The Issue Whether Respondent, Lennox National Account Services (Lennox or Respondent), violated the Florida Civil Rights Act of 1992,1 by discriminating 1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions, which have not substantively changed since the time of the alleged discrimination. against the employment of Matthew P. Mathews (Petitioner) because of his disability, or in retaliation for his engagement in protected activities.
Findings Of Fact Lennox sells, installs, recycles, and maintains commercial heating, ventilation, and air-conditioning equipment for large, national companies. Lennox’s services are performed by service technicians assigned to branch offices throughout the United States. Petitioner accepted employment with Lennox as a Level II Service Technician on June 10, 2019. Petitioner’s Discrimination Complaint alleges: Complainant (CP), began his employment with Respondent in 06/2019 and holds the position of Level II Tech. CP was subjected to retaliation, different terms and conditions of employment and was held to a different standard because of his disability and Respondent failed to accommodate him. CP sustained a job-related injury on 02/11/2020, CP reported the injury to his Manager Keith Green on 02/12/2020. CP told Keith he needed to see a doctor; Keith pressed CP to do more work. CP told Keith in a loud, clear voice that he needed to see the doctor. CP saw Dr. Bernier and sent Keith a copy of his doctor slip. On 02/24/2020, CP went to Lennox NAS corporate for a week of classroom training and went on tour with all other students. CP met all corporate leadership and they all saw he was injured. Steve Coe (Safety Director) pulled CP from class to a closed-door meeting with Chris and began to yell at him and berate CP about his injury. CP was asked why he didn’t report the injury, but CP told them he did. CP asked Steve Coe to consider his credentials and allow him the opportunity to do other work, CP was dismissed. On 03/04/2020, Respondent retaliated against CP by retrieving the equipment provided to him such as, his work van, company cell phone and he no longer had access to his work email. CP contacted Joanna Amy to inquiry why they had taken away his work equipment and why he no longer had access to his work email. Joanna informed CP it was because he had filed for Workman’s Comp. CP status is currently unknown, he is not considered terminated and he has not resigned but, is not currently working. During his employment with Lennox, Petitioner was assigned to the Panama City Beach Branch, where he reported to Branch Manager Keith Green. Steve Coe was the assigned safety director at the time. As part of his orientation process for employment with Lennox, Petitioner acknowledged receipt of the company handbook (Handbook). The Handbook states that Lennox offers reasonable accommodations to qualified, disabled candidates and employees. The Handbook further states that the accommodation process (including work restrictions) is administered by Lennox’s office of human resources and must be properly documented. Specifically, section 5.9 of the Handbook entitled “Accommodations,” provides: The accommodation process (including ‘light duty,’ work restrictions, etc.), is administered – exclusively – by Human Resources and must be properly documented. If the need for accommodation is not obvious, you will be required to submit medical documentation about your disability and the limitation(s) that you are experiencing. You may also be asked to provide an explanation the workplace barrier(s) that need to be accommodated and a description of the desired accommodation. The forms in question – the ‘Healthcare Provider Information Request Form’ and the ‘Accommodation Request Form,’ respectively – are available from Human Resources and will serve as the basis for your interactive discussions with them. During his active employment, Lennox provided Petitioner with access to a company cell phone, email, and fleet work van solely for work-related purposes. In addition to the Handbook, Petitioner acknowledged receiving the NAS Policy & Procedures Booklet, which included the Company Vehicle Use Requirements and the Fleet Safety Policy. That vehicle policy stated, in relevant part: B. Vehicle Use Understand that you will be assigned a Company vehicle to be used to perform your job responsibilities. You will also be allowed to use the vehicle to travel between home and work (i.e. for commuting) …. You will not … use the vehicle for personal use beyond that which is incidental to your commute to or from work. (emphasis added). In addition to the use of a company vehicle, Petitioner acknowledged the cell phone agreement wherein he agreed that Lennox was providing him with a cell phone for “business use.” Petitioner also acknowledged receipt of the Lennox’s code of business conduct (Code of Conduct). The Code of Conduct includes Lennox’s policy prohibiting discrimination and/or harassment due to a disability or any other status protected by federal, state, and/or local law. The Code of Conduct includes reporting procedures encouraging reporting of alleged discrimination, harassment, or retaliation. Access to information about Lennox’s policies, including the Code of Conduct and reporting procedures, is available to employees online (among other places), and explained through training sessions, new-hire orientation, and company publications and postings. According to Petitioner, on October 24, 2019, while working for Lennox in the Panama City area, he was ordered by Keith Green to pick up a crane pad above his head, and when he did, “he felt something in his knee.” Petitioner allegedly spoke to Mr. Green on the phone when Mr. Green sent him to another job and said to Mr. Green, “Will you please be mindful of your tradesman because my knee is hurting.” Petitioner testified that the phone call became “hostile” and that he ended up talking to Safety Director Steve Coe, who sent Petitioner to Tallahassee for a four-hour ladder training course. There is no documentation indicating that Petitioner reported the alleged knee injury as an on-the-job injury that day. After that, Petitioner allegedly either aggravated his knee injury, or injured his knee again, while using an “unapproved” ladder on February 11, 2020, at the direction of Mr. Green. On February 13, 2020, Petitioner spoke with Lennox’s safety director, Steve Coe, about discomfort with his right knee. When asked by Mr. Coe if he injured his knee at work, Petitioner replied he was going for an MRI and if he needs surgery, he will report the injury as “work-related”; otherwise, he would handle it with his own insurance. Mr. Coe explained to Petitioner that is not an appropriate way of handling the matter and then outlined the process for reporting work-related injuries. Petitioner did not report the injury as work-related to Mr. Coe or his supervisor, Mr. Green, and he subsequently returned to work to attend a training class. Petitioner requested, and was allowed time off work on February 28, 2020, to attend an MRI appointment for his right knee. On March 2, 2020, Petitioner notified Lennox that he was unable to return to work due to his knee injury. On the same day, Petitioner applied for both short-term disability and workers’ compensation. Petitioner’s short-term disability claim was handled by Lennox’s third-party disability administrator, Sedgwick. The short-term disability notification to Lennox from Sedgwick, which also included Petitioner as a recipient, referenced Petitioner’s last day worked as February 27, 2020, and first day of absence as March 2, 2020. The notification further stated that Petitioner would also be evaluated under the Family Medical Leave Act (FMLA) for available coverage. Sedgewick’s March 2, 2020, short-term disability notification also informed Petitioner that he may want to apply for a “reasonable accommodation” in addition to other potential benefits, such as unpaid personal leave of absence. The notification further stated that during its review process, Petitioner’s absences should be treated as pending, with neither approval nor disapproval under Lennox’s attendance policy. Because Petitioner indicated in his short-term disability filing that his knee injury occurred at