97-001636 Agency For Health Care Administration vs. G And W Extended Health Care Corporation, D/B/A South Miami Residence Status: Closed Recommended Order on Monday, December 1, 1997.

Summary: Assisted Living Facility (ALF) failed to provide running water and functional bathroom for residents. ALF also exceeded its licensed capacity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 97-1636

)

G & W EXTENDED HEALTH CARE CORP. , )

d/b/a SOUTH MIAMI RESIDENCE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on September 23, 1997, at Miami, Florida, before Claude B.

Arrington, a duly designated Administrative Law Judge of the

Division of Administrative Hearings. Because one of Petitioner's

witnesses was unavailable on September 23, 1997, because he was

serving jury duty, the hearing was concluded on September 26,

1997, by video between Tallahassee, Florida, and Miami, Florida.

APPEARANCES

For Petitioner: Jean Claude Dugue, Esquire

Agency for Health Care Administration

Manchester Building

8355 Northwest 53rd Street, First Floor

Miami, Florida 33166

For Respondent: Lawrence E. Besser, Esquire

1925 Brickell Avenue, Suite D207

Miami, Florida 33129

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the

Administrative Complaint and the penalties, if any, that should

be imposed.

PRELIMINARY STATEMENT

Respondent operates an Assisted Living Facility (ALF) at

7701 Southwest 20th Street, Miami, Florida. Following an

inspection of that facility, the Petitioner took emergency action

against Respondent and thereafter filed the Administrative

Complaint that underpins this proceeding. The Administrative

Complaint charged Respondent as follows:

3. Respondent has violated the provisions

of Chapter 400, Part III, F.S. and provisions

of Chapter 58A-5, F.A.C. in that it was

operating as follows:

(a) During the unannounced visit on

November 21, 1996 it was observed during the

tour and record review that there were nine 1

(9) residents being housed at the facility

with a license for six (6). This is in

violation of Rule 58A-5.0181(3)(b)3, F. A.

C., Class II violation.

(b) The facility was operating without

water because they failed to pay the water

bill. This is in violation of Sections

400.417(1) and 400.447(2), Florida Statutes

(F.S.) Class I deficiency.

(c) Residents complained of having to use

the bathroom outside behind the house. The

water and toilet could not be used because it

had been turned off. This is in violation of

Sections 400.417(1) and 400.447(2), F.A.C.

(sic).

(d) It was observed during [the] facility

tour that a case of dry milk inside the

emergency supply storage area had been

opened; when the surveyor picked [the case]

up to check the amount of milk left in [the

case], roaches poured out of the opening.

This is a violation of Rule 58A-5.029(1)a-c,

F.A.C., Class II deficiency.

4. Respondent has violated the provisions

of Chapter 400, Part III, F.S. and Chapter

58A-5, F.A.C., in that it failed to meet

minimum license standards or the requirements

of rules adopted under Chapter 400, Part III,

F.S. to operate an adult (sic) living

facility (ALF).

At the formal hearing, Petitioner presented the testimony of

Mary Ippolito, Mary Jo LaMont, and Arturo Bustamante. Officers

Ippolito and LaMont are police officers employed by the Miami

Dade Police Department. Mr. Bustamante is a fire protection

specialist and a health facility evaluator employed by

Petitioner. Petitioner presented no exhibits. Respondent

presented no witnesses and no exhibits.

A transcript of the proceedings has been filed. At the

request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the filing

of the transcript. Consequently, the parties waived the

requirement that a recommended order be rendered within thirty

days after the transcript is filed. Rule 60Q-2.031, Florida

Administrative Code. The Petitioner and Respondent filed

proposed recommended orders, which have been duly considered by

the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent

was the owner of a licensed assisted living facility located at

7701 Southwest 20th Street, Miami, Florida (the subject

premises). This facility was licensed for six residents.

Jose Gutierrez-Marti and Maria Witt were the owners of the

Respondent.

2. The residents of the subject premises were mentally ill

adults.

3. On November 21, 1996, Arturo Bustamante, a fire

protection specialist and a health facility evaluator employed by

Petitioner, conducted an inspection of the subject premises.

Mr. Bustamante went to the subject premises in response to a

complaint and to conduct a follow-up inspection to the previous

inspection.

