Findings Of Fact Official recognition is taken of the contents of the file in DOAH case number 86-3477 and the following facts from that file: On July 31, 1986, the Respondent denied the renewal of the Petitioner's license for an adult congregate living facility at the Clinton Crest Retirement Hotel, and advised him of his right to a formal administrative hearing as to relicensure. On August 8, 1986, the Respondent amended its basis for the proposed denial of licensure, alleging that on April 11, 1986, May 14, 1986, and July 18, 1986, Petitioner did not have a fixed fire extinguisher at the cooking appliance, did not have a three compartment sink or other approved system in use for the purpose of proper sanitation of kitchen utensils, and did not have a week's supply of non-perishable food based upon the number of weekly meals the facility had contracted to serve, and alleging that these were violations of specified statutes and rules. It further alleged that the fire extinguisher and the three compartment sink had remained uncorrected since June 20, 1985. The amended notice of proposed agency action cited the following provisions as the basis for the fire extinguisher requirement: sections 400.414 and 400.441, Fla. Stat., rules 10A-5.23(15)(a) and 4A-40.05, Fla. Admin. Code, and NFPA (National Fire Protection Association) 101, section 7-7.3 and NFPA 96. On August 11, 1986, the Petitioner requested a formal administrative hearing to contest the proposed denial of licensure. One year later, on August 14, 1987, the Respondent granted a renewal of license to the Petitioner. The Petitioner filed a motion for summary final order based upon issuance of the license. No response was filed by the Respondent. The Hearing Officer entered an order to the Respondent to show cause and to require a response. The Respondent filed a voluntary dismissal. The Petitioner moved to strike the voluntary dismissal, noting that he had requested the hearing, and requested attorneys' fees. The Respondent's response characterized the voluntary dismissal as a motion to dismiss for mootness, agreeing that the license had been issued. The Hearing Officer entered a recommended order recommending dismissal due to mootness, and noting that a request for attorneys' fees pursuant to section 57.111, Fla. Stat. (1987) would result in a final order and thus must originate with a separate petition to the Division of Administrative Hearings. The Respondent entered a final order dismissing the Petitioner's request for hearing as moot. The Petitioner then filed the instant petition for attorneys' fees and costs with the Division of Administrative Hearings. On June 20, 1985, Petitioner's facility was inspected. Two of the three violations set forth in the amended basis for denial of relicensure of August 8, 1986, were cited in the inspection report on June 20, 1985, and were reported as having not been corrected in a reinspection on September 26, 1985. P. Ex. 5. Those were the fire extinguisher issue and the three compartment sink issue. In the June 20, 1985, inspection report, the Respondent classified the three compartment sink violation as a class III violation, and required the violation to be corrected at the end of two months. The Respondent classified the fire extinguisher violation also as a class III violation, and required it to be corrected in three months. R. Ex. 5. An earlier administrative complaint had been filed against the Petitioner's facility on January 2, 1986. One of the allegations in that complaint was failure to have a fixed fire extinguisher at the kitchen stove. The Department classified this violation in the administrative complaint as a class III violation. The Petitioner entered into a stipulation in that administrative action paying, in part, a fine for this allegation of a fire code violation, and agreeing that if the deficiency was not corrected in thirty days, the result would be further administrative action, which might include "revocation proceedings." The stipulation did not clearly provide that failure to correct the violation would result in revocation of the license. The stipulation became embodied in the final order of the Respondent on March 19, 1986. R. Ex., 6. On April 11, 1986, and on May 14, 1986, the facility was inspected. Among other citations, the facility was cited for not have enough nonperishables to feed the 7 persons then living at the facility for a week, for not having a three compartment sink, and for not having a fire extinguisher over the cooking appliance. All three were classified as class III violations. R. Ex. 8. On reinspection on July 18, 1986, these items were still not corrected. In DOAH case number 86-3477, the