF 1002-1010, ACLF 1003-1010, ACLF 1005 and, ACLF 1105-1106 (A-B, with B being a repeat deficiency). Although several of the above operational deficiencies are listed as "repeat deficiencies", there is insufficient evidence to show that these exact deficiencies had been noted in an earlier annual survey or the earlier follow-up visits as deficiencies. The date for correcting the new fire safety standard deficiencies was July 14, 1989 and the date for correcting the operational deficiencies varied from June 14, 1989 thru August 14, 1989. The Department made no further visits to the Sacred Heart facility subsequent to the June 13-14, 1989 annual survey in an attempt to determine if Sacred Heart had corrected those deficiencies noted in the June 13-14, 1989 annual survey, notwithstanding that the Department had allowed Sacred Heart a period of time to correct these deficiencies. All of the deficiencies noted in the June 1989 annual survey were subsequently corrected within the time period prescribed in June 1989 annual survey report. All of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits conducted subsequent to March 25, 1988 did exist. Furthermore, all of the operational and fire safety standards deficiencies noted in the annual surveys and follow-up visits beginning with the September 1987 annual survey and ending with the February 8, 1989 follow-up visit had been corrected before the June 1989 annual survey in accordance with the stipulation. On June 22, 1989 the Department entered a Final Order adopting the stipulation and ordering the parties to comply with its terms. Based on this Final Order the Department filed a Voluntary Dismissal in DOAH Case No. 88-5177 on July 10, 1989 and the file of the Division of Administrative Hearings closed on July 13, 1989. By letter dated June 29, 1989 the Department advised Sacred Heart that its application for renewal of its license which had expired on June 15, 1989 was denied pursuant to Section 415.103, Florida Statutes; Section 415.107(5)(b), Florida Statutes; Section 400.414(1)(2)(a)(b)(d) and 3, Florida Statutes and; Chapter 10A-5, Florida Administrative Code. The specific basis for the denial included but was not limited to: (a) the deficiencies cited during area surveys and follow-up with a September 2, 1987, March 18, June 10, June 14, June 16, August 12, October 13, 1988 and February 8, March 8, June 13 and June 14, 1989 which demonstrates continued non-compliance in correcting deficiencies (Section 400.414(d), Florida Statutes; (b) the August 8, 1988 moratorium imposed on admissions to the facility (Section 400.414(3), Florida Statutes; (c) failure to comply with the provisions of the joint stipulation in the DOAH Case No. 88- 5177, PDRL No. I-88-899 ACLF (Section 400.414(2)(d), Florida Statutes; and (d) the confirmed neglect of resident C. C. that occurred on September 15, 1988 (Section 400.414(2)(a), Florida Statutes). By letter dated August 7, 1989 Sacred Heart filed a petition with the Department requesting a formal hearing pursuant to Chapter 120, Florida Statutes. The petition, with attachments was referred to the Division of Administrative Hearings and assigned Case No. 89-4890. On August 11, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. C. N., Case No. 88-6455C wherein the Department denied the request of C. N. for expunction of the confirmed report of neglect involving C. C., a resident of the Sacred Heart facility at the time the incident of neglect occurred on September 15, 1988. Upon entry of the Final Order in this case Sacred Heart discharged C. N. and C. N. is no longer employed by Sacred Heart. On December 13, 1989 the Department entered its Final Order in Department of Health and Rehabilitative Services v. B. B. A., Case No. 88-6258C wherein the Department denied the request of B. B. A. for expunction of the confirmed report of neglect involving C. C., a resident of Sacred Heart at the time the incident of neglect occurred on September 15, 1988. B. B. A. at the time the incident of neglect occurred was a co-owner and was still a co-owner on the day of this hearing on August 6-7, 1990. The final order was on appeal to the District Court of Appeal on the day of hearing.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order in Case No. 89-4890 denying renewal of the ACLF license of Sacred Heart Retirement Villa, Inc. It is further recommended that the Administrative Complaints in Case Nos. 89-2966 and 89-5238 be dismissed. DONE and ORDERED this 15th day of February, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the finding of fact which so adopts the proposed finding of fact: 2 (3, 14, 17); 3 (6, 17); 4 (12, 17); 6-7 (28-30, 34); 9 (5, 17); 10 (6, 17); 11 (14, 17); 12 (19, 34); 15 (21, 34); 16 (24, 34); 18 (19, 34); 19 (24, 34); 22 (12, 13, 17); 24 (28-31, 34); 26 (25, 34); 28 (28-31, 34); 31 (24, 34); 32 (25, 34); 35 (28- 31, 34); 38 (20); 39 (29); 40 (35); 43 (36); 46 (38); 47 (39) and 48 (19). 2. Proposed findings of fact 1, 5, 8, 13, 14, 17, 21, 25, 29, 30, 34-37, 42, 44, 45 and 49 are unnecessary. 3. Proposed findings of fact 20, 23, 27 and 41 are not material or relevant. Specific Rulings of Proposed Findings of Fact Submitted by Respondent 1. Adopted in findings of fact 26 and 35 but modified. 2. Adopted in findings of fact 3, 4, 6, 12, 13, 14, 17-21, 24, 25, 28-34 but modified. Although the alleged deficiencies, moratorium and confirmed neglect report arose prior to the June 22, 1989 Final Order, there is no substantial competent evidence in the report to support the position that this resolved all matters before the Department at that time. Not necessary. 5.-6. Not supported by substantial competent evidence in the record. Not necessary Not supported by substantial competent evidence in the record. Adopted in findings of fact 33 and 34 but modified. Adopted in findings of fact 32 and 33 but modified. Adopted in finding of fact 29, but modified. Not material or relevant. A restatement of testimony and not a finding of fact. However, if considered a finding of fact it is not supported by substantial competent evidence in the record. COPIES FURNISHED: Michael O. Mathis, Esquire HRS Office of Licensure and Certification 2727 Mahan Drive Tallahassee, FL 32308 Kurt Andrew Simpson, Esquire Ocean South 3500 South Third Street Jacksonville, FL 32250 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue for determination is whether the application for an initial license to operate an Adult Family Care Home ("AFCH") should be denied because the applicant submitted fraudulent or inaccurate information in the application.
