The Issue Whether Respondent failed to timely correct discrepancies noted during the survey of January 31, 1992 and, if so, what penalty is appropriate.
Findings Of Fact During the Annual Survey of Respondent ACLF on January 31, 1992 numerous discrepancies were found and at the exit interview Respondent was notified of these discrepancies and given a time frame in which to correct these discrepancies. In a follow-up inspection on April 29, 1992 more than one month later than Respondent was given to correct the discrepancies, the following deficiencies reported on the January 31, 1992 survey still existed. Residents were not provided the opportunity to plan the menus; Menus were not reviewed by a registered or licensed dietitian on a regular basis; The therapeutic diets provided did not document on the menu the food items which enable residents to comply with their therapeutic diet; and Respondent failed to have an annual nutritional review by a registered or licensed dietitian.
Recommendation RECOMMENDED that Willie Mae Johnson d/b/a Leisure Living be assessed an administrative fine of $250 each for the two violations for a total administrative fine of $500. RECOMMENDED this 3rd day of March, 1993, at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1993. COPIES FURNISHED: Thomas W. Caufman, Senior Attorney Agency for Health Care Administration Office of Licensure and Certification 7827 North Dale Mabry Drive Tampa, Florida 33614 Willie Mae Johnson, Owner Leisure Living 401 S.W. 9th Avenue Mulberry, Florida 33860 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 John Knox Road Tallahassee, Florida 32303
The Issue The issue is whether Respondent, in the operation of a public food establishment, is guilty of various violations of the law governing such establishments and, if so, what penalty should be imposed.
Findings Of Fact Gigi's Restaurant, LLC, holds Permanent Food Service license 2331011, which authorizes the operation of a public food establishment at 3585 Northeast 207th Street in Aventura, Florida, and expires October 1, 2011. Respondent last renewed its license on September 21, 2010. On January 13, 2010, at 11:29 a.m., an inspector of Petitioner visited Respondent's public food establishment to perform a routine inspection. At the time, Respondent's license had expired. The inspector also observed, among other things, the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate-strength dishmachine sanitizer; not-sanitized- properly-after-cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three-compartment sink. The inspector notified Respondent that a reinspection would take place on March 13, 2010, at 11:30 a.m. On April 21, 2010, the inspector performed a reinspection of the public food establishment. At the time, Respondent still had not renewed its license. The inspector observed the recurrence or continuation of the following violations: the lack of proper hand-drying provisions at the hand-wash sink; a soiled-interior microwave; an inadequate- strength dishmachine sanitizer; not-sanitized-properly-after- cleaning food-contact surfaces and utensils; and no chemical test kit provided when using chemical sanitizer at three- compartment sink. The five remaining violations cited in the Administrative Complaint are all critical violations. A critical violation is more likely than a noncritical violation to cause food-borne illness.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants enter a final order determining that Respondent is guilty of the five violations identified above and revoking the public food establishment license of Respondent. DONE AND ENTERED this 8th day of July, 2011, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2011. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Arner Gigi Gigi’s Cafe 3585 Northeast 207 Street, No.C302 Miami, Florida 33180 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 William L. Veach, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact Background In October 1987, Adult Care Facilities, Inc.(Adult Care), filed an application with the Department of Health and Rehabilitative Services (Department) for a certificate of need (CON) to construct a skilled and intermediate care nursing home dedicated to the care of Alzheimer's disease and related dementia patients in Broward County, Florida. Adult Care's application sought leave to construct a 120-bed facility, but was timely amended to reduce its scope to a 84-bed facility. In March 1988, the Department gave notice of its intent to deny Adult Care's application, and Adult Care timely petitioned for formal administrative review. Adult Care Adult Care is a family owned corporation formed in 1986 to develop and operate health care facilities specializing in the care of Alzheimer's disease and related dementia disorders. Currently, Adult Care operates two ACLF's (adult congregate living facilities) in Florida dedicated to Alzheimer's disease and related dementia disorders; a 34-bed facility in Boynton Beach and a 52-bed facility, 16 beds of which are presently certified for occupancy, in Deerfield Beach. The Deerfield Beach ACLF is part of the campus for which the subject nursing home CON is sought. The owners of Adult Care, through Morton Development Corporation, also own and operate Praxis Nursing Home and Northampton Convalescent Center in Easton, Pennsylvania. In 1986, the Praxis Nursing Home was renovated from a mental retardation facility to a 110-bed nursing home designed as a 61- bed skilled care unit and 49-bed intermediate care unit. The 49- bed unit was, at that time, specially designed and equipped for the care of Alzheimer's disease and related disorder patients. The Northampton Convalescent Center is located on the same grounds as the Praxis Nursing Home, and includes 181 nursing home beds. The Adult Care proposal Adult Care currently owns or has under contract 15 acres of land located at 1431 S.W. 9th Avenue, Deerfield Beach, Florida, upon which it proposes to develop an Alzheimer's care campus consisting of a day care center, ACLF facilities, the subject nursing home, and independent residential living accommodations. The property is located approximately a mile and a half from North Broward Medical Center and two miles