00-004035 Washington Manor Nursing And Rehabilitation Center vs. Agency For Health Care Administration
 Status: Closed
Recommended Order on Monday, May 7, 2001.


View Dockets  
Summary: The Agency failed to prove that a nursing home, charged with a deficiency relating to its alleged failure to protect a resident from an indoor fire ant attack, should be issued a conditional license or assessed a civil penalty.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8WASHINGTON MANOR NURSING AND )

13REHABILITATION CENTER , )

16)

17Petitioner , )

19)

20vs. ) Case No. 00-4035

25)

26AGENCY FOR HEALTH CARE )

31ADMINISTRATION , )

33)

34Respondent. )

36___________________________________)

37AGENCY FOR HEALTH CARE )

42ADMINISTRATION , )

44)

45Petitioner , )

47)

48vs. ) Case Nos. 00-4735

53)

54BEVERLY ENTERPRISES-FLORIDA, INC. , )

58d/b/a BEVERLY GULF COAST-FLORIDA, )

63INC., d/b/a WASHINGTON MANOR )

68NURSING & REHABILITATION CENTER , )

73)

74Respondent. )

76___________________________________)

77RECOMMENDED ORDER

79The parties having been provided proper notice,

86Administrative Law Judge John G. Van Laningham of the Division

96of Administrative Hearings convened a formal hearing of this

105matter in Fort Lauderdale, Florida, on February 20, 2001. The

115hearing was adjourned on February 21, 2001.

122APPEARANCES

123For Agency for Alba M. Rodriguez, Esquire

130Health Care Agency for Health Care Administration

137Administration: 8355 Northwest 53rd Street

142Miami, Florida 33166

145For Washington R. Davis Thomas, Jr., Esquire

152Manor: Broad and Cassel

156215 South Monroe Street, Suite 400

162Post Office Box 11300

166Tallahassee, Florida 32302

169STATEMENT OF THE ISSUES

173The issues are whether a licensed nursing home violated the

183provisions of Title 42, Code of Federal Regulations, Section

192483.70(h) and, if so, whether the relative severity of the

202deficiency warrants the assignment of a conditional licensure

210status and the levying of a $10,000 civil penalty.

220PRELIMINARY STATEMENT

222From June 5 through June 8, 2000, a survey team from the

234Agency for Health Care Administration (the “Agency”) inspected a

243licensed nursing home located in Hollywood, Florida, known as

252Washington Manor Nursing and Rehabilitation Center (“Washington

259Manor”). This facility is operated by Beverly Enterprises-

267Florida, Inc., d/b/a Beverly Gulf Coast-Florida, Inc.

274(“Beverly”), which is the licensee. (For ease of reference, the

284term “Washington Manor” is used in this Recommended Order to

294denote both building and licensee; context will make clear the

304intended meaning.)

306As a result of this investigation, the Agency issued a

316survey report charging Washington Manor with a deficiency

324relating to its alleged failure to protect a resident from an

335indoor fire ant attack that had occurred on May 29, 2000. Based

347on this alleged deficiency, the Agency notified Washington

355Manor, by letter dated June 30, 2000, that its license was being

367downgraded to conditional status effective June 8, 2000. The

376Agency later restored Washington Manor’s license to standard

384status, effective June 29, 2000. Objecting to the conditional

393license, Washington Manor filed a petition with the Agency that

403was transferred to the Division of Administrative Hearings on

412September 27, 2000, initiating DOAH Case No. 00-4035.

420Meantime, on November 3, 2000, the Agency brought an

429Administrative Complaint against Washington Manor seeking to

436impose a civil penalty of $10,000 in consequence of the alleged

448deficiency associated with the fire ant attack. Washington

456Manor requested a hearing, and on November 21, 2000, the case

467was referred to the Division of Administrative Hearings,

475initiating DOAH Case No. 00-4735.

480These two cases, together with a third action (DOAH Case

490No. 00-4734) which was settled before hearing, were consolidated

499by order dated November 22, 2000. The final hearing was held,

510as scheduled, in Fort Lauderdale, Florida, on February 20–21,

5192001.

520At the final hearing, the Agency presented the testimony of

530five witnesses : Jeff Bomberger, Gary Warnock, Debra Wilcox,

539Arlene Mayo-Davis, and Frank Buxton. In addition, the Agency

548introduced three exhibits, which were received in evidence.

556Washington Manor called one witness – Jeff Bomberger – and also

567submitted five exhibits into evidence.

572Each party timely filed a Proposed Recommended Order, and

581these post-hearing submissions were considered carefully in the

589preparation of this Recommended Order.

594FINDINGS OF FACT

597The evidence presented at final hearing established the

605facts that follow.

608Fire Ants Attack

6111. In the first hour of Memorial Day, May 29, 2000, fire

623ants roamed about Room 303 in Washington Manor, unobserved,

632while its residents slept. No one had seen the intruders enter

643the single-story facility, a nursing home that accommodates

651240 licensed beds, built in 1968, occupying an area more than

662100,000 square feet in size. Shortly before 1:00 a.m., the

673aggressive ants attacked a defenseless, elderly resident in her

682bed, stinging her numerous times before help arrived. The

691injurious consequences of these ant bites were serious enough to

701warrant the resident's removal to a hospital, where she was

711treated for several days, from May 30 through June 3, 2000.

722Happily, the resident recovered from the adverse health

730consequences that ensued from this horrible event, which was the

740first of its kind at Washington Manor.

747Regulatory Environment

7492. To participate in and receive funds under the Medicare

759and Medicaid programs, nursing homes must comply with numerous

768federal and state statutory and regulatory mandates. 1 As a

"778state survey agency," the Agency is authorized, on behalf of

788the United States Department of Health and Human Services,

797Health Care Finance Administration, to inspect participating

804facilities (such as Washington Manor) and assess their

812respective levels of obedience to federal health, safety, and

821quality standards. Assigned a dual regulatory role, the Agency

830performs similar functions for the state, enforcing compliance

838with Florida's statutes and rules.

8433. The Agency carries out these responsibilities by

851dispatching teams of investigators ("surveyors") to conduct on-

861site inspections ("surveys") of the facilities under its

871jurisdiction. Survey teams are required to report violations,

879which are called "deficiencies." If a survey uncovers any

888deficiencies, both the federal and state regulatory agencies may

897impose sanctions against the facility or prescribe other

905remedies. The severity of the sanction or remedy depends upon

915the seriousness of the deficiency. It is therefore necessary to

925grade each deficiency according to its perceived "severity" and,

934pursuant to federal guidelines, its apparent "scope."

9414. Under the federal regulations, there are 12 separate

"950scope and severity" outcomes represented by the letters "A"

959through "L," with A being the least serious type of violation

970and L the most severe. The 12 outcomes are depicted in a table

983consisting of four rows (denoting severity) and three columns

992(denoting scope), the three cells of the bottom (least serious)

1002row corresponding, from left to right, with grades A, B, and C,

1014respectively; of the second row, with D, E, and F; and so forth.