Respondent admitted to requests for admissions that the three compartment sink issue and the non-perishable food issue were corrected by the date of the request for admissions, November 26, 1986. Thus, when that case closed, the only pending issue was the fire extinguisher over the stove. Based upon the testimony of James F. Schroeder, the Respondent's expert witness with respect to fire safety, the denial of relicensure in the letter of August 8, 1986, was primarily based upon the issue of fire extinguisher over the stove. The Petitioner's kitchen is small, approximately 6 to 8 feet in width and 10 to 12 feet in length. The stove is a residential electric stave having four burners. By design and construction, it is a domestic stove rather than what typically is thought of as a "commercial" stove. The stove is used commercially to prepare meals for residents of the adult congregate living facility for a fee. The stove is not located below a normal ceiling parallel with the floor, but is located under a lower slanted ceiling. The ceiling is only 4 to 6 feet above the front of the stove, and slants to within a few feet of the back of the stove. The ceiling is combustible, and a fire in the ceiling would spread to the rest of the adult congregate living facility unless extinguished by the automatic sprinkler system. The stove is near a window which could feed a stove fire with oxygen. The building is a wood frame building, and is highly susceptible to fire. There was a portable fire extinguisher at the stove. Additionally, the Petitioner installed fire sprinklers throughout the building at a cost of over $4,000. The automatic fire sprinklers were installed by the Petitioner to comply with the stipulated settlement dated March 19, 1986, and were installed after May 20, 1986. P. Ex. 3. The Petitioner thought he had been told by the Respondent that by installing the fire sprinkler system, he would satisfy the requirement that the stove have an automatic fire extinguisher. The fire sprinkler system that is installed included one in the kitchen, but the sprinkler in the kitchen is not located over the stove. R. Ex. 2. The kitchen fire sprinkler, which may be effective to impede a general fire in the kitchen, is not effective to smother a stove fire at the stove. Moreover, the one automatic sprinkler in the kitchen ceiling is not the same as an extinguisher at the stove because the stove fire extinguisher must have a manual operation capability as well as automatic capability, and must operate to shut off current to the stove in the event of fire. The lack of a fire extinguisher and hood at the stove poses a potential threat to the physical safety of the residents at the Petitioner's facility. The expert testimony presented was not sufficient to conclude as a matter of fact that the lack of a fire extinguisher and hood at the stove presents an imminent danger to residents or a substantial probability that death or serious physical injury would result there from, or that the lack of this equipment is a direct threat to the physical safety of the residents. The expert testimony was consistent with the classification by the Respondent of this violation as a class III violation. Petitioner's facility is licensed for 14 residents. On May 15, 1986, the Petitioner wrote to the Respondent asking that his license be reduced to 12 when it was reissued so that he would have time to obtain a three compartment sink. The Petitioner was having difficulty locating such a sink to purchase. The Petitioner intended to apply for a license for 14 residents when he had installed the sink. The Petitioner made this offer to the Respondent again in his letter of August 6, 1986, P. Ex. 4, and a letter from his attorney, P. Ex. 5, dated September 26, 1986. It was stipulated by the parties that rules 4A-40.05 and 4A-40.10, as embodied in R. Ex. 3, were applicable to the Petitioner on August 8, 1986. Conclusions of law 14 through 17 concern the contents of certain rules and provisions of the National Fire Protection Association (NFPA) standards, and are adopted as findings of fact. The Petitioner is the sole proprietor of the unincorporated business known as the Clinton Crest Retirement Hotel, which is the licensee in this case. The Petitioner is and was domiciled in the State of Florida, his principal office is and was in the State of Florida, he has not employed more than 25 full-time employees, and his net worth is not more than $2 million, including both personal and business investments. If attorneys' fees and costs are to be awarded in this proceeding, the unrebutted evidence justifies an award of $4,697.75 as reasonable attorneys' fees and $62.50 as reasonable costs.