from North Ridge Medical Center. The Alzheimer's care campus proposed by Adult Care is being developed in phases. Phase I is complete and consists of a 52-bed ACLF which offers residential, respite and adult day care. Phase II, an adult day care center, is under construction, and construction of Phase III, a multi-level 126-bed ACLF, will commence in the fall of 1988. This ACLF will contain three separate units with several levels of care and treatment modalities designed to address the individual need and potential of the resident. To be constructed thereafter, is Phase IV, the subject nursing home, and Phase V, 70 apartments or 40 villas for residential use, with home care available. Adult Care proposes to dedicate its Alzheimer's care campus, including the subject nursing home, solely to the care of Alzheimer's disease and related dementia disorder patients. Alzheimer's disease is a brain disorder that results in gradual memory loss and, as such loss progresses, a need for increased personal care. The cause of the disease is not known nor is there an effective medical treatment. While the disease affects some young people, the vast majority of its victims are over the age of 65. Historically, Alzheimer's patients have been mixed with other patients in nursing homes, often disrupting other patients and presenting problems of control for staff. A special facility enables the nursing home to utilize special techniques to manage the patient with minimal restraint or sedation, and provides the patient with a specialty area and specially trained staff to address the needs of such patients. There are three to four commonly accepted stages of Alzheimer's disease. The first stage is the initial onset of memory loss, confusion and an inability to perform complex tasks. This stage is difficult to diagnose because the changes are quite similar to changes that occur with normal aging such as forgetfulness During the second stage of the disease, disorientation and memory loss become more pronounced. At this state, the patient may lose his ability to recognize and interact with family and friends, begin to wander, suffer sleep reversals (where he is asleep during the day and awake at night), and exhibit anger and frustration. In the third stage of the disease, the patient will commonly exhibit urinary or bowel incontinence, and stop eating or decrease his food intake. In the final or fourth stage, the patient frequently becomes bedridden, incommunicative, and requires total nursing care. The common course of the disease can span 10-15 years. During the early stages of the disease, the needs of the Alzheimer's patient can generally be addressed in the home or through existing services provided by ACLFs, adult foster homes, home health services, and adult day care. However, even prior to the onset of the final stage of the disease, which frequently requires total nursing care in and of itself, Alzheimer's patients suffer the same debilitating conditions that require skilled nursing home care that are suffered by other elderly people. When nursing home care is indicated for the Alzheimer's patient, it is preferable that they receive such care in a facility appropriately designed and staffed to cope with and address the needs of such patients. To address the needs of Alzheimer's disease patients needing nursing home services, Adult Care proposes an 84-bed facility containing 33,300 gross square feet, with an estimated total cost of $3,450,000. As designed, the facility will contain four private rooms and 40 semi-private rooms divided between two units, a skilled unit and intermediate care unit. Each unit will contain two private rooms and 20 semi-private rooms. Additionally, separate spaces have been provided within the facility for the following patient support and treatment functions: beauty-barber shop, quite lounge, chapel, physical therapy, occupational therapy, patient laundry room, outdoor patio area, and exam-treatment room. There is no dispute that the subject facility meets or exceeds state standards for the construction of nursing homes. In addition to meeting state standards, the proposed facility has likewise been designed to address the peculiar problems suffered by Alzheimer's disease patients. Recent research demonstrates that loss of smell, loss of sight or impairment of vision and loss of hearing are early impacts of the disease, and contribute significantly to the confusion, distortion, and agitation suffered by such patients. The design elements Adult Care has incorporated into its facility will ameliorate the physical and mental problems suffered by the Alzheimer's patient and provide a facility conducive to their care. Among other things, the facility will be constructed in a rectangular shape with "endless" corridors so that patients may ambulate/"wander" in a circle, alcoves will be provided along the corridors for resting, contrasting colors will be used to provide a clear demarcation between walls and doors, separate rooms will be provided for activities and quiet moments to minimize agitation, and lighting will be enhanced. Overall, the Adult Care facility is reasonably designed and equipped to address the special needs of the Alzheimer's patient. Staffing at the proposed facility is also designed to address the special needs of the Alzheimer's patient. Adult care will employ a multi- disciplinary staff consisting of medical, psychiatric, nursing and other professionals to tailor care to the needs of the individual Alzheimer's patient. Nursing staff will be particularly trained to deal with Alzheimer's patients, and the facility will be fully staffed on all shifts to address the erratic sleep and activity patterns of the patients. With such a staffing pattern, patients will be allowed to function as normally as possible with minimal restraint or sedation. As proposed, Adult Care's staffing level is reasonable, and it has demonstrated that it will provide quality care. The program Adult Care has proposed for the Alzheimer's patients in its nursing home is patterned after that practiced at the Praxis Nursing Home in Easton, Pennsylvania. There, a multi-disciplinary team consisting of psychiatric, medical, program, nursing, social activities, dietary, pharmacy, physical