1027The scope of a deficiency is classified as "isolated" (left-hand

1037column), "pattern" (middle column), or "widespread" (right-hand

1044column). The severity of a deficiency is assigned to one of

1055four levels, matching the four aforementioned rows: "No actual

1064harm with potential for minimal harm" (first, or bottom, row);

"1074No actual harm with potential for more than minimal harm that

1085is not immediate jeopardy" (second row); "Actual harm that is

1095not immediate jeopardy (third row); and "Immediate jeopardy to

1104resident health or safety" (fourth, or top, row). See generally

1114Title 42, Code of Federal Regulations, Section 488.404. Thus, a

1124grade of L — the most severe rating in the federal scheme —

1137falls in the top, right-hand cell of the scope and severity

1148table and represents a finding that the facility has a

1158widespread deficiency which puts residents in immediate

1165jeopardy.

11665. Under the state scheme, violations are rated according

1175to severity as either Class I, Class II, or Class III

1186deficiencies. See generally Section 400.23(8), Florida

1192Statutes ; Rule 59A-4.128(3), Florida Administrative Code. (The

1199Agency also recognizes a category of "Substandard Quality of

1208Care" deficiencies, using a definition patterned after the

1216federal description of that term. See Rule 59A-4.128(3)(a),

1224Florida Administrative Code.) Class I deficiencies are the most

1233serious, presenting "either an imminent danger, [or] a

1241substantial probability of[,] death or serious physical harm."

1250Rule 59A-4.128(3)(a), Florida Administrative Code. Next serious

1257are Class II deficiencies, which "present an immediate threat to

1267the health, safety, or security of the residents of the

1277facility . . . ." Id. Finally, "Class III deficiencies are

1288those which present an indirect or potential relationship to the

1298health, safety, or security of the nursing home residents, other

1308than Class I or Class II deficiencies." Rule 59A-4.128(3)(b),

1317Florida Administrative Code.

13206. For each deficiency identified, the Agency's surveyors

1328are responsible for making an initial determination regarding

1336scope and severity. Typically, the federal letter grade is

1345assigned first, and that mark is allowed to drive the state

1356severity rating, despite substantial differences between the

1363federal and state classification systems and their respective

1371criteria for measuring severity. Thus, a federal J, K, or L

1382demands a state rating of Class I. Similarly, a Class II rating

1394always follows a grade of G, H, or I. At the other end of the

1409spectrum, deficiencies graded A, B, or C are always placed in

1420state Class III, and those rated D, E, or F usually are. If the

1434surveyors would assign a grade in the G through L range (state

1446Class I or II), then they must communicate their findings and

1457recommendations to superiors within the Agency who make the

1466official decision.

1468The Agency Inspects

14717. On June 5, 2000, a survey team composed of three Agency

1483employees arrived at Washington Manor, which is located in

1492Hollywood, Florida, to conduct a regularly scheduled, periodic

1500inspection of the facility. That this routine compliance survey

1509happened to commence one week after the May 29, 2000, fire ant

1521attack was coincidental. The surveyors, however, had been

1529informed about the incident and, not surprisingly, were keenly

1538interested in ascertaining how it had occurred and whether fire

1548ants continued to pose a risk of harm to Washington Manor's

1559residents.

15608. From interviewing Washington Manor personnel and

1567reviewing records such as the facility's 24-Hour Nursing Report

1576and service reports prepared by Steritech Group, Inc.

1584("Steritech"), the facility's pest control contractor, the

1593surveyors were introduced to the hypothesis that fire ants may

1603have entered Room 303 through some sort of "crack" or "crevice"

1614in the wall.

16179. The nursing report notes that upon discovering the fire

1627ant attack, staff had attempted to kill the ants and block an

1639opening around the window air conditioning unit. This suggests

1648that the first person or persons on the scene — who actually saw

1661fire ants in Room 303 and were therefore in the best position to

1674observe the means by which the pests had invaded the building —

1686believed that a gap or opening associated with the air

1696conditioner might have been the portal. Because none of these

1706individuals testified at hearing, however, the record is silent

1715as to why staff had suspected the air conditioner.

172410. The surveyors searched for empirical data in support

1733of the explanation that implicated the air conditioner .

1742Examining Room 303, one surveyor observed that between the air

1752conditioner and the windowsill or frame there existed a thin

1762space through which sunlight could be seen. Similar "gaps" or

"1772crevices" were noticed in other rooms as well.

178011. These discoveries led the surveyors to accept the

1789theory that the fire ants responsible for the Memorial Day

1799assault had penetrated Room 303 through the "gap" between air

1809conditioner and window. The surveyors also suspected that some

1818nearby trees and railroad ties may have harbored or attracted

1828the pests and perhaps facilitated their incursion into the

1837facility. 2

183912. The trees were a matter of some concern, the surveyors

1850having come to believe that Washington Manor had disregarded

1859Steritech's recommendations to trim nearby palm trees and

1867vegetation as a means of controlling ants' access to the

1877building. No employee of Steritech testified at hearing,

1885however, so the fact-finder was deprived of the opportunity to

1895see and hear from the person who had made the recommendations.

1906According to the service reports in evidence, a pest control

1916technician had visited Washington Manor 14 times between the

1925beginning of the year and May 25, 2000, which was the date of

1938the last visit before Memorial Day. On three of these

1948occasions, the technician had recommended that the facility trim

"1957palm trees" (Jan 10, February 14, and March 3, 2000); once,

"1968vegetation" (March 28, 2000); and, one other time, simply

"1977trees" (May 25, 2000). On March 3, 2000, for the first and

1989only time, the technician had linked the trees with ants,

1999writing: "Please have palms trimmed. Ants are active on them

2009and gaing [ sic ] access to bldg." After the fire ant attack, the

2023Steritech technician had visited the facility on June 1, 2, 5,

20346, and 8, 2000. He had made no recommendations regarding

2044landscaping, however, until June 8, 2000, when he had written:

"2054Please have trees trimmed along east-side of bldg, palms along

2064court yard. This will restrict access to bldg."

207213. That the technician had visited the facility 6 times

2082during the nearly two months after March 28 and before May 25,

20942000, without once having mentioned the trees in his written

2104reports reasonably supports the inference that Washington Manor

2112had been following the technician's advice; otherwise,

2119presumably, he would have continued to press the point. That

2129inference is reinforced by the technician's silence on the

2138subject of tree trimming in his first two reports immediately

2148following the fire ant attack; presumably, if the technician had

2158watched his previous recommendations fall on deaf ears, he would

2168have renewed the request to trim back the trees at his earliest

2180opportunity after the tragedy. There is, moreover, no evidence

2189that the palm trees, vegetation, and trees to which the

2199technician had referred (both before and after Memorial Day)

2208were the same trees, visit after visit, or whether different

2218trees or other vegetation needed attention at various points in

2228time. In short, the evidence does not persuasively establish

2237that Washington Manor had been heedless of the pest control

2247technician's recommendations.