The Issue Whether Respondent Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code, and, if so, what penalty should be imposed. Whether Respondent Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 61C-1.004(5) and 4A-48.003, Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the operation of hotel establishments pursuant to Section 210.165 and Chapter 509, Florida Statutes. Respondents, at all times material to these proceedings, have been licensed or otherwise subject to the Department's jurisdiction. The last known business address of Indiana House is 1114 Indiana Avenue, St. Cloud, Florida. The last known business address of Illinois House is 820 Illinois Avenue, St. Cloud, Florida. Both Indiana House and Illinois House are transient rooming houses. The tenants pay rent for the rooms they occupy. On January 26, 2001, an inspector for the Department inspected the Indiana House and noted numerous deficiencies, including a lack of a fire alarm system. The inspector returned to Indiana House on May 1, 2001, but was unable to get into the building. She made a call-back inspection on May 22, 2001, and found that certain violations had not been corrected, including the lack of a fire alarm system. On June 5, 2001, the inspector returned to Indiana House. No fire alarm panel had been installed, and the owner, Thomas Griffin, did not have keys to the property so the inspector did not have access to the building. On February 12 and 18, 2002, an inspector for the Department inspected the Indiana House and found the following deficiencies: (1) a gang plug was being used in a bedroom, (2) wires were dangling from a fan light, (3) the air conditioner faceplate was missing, exposing the filters and coils, and (4) no service tag was on the fire extinguisher. A gang plug is an adapter that is put into the electrical outlet on a wall so that more than one electrical plug can be used with that outlet. The gang plug found at Indiana House on the February 12 and 18, 2002, inspections would allow the use of six electrical plugs at one time. On January 26, 2001, an inspector from the Department inspected Illinois House and found that there was no fire alarm system. Another inspection was made on May 1, 2001, and it was noted that the outside door was locked. A call-back inspection was made on May 22, 2001, and no fire alarm had been installed. On June 5, 2001, a call-back inspection was made. The owner of the property stated that he did not have keys to the building; thus, the inspector could not access the premises. The owner advised at the time of the inspection on June 5, 2001, that no fire alarm system had been installed. On February 18, 2002, an inspector for the Department inspected Illinois House and found that none of the bedrooms had smoke detectors. On February 25, 2002, a call-back inspection was made, and a battery operated smoke detector in a bedroom did not work when tested. The Department considers a critical violation to be one that is an immediate health hazard. The failure to have a fire alarm system is a critical violation because the buildings are transient rooming houses and most of the people residing in the buildings at any given time will be strangers to one another. If a fire occurs, the consistent and reliable means of notifying the tenants would be through the use of a fire alarm system. The failure of the smoke detector to work is also a critical violation. If a fire occurs, an inoperable smoke detector will not warn the tenant, and, since no fire alarm has been installed, it is likely that the tenant may not have sufficient warning in time to escape from the fire. Both Illinois House and Indiana House have applied to the Homeless Service Network for a grant to make renovations to the buildings to bring them up to whatever code is necessary in order for the properties to be used as transient housing. When the money becomes available, it is anticipated that the renovations will be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Indiana House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003, 61C- 1.004(9)(b), 61C-1.004(11), and 61C-3.001(5), Florida Administrative Code. Imposing a $2,500 fine on Indiana House and requiring the owner of Indiana House to attend a Hospitality Education Program. Finding that Illinois House violated Subsection 509.032(2)(b), Florida Statutes, and Rules 4A-48.003 and 61C- 1.004(5), Florida Administrative Code. Imposing a $1,500 fine on Illinois House and requiring the owner of Illinois House to attend a Hospitality Education Program. DONE AND ENTERED this 27th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2002. COPIES FURNISHED: Thomas Griffin Indiana House 1221 12th Street St. Cloud, Florida 34769 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The central issue in this case is whether Respondents committed the violations alleged in the amended administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating fire extinguisher dealers. Respondent, Ricardo Cabrera, holds a fire extinguisher permit class 03 license (No. 109176000192) and is the qualifier for the company, B.C. & A.B.C. Fire Extinguisher Maintenance (license No. 702193000190 - Fire Extinguisher Dealer Class "C"). At all times material to the amended administrative complaint, Carlos Javier Gonzalez-Clavell was employed by Respondent but was not licensed or permitted to service fire extinguishers. In August, 1995, Respondents were placed on probation for a period of two (2) years. A special condition of Respondents' probation required Ricardo Cabrera to supervise all activities undertaken by the company to insure its employees complied with all regulations. In response to a complaint unrelated to the quality of Respondent's work performance, Ms. Barrow directed an investigation of the Respondent's business premises. Mr. Parks was assigned the investigation of whether Respondents were employing unlicensed workers to perform servicing or recharge of fire extinguishers. On January 29, 1996, Mr. Parks went to Respondent's place of business and observed someone loading a vehicle with fire extinguisher equipment and supplies. He also observed the male near a tank which he presumed was nitrogen. He assumed the person was recharging a fire extinguisher. During the described activity Respondent was not in sight. The person described in paragraph 7 later identified himself as Carlos Javier Gonzalez-Clavell. The vehicle being loaded belonged to Mr. Clavell. Respondent was on the business premises at all times noted above. He was out of view but supervising Mr. Clavell's activities. Mr. Clavell did not recharge fire extinguishers and was not permitted to perform license activities.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order dismissing the amended administrative complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of February, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1997. COPIES FURNISHED: Joe Demember, Esquire Division of Legal Services 512 Larson Building Tallahassee, Florida 32399-0300 Ricardo Cabrera 3340 South Lake Drive Miami, Florida 33155 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300
The Issue Whether Respondent is guilty of violating Sections 509.221(1) and (7) and 509.032, Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5), (6), and (13), 61C- 3.001(2), as set out in the Administrative Complaint dated March 24, 2003.