and occupational therapy, and housekeeping services evaluate each patient on a regular basis to assure that they are placed at the proper level of care and are accorded a program that will optimize their levels of functioning while residing in the nursing home. To this end, Praxis ascribes five levels of care for its patients: independent care, intermediate care, supportive care, comprehensive/transitional care, and extended care. These levels of care are divided into two sub units: the contemporary unit and the progressive unit. Within the contemporary unit both independent care and intermediate care are provided. Independent care patients display a high-level of functioning, minimal organicity, and require little intervention with activities of daily living. While they benefit from a structured environment, they are able to participate in a high-level activities program. Intermediate care patients display a moderate level of functioning, organicity and confusion. They have achieved stabilization, are able to control behaviors, display minimal restlessness, and are able to perform activities of daily living with minimal intervention. They likewise benefit from a progressive activities program and a structured environment. Within the progressive unit supportive care, comprehensive/transitional care, and extended care are provided. Supportive care patients are those who have achieved stabilization but have periodic episodes of unmanageable behavior, may wander, require moderate intervention for activities of daily living, and need a structured environment to maintain functioning level. They may or may not benefit from an activities program. Comprehensive/transitional care patients are those who are unable to control their behavior and may require medication or behavior management. Frequent intervention is needed by psychiatric or nursing staff, as well as moderate assistance with activities of daily living and a maximum structured environment to control behavior. Optimally, this patient may progress to the point where he may be returned to a lower level of care where he may benefit from an activities program. Extended care patients are those who have progressed to needing mostly nursing care. They no longer benefit from a structured activities program, and require high intervention with their activities of daily living. Adult Care proposes to provide extended care only to existing clients of its facility. Through utilization of the multi-disciplinary approach and the various levels of care, Adult Care will be able to group patients at appropriate levels, provide appropriate activities and minimize agitation and disruption. To this end, Adult Care will employ reality orientation, validity therapy, remotivation therapy, and games, arts and crafts. Such activities will be available seven days a week, from 9:30 a.m. to 8:00 p.m. Consistency with the district plan and state plan The District X health plan contains the following pertinent policies and priorities: POLICY #1 The Health Council supports the State's application of the State Bed Need Methodology with the objective of achieving a ratio of 27 nursing home beds per 1,000 population 65 and older. Priority #1 - As a means of meeting the community need for nursing home beds In Broward County, applications for certificate of need should be encouraged that will assure the availability of 22 beds/1,000 population over 65 years by 1988. Priority #2 - Priority will be given to those certificate of need applications that would convert unused medical/surgical beds to nursing home beds as a means of meeting community need. Priority #3 - Priority will be given to those certificate of need applications that request approval for the expansion of existing facilities reflecting an average annual occupancy rate which meets or exceeds 90%. Priority #4 - Priority will be given those applicants for certificate of need approval which propose to meet community need by co-locating nursing home facilities with or adjacent to other existing health care facilities. Priority #5 - Priority will be given those certificate of need applicants who propose to meet community need through the construction of new freestanding facilities that are a minimum of 120 beds in size. *** POLICY #2 Services provided in the community should be made available to all segments of the resident population regardless of the ability to pay. Priority #1 - Priority will be given to those certificate of need applicants who accompany their applications with commitment to serve a proportionate number of Medicaid patients as is represented in the Medicaid to total population ratio. Priority #2 - Priority will be given to those certificate of need applicants that propose a mechanism to facilitate the care of the medically indigent not covered by Medicaid. POLICY #3 Providers of health services are expected to the extent possible to insure an improvement in the quality of health services within the district. POLICY #4 A wide range of services should be accessible to all patients within the district. Priority #1 - Priority will be given to those facilities that propose to provide the following comprehensive scope of services: Physician Services Nursing Services Diet Counseling Diet Therapy Dental Care Podiatric Services Optometric/Opthalmologic Care Adiometric Care Pharmacy Services Speech Therapy Recreation X-Ray Laboratory Services Emergency Assistance Transportation Services Physical Therapy Social Services Occupational Therapy Support for Terminal Patients Psychiatric Care The State Health Plan on Aging contains the following pertinent policies: Day care for the elderly should be considered as an essential service available to all elderly who need partial custodial and rehabilitative services. As such, there is a need for the combined services now available in both the social day care and medical day care models. Provide support to families providing in home care for persons with Alzheimer's Disease and other memory disorders Provided incentives for special day care for persons with Alzheimer's Disease and appropriate reimbursement rates for nursing home care for patients with Alzheimer's Disease. Adult Care demonstrated that its proposal would, on