224914. The survey team members believed that Washington

2257Manor's residents remained at risk of being attacked by fire

2267ants because, they surmised, various "gaps" in the facility's

2276outer walls could potentially provide ingress for this pestilent

2285purpose, and (to a lesser extent) because they concluded that

2295certain trees needed to be trimmed. None, however, thought a

2305fire ant raid was imminent.

231015. Consequently, on the morning of the survey's third

2319day, June 7, the surveyors called Angela Mayo-Davis, an Agency

2329supervisor, to report their findings and recommend that

2337Washington Manor be cited for a "G-II" deficiency in respect of

2348the ant bite incident — meaning, under the federal system, an

2359isolated deficiency involving actual harm that is not immediate

2368jeopardy which, for purposes of the state classification scheme,

2377would fall concomitantly in Class II.

238316. The surveyors were well-intentioned and sincere, yet

2391their estimate of the proximity of danger was excessive — at

2402least when viewed, after the fact, in the light of all the

2414evidence presented at hearing. The facility's interior was

2422neither being nor about to be overrun with ants, flying insects,

2433or rodents. Rather, Washington Manor's exterminator, Steritech,

2440was treating the facility and its exterior grounds regularly for

2450pests, including ants, and was doing so effectively, the Agency

2460stipulated at hearingue, as the pest control contractor's

2468service reports for the months leading up to May 29, 2000,

2479document, there were periodic complaints about various rodents

2487and insects ( e.g. mice, flies, and ants) turning up in one place

2500or another inside the facility. And once — on May 22 — fire

2513ants were reported coming through windows in several rooms. But

2523these reports give no indication (and there is no other

2533evidence) that this level of activity was atypical or evinced an

2544infestation. Given the lack of evidence with which to make a

2555meaningful comparison, this record would as readily support a

2564finding that Washington Manor was reasonably pest-free for its

2573size, age, location, and use.

257817. Further, the surveyors' theory that the so-called

"2586gap" had served as the ants' entry point into Room 303 was

2598merely a plausible guess. None is an entomologist, and none

2608claimed special knowledge of fire ants. More important, the

2617Agency introduced no substantial competent evidence concerning

2624the likelihood that fire ants would enter through such a "gap"

2635as opposed to other places at which the inside inescapably

2645communicates with the outside ( e.g. doors, vents, the air

2655conditioner itself). For that matter, no evidence was adduced

2664regarding the probability (or improbability) of a similar fire

2673ant attack occurring under the best of circumstances (however

2682defined) – or under seemingly "worse" conditions ( e.g. open,

2692unscreened windows; no pest control). 3 Weighing against the

"2701gap" theory, the Steritech operator responsible for treating

2709Washington Manor (who, from experience in the trade, should have

2719been familiar with the ways of fire ants) evidently never

2729noticed the various openings observed by the surveyors, or did

2739not consider them to be dangerous if he did, for he never

2751checked the boxes on his service report form that would have

2762recommended such pertinent remedial actions as:

2768Wall / floor junction must be sealed

2775Repair holes, cracks and loose tiles

2781Simply put, the evidence presented at hearing does not

2790substantiate the surveyors' assessment that fire ants directly

2798or immediately threatened Washington Manor’s residents.

280418. Agency higher-ups, however, viewed the purported risk

2812with much alarm. In a late-afternoon telephone call on June 7,

28232000, the survey team was informed that Washington Manor must be

"2834tagged" for an isolated "immediate jeopardy" deficiency at the

2843federal scope and severity level of J, elevating the violation

2853to state Class I. At hearing, Ms. Mayo-Davis shed light on the

2865Agency's rationale for sounding a red alert:

2872[S ]ince the situation had occurred on the

288029th, there [were] still holes that were

2887found in the air-condition[er]s, which is

2893possibly the way that the ants had gotten

2901into the resident's room in the first place,

2909since those holes still existed then there

2916still was a potential or a probability that

2924ants could still gain entry into the

2931building and that would make the

2937residents['] environment just as we had

2943said, unsafe and uncomfortable for

2948residents.

2949T-300 (emphasis added). 4 Thus did a possibility give birth to a

2961potential that spawned a probability which matured into

"2969immediate jeopardy."

297119. The "J-I" deficiency for which the Agency cited

2980Washington Manor was identified by "Tag Number F465." This

2989particular tag incorporates the standard contained in Title 42,

2998Code of Federal Regulations, Section 483.70(h), and signifies an

3007allegation that the facility failed to provide a safe,

3016functional, sanitary, and comfortable environment for the

3023residents, staff, and the public.

302820. When the surveyors concluded their inspection and left

3037Washington Manor on June 8, 2000, the Tag F465 deficiency was

3048downgraded to a "G-II." This reclassification resulted from a

3057determination that there were no fire ants presently in the

3067facility, coupled with the Agency's satisfaction that Washington

3075Manor had undertaken to remedy areas of concern by, among other

3086things, caulking the gaps, trimming some trees, and removing

3095railroad ties. Nevertheless, on the allegation that a Class I

3105deficiency had existed, the Agency assigned Washington Manor a

3114conditional licensure status, effective June 8, 2000, and sought

3123to impose a $10,000.00 civil penalty.

313021. The Agency conducted a follow-up survey of Washington

3139Manor on June 29, 2000, and determined that the F465 deficiency

3150had been corrected. Convinced that the facility timely and

3159completely had corrected the deficiency, the Agency upgraded

3167Washington Manor's licensure status from conditional to

3174standard, effective June 29, 2000.

3179Ultimate Factual Determinations

318222. There is no evidence that the Washington Manor's

3191environment was nonfunctional — e.g. unsuitable, impractical,

3198inoperable. Nor is there any evidence that the conditions at

3208the facility were unclean, filthy, contaminated, or otherwise

3216unsanitary. Finally, the record contains no convincing proof

3224that, because of the surroundings, Washington Manor's occupants

3232were ill at ease, insecure, discontented, or uncomfortable in

3241any way. In sum, the Agency failed to establish — and, in

3253fairness, made little or no attempt to prove — that Washington

3264Manor did not afford a functional, sanitary, and comfortable

3273environment for its occupants.

327723. The occurrence of the May 29, 2000, indoor fire ant

3288attack does not persuade the fact-finder that Washington Manor's

3297environment was unsafe. For one reason, notwithstanding the

3305surveyors' speculation and conjecture (which is not competent

3313proof) and the note in the nursing report (whose author was not

3325called to testify at hearing), there is no satisfactory evidence

3335that the fire ants actually entered the facility through a "gap"

3346around the window air conditioner in Room 303. That is, no

3357causal connection between the alleged deficiency and the injury

3366was established — which is significant because the Agency made

3376no effort to prove that the alleged deficiency was dangerous

3386even if it were not the cause-in-fact of the fire ant stings on

3399Memorial Day. For another reason, prudent human foresight does

3408not give rise to an expectation that a similar indoor fire ant

3420attack is likely to be substantially caused or facilitated by

3430the failure to caulk around an air conditioner or to trim some

3442trees – especially when, as at Washington Manor, an effective

3452pest control program is in place.