Findings Of Fact Petitioner is owned by Ms. Marvell Lawton, R.N. (the "applicant"). On June 3, 1996, the applicant applied for a license to operate an AFCH at 550 East Division Street, Deland, Florida (the "facility"). Respondent is the state agency responsible for licensing AFCHs. Respondent requires several documents to be submitted with the application including: a Florida Department of Health and Rehabilitative Services ("HRS") Community Residential Homes Sponsor Certification Form (the "HRS Form"); a statement by the local zoning office that the facility is properly zoned (the "zoning approval"); and a fire inspection report. The applicant altered the HRS Form, the zoning approval, and the fire inspection report to indicate that the facility was approved for a maximum capacity of five residents. Respondent initially denied the license application solely on the basis of the fire inspection report. However, the basis of denial was amended to include the HRS Form and the zoning approval pursuant to an order entered by Judge Stephen F. Dean on October 16, 1996. By letter dated July 11, 1996, Respondent notified the applicant that her application was denied. The letter stated, in relevant part, that the specific basis for denial was: . . . Submission of fraudulent or inaccurate information to the agency. The fire safety inspection report submitted with the application package was altered to indicate approval for five residents when the fire marshal's office had only approved three residents. The local fire marshal's office has verified that the original approval was for three residents because Ms. Lawton did not want to install a manual alarm system which is required for four or five residents. Submission of fraudulent or inaccurate information to the agency is grounds for denial of the AFCH application, s. 400.619(11)(e),F.S. On April 2, 1996, the applicant obtained a fire inspection report from the City of Deland Fire Department (the "Fire Department"). The fire inspection report limited the maximum capacity of the facility to three residents because the applicant did not have the manual alarm system required for four or five residents and did not wish to install such a system. The applicant altered the fire inspection report that she submitted with her application. She changed the number "3" to a "5" so that the fire inspection report appeared to approve the facility for a maximum capacity of five residents. As part of its review of the application, Respondent attempted to verify the fire inspection report included in the application by calling the Fire Department. When the Fire Department did not verify that the maximum capacity was five residents, Respondent obtained a copy of the original fire inspection report from the Fire Department. On March 22, 1996, the applicant obtained a zoning approval from the City of DeLand stating that the maximum capacity of the facility is three residents. The applicant added the phrase "to 5" after the number "3" in the zoning approval so that the zoning approval authorized a maximum capacity of "3 to 5" residents. On June 3, 1996, the applicant submitted the HRS Form to Respondent. The applicant amended the portion of the HRS Form requiring a designation of capacity for facilities with six or fewer residents as well as that for facilities with 7-14 residents. The latter category does not apply to Petitioner. The applicant did not submit fraudulent information to Respondent. The applicant did not intend to defraud Respondent. She misunderstood the application process. The facility has space for only three residents. It is physically impossible to house more than three residents in the facility. The applicant would have gained nothing from an authorized capacity of more than three residents. The applicant's refusal to add the manual alarm system required for four or five residents is consistent with the facility's limit of three residents. The applicant assumed that Respondent's minimum license category is for a license of 1-5 residents. The applicant altered the HRS Form, the zoning approval, and the fire inspection report under the mistaken belief that the capacity designation in each document should conform to the maximum capacity in Respondent's license category. In the HRS Form, the applicant even altered the licensed capacity for facilities with 7-14 residents. The applicant mistakenly submitted inaccurate information to Respondent within the meaning of Section 400.619(11)(e), Florida Statutes.1 The maximum licensed capacity of the facility must be consistent with fire safety requirements for the welfare of the residents. The licensed capacity of the facility must also conform to applicable zoning laws.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinGRANT a license to operate an AFCH for three residents. RECOMMENDED this 21st day of February, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1997.