4. During the course of his inspection, Mr. Bustamante

determined that there were eight residents living at the subject

premises. This determination was initially made by counting beds

and inspecting the prescription medication that was provided each

resident. Mr. Bustamante confirmed that there were eight

residents by interviewing the residents, and by observing that

the eight residents were removed from the subject premises later

that day by the Department of Children and Family Services,

formerly known as the Department of Health and Rehabilitative

Services.

5. There was no running water in the subject premises on

November 21, 1996. Consequently, there were no functioning

bathroom facilities in the subject premises. Mr. Bustamante

observed fresh feces and the smell of urine in an area of the

backyard that the residents reported they used in lieu of a

bathroom.

6. Respondent had not notified Respondent that the water

services had been terminated. There was no evidence that

Respondent had taken any action to correct this serious

deficiency.

7. There was insufficient evidence to establish when the

water service had been terminated or whether water service had

been terminated previously.

8. Mr. Bustamante observed roach droppings throughout the

subject premises. Mr. Bustamante observed a box of powdered milk

on a shelf inside the facility. When he opened the container to

inspect the contents, five or six roaches jumped out of the box.

9. Metro-Dade Police Officers Mary Ippolito and Mary Jo

LaMont came to the subject premises at the request of

Mr. Bustamante. These police officers were present when the

residents were removed from the subject premises. Officer LaMont

observed cockroaches in the kitchen area.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

11. Part III of Chapter 400, Florida Statutes, is the

Florida Assisted Living Facilities Act. See Section 400.401(1),

Florida Statutes.

12. Section 400.401(3), Florida Statutes, provides, in

pertinent part, as follows:

(3) The principle that a license issued

under this part is a public trust and a

privilege and is not an entitlement should

guide the finder of fact or trier of law at

any administrative proceeding or in a court

action initiated by the Agency for Health

Care Administration to enforce this part.

13. Section 400.414(1), Florida Statutes, authorizes the

Petitioner to discipline licensees and sets the standard of proof

as follows:

(1) The agency may deny, revoke, or

suspend a license issued under this part or

impose an administrative fine in the manner

provided in chapter 120. At the chapter 120

hearing, the agency shall prove by a

preponderance of the evidence that its

actions are warranted.

14. Petitioner specifically charged Respondent with

violating the provisions of Section 400.417(1), Florida Statutes,

which provide as follows:

(1) Biennial licenses issued for the

operation of a facility, unless sooner

suspended or revoked, shall expire

automatically 2 years from the date of

issuance. The agency shall notify the

facility by certified mail 120 days prior to

the expiration of the license that

relicensure is necessary to continue

operation. Ninety days prior to the

expiration date, an application for renewal

shall be submitted to the agency. A license

shall be renewed upon the filing of an

application on forms furnished by the agency

if the applicant has first met the

requirements established under this part and

all rules promulgated under this part. The

failure to file a timely application shall

result in a late fee charged to the facility

in an amount equal to 50 percent of the fee

in effect on the last preceding regular

renewal date. Late fees shall be deposited

into the Health Care Trust Fund as provided

in s. 400.418. The facility shall file with

the application satisfactory proof of ability

to operate and conduct the facility in

accordance with the requirements of this

part. An applicant for renewal of a license

must furnish proof that the facility has

received a satisfactory firesafety

inspection, conducted by the local fire

marshal or other authority having

jurisdiction, within the preceding 12 months.

An applicant for renewal of a license who has

complied on the initial license application

with the provisions of s. 400.411 with

respect to proof of financial ability to

operate shall not be required to provide

proof of financial ability on renewal

applications unless the facility or any other

facility owned or operated in whole or in

part by the same person or business entity

has demonstrated financial instability as

evidenced by bad checks, delinquent accounts,

or nonpayment of withholding taxes, utility

expenses, or other essential services or

unless the agency suspects that the facility

is not financially stable as a result of the

annual survey or complaints from the public

or a report from the State Long-Term Care

Ombudsman Council. Each facility shall

report to the agency any adverse court action

concerning the facility's financial

viability, within 7 days after its

occurrence. The agency shall have access to

books, records, and any other financial

documents maintained by the facility to the

extent necessary to carry out the purpose of

this section. A license for the operation of

a facility shall not be renewed if the

licensee has any outstanding fines assessed

pursuant to this part which are in final

order status.