work, a workers’ compensation claim was initiated with Lennox’s third-party workers’ compensation administrator, ESIS. Because Petitioner was no longer actively working, on March 4, 2020, consistent with company practice and policy, Lennox collected its fleet van that had been issued to Petitioner. Also, since Petitioner had not returned to work or provided a return to work date, Lennox disabled Petitioner’s access to the company email since he was no longer at work. Petitioner claims that he was treated differently than another Lennox service technician, Julian Wiles, who allegedly was permitted to retain access to the company portal while on leave. Petitioner’s evidence of this was the fact that Mr. Wiles was included in company training emails while on leave. Further evidence indicated, however, that simply because Mr. Wiles was included as a recipient on company emails sent to numerous other employees about training requirements, it did not indicate that Mr. Wiles had access to the portal while on approved leave. Rather, the training email evidence submitted by Petitioner was simply reflective of training emails that were sent out in clusters for those who had not completed training. Further, it was shown that, unlike Petitioner, Mr. Wiles was on approved medical leave during the period he was absent because he had provided necessary medical documentation, and then he eventually returned to work. Although Petitioner was removed from Lennox’s portal, at Petitioner’s request, Lennox agreed to allow Petitioner to retain his company-issued cell phone. Petitioner’s short-term disability was denied by Sedgwick on March 9, 2020. Sedgwick’s short-term disability denial letter stated, in part, that Petitioner’s leaves of absence, unless excused by another form of leave or a reasonable accommodation, were unapproved under Lennox’s attendance policy, which is set forth in the Handbook. Specifically, the March 9, 2020, short-term disability denial letter from Sedgwick advised Petitioner: Attendance: The denial of your claim means that the absences in question – unless excused by another form of leave or a reasonable accommodation – are unapproved under your Company Attendance Policy (Appendix C to the Employee Handbook). Excessive Unapproved absences or 3 consecutive work days of No-Call, No-Show will result in discipline, up to and including the termination of your employment. Please talk to your Human Resources Business Partner if you have questions. Reasonable Accommodations: In addition to paid and unpaid leave, your company also offers reasonable accommodations (including additional unpaid time-off) to qualified disabled employees. Reasonable accommodations are managed by Human Resources – not by the LII Disability Leave Service Center. For more information, please refer to the Employee Handbook. To apply for an accommodation, please contact your Human Resources Business Partner at the number listed in Appendix A to the Employee Handbook. (emphasis added). Subsequently, on March 10, 2020, Sedgwick notified Mr. Green and Lennox that Petitioner’s short-term disability benefit claim was denied as of March 2, 2020, due to the worker’s compensation exclusion, and that Petitioner was not eligible for leave under FMLA due to length of service. Because Petitioner did not qualify for leave under FMLA, he was deemed on unapproved absence from Lennox as of March 2, 2020. On May 14, 2020, Lennox’s human resources director, Karen Cerrato, sent Petitioner a letter (the May 14th letter) advising Petitioner that he needed to contact Lennox’s office of human resources by May 19, 2020, to arrange a convenient time to discuss leave options or return to work with or without reasonable accommodations. The May 14th letter made it clear that, if Petitioner wanted to obtain approved leave or reasonable accommodations, he was responsible for making the requests and filling out necessary paperwork. Accommodation paperwork was attached to the May 14th letter, including an “Accommodation Request Form” and a “Health Care Provider Information Form.” The attached accommodation paperwork stated: You are responsible for making sure that HR receives the completed forms and any other information needed to support your accommodation request. In most cases, this will require you to return documentation and/or follow-up with your health care provider to ensure that they are doing their part. On March 18, 2020, Petitioner’s worker’s compensation claim was denied by the Florida Department of Financial Services, Division of Workers’ Compensation, on the basis that “there was no accident as defined by 440.02(1) that resulted in said injury.” On May 19, 2020, Petitioner responded to Ms. Cerrato’s May 14th letter by providing a document from Sedgwick indicating that he was able to return to work on May 3, 2020, without restrictions. The next day, May 20, 2020, Ms. Cerrato sent an email to Petitioner advising that he had not adequately responded to the May 14th letter’s request for his leave options or return to work. The email stated that, not only was the Sedgwick document that Petitioner provided her insufficient to comprise an accommodation request, it rather “provides an unrestricted return to work date of 5/3 (more than 2 weeks ago).” The final paragraph of the email stated: Please call me before 4:00 pm today so we can discuss the option you plan to pursue. If I do not receive your call by 4:00 pm today, I will understand (based on the paperwork you provided) that you have been able to work without restrictions since 5/3 and have elected to resign. In response, that same day, May 20, 2020, Petitioner’s workers’ compensation counsel, Chris Cumberland, sent an email to Ms. Cerrato, but failed to provide a return to work date or clarify whether reasonable accommodations were needed. Rather, Petitioner’s counsel’s email stated in pertinent part: Mr. Mathews is willing to return to work, but as the carrier has not provided an authorized workers compensation physician, he is unaware at this time as to what his work restrictions truly are. He knows personally that he is in a great deal of pain and that he likely has a torn meniscus in his knee which needs to be repaired before he can perform tasks at a full duty level. I would ask that you please discuss this with your counsel and I will advise my client accordingly. Jodie Michalski, counsel for Lennox, responded to Mr. Cumberland via email that same day, May 20, 2020, noting Petitioner’s unapproved absence status since early March because of his previously denied short-term disability, workers’ compensation, and FMLA claims, and suggesting the option of applying for a reasonable accommodation under the Americans with Disabilities Act (ADA). Ms. Michalski’s email also advised Petitioner’s counsel that Lennox was willing to grant a reasonable period for additional unpaid leave so that Petitioner could complete the necessary paperwork. Ms. Michalski’s email posed the following questions: Is your client interested in pursuing an accommodation (including additional, unpaid time off)? If so, can he commit to providing the completed paperwork to Human Resources within 15 calendar days, which we consider a reasonable amount of time? The last sentence of Ms. Michalski’s email stated: “I look forward to your response by 4:00 p.m. Alternatively, your client can reach out to Karen Cerrato directly with his response.” When neither Mr. Cumberland nor Petitioner timely responded to Ms. Michalski’s May 20th email to Petitioner’s counsel, on May 26, 2020, Ms. Cerrato emailed Petitioner and advised him that, in the absence of an appropriate response, Lennox would conclude there was no interest in a reasonable accommodation and would process Petitioner’s separation of employment after 4:00 p.m. on May 27, 2020. At the time, Petitioner had received approximately 84 days of unapproved absence and was advised that if he would like to pursue a reasonable accommodation, including additional unpaid leave, that he must contact Ms. Cerrato immediately. On May 27, 2020, after the 4:00 p.m. deadline, instead of responding directly to Ms. Cerrato’s requests for clarification, Petitioner sent three separate emails to Ms. Cerrato indicating that he was willing to work within the restrictions