balance, conform with the foregoing provisions of the state and local health plans. Particularly Adult Care's proposal conforms with the State Health plan and with Policy #1 (priority #1 and #4), Policy #2 (priority #1), Policy #3, and Policy #4 (priority #1) of the local health plan. Numeric need The Department has established by rule the methodology whereby the need for community nursing home beds in the service district shall be determined. Rule 10-5.011(1) (k)2, Florida Administrative Code. Application of the rule methodology to the facts of this case calculated a surplus of 356 nursing home beds in Broward County for the July 1990 planning horizon. Under such circumstances, the parties stipulated that there was no need for the proposed facility under the Department's numeric need methodology. Special circumstances The Department will not normally approve an application for new or additional nursing home beds in a service district in excess of the number calculated by the aforementioned methodology. Rule 10-5.011(1)(k), Florida Administrative Code. Succinctly, the need for nursing home services, whether they be general or special, is considered a product of the rule methodology absent a demonstration of special circumstances. The Department has adopted by rule a methodology to be utilized in demonstrating special circumstances that would warrant a consideration of factors other than the numeric need methodology in determining a need for nursing home services. That rule, 10-5.011(1) (k)2, Florida Administrative Code, provides: In the event that the net bed allocation is zero the applicant may demonstrate that circumstances exist to justify the approval of additional beds under the other relevant criteria specifically contained at Section 10- 5.011. Specifically, the applicant Tray show that persons using existing and like services are in need of nursing home care but will be unable to access nursing home services currently licensed or approved within the subdistrict. Under the provision, the applicant must demonstrate that those persons with a documented need for nursing home services have been denied access to currently licensed but unoccupied beds or that the number of persons with a documented need exceeds the number of licensed unoccupied and currently approved nursing home beds. Existing and like services shall include the following as defined in statute or rule, adult congregate living facilities, adult foster homes, homes for special services, home health services, adult day health care, adult day care, community care for the elderly, and home care for the elderly. Patients' need for nursing home care must be documented by the attending physicians' plans of care or orders, assessments performed by staff of the Department of Health and Rehabilitative Services, or equivalent assessments performed by attending physicians indicating need for nursing home care. In the instant case, Adult Care contends that there exist special circumstances which warrant approval of its application notwithstanding a lack of numeric need within the service district. The proof offered by Adult Care was not, however, adequate to demonstrate a need for additional nursing home beds under the provisions of Rule 10-5.011(1) (k)2, Florida Administrative Code. Specifically, adult care failed to demonstrate, as mandated by the rule, that any person using existing and like services, with a documented need for nursing home services, had been denied access to currently licensed but unoccupied beds or that the number of such persons with a documented need exceeded the number of licensed unoccupied and currently approved nursing home beds within the service district. The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services. The gravamen of Adult Care's claim of special circumstances is not so much that persons needing nursing home services within the district have been denied access to currently licensed but unoccupied beds or that the number of such persons exceeds the number of licensed unoccupied and currently approved nursing home beds but, rather, that existent nursing homes do not provide the ancillary amenities, programs and staffing appropriate for the care of Alzheimer's patients who need to access nursing home services. Under such circumstances, Adult Care concludes that there is a need for the subject 84-bed nursing home. 1/ Currently, there are 26 nursing homes in Broward County, with a total of 3,270 licensed beds. Among those facilities, there are some that provide separate Alzheimer's units and others that mix Alzheimer's patients with their general patients. None of these facilities incorporate special design characteristics to address the needs of Alzheimer's patients, and none of these facilities offer the degree of specialized care and programing beneficial to Alzheimer's patients that is proposed by Adult Care. While the proof supports the conclusion that existing nursing homes in Broward County do not provide the ancillary amenities, programs and staffing that Adult Care proposes and that such proposal is the preferred method of care for Alzheimer's patients, It fails to demonstrate that such nursing homes are not providing quality care for their residents or that existing facilities are necessarily inadequate. Apart from the proof that some patients (unidentified and unquantified by the proof) who needed specialized care had to leave the county to access it, there was no competent or persuasive proof that any singular patient was inappropriately placed or treated In any existent facility. Based on the progress of the disease, the proof demonstrates that many Alzheimer's patients, depending on the stage of their disease, can be appropriately cared for In existing nursing homes even though they may lack the state-of- the-art amenities and services for Alzheimer's patients proposed by Adult Care. 2/ Apart from the 26 existing nursing homes in Broward County, there are also 8 approved facilities with a total of 695 beds. Two of these facilities, Health Care and Retirement Corporation (HCR) and Forum Group, Inc.