15. Petitioner also specifically charged Respondent with

violating the provisions of Section 400.447(2), Florida Statutes,

which provide as follows:

(2) It is unlawful for any holder of a

license issued pursuant to the provisions of

this act to withhold from the agency any

evidence of financial instability, including,

but not limited to, bad checks, delinquent

accounts, nonpayment of withholding taxes,

unpaid utility expenses, nonpayment for

essential services, or adverse court action

concerning the financial viability of the

facility or any other facility licensed under

part II or part III of this chapter which is

owned by the licensee.

16. Paragraph 4 of the Administrative Complaint alleged

that Respondent violated the provisions of Chapter 400, Part III,

Florida Statutes, and Chapter 58A-5, Florida Administrative Code,

by failing to meet minimum licensure standards.

17. Section 400.414(2), Florida Statutes, provides, in

pertinent part, as follows:

(2) Any of the following actions by a

facility or its employee shall be grounds for

action by the agency against a licensee:

(a) An intentional or negligent act

seriously affecting the health, safety, or

welfare of a resident of the facility.

(b) The determination by the agency that

the facility owner or administrator is not of

suitable character or competency, or that the

owner lacks the financial ability, to provide

continuing adequate care to residents,

pursuant to the information obtained through

s. 400.411, s. 400.417, or s. 400.434.

* * *

(g) Failure of the licensee . . . to meet

minimum license standards or the requirements

of rules adopted under this part.

18. Petitioner asserts that Respondent lacks the financial

ability to operate the facility, and argues in support of that

assertion the absence of running water at the facility on

November 21, 1996. The Petitioner's proof as to the reason there

was no running water consisted solely of hearsay evidence that

cannot be used as the sole basis for a finding of fact in a

formal administrative hearing conducted pursuant to Section

120.57(1), Florida Statutes. See Section 120.57(1)(c), Florida

Statutes. Consequently, it cannot be concluded, based on the

evidence presented by Petitioner, that Respondent lacked the

financial ability to provide continuing adequate care for the

residents within the meaning of Section 400.414(2)(b), Florida

Statutes; that it violated the provisions of Section 400.447(2),

Florida Statutes; or that it violated the provisions of Section

400.417(1), Florida Statutes, as alleged by Petitioner.

19. Rule 58A-5.0221, Florida Administrative Code, imposes a

duty on a licensee to provide adequate running water and bathroom

facilities for its residents. The evidence that there was no

running water and no functioning bathroom was sufficient to

establish a prima facie case that the Respondent failed, at least

on November 21, 1996, to provide these basic sanitation

requirements to the residents. Respondent did not rebut this

prima facie showing.

20. Rule 58A-5.0223(1), Florida Administrative Code,

requires a licensee to keep all containers, storage areas, and

surrounding premises clean and free of vermin. In addition to

the absence of running water and functioning bathroom facilities,

the Petitioner's contention that the premises lacked basic

sanitation is supported by the evidence that the residence was

infested with roaches. It is concluded that Petitioner

established that Respondent on November 21, 1996, Respondent

failed to meet minimum licensing standards within the meaning of

Section 400.414(2)(g), Florida Statutes.

21. In paragraph 3(d) of the Administrative Complaint,

Petitioner alleges that Respondent violated Rule 58A-5.029(1)a-c,

Florida Administrative Code. Rule 58A-5.029(1), Florida

Administrative Code, does not appear to apply to this proceeding.

There are no subsections to that Rule.

22. In paragraph 3(a) of the Administrative Complaint,

Petitioner charged Respondent with violating Rule 58A-

5.0181(3)(b)3, Florida Administrative Code, which provides as

follows:

3. A resident placed for temporary

emergency shelter shall be exempt from the

examination requirements of this subsection

as long as the resident is in temporary

emergency shelter status, not to exceed 30

days. A resident accepted for temporary

emergency shelter shall be counted in the

facility census; a facility shall not exceed

its licensed capacity in order to accept a

temporary emergency shelter resident.

23. Petitioner established by a preponderance of the

evidence that Respondent exceeded its licensed capacity by two

residents on November 21, 1996. Respondent offered no plausible

explanation for the presence of 8 residents on November 21, 1996.

There was no evidence as to whether these two "extra" residents

were being housed temporarily or permanently by the Respondent.

In viewing the evidence most favorably to the Respondent, it is

found that they were being housed on a temporary basis by the

Respondent. Because all of the residents of the facility were

mental patients who required assistance, it is inferred that the

two "extra" residents were being provided temporary emergency

shelter within the meaning of Rule 58A-5.0181(3(b)3, Florida

Administrative Code. 2 Petitioner established that Respondent

violated the provisions of Rule 58A-5.0181(3)(b)3, Florida

Administrative Code.