from his doctor (which were not provided), referring to the disability statement previously provided (the one stating that he could return to work May 3rd), and advising that he had an upcoming doctor visit. Petitioner’s correspondence failed to provide the requested accommodation paperwork and, instead, alleged, “To this point, your demands have been impossible because Lennox has prevented me from various resources.” Ms. Cerrato responded to Petitioner by email that same day, again requesting that he engage in good faith with Lennox, address the questions previously directed to him, provide any restrictions from his doctor, and complete the accommodation paperwork, including the Employee Accommodation Request Form and Health Care Provider Information Form. Ms. Cerrato’s email gave Petitioner more time, until May 28, 2020, to provide the previously requested information and necessary paperwork. She also advised Petitioner that if he failed to provide the information and paperwork by June 12, 2020, it would be assumed that Petitioner was cleared to return to work without restrictions but that he had chosen not to return to employment with Lennox. Petitioner responded with another email later that same day, May 27th, promising to submit the accommodation paperwork following his doctor’s appointment scheduled for May 28, 2020. In his email, Petitioner also made complaints directed against Mr. Green and Mr. Coe regarding Petitioner’s alleged injury and alleging discrimination. Ms. Cerrato contacted Petitioner via email the next morning, May 28, 2020, stating, in part, that she looked forward to receiving the completed paperwork and engaging in the interactive process. In her email, Ms. Cerrato also advised Petitioner that his complaint against Ms. Cerrato, Mr. Green, and others for discrimination, harassment, and bullying, had been investigated and that the allegations were not substantiated. Petitioner responded to Ms. Cerrato via email later that day, May 28th, advising that his doctor’s appointment had been rescheduled for May 29th, suggesting that Ms. Cerrato was unwilling to fairly address issues he had reported to her, suggesting that she had made an “offer” and requesting arbitration. Ms. Cerrato responded by email the next day stating: I am happy to grant you an additional day to submit your accommodation paperwork. In the meantime, please clarify the following two points: You reference my “offer’. What offer did I make? You reference “arbitration” several times. Please explain what you mean. I look forward to receiving your paperwork today. Petitioner did not provide the paperwork or respond. On June 5, 2020, Ms. Cerrato sent an email to Petitioner stating: I understood from your May 28, 2020 email that you would be sending me your accommodation request and supporting medical documentation on May 29 after your doctor’s appointment. Another week has passed, but we have not received anything further from you (e.g. your request form, medical support, a request for more time, or a response to the questions I asked on May 28). We must concluded [sic], therefore, that you will not be pursuing an accommodation or returning to work. As such, we have processed your separation, effective today. If you feel there has been an error (e.g. if I missed an email from you), please let me know. If I do not hear from you, we wish you well in your future endeavors. Petitioner failed to respond. Petitioner was never considered by Lennox to be disabled, never properly requested accommodations, and failed to prove that he had a work-related injury. Petitioner never provided required paperwork, did not clarify any workplace restrictions, never requested more time before returning to work, and never advised whether he even intended to return to work. Petitioner’s workers’ compensation claim was denied, and the evidence submitted in this case was insufficient to prove Petitioner’s claims of discrimination or retaliation.
Conclusions For Petitioner: Matthew P. Mathews, pro se Apartment 305 7940 Front Beach Road Panama City Beach, Florida 32407 For Respondent: Sherril M. Colombo, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast Second Avenue Miami, Florida 33131
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 22nd day of June 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2021. Matthew Mathews Apartment 305 7940 Front Beach Road Panama City Beach, Florida 32407 Sherril M. Colombo, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast 2nd Avenue Miami, Florida 33131 Stefanie Mederos, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast 2nd Avenue Miami, Florida 33131 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Laura Dietrich, Esquire Littler Mendelson, P.C. Suite 1500, Lock Box 116 2001 Ross Avenue Dallas, Texas 75201
The Issue The issue in this case is whether the Agency for Health Care Administration should deny Petitioner's application for renewal of its standard assisted living facility license with a limited mental health component.
Findings Of Fact The Agency is responsible for licensing and regulating assisted living facilities in Florida pursuant to Part III, Chapter 400, Florida Statutes (2001). Pursuant to that responsibility, the Agency is authorized to conduct surveys and follow-up surveys, to make visits and inspections of assisted living facilities, and to investigate complaints. Oakland Manor is an assisted living facility located at 2812 North Nebraska Avenue, in Tampa, Florida, licensed and regulated pursuant to Part III, Chapter 400, Florida Statutes (2001), and Rule Chapter 58A-5, Florida Administrative Code. The facility's license has a limited mental health component. Rory and Lisa McCarthy have owned and operated Oakland Manor since about December 1999. Mrs. McCarthy is the administrator of the facility. Between the dates of December 14, 2000 and September 18, 2001, the Agency conducted three appraisal visits, a moratorium monitoring visit, a complaint investigation, and a biennial license renewal survey of the facility. The Agency noted the results of these inspections on a form referred to as Agency Form 3020-0001 ("Form 3020"). The Form 3020 is the document used to charge assisted living facilities with deficiencies that violate applicable law and rules. The Form 3020 identifies each alleged deficiency by reference to a tag number. Each tag of the Form 3020 includes a narrative description of the allegations against the facility and cites the relevant rule or law violated by the alleged deficiency. In order to protect the privacy of the residents, the Form 3020 and this recommended order refer to the subject resident by a number rather than by a name. There are 24 tags at issue in the proceeding, some having been cited as repeat or uncorrected deficiencies. An uncorrected deficiency is one that was previously cited and has not been corrected by the time designated or by the time of the Agency's follow-up visit. A repeat deficiency is one that the facility has been cited for and that has been corrected, but after the correction, the deficiency occurs again. Section 400.419, Florida Statutes, requires that the Agency assign a class rating to the deficiencies alleged in its Form 3020. The classification rating assigned to a deficiency is based on the nature of the violation and the gravity of its probable effect on facility residents. On December 14, 2000, the Agency conducted an appraisal visit of Oakland Manor. As a result of this visit, the Agency cited the facility with four Class III deficiencies, including a Tag A519 deficiency for failure to maintain minimum staffing to meet the residents’ needs, a Tag A1001 for failure to provide a safe environment, Tag A1024 for failure to provide beds for two residents, and Tag A1033 for failure to provide each bathroom with a door in good working order to ensure privacy for residents. The Agency conducted a second appraisal visit of Oakland Manor on March 12, 2001, and cited the facility for seven deficiencies, including three uncorrected deficiencies from the December 14, 2000, visit. According to the Form 3020 for the March 12, 2001, appraisal visit, the uncorrected deficiencies were cited as Tag A519, for failure to provide minimum staffing; Tag A1001, failure to provide a