345824. In other words, though shocking and grievous, the

3467indoor fire ant attack at Washington Manor on Memorial Day 2000

3478was a freak occurrence, whether the pests entered through a

"3488gap" around the air conditioner (which was not proved) or found

3499some other way into the building. Under the unique

3508circumstances of this case as established by the particular

3517evidence in this record, evaluated in light of common human

3527experience, the injurious fire ant stings inflicted upon the

3536occupant of Room 303 on May 29, 2000, were unforeseeable and

3547unpredictable and thus – unfortunately – unavoidable despite the

3556exercise of reasonable diligence and care in the maintenance of

3566the facility.

356825. Accordingly, the greater weight of evidence fails to

3577establish – by a preponderance much less clearly and

3586convincingly – that Washington Manor's environment was unsafe,

3594nonfunctional, unsanitary, or uncomfortable in violation of

3601Title 42, Code of Federal Regulations, Section 483.70(h), as

3610charged. Stated affirmatively, the record shows that Washington

3618Manor met its duty to maintain the facility so as to protect the

3631health and safety of residents, personnel, and the public.

3640CONCLUSIONS OF LAW

364326. The Division of Administrative Hearings has personal

3651and subject matter jurisdiction in this proceeding pursuant to

3660Sections 120.569 and 120.57(1), Florida Statutes.

366627. Pursuant to Section 400.23(7), Florida Statutes, the

3674Agency is required to evaluate each nursing home facility

3683operating in Florida at least every 15 months to determine

3693whether it is in compliance with applicable law. In addition to

3704the criteria set forth in Section 400.23, Florida Statutes, and

3714in the rules adopted by the Agency in Chapter 59A-4, Florida

3725Administrative Code, nursing home facilities in Florida must be

3734in compliance with the rules found in Title 42, Code of Federal

3746Regulations, Part 483.

374928. The subject federal regulations govern facilities that

3757participate in the Medicare and Medicaid programs and arise

3766under the key federal statute respecting nursing home and long-

3776term care facilities — namely, the Nursing Home Reform Act (the

3787Omnibus Budget Reconciliation Act of 1987), codified at Title

379642, United States Code, Section 1396r. The Florida Legislature

3805has directed that state licensure status be assigned based in

3815part on compliance with these federal rules, when applicable.

3824See Section 400.23(7), Florida Statutes. The Agency has adopted

3833and incorporated the federal regulations by reference in

3841Rule 59A-4.1288, Florida Administrative Code.

384629. If the Agency identifies a violation as a result of a

3858compliance survey, the violation must be classified pursuant to

3867Section 400.23(8), Florida Statutes, as a Class I, Class II, or

3878Class III deficiency. Class I deficiencies "present an imminent

3887danger to the residents or guests of the nursing home facility

3898or a substantial probability that death or serious physical harm

3908would result therefrom." Section 400.23(8)(a), Florida

3914Statutes. Class II deficiencies " have a direct or immediate

3923relationship to the health, safety, or security of the nursing

3933home facility residents, other than class I deficiencies."

3941Section 400.23(8)(b), Florida Statutes. Class III deficiencies

"3948have an indirect or potential relationship to the health,

3957safety, or security of the nursing home facility residents,

3966other than class I or class II deficiencies."

3974Section 400.23(8)(c), Florida Statutes.

397830. Based on the deficiencies identified during the survey

3987or, if none be found, on its finding that the facility is in

4000substantial regulatory compliance, the Agency is required to

4008assign a "status" of "standard" or "conditional" to the

4017facility's state license. Section 400.23(7), Florida Statutes.

402431. A standard licensure status "means that a facility has

4034no class I or class II deficiencies, has corrected all class II I

4047deficiencies within the time specified by the agency, and is in

4058substantial compliance at the time of the survey with" all

4068applicable state and federal laws. Section 400.23(7)(a),

4075Florida Statutes.

407732. A conditional licensure status "means that a facility,

4086due to the presence of one or more class I or class II

4099deficiencies, or class III deficiencies not corrected within the

4108time established by the agency, is not in substantial compliance

4118at the time of the survey with criteria established" under all

4129applicable state and federal laws. Section 400.23(7)(b),

4136Florida Statutes. (This subsection further provides that if

"4144the facility comes into substantial compliance at the time of

4154the followup survey, a standard licensure status may be

4163assigned." Id. )

416633. In addition to assigning a conditional licensure

4174status, the Agency may punish a facility found to have one or

4186more deficiencies by exacting a civil penalty. For each class I

4197deficiency, the facility is subject to a fine "in an amount not

4209less than $5,000 and not exceeding $25,000" regardless whether

4220the deficiency is corrected. Section 400.23(8)(a), Florida

4227Statutes. If, however, the violation is a less serious class II

4238or class III deficiency, then the Agency may impose a civil

4249penalty for that only if (a) the facility fails to correct the

4261problem within the time specified by the Agency or (b) the

4272deficiency is a repeated offense.

427734. The Agency has the burden of proving not only the

4288grounds for assigning a conditional licensure status to

4296Washington Manor for the period from June 8, 2000 to June 29,

43082000, but also the facts upon which a fine may be levied against

4321the facility. Emerald Oaks v. Agency for health Care

4330Administration , 774 So. 2d 737, 738 (Fla. 2d DCA 2000) ; Beverly

4341Enterprises-Florida v. Agency for Health Care Administration ,

4348745 So. 2d 1133, 1136 (Fla. 1st DCA 1999) ; Florida Department of

4360Transportation v. J.W.C. Company, Inc ., 396 So. 2d 778, 789

4371(Fla. 1st DCA, 1981) ; Balino v. Department of Health and

4381Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA

43911977).

439235. The alleged Tag F465 deficiency purportedly associated

4400with the Memorial Day fire ant attack is the factual predicate

4411for each of the sought-after sanctions. At hearing, the Agency

4421stipulated that the facility timely had corrected the alleged

4430Tag F465 deficiency and also that the alleged deficiency had not

4441been a repeated offense. Thus, as the sole basis for imposing a

4453$10,000 fine, the Agency contends, as it must, that this alleged

4465deficiency satisfied the criteria for and was properly assigned

4474to class I at the time of the survey. To justify the assignment

4487of a conditional licensure status, the Agency must demonstrate

4496that the alleged Tag F465 deficiency was at least serious enough

4507for class II classification, if not so serious as to be called

4519class I.

452136. In sum, if the alleged deficiency were appropriately

4530placed in class I, then both the civil penalty and a conditional

4542licensure status were justifiably imposed. If it were a class

4552II deficiency, then the conditional license was warranted, but

4561the $10,000 fine would not be authorized. Finally, if the

4572alleged deficiency were put in class III (or, of course, if

4583there were no deficiency), then neither the conditional

4591licensure status nor an administrative fine would be allowed to

4601stand.