24. Section 400.419, Florida Statutes, pertains to

violations of the Florida Assisted Living Facilities Act, and

provides, in pertinent part, as follows:

(2) In determining if a penalty is to be

imposed and in fixing the amount of the

penalty to be imposed, if any, for a

violation, the agency shall consider the

following factors:

(a) The gravity of the violation,

including the probability that death or

serious physical or emotional harm to a

resident will result or has resulted, the

severity of the action or potential harm, and

the extent to which the provisions of the

applicable statutes or rules were violated.

(b) Actions taken by the owner or

administrator to correct violations.

(c) Any previous violations.

(d) The financial benefit to the facility

of committing or continuing the violation.

(e) The licensed capacity of the facility.

(3) Each violation shall be classified

according to the nature of the violation and

the gravity of its probable effect on

facility residents. The agency shall

indicate the classification of each violation

on the face of the notice of the violation as

follows:

(a) Class "I" violations are those

conditions or occurrences related to the

operation and maintenance of a facility or to

the personal care of residents which the

agency determines present an imminent danger

to the residents or guests of the facility or

a substantial probability that death or

serious physical or emotional harm would

result therefrom. The condition or practice

constituting a class I violation shall be

abated or eliminated within 24 hours, unless

a fixed period, as determined by the agency,

is required for correction. A class I

violation is subject to a civil penalty in an

amount not less than $1,000 and not exceeding

$5,000 for each violation. A fine may be

levied notwithstanding the correction of the

violation.

(b) Class "II" violations are those

conditions or occurrences related to the

operation and maintenance of a facility or to

the personal care of residents which the

agency determines directly threaten the

physical or emotional health, safety, or

security of the facility residents, other

than class I violations. A class II

violation is subject to a civil penalty in an

amount not less than $500 and not exceeding

$1,000 for each violation. A citation for a

class II violation shall specify the time

within which the violation is required to be

corrected. If a class II violation is

corrected within the time specified, no civil

penalty may be imposed, unless it is a

repeated offense.

(c) Class "III" violations are those

conditions or occurrences related to the

operation and maintenance of a facility or to

the personal care of residents which the

agency determines indirectly or potentially

threaten the physical or emotional health,

safety, or security of facility residents,

other than class I or class II violations. A

class III violation is subject to a civil

penalty of not less than $100 and not

exceeding $500 for each violation. A

citation for a class III violation shall

specify the time within which the violation

is required to be corrected. If a class III

violation is corrected within the time

specified, no civil penalty may be imposed,

unless it is a repeated offense.

25. The following recommendations as to the penalties to be

imposed against Respondent for the violations found herein are

based on the foregoing provisions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a Final Order that

finds that on November 21, 1996, Respondent exceeded its resident

capacity and failed to meet licensure standards. It is further

RECOMMENDED that the Final Order impose an administrative fine

against the Respondent in the amount of $1,000.00 for exceeding

its resident and capacity. It is further RECOMMENDED that

Respondent be fined $4,000 and its license revoked for failing to

provide for the residents' basic sanitation needs. It is further

RECOMMENDED that Respondent be permitted to reapply for licensure

when it can establish that its facility meets all licensure

standards.

DONE AND ENTERED this 1st day of December, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 2st day of December, 1997.

ENDNOTES

1/ The parties stipulated at the hearing that the allegation

should have been that there were eight residents, not nine.

2/ The Florida Evidence Code does not prevent the trier of fact

from drawing appropriate inferences. See Section 90.301, Florida

Statutes. Professor Charles W. Ehrhardt comments as follows: "An

inference is a logical deduction of fact that the trier of fact

draws from the existence of another fact or group of facts.

Whether the inferred fact is found to exist will be decided by

the trier of fact." Ehrhardt, Florida Evidence , Section 301.1

(1997 Edition).

COPIES FURNISHED:

Jean Claude Dugue, Esquire

Agency for Health Care Administration

Manchester Building

8355 Northwest 53rd Street, First Floor

Miami, Florida 33166

Lawrence E. Besser, Esquire

1925 Brickell Avenue, Suite D207

Miami, Florida 33129

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Jerome W. Hoffman, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.