(Forum), are planned for the Deerfield Beach area. The HCR facility will be an 84-bed nursing home. The Forum facility will be a retirement living center which will include independent living units, an ACLF, and a 60-bed nursing home. Adult Care offered no proof concerning the amenities, programming or staffing of any of the approved facilities. While contending that existing nursing homes were inadequate to address the need for nursing home care demanded by Alzheimer's patients, Adult Care undertook no survey and offered no proof that would demonstrate how many Alzheimer's patients were currently being cared for in nursing homes in Broward County, how may beds were otherwise available for their care, the number of Alzheimer's patients that were in need of specialized care, or how many were unable to access nursing home care. Currently, Broward County nursing homes are experiencing an 89.35 percent occupancy rate. The only proof offered by Adult Care concerning a quantifiable need of Alzheimer's patients for nursing home care was a statistical analysis predicated on the incidence rate of Alzheimer's disease among those persons aged 65 and over. Adult Care's statistical analysis was strained, unvalidated, and unpersuasive to demonstrate any quantifiable need. Utilizing a report complied by the Department's Long Term Care Planning Unit, Aging and Community Services, Office of Aging and Adult Services, Adult Care computed that at July 1990 (its planning horizon), there would be 14,748 Alzheimer's disease or other severe dementing disorder patients in Broward County 3/. The Department's estimate is predicated on its estimate that one percent of the population between the ages of 65 and 74 have Alzheimer's disease or other severe dementing disorders, seven percent of the population between the ages of 75 and 84 suffer such disorders, and twenty-five percent of the population age 85 and over suffer such disorders The Department's report further states that the total number of persons suffering from such disorders, as opposed to just those suffering from severe dementia, can be estimated by assuming that for each case of severe dementia that at least one person and possibly up to three people have milder dementia and will eventually develop severe dementia if they live long enough. Based on this statement, Adult Care calculated the dementia population for 1990 to range between approximately 29,500 and 59,000 people. Then, based on estimates that its expert had seen that reflected "that as high as 80 percent of all Alzheimer's patients would at one point require full-time custodial care" calculated a gross demand for 23,600-47,200 beds. To derive a net need, Adult Care would apply the current ratio of beds allocated for Broward County under the Department's numeric need methodology (11.95), which it suggests would calculate a range of 282 to 574 beds needed by Alzheimer's patients in the relevant planning horizon. As previously noted, Adult Care's statistical analysis is strained, unvalidated and unpersuasive to demonstrate any quantifiable need for special nursing home services for Alzheimer's patients. First, Adult Care's use of the estimate that 80 percent of Alzheimer's patients would require full-time "custodial care" at "some time" does not yield any meaningful number for its July 1990 planning horizon. "Custodial care" is not synonymous with skilled or intermediate nursing care but can include a broad range of health care services including ACFLs. Additionally, a population derived from the assumption that Its members may need care "at some time" is not meaningful. Such population may as easily need such care beyond Adult Care's horizon as within it. Second, Adult Care's use of the current ratio of beds allocated to Broward County to derive a net need is likewise flawed because there is no showing that the bed to population ratio bears any relationship to the demand for nursing services by any particular segment of the population. Finally, there is no showing of what percentage of the gross demand (23,600-47,200 beds) is composed of people who have any significant need for the specialized services proposed by Adult Care. Those with mild dementia may function well without such services and those suffering the final stage of the disease would no longer benefit from such services. In concluding that Adult Care has failed to demonstrate any quantifiable demand for its proposal, or that any quantifiable number of persons suffering from Alzheimer's disease were in need of special services that they were unable to access in Broward County, it is not suggested that existing nursing homes adequately address the needs of Alzheimer's patients at every stage of their disease. Rather, it is concluded that while some patients may need and benefit from such special services at some stage while they progress through the spectrum of their disease, that there has been no showing that a significant or meaningfully number of such people exist who are being denied access to such services through existing or approved facilities. Financial feasibility Adult Care has the available resources, including management personnel and funds for capital and operating expenditures, for project accomplishment and operation, and will be able to recruit any other personnel necessary to staff its facility. While Adult Care has demonstrated the short-term feasibility of its project, it has failed to demonstrate its long-term financial feasibility in light of its failure to demonstrate any significant quantifiable need for the special services it proposes to offer. Currently, the service district contains 3,270 licensed and 695 approved nursing home bed, which under the Department's numeric need methodology calculates a surplus of 356 beds. Considering the current occupancy rate of licensed facilities at 89.35 per cent, the existence of 365 approved beds, and a failure to demonstrate a quantifiable need for the special services it proposes that cannot or are not being adequately served by existing or approved facilities, compels the conclusion that the Adult Care proposal is not financially feasible in the long-term. The criteria on balance In evaluating the application at issue in this case, none of the criteria established by Section 381.705, Florida Statutes, or Rule 10-5.011(k), Florida Administrative Code, have been overlooked. However, as the parties have stipulated, need, as evidenced by the existence of special circumstances and long-term financial feasibility are the key criteria in the instant case. Adult Care's failure to demonstrate need, as evidenced by the existence of special circumstances, and its consequent failure to demonstrate the long-term financial feasibility of its project is dispositive of its application for licensure, and such failure is not outweighed by any other, or combination of any other, criteria.