safe environment; and Tag A1024, for failure to provide clean, comfortable mattresses. In addition to the alleged uncorrected deficiencies, the Agency cited the facility for four new deficiencies under Tag A210, Tag A212, Tag A523, and Tag A1004. Tags A519, A523, and A1001 were rated as Class II deficiencies. The other tags cited were rated as Class III deficiencies. Because the Agency found new violations of Tags A519, A1001, and A1024, and deficiencies under those same tag numbers were identified in December 2000, the Agency deemed those violations or deficiencies to be uncorrected deficiencies. On March 13, 2001, the day after the second appraisal visit, the Agency entered an Order of Immediate Moratorium ("Order"). The Order was based on the alleged violations cited from the March 2001 appraisal visit and stated that the conditions at the facility presented a significant threat to the health, safety or welfare of the residents. Under the Order, Oakland Manor was prohibited from admitting any residents. On June 13, 2001, the Agency conducted a complaint investigation based on a complaint that the Agency had received. The Form 3020 summarizing the Agency's findings during the June 13, 2001, investigation did not cite Oakland Manor for any continuing violations, but alleged that there was a violation of Tag A1114, relating to staff records standards. The A1114 deficiency was assigned a Class II violation. The Agency conducted a biennial license and limited mental health renewal survey on June 28, 2001. This survey is required for continued licensure. As a result of the biennial survey, the Agency cited Oakland Manor with the following ten deficiencies, none of which had been previously cited: Tags L200, L201, L202, L203, L400, A525, A634, A1005, A1101, and A1103. All of these tags were assigned Class III ratings. On September 18, 2001, the Agency conducted an appraisal/monitoring visit. As a result of this visit, the Agency cited Oakland Manor with two violations, Tag A519, related to staffing standards, and Tag A1004, related to physical plant standards, both of which were assigned Class III ratings. Because Oakland Manor was cited for deficiencies under Tag 519 during the March 12, 2001, visit, the Agency noted that the deficiency of Tag A519 was a repeat violation. The Form 3020 for each survey or visit indicated when each alleged violation should be corrected. In some cases, a specific date was given. In other instances, the correction was to be implemented "immediately." DECEMBER 14, 2000, APPRAISAL TAG A519 Tag A519 requires a facility to maintain the minimum staffing hours set forth in Rule 58A-5.019(4), Florida Administrative Code. Because Oakland Manor had a resident census of 26 in November 2000 and through the first two weeks of December 2000, the facility was required to have minimum staff hours of 294 per week. Based on a review of the facility's staffing schedule for the time in question, the Agency surveyor properly concluded that the facility did not maintain the required minimum staff hours of 294 in November 2000 and the first two weeks of December 2000. As a result of this finding, the Agency properly cited Oakland Manor with a Tag A519, Class III deficiency. DECEMBER 14, 2000, APPRAISAL: TAG A1001 The second violation for which Oakland Manor was cited was a Tag A1001 deficiency, which requires that assisted living facilities "be located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents." See Rule 58A- 5.023(1)(a), Florida Administrative Code. The violation was rated as a Class III deficiency. The allegation that Oakland Manor failed to meet the requirements of Tag A1001 is based on the following observations noted on the Form 3020: there were electrical wires and light fixtures hanging loose from the ceiling in the hallway on the first floor; the residents' room walls were dirty, the rooms had a foul odor and the smell of urine; the floors of the facility were dirty; residents were observed smoking in their beds; the toilet tank lid was missing; and discharge water from the washing machine in the breezeway was running over the walkway in the patio area. At the time of the survey, one resident's room had dirty walls and also had a foul odor. The floors of the facility were dirty and had food particles on them, and the facility had an "unpleasant odor." Also, two residents were observed smoking in their bedrooms, despite the facility's no smoking policy. Contrary to the observation noted on the Form 3020, there were no light fixtures hanging loose from the ceiling, nor had that situation ever existed. At hearing, there was no evidence presented by the Agency that there were light fixtures hanging loosely from the ceiling. The electrical wires, referred to in the Form 3020, were slightly visible and coming from a 9-foot ceiling. However, there were wire nuts on the wires and, thus, the wires were not a danger to the residents. There was water coming from the washing machine as noted by the Agency surveyor. Mr. McCarthy does not deny that allegation, but the water coming from the washing machine was "feed" water going into the machine and not "discharge" water as noted in the Form 3020. This problem was resolved the following day when Mr. McCarthy purchased and had a new washing machine installed. The surveyor observed one toilet that did not have a toilet tank lid. The owners do not dispute this, but the lid was not "missing" as noted on the Form 3020, but had likely been removed by one of the residents. When a resident removes the toilet tank lid, staff members routinely replace the lid. The surveyor was unaware of any regulation that requires the facility to secure the lids to prevent the residents from removing them. DECEMBER 14, 2000, APPRAISAL: TAG A1024 The third alleged violation for which the facility was cited was Tag A1024, which refers to the physical plant standard set forth in Rule 58A-5.023(4)(e), Florida Administrative Code. That standard requires that each resident bedroom or sleeping area, where furnishings are supplied by the facility, shall at a minimum, be furnished with, among other things, a clean comfortable bed with a mattress. It is alleged that this standard was not met as evidenced by the observation that the mattress in Room No. 10 was torn, and the filler appeared to be coming out of the mattress. The undisputed testimony was that the torn mattress was not being used by any resident of the facility, but was a mattress that was not being used. The Notice of Intent to Deny mischaracterizes the surveyor's findings under Tag A1024 as "failure to provide beds for two residents." This allegation was not addressed or proven by the Agency. DECEMBER 14, 2000, APPRAISAL: TAG A1033 The fourth alleged violation, cited under Tag A1033, relates to the physical plant standard set forth in Rule 58A- 5.023(5), Florida Administrative Code. That standard requires that each bathroom have a door in working order to assure privacy and that the entry door to the bathrooms with a single toilet is required to have a lock which is operable from the inside by the resident, with no key needed. The Agency alleged that this standard was not met in that the bathroom door on the first floor was not operable because the door was missing the striker plate that keeps the door tightly closed into the frame. The Agency noted that as a result of this alleged defect, residents using that bathroom did not have privacy. Based on Mr. McCarthy's testimony, there was a door leading into the bathroom, which had a working lock. In addition, the door with the missing striker plate had a hook and eye that allowed the door to be secured from the inside. MARCH 12, 2001, APPRAISAL TAG A519 Tag A519 requires the facility to meet the minimum staffing required by Rule 58A-5.019(4), Florida Administrative Code. Based on the resident census of 25 for March 4-12, 2001, and the surveyor's review of the staff work schedule for that week, Oakland Manor was cited for a Tag A519 deficiency. According to the facility's staff work schedule, there were 208 total staff hours for that week and not the required minimum staffing hours. The Form 3020 stated that the "[l]ack of adequate staffing has resulted in a malfunctioning sewage system which poses an immediate risk to the