Findings Of Fact The Department of Business and Professional Regulation, Division of Hotels and Restaurants (DHR) is the State Agency charged with regulating the operation of hotel establishments pursuant to Section 20.165 and Chapter 509, Florida Statutes. At all times material hereto, Respondent has been licensed by DHR or otherwise subject to DHR's jurisdiction, pursuant to issued License No. 26-00783. Respondent's last known business address is Clark Apartment and Rooms, 9762 Bayview Avenue, Jacksonville, Florida 32208. On February 3, 2003, and again on March 10, 2003, a DHR sanitation and safety specialist, John Phelan, inspected Respondent's premises. On February 3, 2003, the initial inspection, Mr. Phelan was accompanied by his superior, David Futlon. At the February 3, 2003, initial inspection, the following deficiencies were observed by both inspectors and noted for Respondent by Mr. Phelan: No proof was observed that the smoke detectors were interconnected as required by law and as stated by management. The door of a gas oven was held in place by a garden spade. Live roaches were on the floor and climbing the walls around the oven. The inspectors observed a stained mattress and a missing mattress pad on the bed in room They also observed that the second floor bathroom was out- of-order, and that shower curtains and shower stalls were dirty with soap scum. On March 10, 2003, Mr. Phelan returned to Respondent's premises by himself and noted that the foregoing problems/violations remained. According to both inspectors, the most serious violation was that there was no documentation that the smoke detectors were interconnected. This is a critical violation because it could present a potential fire hazard. The next violation that was found to be critical was that there was "a garden spade holding the oven door closed." This was seen as a violation because of the potential for fire. Next down the urgent and critical scale was the presence of live roaches around the oven. The absence of a mattress pad on room 17's mattress and the stain on the mattress were of somewhat less concern. However, these bedding problems are violations because they pose a sanitary issue. The next-ranked violation was that the second floor bathroom was out-of-order. The bathroom also presented a lesser sanitary issue, which was that the shower curtain and shower stall were dirty with soap scum. Based on the foregoing uncorrected deficiencies, Mr. Phelan caused an administrative complaint to be issued against Respondent on March 24, 2003, alleging Respondent's violation of Chapter 509, Florida Statutes, and/or the administrative rules promulgated thereunder. Although it was demonstrated at hearing that Mr. Clark, Respondent's principal, had been attempting, between the two inspections, to fix the originally-cited deficiencies, and although some progress at renovation had been made, most problems had not been fully addressed as of the date of the follow-up inspection on March 10, 2003. The credible evidence and testimony as a whole show that Mr. Phelan had recognized that a gas heater which had been cited at the initial inspection had been disconnected by the date of the second inspection and that it was no longer in use at the time of the second inspection. Therefore, the gas heater had been crossed off the notification to Respondent by Mr. Phelan and had not been cited as a violation in the administrative complaint. The stove also had been disconnected prior to the re-inspection. The gas heater and gas stove were disconnected at the same time, so propping the stove door open or closed with a spade had no significance with regard to fire hazard. Like the heater, the stove should have been removed from the premises as a safety precaution, but because Mr. Phelan did not know that the stove had been disconnected when he made his re-inspection, it was cited and included in the administrative complaint. The reason the disconnected stove was still present on the premises was because Respondent was fumigating for roaches by setting off "roach bombs" inside it. The fumigation of the roaches in an area where all other exit holes for them were intentionally sealed had resulted in some dead roaches, but many live roaches had fled into the kitchen in the vicinity of the stove. The live roaches were observed by all the witnesses who saw the kitchen