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application for certificate of need filed by Adult Care be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1988.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Petitioner is the state agency charged with regulating and inspecting restaurants. Respondent is licensed and regulated by Petitioner. Respondent’s permanent food service license number is 6902905. Respondent’s license address is 3785 Orlando Drive, Sanford, Florida 32773-5686. Petitioner's inspector inspected Respondent on July 8, 2002. Several deficiencies were noted by the inspector. Among the deficiencies were the following: (1) violation of Florida Administrative Code Rule 61C-4.023(4)(a), “there was no proof of employee training available for employees employed for sixty days or more"; (2) violation of Section 3-304.14(B)(2), 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration (incorporated into Florida Law by Florida Administrative Code Chapter 61C), “there were wiping cloths on the food prep counters that were not stored in sanitizer"; (3) violation of Section 4-601.11(A), 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, “the reach-in freezer by the grill had old food debris built-up on the inside"; and violation of Section 6-501.111, 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, “observed flies in the kitchen area.” One deficiency of critical concern was that Respondent's employees had failed to complete their food service training. The Food Service Inspection Report of the July 8, 2002, inspection advised Respondent: WARNING: Violations in the operation of your establishment must be corrected by July 22, 2002 at 8:00 AM. On July 25, 2002, Petitioner's inspector returned for a re-inspection of the deficiencies noted during the July 8, 2002, inspection. The four deficiencies mentioned in paragraph 3, supra, had not been corrected. During the re-inspection, the following observations were made: "53B No proof of employee certification available for employees employed 60 days or more"; "21 Wiping cloths for food prep counters - no sanitizer"; "22 Mini freezer @ grill w/ old food debris built up on inside of reach in"; and "35 Flies in kitchen areas." Respondent did not appear at the final hearing and, therefore, did not present any mitigating circumstances.
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 Respondent committed the violations alleged in the Administrative Complaint. Imposing an administrative fine of $2,500.00 payable within 45 days of the filing of the final order. Requiring Respondent’s manager(s) to attend a Hospitality Education Program class within 60 days of the filing of the final order and to provide proof of such attendance to the Division of Hotels and Restaurants. DONE AND ENTERED this 23rd day of October, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2003. COPIES FURNISHED: Kelly A. Fields McDonalds Post Office Box 941869 Maitland, Florida 32751 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 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 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact By letter dated November 9, 1995, Dr. Francisco Belette, an oncologist, filed a complaint with the Department of Professional Regulation pertaining to Mr. Brancaleone's dealings with Christine B., a cancer patient who was being treated by Dr. Belette. That letter describes the unfortunate progression of his patient's breast cancer and includes the following: It was decided to start Christine on Tamoxifen therapy on 10/18/95. This therapy is being given in conjunction with aggressive chemotherapy and ultimately a stem cell transplant. It is my intention to offer Christine a chance at long term survival. Christine returned on 10/24/95 for f/u (a follow up visit). At this time she informed me of her conversations with Mr. Jesse Brancaleone. This gentlemen is a "nutritionist" who works at the Palm Lakes Natural Food Market. According to Christine this "nutritionist" advised her to stop taking the Tamoxifen immediately since he feels "Tamoxifen like other drugs we administer, are poisons." He claims that he "has treated thousands of cancer patients and that what we doctors do to patients is a travesty. We poison them without research." On the contrary, Tamoxifen has more than proven its role in the treatment of breast cancer. I am deeply troubled by what this gentlemen has said to my patient. He has jeopardized my patient/doctor relationship. I feel he is giving false information to patients and therefore practicing medicine without a license. I would appreciate your immediate intervention and investigation into this matter. . . . Thereafter, Daniel A. Pantano investigated the complaint on behalf of the agency and submitted an Investigative Report that was made available to the probable cause panel when it considered this matter. As part of his investigation, Mr. Pantano interviewed Dr. Belette and Christine B. by telephone. The Investigative Report reflected that Dr. Belette's telephone interview confirmed the allegations made in his letter of November 9, 1995. The Investigative Report reflected that the telephone interview of Christine B. confirmed that Mr. Brancaleone told Christine B. that she should stop taking the Tamoxifen medication that had been prescribed by Dr. Belette. By letter dated January 10, 1996, Mr. Pantano advised Mr. Brancaleone of Dr. Belette's allegations and gave him an opportunity to respond. By letter dated January 23, 1996, Mr. Brancaleone wrote the following letter in response to Mr. Pantano's letter of January 10, 1996: Please allow this letter to be my response to a complaint made by a Dr. Belette concerning one of his patients. Christine [B.] came to me for help due