The Issue The issues in this case are whether the Respondent committed the violations alleged in an Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent has been licensed to engage in the food service business, having been issued license number 16-09404-R. At all times material to this case, the Respondent has operated a restaurant in which food was prepared and served to the public. The Respondent’s restaurant business is located at 625 East Atlantic Boulevard, Pompano Beach, Florida 33060. On July 7, 2004, the Respondent’s restaurant premises were inspected by Larry Torres. Mr. Torres is a Sanitation and Safety Specialist employed by the Petitioner. In conjunction with the inspection on July 7, 2004, Mr. Torres prepared a Food Service Inspection Report in which he noted matters of significance that he observed during the inspection. During the course of his inspection on July 7, 2005, Mr. Torres noted several deficiencies that were violations of applicable statutes and rules. Mr. Torres advised the restaurant owner of these deficiencies and required that they be corrected by the next day. On July 8, 2005, Mr. Torres re-inspected the Respondent’s restaurant. Some of the deficiencies had been corrected and progress was being made towards the correction of others. Mr. Torres granted an extension of time until July 21, 2004, for the correction of the remaining deficiencies. On July 22, 2005, Mr. Torres again re-inspected the Respondent’s restaurant. As of July 22, 2005, all but four of the original deficiencies had been corrected and efforts were underway to correct those four deficiencies. On this occasion Mr. Torres granted an extension of time until August 22, 1004, within which to correct the remaining deficiencies. On August 23, 2004, Mr. Torres conducted another re- inspection of the Respondent’s restaurant. At that time there were three uncorrected deficiencies. Those uncorrected deficiencies were identified by numbers. The numbers were 32, 37, and 45. Deficiency number 32 was the absence of a sign in the area of the employee hand wash sink reminding employees that they were required to wash their hands before preparing or serving food. This is not a critical violation.3 Deficiency number 37 was an unrepaired hole in the wall in the area of the mop sink. The evidence in this case does not reveal what type of safety or sanitation issue resulted from the hole in the wall in the area of the mop sink. This is not a critical violation.4 Deficiency number 45 related to the condition of the automatic fire suppression system incorporated into the hood over some of the cooking elements in the kitchen. The Respondent’s automatic fire suppression system was an older dry chemical system. Such systems require maintenance and testing once every six years, and the Respondent’s system was overdue for maintenance and testing. Automatic fire suppression systems of the type used by the Respondent are rather rare and it can be difficult and time-consuming to locate the dry chemicals necessary to maintain the system. This was a critical violation because of the possibility of having a kitchen fire at a time when the automatic fire suppression system might not be working. The Respondent’s manager made diligent efforts to resolve deficiency number 45. On July 8, 2004, he received a proposal from a fire protection company to replace the existing fire suppression system with a more modern system for approximately three thousand dollars. That was more than the Respondent’s owner was able to spend to resolve that problem. Eventually the Respondent’s manager found someone who would resolve deficiency number 45 by bringing the existing fire suppression system into compliance for only five hundred dollars. By September 27, 2004, the fire suppression in the hood was in compliance and deficiency number 45 was resolved. The Respondent’s manager procrastinated in addressing deficiency number 32 because of his concerns about resolving the more serious matter of deficiency number 45. It took several months for the Respondent’s manager to hang hand washing signs near the employee hand washing sink. The Respondent’s manager addressed deficiency number 37 a bit sooner. At about the same time that deficiency number 45 was resolved, the manager also patched the hole in the wall by the mop sink area.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the three violations identified in the three numbered paragraphs of the Administrative Complaint existed on the dates alleged in the Administrative Complaints; Concluding that no penalty should be imposed for the violation identified in paragraph 1 of the Administrative Complaint; Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 2 of the Administrative Complaint; and Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 3 of the Administrative Complaint. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May, 2005.