460237. The standard of proof required to make a case for

4613assignment of a conditional licensure status is not necessarily

4622as demanding as that for imposing a fine — even when, as here,

4635the factual foundation for both purposes is identical.

464338. The Florida Supreme Court has determined conclusively

4651that the standard of proof for imposing an administrative fine

4661is clear and convincing evidence, because a fine is penal in

4672nature and "deprives the person fined of substantial rights in

4682property." Department of Banking and Finance v. Osborne Stern

4691and Co. , 670 So. 2d 932, 935 (Fla. 1996). On this standard,

4703there is and can be no argument.

471039. The rationale for requiring clear and convincing proof

4719of facts alleged to warrant the levy of a fine appears to apply

4732with equal force when the goal is to downgrade a nursing home's

4744licensure status. As the administrative law judge explained

4752persuasively in Heritage Health Care & Rehab Center v. Agency

4762for Health Care Administration , DOAH Case No. 99-1892, 1999 WL

47721486586, *6 (Recommended Order issued Nov. 12, 1999), "[t ]he

4782imposition of a Conditional license adversely affects the

4790reputation of a nursing facility with the public, and thus

4800affects its ability to operate." In addition, a stricter

4809standard of proof is consistent with the Administrative

4817Procedure Act. See Section 120.57(1)(j)("Findings of fact shall

4826be based upon a preponderance of the evidence, except in penal

4837or licensure discipline proceedings . . . .").

484640. Yet, anomalously, the less stringent, preponderance-

4853of-evidence standard has been applied routinely in license

4861reduction hearings. E.g. Agency for Health Care Administration

4869v. Beverly Savana Cay Manor, Inc., etc., et al. , DOAH Case

4880No. 00-2465, 2001 WL 298545, *10 (Recommended Order issued

4889March 22, 2001); Quality Health Care Center v. Agency for Health

4900Care Administration , DOAH Case No. 00-3356, 2001 WL 246776, *8

4910(Recommended Order issued March 9, 2001); Capital Health Care

4919Center v. Agency for Health Care Administration , DOAH Case

4928No. 00-1996, 2000 WL 1867290, *9 (Recommended Order issued

4937December 1, 2000); Vista Manor v. Agency for Health Care

4947Administration , DOAH Case No. 98-5471, 1999 WL 1486416, *8

4956(Recommended Order issued June 8, 1999); Wellington Specialty

4964Care and Rehab Center (Vantage Healthcare Corp.) v. Agency for

4974Health Care Administration , DOAH Case No. 98-4690, 1999 WL

49831486337, *6 (Recommended Order issued May 17, 1999); Agency for

4993Health Care Administration v. Hobe Sound Geriatric Vill., Inc.,

5002etc., et al. , DOAH Case No. 98-1270, 1999 WL 1483658, *25

5013(Recommended Order issued May 10, 1999); but see Heritage Health

5023Care , 1999 WL 1486586, *7 (Agency must prove grounds for

5033conditional licensure status by clear and convincing evidence).

5041Although appellate courts have discussed the Agency's burden of

5050proof in license reduction proceedings, see Emerald Oaks , 774

5059So. 2d at 738 ; Beverly Enterprises-Florida , 745 So. 2d at 1136,

5070the standard of proof seems not to have received appellate

5080attention.

508141. It is paradoxical that the Agency should be permitted

5091to assign a conditional licensure status on proof that might not

5102support the imposition of a fine, since the former punishment is

5113likely to be as economically damaging to the facility, if not

5124more so, than the latter. Here, however, any debate regarding

5134the standard of proof is rendered academic by the Agency's

5144failure to prove its allegations by the greater weight of

5154evidence. Because the Agency is not entitled, even under this

5164least demanding standard, to sanction Washington Manor with a

5173conditional license, there is no reason to reach the question

5183whether clear and convincing evidence is required to assign a

5193conditional licensure status. Accordingly, that decision is

5200deferred to another day.

520442. To be clear, then, on the licensure status dispute,

5214bowing to the weight of authority, the Agency has been afforded

5225the benefit of the preponderance standard of proof.

5233The Facility Was In Compliance As a Matter of Law

524343. The regulation that forms the basis for Tag F465 is

5254Title 42, United States Code, Section 483.70(h). That federal

5263rule provides as follows:

5267§ 483.70 Physical environment.

5271The facility must be designed, constructed,

5277equipped, and maintained to protect the

5283health and safety of residents, personnel

5289and the public.

5292* * *

5295(h ) Other environmental conditions. The

5301facility must provide a safe, functional,

5307sanitary, and comfortable environment for

5312the residents, staff and public . The

5319facility must--

5321(1 ) Establish procedures to ensure that

5328water is available to essential areas when

5335there is a loss of normal water supply;

5343(2 ) Have adequate outside ventilation by

5350means of windows, or mechanical ventilation,

5356or a combination of the two;

5362(3 ) Equip corridors with firmly secured

5369handrails on each side; and

5374(4 ) Maintain an effective pest control

5381program so that the facility is free of

5389pests and rodents.

5392(Emphasis added.) Specifically, the Agency alleges that

5399Washington Manor violated the standard prescribed in the

5407underlined sentence above. Significantly, it does not contend

5415that the facility violated subpart (4), having stipulated at

5424hearing that Washington Manor was in compliance with the

5433discrete duty to maintain an effective pest control program.

544244. In the regulation's first and overarching provision,

5450which precedes eight paragraphs of particulars that conclude

5458with paragraph (h), Section 483.70 plainly prescribes a broad

5467general duty, one aspect of which is relevant to the instant

5478proceeding : the duty to maintain the facility so as to protect

5490the health and safety of its occupants. 5 This general duty

5501comprises numerous specific subsidiary duties, including those

5508described in subparts (1) through (4) of paragraph (h).

5517According to the Agency, the first full sentence of paragraph

5527(h) effectively imposes another broad general duty, that being

5536to provide a safe, functional, sanitary, and comfortable

5544environment for the facility's occupants.

554945. Read in the context of Section 483.70 as a whole,

5560however, the specific sentence of paragraph (h) under which the

5570Agency travels does not seem to have been intended to establish

5581a sweeping primary duty that would encompass not only subparts

5591(1) through (4) but also, were that its aim, paragraphs (a)

5602through (g) of the section as well. Instead, the sentence

5612appears to reiterate and further define the standard against

5621which a facility's performance of the specific duties must be

5631measured. Thus, when deciding, for example, whether a

5639facility's pest control program is "effective" within the

5647dictate of subpart (4), it is necessary to consider whether the

5658facility's environment is safe, functional, sanitary, and

5665comfortable. If the answer is "no" because of the presence of

5676pests or rodents, then the facility is in violation of Section

5687483.70(h)(4).