residents, staff, and public." In making this allegation, the Agency apparently assumed that the residents caused the sewage system problems and that if there had there been adequate staffing, these problems would not have occurred. The Agency then alleged that the malfunctioning sewage system posed an immediate risk to the residents, staff, and public. However, these assumptions and allegations are not supported by any evidence. There is no evidence that the sewage system problems were caused by the residents and/or lack of staffing. Moreover, there is nothing in this record which supports the claim that the malfunctioning sewage system posed an "immediate risk" to the residents, staff, or public. Clearly, there was a Tag A519 deficiency in that the facility failed to maintain the weekly minimum staff hours required. Also, because the facility had been cited for a Tag A519 deficiency during the December 14, 2000, appraisal, the Agency properly found that the Tag A519 deficiency, cited during the March 12, 2001, appraisal was an uncorrected deficiency. However, in this instance, the violation did not "directly threaten the physical or emotional health, safety, or security of the facility residents." Accordingly, the violation is not a Class II deficiency, as alleged by the Agency, but is a Class III deficiency. MARCH 12, 2001 APPRAISAL: TAG A523 As stated on the Form 3020, Tag A523 requires that, notwithstanding the minimum staffing ratio, all facilities have enough qualified staff to provide resident supervision, and provide or arrange for resident services in accordance with resident scheduled and unscheduled service needs, resident contracts, and resident care standards. See Rule 58A- 5.019(4)(b), Florida Administrative Code. The Agency alleged that Oakland Manor failed to meet this standard. The determination that Oakland Manor failed to meet the standard required by Tag A523 was based on the surveyor's observation and interview with the facility administrator. On the day of the survey, from 9:30 a.m. to approximately 11:00 a.m., the surveyor noticed that there was a strong odor of sewage coming from the basement area and standing water on the basement floor. The surveyor learned from the administrator that the matter came to her attention that morning and that a plumber had been called and had corrected a similar problem a week earlier. Mr. McCarthy explained that the lift station malfunction and the overflow of sewage into the basement had occurred the day of the Agency inspection. After a plumber came to the facility to repair the lift station and was unable to do so, an electric company was called and came out and immediately repaired the lift station. The Form 3020 notes that when the lift station backed up the week before, the plumber found t-shirts, garbage bags, bandannas, and a stick of deodorant clogging up the lift station. From this alleged statement, the surveyor erroneously concluded that some of the residents had thrown these and possibly other items into the lift station. In view of this assumption, the surveyor alleged on the Form 3020 that: The lift station back up is occurring due to a lack of supervision of qualified staff to provide resident supervision and allowing the residents to freely access the lift station in the yard and put items in it. The size and accessibility of the lift station also poses a threat to residents due to the possibility of a fall while throwing in inappropriate items. The lift station was in the yard of the facility, but the residents do not have free access to the lift station, except the top external lid of the lift station. The residents can not remove the lid covering the lift station because the lid is made of steel and weighs over 200 pounds. Accordingly, the residents can not throw items in the lift station and, thus, there is no threat to the residents "due to the possibility of a fall while throwing" items into the lift station, as alleged by the Agency. The Agency deemed the Tag A523 violation as a Class II deficiency and required that the facility correct the deficiency immediately. The Agency failed to establish this allegation. MARCH 12, 2001, APPRAISAL: TAG A1001 The standards of Tag A1001 are stated in paragraph 20. Based on the surveyor's observations, Oakland Manor was again cited for a Tag A1001 deficiency. Tag A1001 was deemed by the Agency to be an uncorrected deficiency and designated a Class II violation. In the Form 3020, the Agency listed the following 12 alleged facts as the basis for the cited deficiency: Two large ladders were lying on the floor in the hallway, partially blocking access through the hallway. The bathtub and shower in the first floor shower room were badly stained and mildewed. In Room No. 1, the toilet was not working and there was an accumulation of feces in the toilet bowl. In Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. The wall and floors throughout the facility were dirty. In Room No. 8, there was an electric space heater in front of full length curtains. In Room No. 10, there were cigarette butts on the floor and the resident in the room was observed smoking, although smoking is not allowed in the facility. In the second residential building, the first bathroom had a dirty floor and the vinyl was very worn and there was no lid on the "toilet back." In the second residential building television room, there was a resident smoking even though there is a no smoking sign posted. There was a strong sewer odor emanating from the facility basement and the basement had standing water. The staircase to the second floor of the main building was covered with dirt and grime. The overhead light in the second floor hallway was not working and the staircase was very dark. The ladders, referred to in the Form 3020, were not lying on the floor but were leaning against a recessed part of the wall in the hallway. They were not blocking the passageway and, even with the ladders in the hallway, there was enough room for a 215-pound man to walk through the hall into the adjacent room. The reason the ladders were in the hall was that Mr. McCarthy was painting the facility. At the end of each day, when Mr. McCarthy was finished painting, he stored the ladders in an office in back of the kitchen or in a shed in the back of the facility. The surveyor reported that the bathtub and shower in the first floor shower room were badly stained and mildewed. Mrs. McCarthy testified that the shower stall is made of heavy marble and is original to the 100-year-old house and that many of the stains can not be scrubbed off. The substance the surveyor described as mildew was shampoo. The toilet in Resident Room No. 1 was described in the Form 3020 as having an accumulation of feces and not working. The toilet was stopped up, but was working and was put back into flushing order that same day, immediately upon the problem being called to her attention. The residents in that room placed female products in the toilet and caused it to stop up. However, the toilet was functioning in all respects when it was not stopped up. In Resident Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. This was not disputed. Every shift, staff is suppose to sweep, mop, and make sure that the room is cleaned out, but sometimes the residents put their laundry on the bed. The walls and floors throughout the facility were dirty as reported in the Form 3020. In an effort to keep the walls clean, they are painted every three or four months. The Agency surveyor observed a space heater in Room No. 8, which she characterized as a fire hazard. However, the heater was not plugged in and was not in use at that time. When the heater is in use, it is in the middle of the room and not near the curtain. In Room No. 10, the surveyor observed cigarette butts on the floor and the resident in the room was observed smoking, even though the facility had a no smoking policy and all residents were given copies of that policy, upon admission. In Oakland Manor’s second residential building, the surveyor observed that the floor was dirty and the vinyl was torn, and there was no lid on the toilet back. Mr. McCarthy confirmed that the vinyl was worn and did not dispute that the floor was dirty. At the time of the Agency inspection, the worn