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 issue is whether Respondent has violated various provisions governing public lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a public lodging establishment known as First Street Apartments at 220 South First Street in Immokalee. The license to operate this establishment, which is number 21-00721-H, expired December 1, 1997. However, Petitioner has allowed Respondent to continue to operate under this license until the resolution of pending proceedings against the license. First Street Apartments comprise 84 residential units in buildings not greater than three stories. At the time of the inspection, about 60 units were occupied. The buildings were constructed in 1963, and Respondent acquired the property in 1984. The controlling owner of Respondent was formerly a professional football player, and he formed Respondent to acquire First Street Apartments while still playing football. He has since retired, and he assumed direct responsibility for managing the property in 1994. First Street Apartments generate a net cash flow of $25,000 to $35,000 annually. Respondent has no formal policy setting the frequency of inspections of apartment units. However, the weekend prior to the hearing, Respondent's owner and his family moved into one of the apartments. Petitioner’s inspector conducted inspections of First Street Apartments on July 30 and August 19, 1997. The July inspection resulted in the issuance of a warning for 38 violations. The inspector allowed Respondent 30 days to correct these violations. The findings below describe the conditions at First Street Apartments on August 19, when Petitioner’s inspector and a local fire inspector returned to the site for the reinspection. As to the first alleged violation, apartments 30, 32, 40, and 79 lacked smoke detectors. As to the second alleged violation, apartment 31 had a smoke detector, but it was inoperative. As to the third alleged violation, an undetermined number of apartments had hasps affixed to the outside doors, so as to permit them to be latched. Most if not all of these hasps were affixed to the screen door. Most but not all of these hasps were unlocked. There is no evidence that any hasps were locked with occupants inside. The evidence suggests that tenants used the hasps to secure the contents of their premises while they were gone. However, the evidence does not establish that all of these hasps were attached to the doors and doorframe so securely as to present more than a momentary impediment to someone from the inside or outside trying to force the hasp open without unlocking it. The doorframes appear to have secured so many hasps that the wood is pitted and incapable of securing the hasp against much force. The clear appearance of numerous screwholes in the doors and doorframes supports Respondent’s contention that its representatives have frequently removed the hasps, only to find them reaffixed a short time later. As to the fourth alleged violation, one of the apartments had uninsulated wiring, unprotected by conduit, running from the ceiling to a water heater. This uninsulated wiring ran within eight feet of the floor. The proximity of this exposed wiring to the water in the water heater rendered this violation especially hazardous. However, Petitioner failed to prove its allegation of a broken electrical socket with a hot plate plugged into it. As to the fifth alleged violation, occupants of apartments 31, 32, and 33 used extension cords for other than intermittent purposes, such as cleaning, maintenance, or other temporary activities. These more ongoing, permanent uses included cooking and playing radios and televisions. As to the sixth alleged violation, there was no public lighting in the alley between the north building and a fenced area to the next property. However, Respondent or Lee County has since added more exterior lighting, and the record does not permit a finding as to the effect of the former condition. As to the seventh alleged violation, Respondent conceded that Respondent did not provide heat at the time of the inspections. As to the eighth alleged violation, the original design of the guardrail along the balcony contains openings greater than four inches. To remedy this hazardous situation, Respondent or a prior owner placed chain-link fence behind the guardrail, so as to reduce the openings to the size of the openings in the chain- link fence. The chain-link fence may have been missing on the west side of the building, but this fact does not emerge clearly from the record. There is some evidence that the chain-link fence elsewhere had loosened from the guardrail, but the evidence fails to establish the extent to which any separation had occurred and the extent to which such separation presented a hazard to persons falling between the openings in the guardrails and then between the guardrails and the chain-link fence. Respondent has since repaired the guardrails, in any event. As to the ninth alleged violation, apartments 30 and 32 had broken windows, torn screens, and a broken faucet in the kitchen sink repaired with duct tape; apartments 30 and 31 had leaky ceilings with structural damage and falling plaster; walls were pulling away from the ceiling; the south building had exposed interior beams; exterior areas had structural damage with worn concrete revealing the metal foundation; the exterior wall of the southeast end of the building had a 15-foot crack; and the concrete pillar supporting the second-floor landing on the northeast side of the building was worn and cracked. As to the tenth alleged violation, apartment 32 had a rotten shower wall and leaky toilet, and apartment 31 had an inoperative shower. As to the eleventh alleged violation, there were roaches and flies around the premises, but there is no evidence of "noxious small animals or parasitic insects, such as lice, fleas, worms, rats, or mice." As the administrative law judge advised at the hearing, he took official notice of this dictionary definition of "vermin" taken from a Funk and Wagnall's Dictionary present in the courthouse at which the hearing took place. As to the twelfth alleged violation, there was a car seat under a stairwell and about a dozen five-gallon plastic pails. However, the tenants stored these items, on a temporary basis, for their work. They remove car seats to increase the passenger-carrying capacity of their motor vehicles, and they use the pails while picking fruits and vegetables. As to the thirteenth alleged violation, there was no concrete pad under one of the two dumpsters. As to the fourteenth alleged violation, a dumpster lid remained open for the entire 1.5-hour inspection. As to the fifteenth alleged violation, a broken sewer line had leaked a pool of gray water, and a sewer cap was missing from the sewer line as it left a residential unit. In sum, Petitioner proved the following violations, with critical violations marked with an asterisk: 1*, 2*, 4* (unprotected wiring, but no broken socket), 5*, 7*, 9, 10 (except for water leaking from under the sinks) 13, 14, and 15*. By Ordinance No. 92-72, the Collier County Commission adopted National Fire Protection Association Life Safety Code 101, Life Safety Code, effective October 21, 1992. NFPA 5-2.2.4.6(c) provides: "Open guards shall have intermediate rails or an ornamental pattern such that a sphere 4 in. (10.1 cm) in diameter cannot pass through any opening." NFPA 19-3.4.4.1 provides: Approved single station or multiple station smoke detectors continuously powered from the building electrical system shall be installed in accordance with 7-6.2.9 in every living unit within the apartment building regardless of the number of stories or number of apartments. When activated, the detector shall initiate an alarm that is audible in the sleeping rooms of that unit. This individual unit detector shall be in addition to any sprinkler system or other detection system that may be installed in the building. Section 5-402.14, 1995 Food Code, as adopted by the Food and Drug Administration, Public Health Service, United States Department of Health and Human Services (Food Code), provides: "Sewage shall be conveyed to the point of disposal through an approved sanitary sewage system or other system, including use of sewage transport vehicles, waste retention tanks, pumps, pipes, hoses, and connections that are constructed, maintained, and operated according to law." Section 5-501.11, Food Code, provides: "If located within the food establishment, a storage area for refuse, recyclables, and returnables shall meet the requirements specified under Parts 6-1 and 6-2." Section 5-501.12, Food Code, provides: "An outdoor storage surface for refuse, recyclables, and returnables shall be constructed of nonabsorbent material such as concrete or asphalt and shall be smooth, durable and sloped to drain." Section 5-501.113(B), Food Code, provides: "Cardboard or other packaging material that does not contain food residues and that is awaiting regularly scheduled delivery to a recycling or disposal site may be stored outside without being in a covered receptacle if it is stored so that it does not create a rodent harborage problem." Section 5-501.114(B), Food Code, provides: "Equipment and receptacles for refuse, recyclables, and returnables shall be kept covered . . . [w]ith tight-fitting lids or doors if kept outside the food establishment."