568846. Under this interpretation, the principal purpose of

5696paragraph (h), including its subparts, is to prescribe four

5705additional subsidiary duties that the regulation's drafters

5712evidently felt did not fit neatly within any of the foregoing

5723seven paragraphs — not to create a broad, section-level duty,

5733its scope exemplified by, but not limited to, four particular,

5743non-exclusive obligations described in subparts (1) through (4).

5751From this it follows that a facility can properly be found in

5763violation of Section 483.70(h)(x), with x being a number from 1

5774to 4, but not Section 483.70(h), where no pinpointing subpart is

5785cited.

578647. Consequently, by stipulating at hearing that

5793Washington Manor at all times material had been in compliance

5803with subpart (4) — that, in other words, the facility had

5814maintained an effective pest control program and kept the

5823premises free of pests and rodents — the Agency effectively

5833eviscerated its case: admitting this material fact was

5841tantamount to conceding that there had been no deficiency as a

5852matter of law.

585548. But even if the first full sentence of paragraph (h)

5866were construed to impose an independent duty that is broader in

5877scope than the sum of its four subparts, the question would

5888become: Can a facility that has fulfilled the specific duty to

5899maintain an effective pest control program, as Washington Manor

5908undisputedly did, nevertheless be found to have violated the

5917standard of care as it relates to guarding environmental

5926functionality, safety, sanitation, and comfort against all

5933threats of damage to those qualities posed by "pests and

5943rodents," including fire ants? Put another way, does satisfying

5952the specific duty prescribed in subpart (4) necessarily fulfill

5961the general duty to maintain the facility so as to protect the

5973health, safety, and comfort of its occupants against harm from

5983pests and rodents?

598649. The answer is found in a well-established rule of

5996interpretation which holds that

"6000where there is in the same statute a

6008specific provision, and also a general one

6015that in its most comprehensive sense would

6022include matters embraced in the former, the

6029particular provision will nevertheless

6033prevail; the general provision will be taken

6040to affect only such cases as are not within

6049the terms of the particular provision."

6055Psychiatric Institute of Delray, Inc. v. Keel , 717 So. 2d 1042,

60661043 (Fla. 4th DCA 1998)(quoting Fletcher v. Fletcher , 573

6075So. 2d 941, 942 (Fla. 1st DCA 1991)).

608350. Clearly, the first complete sentence of paragraph (h),

6092if it were considered the source of a general duty, would

6103embrace the specific matters set forth in subparts (1) through

6113(4). Therefore, applying the interpretive principle just

6120discussed, paragraph (h) must be deemed to affect only those

6130situations that are not covered by one of the particular

6140provisions.

614151. Accordingly, where, as here, the alleged deficiency is

6150based on a charge that the facility's environment was unsafe,

6160nonfunctional, unsanitary, or uncomfortable due to the presence

6168of pests or rodents inside the building, the Agency must prove a

6180violation of subpart (4), because the specific duty prescribed

6189in that particular provision prevails over the general duty, if

6199any, provided for in paragraph (h)'s introductory sentence.

620752. The Agency's stipulation that Washington Manor had

6215obeyed subpart (4) compels the conclusion that there was no

6225deficiency associated with the Memorial Day fire ant attack, as

6235a matter of law.

6239The Facility Was In Compliance As a Matter of Fact

624953. Suppose, alternatively, that paragraph (h) imposes a

6257duty to guard against dangers posed by pests or rodents that are

6269beyond the zone of risk against which an effective pest control

6280program should reasonably and foreseeably protect. Putting

6287aside issues that would arise concerning the required standard

6296of conduct — about which there is no evidence in this case — the

6310Agency still would need to prove that the facility was unsafe in

6322fact as a result of the alleged deficiency, to establish the

6333deficiency. For, obviously, if the facility's environment were

6341safe, then the facility necessarily was meeting its legal

6350obligation, whatever that obligation may require in terms of

6359conduct.

636054. On the question of safety of the physical environment,

6370the circumstances of this case require that attention be paid to

6381the probative value of an actual injury. Although it is not

6392necessary for the Agency to show that an injury actually

6402occurred as a result of an alleged deficient practice, the fact

6413of an injury on the premises would tend to show that the

6425facility's environment was unsafe if the act or omission alleged

6435to constitute the deficiency were the cause-in-fact of the harm.

6445By establishing that an actual injury would not have occurred

6455but for the deficiency, the Agency would demonstrate that the

6465facility had failed to maintain a safe environment, provided the

6475injury were a foreseeable one – a separate issue discussed

6485below. Conversely, if the alleged deficiency were not the

6494cause-in-fact of an injury that actually had occurred, then that

6504injury would have no probative value on the question of

6514environmental safety; it would be irrelevant. The Agency might

6523still manage to prevail, but to do so it would need to offer

6536independent proof – as though there had been no injury – that

6548the alleged deficiency could, in fact, cause the foreseeable

6557harm allegedly threatened thereby.

6561A. Cause-in-Fact

656355. In the instant case, the decisional framework for the

6573Agency's theory looks like this:

6578(A) Fire ants stung a resident in her bed as she slept.

6590(B) Ipso facto , Washington Manor's environment was unsafe.

6598(C) The facility failed to caulk around window air

6607conditioners, failed to patch small openings in the

6615building, and neglected to trim some trees.

6622(D) The omissions described in (C) may have allowed fire

6632ants to enter Room 303 and might have created

6641favorable conditions for a future fire ant invasion.

6649(E) Therefore, the omissions described in (C) constituted

6657a breach of 42 C.F.R. § 483.70(h), i.e. were a

6667deficiency.

666856. As set forth in the Findings of Fact above, however,

6679the Agency failed to prove by a preponderance of evidence that

6690but for alleged omissions (C), injury (A) would not have

6700occurred — and situation (B) would have been avoided.

6709Therefore, perhaps ironically, the fact of the Memorial Day fire

6719ant attack is irrelevant to the determination whether Washington

6728Manor failed to maintain a safe physical environment for its

6738occupants.

673957. The Agency made no appreciable attempt and therefore

6748failed to prove that the facility's failure to caulk around some

6759air conditioners and seal other openings, or its failure to trim

6770some trees, or a combination of these purported omissions,

6779endangered the residents of Washington Manor by exposing them to

6789the threat of fire ant attacks. The Agency’s hypothesis (D) was

6800simply too speculative and conjectural to carry that load. In a

6811nutshell, there is no persuasive evidence in this record that

6821the alleged deficiency (C) could in fact cause the allegedly

6831threatened injury: an indoor fire ant attack.

683858. Consequently, there is no evidential support for a

6847finding that Washington Manor’s physical environment was unsafe

6855due to the threat of fire ants entering the building through

6866unsealed cracks and crevices; without that finding, there is no

6876deficiency as a matter of fact.