dirty vinyl was in the process of being replaced. With regard to the toilet backs, the residents remove the toilet tank lids, but they are always put back on. The Agency surveyor observed a resident smoking in the television room, even though there was a “No Smoking” sign posted in the room. At Oakland Manor, smoking in violation of the house rules is a continuing problem that the administrator and staff make efforts to correct. The Agency surveyor observed that there was standing water in the basement and a strong sewer odor coming from the basement. Other facts related to this observation are discussed in paragraphs 35 and 36. Mrs. McCarthy does not dispute this allegation, but the problem was promptly correctly. Mr. Carthy corrected the problem within 48 hours; he went into the basement and “squeegeed” all the standing water and otherwise treated the floor to dry it and deodorize it. The surveyor determined that the overhead light in the second floor hallway of the main house was not working. She reached this conclusion after she first observed the dark hallway and then tried to turn on the light and was unable to do so. There is no indication that the surveyor asked facility staff to turn on the light or inquired as to how the switch worked. The light operates by a three-way switch, and although there are two switches, only one of them turns on the light. Also, there are two lights in the stairwell so that if one light is burned out, the other one still works, but it does not appear that the inspector knew how to operate the three-way switch. No testimony was presented by the Agency regarding the allegation concerning the staircase to the second floor of the main house. Based on the Agency’s findings in the paragraph 40-d, e, and j, above, the facility was properly cited for the Tag A1001 deficiency. This was an uncorrected deficiency. MARCH 12, 2001, APPRAISAL: TAG A1004 Tag A1004 requires that all windows, doors, plumbing, and appliances in assisted living facilities be functional and in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. According to the Form 3020, Oakland Manor failed to meet this standard as evidenced by windows in the facility that were not functional and in good working order and failing to promptly repair broken glass, which "may result in injury to residents or staff." The surveyor observed the following: a large window pane in the front door was broken, the lower window pane in the dining room window was covered over with plywood, the first floor rear bathroom window was hanging off the hinge and the screen was missing; and the window pane of the outside door leading to the ramp was broken and covered with a garbage bag. The owners do not dispute that the pane in the front door was broken, but testified that the material was not glass, but Plexiglas. The door had been broken by one of the residents the day of the survey. Mr. McCarthy replaced the Plexiglas pane the same day and, four or five days later, replaced the entire front door with a solid door. As to the allegation that the lower half of the dining room window was covered with plywood, that there was not a glass pane in the lower part of the window. Rather, the plywood was placed there instead of the glass and was put in with trim molding and sealed with caulking. It appears that the window was designed that way to serve as a "fixed" window. The Agency acknowledged that window had been like that before the McCarthys purchased the facility. Moreover, the Agency had not previously indicated that this was a violation of any regulation. Although the Agency offered no suggestions to address its concern with the “fixed” window, Mr. McCarthy replaced the plywood with Plexiglas in an attempt to comply with the Agency requirements. The surveyor's observation regarding the first floor rear bathroom window was reversed. There was a screen on hinges that opened and closed and the top hinge of the screen was pulled out and hanging over a bit. However, the screen was there and the window was functional. Mrs. McCarthy does not dispute that the outside door had a broken glass pane that was covered with a garbage bag. The glass pane had been broken out earlier that day and the entire door was replaced within a day or so of the Agency's appraisal visit. The observations noted in paragraph 61 constitutes a violation of Tag A1004. MARCH 12, 2001, APPRAISAL: TAG A1024 The Tag A1024 requires that each resident room in an assisted living facility be furnished with, among other things, a clean comfortable mattress. See Rule 58A-5.023(4)(e)1., Florida Administrative Code. According to the Form 3020, the Agency alleged that Oakland Manor failed to comply with this standard in that "the facility did not provide appropriate beds for two residents." No mention is made in the Form 3020 of which residents did not have appropriate beds. The alleged Tag A1024 deficiency was based on the two reported observations of the surveyor. First, the Form 3020 notes that in Room No. 10, the surveyor observed "a medical crutch being used as a mattress support on one bed." Second, the surveyor noted her observation that in Room No. 4, there was "a ripped mattress with the filling coming out of the rips." The owners testified that the crutch was not being used to support the mattress and that bed was not being used by any of the residents. Mr. McCarthy did not know why the crutch was under the mattress, but it was not there for support because of the construction of the bed. As to the second observation, the owners do not dispute that the mattress also in Room No. 4 was ripped. However, the bed with the torn mattress was not being used by anyone and has been replaced. Finally, there were appropriate beds for all the residents because at the time of this survey, there were 26 residents and 32 beds. This testimony was not disputed by the Agency. Tag A1024 was deemed by the Agency to be an uncorrected deficiency and was designated as a Class III violation. The Agency gave the facility until March 15, 2001, to correct the deficiency. MARCH 12, 2001, APPRAISAL: TAG A210 Four additional new violations were cited as a result of the Agency's March 12, 2001, appraisal visit. These violations or deficiencies were assigned Tag A210, Tag A212, Tag A523, and Tag A1004. Tag A210 requires compliance with the standards set forth in Rule 58A-5.024, Florida Administrative Code. That rule requires that assisted living facilities maintain the records prescribed therein "in a form, place and system ordinarily employed in good business practice and accessible to the department and [A]gency staff." Rule 58A-5.024(1)(m), Florida Administrative Code, requires that the facility maintain all fire safety inspection reports issued by the local authority having jurisdiction or the State Fire Marshal within the past 2 years. In an interview, which occurred during this visit, the facility administrator advised the Agency surveyor that the fire inspection reports were not on the premises, but at the administrator's home. Based on this statement by the administrator, the Agency properly concluded that this standard was violated because the fire inspection records were maintained at the owner/administrator's home, and were not in a place accessible to Agency staff as required by the applicable rule. MARCH 12, 2001, APPRAISAL: TAG A212 The Tag A212 relates to facility records standards. According to the Form 3020, Oakland Manor failed to meet this standard in that it violated Rules 58A-5.020(3) and 58A- 5.024(1)(n), Florida Administrative Code. The former rule requires that "copies of inspection reports [relating to food hygiene] issued by the county health department for the last two years . . . be on file in the facility." The latter rule requires that all sanitation inspection reports issued by the county health department within the past two years be maintained in a form, place, and system ordinarily employed in good business practice and accessible to department or agency staff. The Form 3020 indicates and it is undisputed that the most recent copy of the sanitation inspection report was not on the premises, but at the administrator's home. MARCH 13, 2001, ORDER OF IMMEDIATE MORATORIUM On March 13, 2001, the day following the Agency’s March 12, 