on or about the re-inspection date. The testimony of several witnesses was credible that the upstairs bathroom's sink and tub had been repaired prior to the re-inspection. Mr. Musselwhite recalled credibly that he had screwed the faucet handles back on the tub between the two inspections. However, the testimony of Mr. Musselwhite that he was using the tub and sink upstairs at the time of the re- inspection is not credible. The greater weight of the credible evidence is that the tub and sink upstairs might have been repaired, but they were not actually in working order at the time of the March 10, 2003, re-inspection, because the water had not yet been turned back on. The evidence is clear that plaster board had been installed in the shower by the date of the re-inspection and that this was done to deal with the prior notice concerning discoloration. A dispute among the witnesses as to whether the discoloration on the old shower walls was soap scum, discoloration by scum removers, or mildew cannot be resolved. However, it was proven that, despite several changes of shower curtains between the two inspections, the shower curtains present on the re-inspection date remained covered with soap scum and/or mildew. Respondent admitted that the lack of a mattress pad on the mattress in room 17 on the date of re-inspection was an oversight. It was proven that a mattress from a first floor room had been moved upstairs to room 17. In the opinion of Respondent's witnesses, this constituted, a "new" mattress which was not stained. In this situation, Mr. Phelan's observation of the mattress stain is more credible. On his first inspection, Mr. Phelan told Mr. Clark that in the absence of other documentation, Mr. Clark needed to have the State Fire Marshall inspect Respondent's smoke detectors, in order to provide documentation that they were interconnected. By "interconnectedness" the parties meant that if one smoke detector sounded, then all of the smoke detectors throughout the hotel should also sound. Mr. McGee and Mr. Clark testified that between the two inspections the issue of the smoke detectors had been "looked into" with employees of Home Depot and at the local fire department. Mr. Clark stated that he had contacted the Jacksonville Fire Department, which would not give him any documentation, but its employees agreed to come and inspect his smoke detectors. Mr. Clark testified convincingly that he had purchased and installed smoke detectors from the Home Depot which did not provide written documentation of interconnectedness but which could be tested for interconnectedness by pushing their buttons. He maintained that if the inspector had punched the button on any single smoke detector on the re-inspection date, the interconnectedness of all the smoke detectors would have been demonstrated by their all "going off" at once. The inspectors did not punch the smoke detectors' buttons during the two inspections because they could not reach the buttons, as they had no ladders. Respondent was written-up by DHR on both occasions because written documentation of interconnectedness was not provided and because interconnectedness was not otherwise demonstrated. In other words, Respondent provided neither papers showing interconnectedness nor a physical demonstration of interconnectedness during the second inspection.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, shall enter a final order: Finding Respondent guilty of violating Sections 509.221(1) and (7), Florida Statutes, and Florida Administrative Code Rules 61C-1.004(5) and (6), and 61C-3.001(2), and not guilty of violating Florida Administrative Code Rule 61C- 1.004(13); Ordering Respondent to pay an administrative penalty in the amount of $2,500.00, due and payable to the Department of Business and Professional Regulation, Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399, within 30 days of the final order; Requiring Respondent to attend a Hospitality Education Program class within 60 days of the date of the final order and provide proof thereof to the Department of Business and Professional Regulation Division of Hotels and Restaurants; and Requiring that Respondent pass a re-inspection of its premises within the same 60 days set out in (3), above. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2004.
Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988.