6882B. Foreseeability

688459. The incorporation of Section 483.70(h) into the

6892Florida Administrative Code — which allows the Agency to enforce

6902this federal standard as a state rule — cannot have been

6913intended to impose absolute or strict liability under Florida's

6922regulatory scheme, so that no matter what the cause, a facility

6933would be in violation whenever an occupant suffers an injury on

6944the premises. Such a goal would have been unreasonable and

6954unfair and hence contrary to the legislative intent, expressed

6963in the statutes delegating rule-making authority to the Agency,

6972that nursing homes be required to comply with "reasonable and

6982fair" criteria. Section 400.23(2), Florida Statutes; see also

6990Section 400.23(1)("It is further intended that reasonable

6998efforts be made to accommodate the needs and preferences of

7008residents to enhance the quality of life in a nursing

7018home.")(emphasis added). Therefore, for state law purposes at

7027least, Section 483.70(h) must be construed to impose a duty to

7038make reasonable efforts or use reasonable care — not to make

7049nursing homes guarantors of occupant safety under all

7057circumstances.

705860. As a result, the fact question whether the facility

7068was unsafe must entail the concept of foreseeability, else the

7078duty imposed by paragraph (h) — the existence of which, recall,

7089we have assumed for this discussion — would be absolute, a

7100legally impermissible outcome. Unless a reasonable, prudent

7107person would consider the condition created by the alleged

7116deficiency likely to be the substantial cause of the harm that

7127the Agency contends is imminently, immediately, or potentially

7135threatened, then it cannot reasonably be said that the facility

7145is unsafe. Put another way, a facility cannot reasonably be

7155expected to guard against an injury caused by a freakish or

7166improbable chain of events; rather, the injury — or threatened

7176injury — must be "proximate" to the alleged deficiency. 6

718661. As the Florida Supreme Court has explained, "harm is

7196'proximate' in a legal sense if prudent human foresight would

7206lead one to expect that similar harm is likely to be

7217substantially caused by the specific act or omission in

7226question. In other words, human experience teaches that the

7235same harm can be expected to recur if the same act or omission

7248is repeated in a similar context." McCain v. Florida Power

7258Corp. , 593 So. 2d 500, 503 (Fla. 1992). "Foreseeability, as it

7269relates to the proximate cause, is generally a question of fact

7280left for the fact-finder." Florida Power & Light Co. v.

7290Periera , 705 So. 2d 1359, 1361 (Fla. 1998).

729862. With that in mind, using the shorthand initiated in

7308paragraph 55 above, even if it is assumed that (C) was the

7320cause-in-fact of (A), there is yet insufficient evidence of (B).

7330This is because the specific harm at issue here — multiple fire

7342ant stings inflicted on a patient sleeping in her bed — is not

7355the reasonably foreseeable consequence of the omissions

7362described in (C). Under the factual details of this case, a

7373reasonable person simply would not expect such harm to occur (or

7384recur) as a result of failing to caulk around a window air

7396conditioner or to trim some trees.

7402RECOMMENDATION

7403Based on the foregoing Findings of Fact and Conclusions of

7413Law, it is RECOMMENDED that the Agency enter a final order in

7425DOAH Case No. 00-4035 that: (a) restores Washington Manor's

7434license to the status of "standard" for the period from June 8

7446through June 29, 2000, and (b) requires or effects an amendment

7457of the Form 2567 report of the June 2000 survey to omit the

7470unsubstantiated charges concerning the alleged Tag F465

7477deficiency. It is further RECOMMENDED that the Agency enter a

7487final order in DOAH Case No. 00-4735 dismissing the Amended

7497Administrative Complaint with prejudice.

7501DONE AND ENTERED this 7th day of May, 2001, in Tallahassee,

7512Leon County, Florida.

7515___________________________________

7516JOHN G. VAN LANINGHAM

7520Administrative Law Judge

7523Division of Administrative Hearings

7527The DeSoto Building

75301230 Apalachee Parkway

7533Tallahassee, Florida 32399-3060

7536(850) 488- 9675 SUNCOM 278-9675

7541Fax Filing (850) 921-6847

7545www.doah.state.fl.us

7546Filed with the Clerk of the

7552Division of Administrative Hearings

7556this 7th day of May, 2001.

7562ENDNOTES

75631 / To the extent the next few paragraphs discuss the law, the

7576perspective is that of the fact-finder, who needed to know

7586something of (and was presented evidence concerning) the legal

7595environment in which the actors were operating.

76022 / None of the surveyors saw ants in the facility, however, or

7615ants crawling through gaps or holes in residents' rooms. One

7625surveyor observed two or three active fire ant mounds outdoors,

7635in the gravel of the parking area, about ten feet from the

7647building and in the vicinity of Room 303. Another also saw some

7659ants on the outside, but he did not identify what type or what

7672number he saw.

76753 / If fire ants were inclined to enter dwellings through thin

7687gaps and thereafter sting human inhabitants, as the Agency

7696presupposed, then such attacks should be commonplace in areas

7705where fire ants are found. For, as common experience teaches,

7715no dwelling is airtight, and many must be more vulnerable to

7726fire ant invasion than Washington Manor was shown to be. Yet,

7737although there is no evidence in the record on which to make a

7750finding on this point, common knowledge suggests that indoor

7759fire ant attacks on humans such as the one that occurred at

7771Washington Manor are rare events, making the Agency's premise

7780counterintuitive. Thus, the Agency's failure to offer any proof

7789concerning the degree and proximity of risk that fire ants pose

7800to persons sheltered inside buildings is a striking defect of

7810its case.

78124 / Ms. Mayo-Davis also frankly revealed her telling opinion that

7823a nursing home is always "at fault" when fire ants sting a

7835resident because the facility is "responsible for all things

7844that are happening [inside]." T-288.

78495 / The Agency neither alleged nor attempted to prove any

7860deficiencies either in the design or construction of, or

7869concerning the sufficiency of equipment at, Washington Manor.

78776 / The focus here is on whether the facility’s environment was

7889unsafe. Foreseeability in this context is concerned with

7897whether the injury which occurred (or is alleged to have been

7908threatened) could reasonably have been expected to be caused by

7918the act or omission alleged to constitute the deficiency. If a

7929reasonable person could not foresee the injury in question, then

7939the facility was “safe” under any fair and reasonable

7948understanding of that term.

7952Foreseeability of harm, as that concept is understood in

7961relation to causation, must be distinguished from the related

7970but distinct notion of proximity of danger, which is pertinent

7980to the assessment of a deficiency’s severity. The former (which

7990looks at the actual or threatened injury) raises the question:

8000Is this injury likely to be substantially caused by this

8010condition? It bears on the question whether the facility’s

8019environment was unsafe. The latter (which looks at the actual

8029or potential cause) poses the question: If this condition is

8039not corrected, is the foreseeable injury likely to occur

8048momentarily (imminent danger), soon (immediate relationship), or

8055sometime (indirect relationship)? It is the factor that

8063determines the severity of the deficiency if the environment was

8073unsafe. A negative answer to the first question obviates the

8083need to consider the second.