2001, appraisal visit to Oakland Manor, the Agency imposed a Moratorium on Admissions to the facility, which has remained in effect. JUNE 12, 2001, MORATORIUM MONITORING VISIT TAG A528 In the Notice of Denial, the Agency alleged that a Moratorium monitoring visit was made to Oakland Manor on June 12, 2001, during which the facility was cited for violating Tag A528. The Agency failed to establish this violation. JUNE 13, 2001, COMPLAINT INVESTIGATION TAG A1114 On June 13, 2001, the Agency conducted a complaint investigation of Oakland Manor. As a result of the investigation, the Agency alleged that the facility violated Tag A1114 by failing to include in an employee’s file documentation of compliance with Level 1 screening. The standards under Tag A1114 are set forth in Section 400.4275(2), Florida Statutes, and Rules 58A-5.019(3) and 58A-5.024(2)(a)3., Florida Administrative Code. Pursuant Rule 58A-5.019(3), Florida Administrative Code, a Level 1 screening is required for all employees hired after October 1, 1998, to provide personal services to residents. Also, personnel records for each staff member should include documentation of compliance with Level 1 background screening for all staff. See Subsection 400.4275(2), Florida Statutes, and Rule 58A-5.024(2)(a)3., Florida Administrative Code. Mr. and Mrs. McCarthy did not dispute this allegation. According to the Form 3020, the employee in question had been hired by the facility on or about May 15, 2001. Mrs. McCarthy told the surveyor that she had applied for the background screening about two weeks prior to the June 13, 2001, complaint investigation, but it had not yet been received. Later that day, the administrator provided the surveyor with a copy of an arrest report from the Tampa Police Department. The arrest report did not satisfy the standards required under Tag A1114. The deficiency constituted a failure to comply with the requirements of Tag A1114, and was properly designated a Class II deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG L200 Tag L200 requires assisted living facilities with a limited mental health license, such as Oakland Manor, to have a copy of each mental health resident’s community living support plan. See Subsection 400.4075(3)(a), Florida Statutes. In addition, Tag L200 requires that the mental health case manager and the mental health resident, in conjunction with the facility administrator, prepare the community living support plan within 30 days of admission to the facility or within 30 days after receiving the appropriate placement assessment. See Subsection 400.402(8), Florida Statutes, and Rule 58A.5.029(2)(c)3.a., Florida Administrative Code. According to the Form 3020, the surveyor reviewed the file of Resident 1, a limited mental health resident who was admitted to the facility on November 23, 1993, and did not find the resident’s community living support plan. The resident’s record did have the annual community living support plan, but the surveyors simply missed or inadvertently overlooked the document. There was a community living support plan in Resident 1’s file that was signed by the resident, the resident’s counselor, and the former facility administrator, and dated February 17, 1999. Attached to the community living support plan were progress notes, with the last entry dated October 14, 1999. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS L201, L202, L203, AND L400 Oakland Manor was cited for violating standards under Tags L201, L202, L203, and L400, all of which relate to community living support plans. Tag L201 requires that the community living support plan include the components enumerated in Rule 58A- 5.029(2)(c)3.a.(i)-(vi) and (viii), Florida Administrative Code. Tag L202 requires the assisted living facility to make the community living support plan available for inspection by the resident, the resident’s legal guardian, the resident’s health care surrogate, or other individuals who have a lawful reason to review the plan. See Subsection 400.4075(3)(c), Florida Statutes. Tag L203 requires that the community living support plan to be updated annually in accordance with See Rule 58A- 5.029(2)(c)3.a.(vii), Florida Administrative Code. Finally, Tag L400 requires the facility to assist the mental health resident in carrying out the activities identified in the individual’s community living support plan. See Subsection 400.4075(3)(d), Florida Statutes. The alleged deficiencies cited under Tags L201, L202, L203, and L400 were all based on the surveyor’s finding that the file of Resident 1 did not contain a community living support plan. In light of the finding in paragraph 80, that the annual community support plan was in the resident’s file, the Agency did not establish the deficiencies listed under Tags L201, L202, and L400. Oakland Manor failed to comply with the standards of Tag L203, in that the community living support plan had not been updated annually as required by the foregoing rule. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A525 Tag A525 was assigned to Oakland Manor based on the Agency's determination that for two facility employees, scheduled to work alone on the 11:00 p.m. to 7:00 a.m. shift, there was no documentation that they had received first aid training. This alleged deficiency constitutes a failure to comply with the staffing standards in Rule 58A-5.019(4)(a)4., Florida Administrative Code, which requires that at least one member who is trained in first aid and CPR be in the facility at all times. Oakland Manor was properly cited for a violation of Tag A525 which was designated a Class III deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A634 The Agency assigned a Tag A634 deficiency to Oakland Manor based on its determination that Oakland Manor failed to meet the medication standards set forth in Section 400.4256(1), Florida Statutes. That provision requires the facility to advise the resident or the resident's guardian or surrogate that the resident may receive assistance with self-administration of medication from an unlicensed person and that such assistance will not be overseen by a licensed nurse. As support for this violation, the Form 3020 noted that based on a review of three residents' files, there was no documentation that the facility had informed the residents as required by Section 400.4256, Florida Statutes. The facility does inform residents appropriately, based on documents included in the admissions package. However, the surveyors did not look anywhere except the residents’ files for that documentation. The residents also signed a letter giving their informed consent to comply with the Agency regulations, and a copy of that letter was faxed to the Agency soon after the citation. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A1005 As part of this survey, the Agency assigned a Tag A1005 deficiency, alleging that the facility failed to meet the physical plant standard required by Rule 58A-5.023, Florida Administrative Code. That rule requires that all furniture and furnishings be clean, functional, free of odors, and in good repair. This deficiency was based on a surveyor's observation of the main bathroom on the first floor of the main building. During a tour of the facility, the Agency surveyor observed human excrement on the bathroom floor, on the outside of the toilet bowl, and on the toilet seat. The surveyor also observed that an adult brief, filled with human excrement, had been thrown against the wall. After this was brought to the administrator's attention, the bathroom was cleaned immediately. However, several hours later, when the surveyor returned to the area, human excrement again had been smeared on the toilet seat. A few minutes prior to the surveyor returning to the bathroom, a resident exited the bathroom. Therefore, it is very likely that the resident who was in the bathroom soiled the toilet seat after it had been cleaned. The facility staff has a regular cleaning schedule and, pursuant to that schedule, the bathrooms are checked and cleaned several times, as necessary. However, the residents are entitled to their privacy in the bathrooms and staff does not check the bathroom every time a resident uses it. Tag A1005 was designated a Class III deficiency, and the facility was required to and did correct this deficiency immediately after it was discovered. In light of the totality of the circumstances, the Agency did not properly cite the facility for a violation of this tag. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS A1101 AND A1103 The Agency cited Oakland Manor for a Tag A1101 deficiency for failure to adhere to the staff record standards in Rule 58A-5.024(2)(a), Florida Administrative Code. That rule requires that the personnel records of each facility staff member contain the verification of freedom from communicable disease, including tuberculosis. The Tag A1101 deficiency was based on a review of eight personnel files, which revealed three files that contained no documentation that the respective employees were free from communicable disease. The three employees, for whom there was no documentation, had been hired two or three months prior to the June 28, 2001, re-licensure survey, on March 20, April 4, and April 20, 2001. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG A1103 The Agency cited Oakland Manor for a deficiency under Standards of Tag A1103. That tag requires that, within 30 days of being hired, a facility staff member must "submit a statement from a health care provider, based on an examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis." See Rule 58A-5.019(2)(a), Florida Administrative Code. The rule further provides that such "freedom from tuberculosis must be documented on an annual basis." The Tag A1103 deficiency was assigned based on the Agency's review of the personnel files of eight of the facility’s staff members. The Form 3020 states that the files of four employees, W.W., L.M., J.V., and M.J., hired July 5, 1992, November 1999, April 23, 2001, and March 20, 2001, respectively, did not contain documentation of freedom from tuberculosis, obtained from a test in the last 365 days. The Agency's finding that the facility failed to comply with the staffing standards in Rule 58A-5.019(2)(a), Florida Administrative Code, is well-founded as it relates to the staff members employed on July 5, 1992, and November 1999. However, the requirement that freedom from tuberculosis must be documented annually can not be the basis for the Tag A1103 deficiency, as it relates to the two employees hired on March 20, 2001, and on April 23, 2001, only two or three months from the date of the survey. SEPTEMBER 18, 2001, APPRAISAL VISIT TAG A519 On September 18, 2001, the Agency conducted an appraisal visit of the facility and cited it for a Tag A519 deficiency, which relates to failure to maintain minimum staffing standards required in Rule 58A-5.019, Florida Administrative Code. The cited deficiency was based on the fact that the facility census was sixteen. In accordance with the foregoing rule, on the day of the September visit, the resident facility was required to have a weekly minimum of 253 staffing hours, but the facility only had 208 hours. Based on its review of records proved by the facility, the Agency properly concluded that the facility did not meet the minimum staffing standards for the first two weeks of September 2001. The Agency designated the Tag A519 as a Class III deficiency and properly noted that this was a "repeat deficiency." SEPTEMBER 18, 2001, APPRAISAL TAG A1004 Tag A1004 requires that the windows, doors, plumbing, and appliances of the facility be in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. The Agency found that Oakland Manor was in violation of this standard. According to the surveyor, the basis for this alleged violation was that "certain light fixtures throughout the facility were being maintained in an unsafe manner" and that "numerous bare (uncovered by globe or shade) light bulbs were observed, specifically in the dining area and in the main building bathrooms." The Agency concluded that the "unprotected bulbs are in danger of being broken, putting the residents at risk." Although the Agency cited the facility for the exposed light bulbs, the surveyor testified that there is not a specific tag that addresses the hazards of a light bulb, but the designated Tag A1004 “was the best available citation, quite frankly.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order revising the survey reports to delete and/or modify the deficiencies described in the Forms 3020 that are not supported by the record and granting Oakland Manor's application for renewal of its assisted living facility license. DONE AND ENTERED this 4th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 4th day of October, 2002. COPIES FURNISHED: A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP 400 North Ashley Drive Tampa, Florida 33602 Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 Lisa McCarthy, Administrator Oakland Manor ALF 2812 North Nebraska Avenue Tampa, Florida 33602 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact On or about July 18, 1988, Petitioner's representatives learned that Respondent's daughter was operating an ACLF, as defined in Part II of Chapter 400 Florida Statutes without having a license from Petitioner for such a facility. The facility was located at 1217 East 139th Avenue, Tampa, Florida. One of the residents in the facility at the time of Petitioner's employees' discovery of its unlicensed status had been recently transferred there from Respondent's licensed facility. Respondent knew her daughter's facility had been licensed by hotel and restaurant regulatory authorities. She also believed her daughter had obtained licensure from Petitioner for the operation of an ACLF. Testimony of Petitioner's witnesses that Respondent was aware of the absence of the facility's licensure by Petitioner is not credited in view of the testimony of Respondent and others to the contrary; also, Petitioner's employees did not include any incriminating statements of Respondent professing knowledge of such unlicensed status in their initial investigative reports in the matter. Uncontroverted testimony of Katherine H. Echevarria, a registered nurse of thirty years experience who holds a master's degree in nursing and is presently associated with research efforts of the College of Nursing at the University of South Florida, establishes that Respondent has a natural ability to lead and establish programs for disadvantaged older adults who are residents of Respondent's ACLF. Echevarria's testimony further establishes that Respondent possesses the character and competency required to operate her facility and provide continuing adequate care to residents.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting Petitioner's application for renewal of her license. DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5455 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS Unnecessary to result reached. Addressed. Unnecessary to result reached. Addressed. Addressed. PETITIONER'S PROPOSED FINDINGS 1.-2. Adopted in substance. Unnecessary to result reached. Rejected, not supported by the greater weight of the evidence. COPIES FURNISHED: Edward A. Haman, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Arnold D. Levine, Esquire 100 South Ashley Drive Suite 1600 Tampa, Florida 33601-3429 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether petitioner's application for extension of its temporary operating permit, No. 1003-107768, should be granted?
Findings Of Fact At the time and place appointed for final hearing the applicant failed to appear and present evidence. In a telephone conversation shortly after the time scheduled for hearing, counsel for the applicant informed the hearing officer that he did not intend to appear and that he had no objection to an order denying the pending application, because other avenues were being pursued.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's application for a temporary operating permit. DONE AND ENTERED this 5th day of June, 1989, in Tallahassee, Leon County, Florida. ROBERT T. BENTON,II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1989. COPIES FURNISHED: Steve Hall Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Nevin J. Zimmerman Assistant County Attorney 221 McKenzie Avenue Panama City, FL 32401 Terry Cole Oertel, Hoffman, Fernandez and Cole Post Office Box 6507 Tallahassee, Florida 32314-6507