to her concerns over the failure of Dr. Belette in treating her breast cancer as her cancer markers continue to increase along with malignant cells over the past three years. She wanted me to build her immune system, nutritional status, and to supply her with information concerning the use of drugs and alternative methods of treatment. It was my intention to give Christine all of the information she desired concerning what nutrition and lifestyle changes have to offer her, the well known and documented side effects of taking drugs, alternative medical doctors and treatments she should consider in order to make an informed and educated decision as to what treatment she deems best for herself. I tell my clients only to be aware of the dangers and side effects of taking drugs as well as other chemicals. I do not give false information as Dr. Belette contends. The toxic reactions and side effects of drugs and other chemicals are stated in the Physicians Desk Reference, reported in prestigeous [sic] medical journals and institutions by research scientists and medical doctors throughout this country and world. This information is available to the general public. As a professional, I have an obligation to my clients to make them aware of any substance that will retard their nutritional status and immunity. I work with many wholestic [sic] medical doctors, knowledgable [sic] in the need to nutritionally support the body. They know the importance nutrition plays in their patients [sic] ability to recover. In my twenty-five years as a practicing nutritionist and six years on the radio helping people recover form illness and educating them as to a healthy lifestyle, I have never hurt anyone or had a complaint such as this. It is unfortunate that Dr. Belette is so ill-informed about orthomolecular [sic] medicine and nutritional biochemistry. Full disclosure, effects of treatments, success and failure rates, the right to a second opinion and alternative treatments are a basic right [sic] of all people. Dr. Belette, in my opinion, has compromised his patient's ability to make an informed choice and his desire to keep her ill- informed is the basis of this complaint. Please feel free to contact me at anytime. At the times pertinent to this proceeding, the North Probable Cause Panel for the Board of Medicine consisted of Dr. George Slade, M.D., Fred Varn, and Dr. Georges El-Bahri. Randy Collette, Esquire, was the attorney representing the Agency for Health Care Administration. Michael A. Mone', Esquire, was acting counsel for the Board of Medicine. The North Probable Cause Panel of the Board of Medicine considered this matter at a meeting on April 24, 1996. At the beginning of the meeting, Mr. Varn, Mr. Mone', and Mr. Collette were physically present at the Northwood Center in Tallahassee, where the meeting took place. Dr. El-Bahir participated in the meeting by telephone. Also present were Jim Cooksey and Bob Gary. Mr. Cooksey identified himself as being with "investigations." Mr. Gary identified himself as "OMC manager for north Florida." At the beginning of the meeting, certain precautionary instructions were given by the attorneys. Dr. Slade arrived at the meeting after the precautionary instructions were given but before the consideration of Mr. Brancaleone's case. Mr. Mone' advised Mr. Varn and Dr. El-Bahir that any questions concerning interpretation of the laws or rules, including the questions as to the duties of the probable cause panel, should be directed to him. Mr. Mone' also advised that Mr. Collette, as the attorney for the agency, had the responsibility of explaining the facts of the case, the reasons the agency was making its recommendation, and of answering any questions concerning the facts, the investigation, and the recommendation. Mr. Mone' further advised that the probable cause panel should not "rubber stamp" the proposed agency action, but that it should have a meaningful discussion of the reasons why probable cause is found. Both Mr. Varn and Dr. El-Bahir acknowledged they had the Investigative Report and the attachments, including the letters discussed above. Dr. Slade arrived after these acknowledgments were made. The transcript of the Probable Cause Panel meeting reflects, in pertinent part, the following: MR. COLLETTE: A-15, Jesse Brancaleone, nutrition counselor 95-17792. In February of 1993 patient CB was diagnosed as suffering from breast cancer by physician [sic], the patient had stage-two invasive duct carcinoma and started on four cycles of admiacin (ph) and two cycles of Cytosan is that it? C-y-t- o-s-a-n. MR. MONE: Cytosan. MR. COLLETTE: Cytosan. Okay. In October of '95, the patient was also started on tamoxifen therapy to be given in conjunction with aggressive chemotherapy. The patient subsequently presented to Respondent for nutritional counseling. Respondent advised the patient to discontinue taking the tamoxifen. Respondent advised the patient that the tamoxifen and other drugs prescribed by patient's physician were poisons. Respondent presented the petitioner with a written statement in January '96 which states that the patient presented to him to obtain information regarding her immune system, nutritional status and to supply her with information regarding the use of drugs and alternative methods for treatment of cancer. Respondent further indicated he advised the patient of the side effects of the medication prescribed by her physician. It's therefore alleged Respondent attempted to implement a dietary plan for a condition for which the patient was under active care of a physician, without the oral or written dietary order of the patient's physician, in violation of the provisions of Section 468.516(1)(a). It's further alleged Respondent inappropriately attempted to treat the patient's condition by means other than by dietetics and nutrition practice. Based on these facts, the Agency is alleging violations of 468.518(1)(a) and (j), recommends probable cause be found and an administrative complaint be filed. Because of the facts of the case the Agency recommends permanent revocation or suspension be sought as the maximum penalty available in the case. DR. SLADE: Motion? DR. EL-BAHRI: Moved. DR. SLADE: Second. This is certainly an