8088To appreciate the difference between these two concepts, imagine

8097a resident who is in imminent danger of suffering an

8107unforeseeable harm. The facility would reasonably be considered

8115safe up to the point of the resident’s injury, the proximity of

8127danger being unperceived. Therefore, the facility's environment

8134could not fairly be deemed unsafe – and the facility held

8145accountable for a Class I deficiency — after the unpredictable

8155harm had occurred, despite the fact, apparent only in hindsight,

8165that the proximity of danger would have satisfied the Class I

8176criteria could the potential for harm reasonably have been

8185appreciated. Conversely, imagine a handrail that is gradually

8193becoming loose due to inattention. A patient could fall and

8203break a hip as a result of this deficient condition: the injury

8215is foreseeable. Yet, even though the injury may be highly

8225foreseeable, the danger may not be imminent or even immediate;

8235rather, depending on how loose the handrail is, the threatened

8245danger may be merely potential, warranting the assignment of a

8255Class III rating to the deficiency.

8261COPIES FURNISHED:

8263Alba M. Rodriguez, Esquire

8267Agency for Health Care Administration

82728355 Northwest 53rd Street

8276Miami, Florida 33166

8279R. Davis Thomas, Esquire

8283Broad and Cassel

8286215 South Monroe Street, Suite 400

8292Post Office Box 11300

8296Tallahassee, Florida 32302

8299Sam Power, Agency Clerk

8303Agency for Health Care Administration

8308Fort Knox Building 3, Suite 3431

83142727 Mahan Drive

8317Tallahassee, Florida 32308-5403

8320Julie Gallagher, General Counsel

8324Agency for Health Care Administration

8329Fort Knox Building 3, Suite 3431

83352727 Mahan Drive

8338Tallahassee, Florida 32308-5403

8341NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

8347All parties have the right to submit written exceptions within

835715 days from the date of this R ecommended O rder. Any exceptions

8370to this R ecommended O rder should be filed with the agency that

8383will issue the F inal O rder in this case.

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Date
Proceedings
PDF:
Date: 09/13/2001
Proceedings: Agency Final Order
PDF:
Date: 09/13/2001
Proceedings: Final Order filed.
PDF:
Date: 05/07/2001
Proceedings: Recommended Order
PDF:
Date: 05/07/2001
Proceedings: Recommended Order issued (hearing held February 20-21, 2001) CASE CLOSED.
PDF:
Date: 05/07/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 04/20/2001
Proceedings: Proposed Recommended Order (filed by Petitioner via facsimile).
PDF:
Date: 04/20/2001
Proceedings: Proposed Recommended Order of Respondent filed.
PDF:
Date: 04/20/2001
Proceedings: Notice of Filing Trial Exhibit; Exhibits filed.
Date: 03/29/2001
Proceedings: Transcripts filed.
PDF:
Date: 03/15/2001
Proceedings: Order issued (proposed recommended orders are due by April 20, 2001).
PDF:
Date: 03/15/2001
Proceedings: Agreed Motion to Extend Time to File Proposed Recommended Order (filed by A. Rodriguez via facsimile).
PDF:
Date: 02/22/2001
Proceedings: Order of Severance and Closing File issued. (00-4734 ONLY is severed from the consolidated group and CLOSED.)
Date: 02/22/2001
Proceedings: Case(s): 00-004734
Date: 02/20/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 02/16/2001
Proceedings: Amended Joint Prehearing Stipulation (filed via facsimile).
Date: 02/15/2001
Proceedings: Subpoena Duces Tecum (A. Cruz), Subpoena Duces Tecum (C. Ramos), Verified Return of Service 2 filed.
Date: 02/09/2001
Proceedings: Notice for Deposition of Richard Patterson (filed via facsimile).
PDF:
Date: 02/01/2001
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for February 20 and 21, 2001; 10:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 01/31/2001
Proceedings: Agreed Motion for Continuance (filed via facsimile).
PDF:
Date: 01/30/2001
Proceedings: Order Granting Motion to Amend issued.
PDF:
Date: 01/29/2001
Proceedings: Amended Administrative Complaint (filed via facsimile).
Date: 01/29/2001
Proceedings: Notice of Deposition Duces Tecum of Cliff Ramos (filed via facsimile).
Date: 01/29/2001
Proceedings: Notice of Deposition Duces Tecum of Alex Cruz filed.
PDF:
Date: 01/29/2001
Proceedings: Motion to Amend the Administrative Complaint (filed via facsimile).
PDF:
Date: 01/26/2001
Proceedings: Joint Prehearing Stipulation (filed via facsimile).
PDF:
Date: 01/11/2001
Proceedings: Order Allowing R. Davis Thomas, Jr., to Appear as a Qualified Representative on Behalf of Petitioner issued.
Date: 01/04/2001
Proceedings: Amended Notice of Deposition Duces Tecum of Agency Representative (filed via facsimile).
PDF:
Date: 01/04/2001
Proceedings: Affidavit of R. Davis Thomas, Jr. (filed via facsimile).
PDF:
Date: 01/04/2001
Proceedings: Motion to Allow R. Davis Thomas, Jr. to Appear as Petitioner`s Qualified Representative (filed via facsimile).
Date: 01/03/2001
Proceedings: Notice of Deposition Duces Tecum of Agency Representative (filed via facsimile).
PDF:
Date: 12/14/2000
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 12/14/2000
Proceedings: Notice of Hearing issued (hearing set for February 6 and 7, 2001; 10:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 12/04/2000
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 11/22/2000
Proceedings: Order of Consolidation issued. (consolidated cases are: 00-004035, 00-004734, 00-004735)
PDF:
Date: 11/22/2000
Proceedings: Order Granting Continuance issued (parties to advise status by December 8, 2000).
PDF:
Date: 11/17/2000
Proceedings: Order Denying Motion for Continuance issued.
PDF:
Date: 11/15/2000
Proceedings: Joint Motion for Continuance (filed via facsimile).
PDF:
Date: 11/01/2000
Proceedings: Order Denying Motion to Dismiss issued.
PDF:
Date: 10/30/2000
Proceedings: Response to Motion to Dismiss (filed by Petitioner via facsimile).
PDF:
Date: 10/17/2000
Proceedings: Motion to Dismiss Petition for Formal Administrative Hearing (filed by Respondent via facsimile).
PDF:
Date: 10/11/2000
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 10/11/2000
Proceedings: Notice of Hearing issued (hearing set for November 28, 2000; 9:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 10/05/2000
Proceedings: Joint Response to Revised Initial Order (filed via facsimile).
Date: 09/29/2000
Proceedings: Initial Order issued.
PDF:
Date: 09/28/2000
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 09/28/2000
Proceedings: Notice filed by the Agency.

Case Information

Judge:
JOHN G. VAN LANINGHAM
Date Filed:
09/28/2000
Date Assignment:
09/29/2000
Last Docket Entry:
09/13/2001
Location:
Fort Lauderdale, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (9):

Related Florida Statute(s) (3):

Related Florida Rule(s) (2):