The Issue The issues are whether Respondent committed the acts and violations alleged in an Administrative Complaint dated June 24, 2004, and, if so, what penalty, if any, should Petitioner impose on Respondent's license.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number 62-13807-R, and operates as Sophia's Italian Restaurant and Pizza at 10395 Seminole Boulevard, Seminole, Florida 33778 (the restaurant). A Sanitation and Safety Specialist for Petitioner inspected the restaurant on May 13 and June 16, 2004. Respondent committed four violations on June 16, 2004. Each violation was an uncorrected violation that first occurred on May 13, 2004. Respondent maintained uncovered food outside the restaurant. An ice machine outside in the back of the restaurant had no cover and no roof to prevent edible ice from being contaminated from outside sources in violation of Chapter 3 of the 1999 Recommendations of the United States Public Service/Food and Drug Administration (the Food Code), Food Code Rule 3-302.11. Respondent operated fryers without exhaust filters in violation of the National Fire Protection Association Life Safety Code, as adopted by the Division of State Fire Marshal (the Fire Code), Fire Code Rule 8-1.2. Filters reduce grease emission and retard the spread of fire. Respondent did not document during the second inspection that Respondent complied with training requirements for managers and food service employees. Restaurant staff did not include a qualified food protection manager in violation of Section 509.039, Florida Statutes (2003), and Florida Administrative Code Rule 61C-4.023(1). Respondent also failed to document required training for food service employees in violation of Section 509.049, Florida Statutes (2003). The Sanitation and Safety Specialist for Petitioner reviewed the foregoing violations with the owners of the restaurant on May 13, 2004. Respondent did not correct the violations on or before June 16, 2004. Some aggravating factors are evidenced in the record. Except for the failure to maintain filters over the fryers, the violations that Respondent committed are critical violations. Petitioner's witness identified a critical violation as a violation that is an immediate danger to the public safety. Several mitigating factors are evidenced in the record. The violations did not result in actual harm. Respondent has no prior discipline. The violations are not continuing or ongoing violations. Respondent covered the ice machine on June 16, 2004, after Petitioner completed the re-inspection of the restaurant. Respondent corrected the other violations after June 16, 2004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and four violations alleged in the Administrative Complaint and imposing an administrative fine of $1,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that this Recommended Order is filed with the agency clerk. DONE AND ENTERED this 23rd day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of February, 2005. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Sophia Drakakis 1001 Flushing Avenue Seminole, Florida 33778 Sophia Drakakis 10395 Seminole Boulevard Seminole, Florida 33778 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent failed to properly maintain the premises at Gables Guest House, in violation of Section 509.032, Florida Statutes, through violations of Rules 61C-1.004, and 61C-3.002, Florida Administrative Code, as alleged in the administrative complaint.
Findings Of Fact Respondent facility is a "rooming house" licensed by Petitioner Department of Business and Professional Regulation. Gustavo Velez is a trained and certified inspector for Petitioner. He inspected Respondent facility on April 7, 2000, and issued many citations and warnings for critical and non- critical violations of departmental health rules. He re- inspected on May 8, 2000. A critical violation is one which creates imminent and immediate hazard to the health and safety of the public. A non- critical violation is one which creates only an indirect threat to public health and safety. On inspection and on re-inspection, there was no fire alarm installed on the premises, and there were no pull stations connected to smoke detectors on each floor. These are critical violations. On both inspections, Respondent's exit doors on both the first and second floors were locked, and the exit door on the second floor opened inward. The inherent danger is self-evident. These are critical violations. On both inspections, there was a floor fan obstructing the second floor exit. The inherent danger is self-evident. This is a critical violation. On both inspections, there were no hearing-impaired smoke detectors on the premises. This meant that any hearing- impaired person could not request and receive one and therefore would be at risk in case of fire. The absence of hearing- impaired smoke detectors is a critical violation. On both inspections, there was a light fixture near the second floor exit that was hanging by a cord and separated from the ceiling. This situation created the danger of electrical fire and injury. It is a critical violation. On both inspections, there was no backflow prevention device installed at the hose bibb located at the side of the building. This situation invites water contamination and is a critical violation. On both occasions, there was a heavy accumulation of dust throughout the establishment; no room rate schedule available at the time of the inspections; and no room rates posted in the establishment. These are non-critical violations.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