egregious violation, it seems to me. MR. MONE': You don't have an (h) violation then, too, do you?1 MR. COLLETTE: No. DR. SLADE: (h) violation? MR. MONE': Is there an (h) violation that you are suggesting in there as well? MR. COLLETTE: I don't think so. MR. MONE': Committing an act of fraud or deceit or negligence or competency or misconduct. MR. COLLETTE: I don't have an opinion that backs me up to go that far. MR. MONE': Okay. MR. COLLETTE: I think that's something that we maybe were looking at at one time, but I didn't have enough to go forward on it. DR. SLADE: It doesn't speak for itself, though? It seems to me. MR. MONE': The problem is that while you and I and most of the medical world may agree that it speaks for itself, in the course of a prosecution, the hearing officer is going on those types of violations to rely on an expert opinion and some expert to come in and say that it is. MR. COLLETTE: I think it's much more evident on its face for the violation of inappropriately attempting to treat patient's means, by means other than dietetic or nutrition practices. I think that's something that anybody can see, you know. Nutrition counselors and dieticians are not in the realm of deciding when or when not to prescribe tamoxifen or other chemotherapy or treatment drugs of that nature; that's strictly the purview of specialized physicians and not nutrition counselors. DR. EL-BAHRI: Dr. Slade. DR. SLADE: Yes. DR. EL-BAHRI: Isn't it clear that he attempted to discontinue or he discontinued the tamoxifen, right? DR. SLADE: Yes. MR. COLLETTE: That's what the patient is alleging and will swear to, is that the nutrition counselor told her to stop taking the tamoxifen. DR. EL-BAHRI: Which is, by itself, is a pretty serious violation. MR. COLLETTE: Yes, it is; but it's the violation of attempting to treat a patient by means other than nutrition counseling. He is basically - DR. EL-BAHRI: Practicing without a license. 2 MR. COLLETTE: He is very, very close to that offense, yes, sir. Very close. DR. SLADE: And we -permanent record-okay, I just wanted to make sure. MR. COLLETTE: Yes. DR. SLADE: Okay. All in favor? (Chorus of ayes.) Based on the stipulation of the parties, it is found that the amount of attorney's fees and costs reflected by the affidavit filed prior to hearing were reasonable and necessary up to the point of October 29, 1997. Based on the stipulation of the parties, it is found that the there are no circumstances which would make an award of fees and costs unjust. Based on the stipulation of the parties, it is found that the DOH and AHCA were not nominal parties in DOAH Case No. 96-3354. Based on the stipulation of the parties, it is found that Mr. Brancaleone was a prevailing party in DOAH Case No. 96-3354. The affidavit filed at the formal hearing in this proceeding, is, in the absence of any evidence to the contrary, found to be for services that were reasonable and necessary. At all times pertinent to this proceeding, Part X of Chapter 468, Florida Statutes, consisting of Sections 468.501 through 458.518, constituted the Florida Dietetics and Nutrition Practice Act. At all times pertinent to this proceeding, Section 468.516(1)(a), Florida Statutes, has provided as follows: (1)(a) A licensee under this part shall not implement a dietary plan for a condition for which the patient is under the active care of a physician licensed under chapter 458 or chapter 459, without the oral or written dietary order of the referring physician. In the event the licensee is unable to obtain authorization or consultation after a good faith effort to obtain it from the physician, the licensee may use professional discretion in providing nutrition services until authorization or consultation is obtained from the physician. At all times pertinent to this proceeding, Section 468.518(1)(a) and (j), Florida Statutes, have provided as follows: The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken: Violating any provision of this part, any board or agency rule adopted pursuant thereto, or any lawful order of the board or agency previously entered in a disciplinary hearing held pursuant to this part, or failing to comply with a lawfully issued subpoena of the agency. The provisions of this paragraph also apply to any order or subpoena previously issued by the Department of Business and Professional Regulation during its period of regulatory control over this part. * * * (j) Treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice or nutritional counseling. Count One of the Administrative Complaint in DOAH Case No. 96-3354 charged that Mr. Brancaleone attempted to implement a dietary plan for Christine B., thereby violating the provisions of Section 468.516(1)(a), Florida Statutes. The violation of Section 468.516(1)(a), Florida Statutes, was alleged to be a violation of Section 468.518(1)(a), Florida Statutes.3 Count Two of the Administrative Complaint in DOAH Case No. 96-3354 charged that Mr. Brancaleone attempted to treat Christine B.'s condition by means other than by dietetics and nutrition practice.4 Mr. Brancaleone is the owner of a Subchapter S corporation named Palm Lakes Natural Food Market and Café, Incorporated, which operates as a natural food market and café in Margate, Florida. At the times pertinent to this proceeding, Mr. Brancaleone engaged in the practice of nutritional counseling in the back of the natural food market and café. The fees earned by Mr. Brancaleone as a nutritional counselor are paid directly to him, not to his corporation. Although he testified that he was an employee of that corporation and that he practiced from facilities owned by that corporation, Mr. Brancaleone did not establish that he practiced nutritional counseling through his corporate entity. Mr. Brancaleone did not have a net worth of two million dollars or more at any time pertinent to this proceeding. Mr. Brancaleone's corporation did not have a net worth of two million dollars or more at any time pertinent to this proceeding. Mr. Brancaleone did not employ more than twenty-five full time employees at any time pertinent to this proceeding. Mr. Brancaleone's corporation did not employ more than twenty- five full time employees at any time pertinent to this proceeding.