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order imposing an administrative fine against Respondent in the amount of $2750 and requiring Respondent's controlling owner to undergo additional education. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Daniel R. Biggins Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 D. Nathan Hoskins Peck & Peck First Union Building, Suite 103 5801 Pelican Bay Boulevard Naples, Florida 34108 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Galilee was licensed by the Department. Galilee's last known address is 4685 Haverhill Road, West Palm Beach, Florida. Galilee is a lodging establishment, consisting of rental apartments. It was originally constructed in 1995 as an assisted living facility but, as a business decision, the owner subsequently converted it to rental apartments. The Department's inspector inspected the outside of Galilee on December 18, 2002, and again on January 17, 2003. The inspector found deficiencies at the first inspection, and at the second inspection three deficiencies remained uncorrected. The uncorrected deficiencies were (1) the current report of the annual inspection for the fire sprinkler system was not available; (2) fire extinguishers failed to have state certification tags affixed; and (3) no backflow prevention device on the exterior hose connection to the apartment building. The failure to have available the current report of the annual inspection for the fire sprinkler system was a critical violation. The deficiency was classified as a critical violation because the annual report is the only way that an inspector can ascertain that the fire sprinkler system is operational. The inspector requested the current annual report at the first visit but it was not available. The failure of the fire extinguishers to have state certification tags affixed was a critical violation. The deficiency was classified as a critical violation because the state certified tag verifies that an extinguisher is in proper working order and is being properly maintained. The failure to have a backflow prevention device on the exterior hose connection to the apartment building was not a critical violation. The backflow prevention device stops negative water pressure. At the first inspection, the inspector explained the violations to the owner and gave him a 30-day warning to have the violations corrected, advising the owner that she would return on January 17, 2003, for a follow-up inspection. The violations were not corrected at the follow-up inspection 30 days later. The evidence shows that all the violations were corrected within a month to a month and a half after the second inspection. Galilee provided mitigating circumstances for the violations not being corrected at the time of the second inspection. As to the deficiency regarding availability of the current report of the annual inspection for the fire sprinkler system, Galilee has a current report dated February 27, 2003. Also, Galilee suggests that the inspector did not request the report. The undersigned finds the inspector's testimony credible that she requested the report. Further, the evidence shows that Galilee confused the requested report with the report of the fire department's inspection. The inspector testified, and her testimony is found credible, that the report of the annual inspection for the fire sprinkler system is generated by a private company, not the fire department, because the fire department does not perform the inspection required for the requested report. As to the deficiency regarding tagging of the fire extinguishers, Galilee's owner purchased fire extinguishers from Home Depot and was not aware that the extinguishers were required to be tagged at the time of the first inspection. Subsequent to the second inspection, the fire extinguishers were tagged by the AAC United Fire and Safety Department, with which Galilee has a contract to inspect the fire extinguishers. As to the deficiency regarding backflow prevention device, it too was corrected subsequent to the second inspection. Furthermore, even though the deficiencies were corrected subsequent to the second inspection, Galilee began the process to correct the deficiencies after the first inspection. Galilee was not ignoring the deficiencies. The deficiencies were not timely corrected because Galilee's owner was attempting to obtain, whom he considered, the proper people to perform the tasks involved and have the tasks performed at a reasonable expense. No evidence of prior disciplinary action being taken against Galilee by the Department was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order: Finding that Galilee violated NFPA Life Safety Code 25, 1-8.2 and Food Code Rule 5-204.12. Dismissing the violation of Florida Administrative Code Rule 61C-1.004(5). Imposing an administrative fine of $1,500.00, payable under terms and conditions deemed appropriate. S DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. ____ ERROL H. POWELL 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 31st day of October, 2003.
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