Findings Of Fact The Respondents, Douglas S. Melvin and Janice Melvin, operate a motel under the name The Islander at 4300 Ocean Beach Boulevard, Cocoa Beach, Florida. This motel is licensed by the Florida Division of Hotels and Restaurants under license number 15-182H. In answer to the complaint of a guest, Wesley A. Blom went to The Islander motel to inspect it on September 10, 1981. The complaining guest was not present, but the complaint related in part to the lack of cleanliness of room 217. Wesley A. Blom is a state qualified and certified sanitarian and inspector of fire extinguisher devices. He has had nine years experience in such work with the State of Florida. When Wesley A. Blom inspected The Islander on September 10, 1981, its owners, Douglas S. Melvin and Janice Melvin, were not present. During this inspection Wesley A. Blom was shown room 217 by motel personnel, and he inspected the motel generally for compliance with all applicable Florida Statutes and rules relating to safety, sanitation, and maintenance of public lodgings. During the September 10, 1981, inspection of The Islander motel, Wesley Blom observed the following conditions: The fire extinguishers available to the public and occupants of The Islander were of the soda-acid type, requiring periodic service checks and recharging to remain in safe, reliable, and useable condition. These fire extinguishers did not have un- expired service tags, as required, but the service tags affixed showed that these fire extinguishers had been last inspected and recharged more than one year previously. Paint was peeling on the walls of the bathroom in room 217. The bed cover on the bed in room number 217 was torn and stained in several places with tar residue. The floor In room 217 was dirty, and trash was scattered about the floor of this room. At the time when the dirt and trash was discovered on the floor in room 217, the bed had been made up, indicating that the room had been serviced by the motel staff. No room rate notice of any kind was posted in room 217. On September 30, 1981, Wesley A. Blom returned to The Islander motel to determine whether the conditions observed there on September 10, 1981, had changed or been corrected. He did not reinspect room 217 at this time because it was occupied, but the fire extinguishers available at The Islander motel had not been serviced or recharged since February of 1979, as evidenced by their expired State Fire Marshal service tags. On February 22, 1982, Wesley A. Blom again returned to The Islander motel to determine if the conditions discovered on September 10, 1981, had been corrected or changed. He was not able to inspect room number 217 because it was occupied, but he did observe that previously available soda-acid fire extinguishers were no longer present. The only fire extinguishers available at The Islander motel on this occasion were different models of an undetermined type which were located in the lobby of the motel. This lobby is more than 100 feet from many of the rooms of the motel. The Respondents contend in their own behalf that room 217 had not been made up, and was not ready for occupancy when it was inspected; that the bed cover with the tar on it was being cleaned by the maid, and was not finished when inspected; that the carpet was not dirty, but simply had not been vacuumed when it was inspected; that rate sheets are usually posted, but the one in room 217 had been missing and was found in another room; and that a maintenance man responsible for painting the rooms was fired for using inferior paint which might have peeled off. However, both the Respondents were in Michigan on September 10, 1981, when the first inspection took place; thus, without testimony from motel personnel who were present at the time, the testimony of the Respondents is not of sufficient quality to support a finding of fact. The expired date on the fire extinguishers is admitted.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner enter a Final Order finding the Respondents guilty of violating Section 509.221(2) and (6), and 509.201, Florida Statutes, and Sections 7C-1.04(1), 1.03(1), 3.01 and 3.02, Florida Administrative Code. And it is further RECOMMENDED that the Final Order of the Petitioner suspend license number 15-182H held by Douglas S. Melvin and Janice Melvin, authorizing them to operate The Islander motel, for a period of one year from the date of the Final Order, and that The Islander motel be closed pursuant to this suspension for one year. And it is further RECOMMENDED that the Final Order of the Petitioner provide that the suspension period of one year may be lifted upon a satisfactory demonstration to the Petitioner that approved fire extinguishers are maintained on the premises of The Islander motel in accordance with all applicable laws. And it is further RECOMMENDED that, in addition to the foregoing, the Final Order of the Petitioner assess an administrative fine of $200 for each of the four violations not relating to fire extinguishers, as enumerated above, for a total fine of $800 payable no later than 30 days after the date of the Final Order. THIS RECOMMENDED ORDER entered on this the 24th day of March, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Douglas S. Melvin and Janice Melvin 4300 Ocean Beach Boulevard Cocoa Beach, Florida 32931
