02-004170 Agency For Health Care Administration vs. Blue Haven Retirement, Inc., D/B/A Blue Have Retirement Center Status: Closed Recommended Order on Friday, May 30, 2003.

Summary: Petitioner proved indirect threat to physical well being of residents, not a direct threat; therefore, only a Class III (not a Class II) violation. No fine because Respondent corrected the deficiency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4170

)

BLUE HAVEN RETIREMENT, INC., )

d/b/a BLUE HAVEN RETIREMENT )

CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing before P. Michael Ruff,

duly - designated Administrative Law Judge in Panama City,

Florida, on January 24, 2003. The appearances were as follows:

APPEARANCES

For Petitioner: Thomas R. Moore, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Alvin L. Peters, Esquire

Peters & Scoon

25 East Eighth Street

Pa nama City, Florida 32401

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Respondent has committed a violation of the

"physical plant standards" contained in Rule 58A - 5.023, Florida

Administrative Code, contended by AHCA to be a Class II

violation.

PRELIMINARY STATEMENT

This cause arose upon the receipt by the Agency for Health

Care Administration (AHCA or Agency) of a citizen complaint

concerning a certain purported deficiencies concerning residents

and the phy sical plant at the facility known as The Blue Haven

Retirement Center, the Respondent herein. On May 7, 2002, the

next day, the Agency's surveyor, Ed Melvin, spent about seven

hours at the Blue Haven facility investigating the citizen

complaint, reviewing records, interviewing residents and others,

and observing the operation and grounds of the facility. He

reported his findings in a survey report of May 7, 2002, citing

the Respondent for various deficiencies including two related to

a hole in the backyar d over the facility's septic tank. These

two deficiencies, with which the subject proceeding is

concerned, involved alleged failure to comply with resident care

standards and physical plant standards.

The matter was reviewed internally by AHCA and ultima tely

it filed its pleading charging that the Respondent had violated

both the specified regulatory resident care standards and the

physical plant standards. Upon filing its proposed recommended

order, however, the Agency announced its intention to withdra w

the allegations regarding the resident care standards. Thus the

Agency seeks to prove a violation and impose a fine for only

violation of the physical plant standards cited herein.

The Respondent upon being advised of the Agency's intent to

determine t hat a violation had occurred and to impose a fine

therefor, chose to contest that proposed agency action and

availed itself of the right to a formal proceeding before the

Division of Administrative Hearings. The cause was ultimately

transmitted to the und ersigned administrative law judge for

adjudication.

The cause came on for hearing as noticed. The Petitioner

presented four witnesses and six exhibits. Petitioner's Exhibit

C was admitted as corroborative hearsay and for the limited

purpose of explainin g the agency's position as to penalty.

Petitioner's Exhibits D, E, and F were admitted for purposes of

impeachment only. The Respondent presented five witnesses.

Upon concluding the proceeding, the testimony was transcribed

and the parties filed propose d recommended orders, after the

Agency sought and obtained one stipulated extension of the

filing time therefor. Those proposed recommended orders have

been considered in the rendition of this recommended order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida

charged with licensing and regulating adult living facilities.

The Respondent, Blue Haven Retirement, Inc., owns and operates a

16 bed adult living facility, The Blue Haven Retirement Center,

in Panama City, Florida. It was licensed by AHCA at all times

material to this proceeding.

2. On or about May 6, 2002, the Agency received a

complaint regarding events and circumstances existing at the

Respondent's facility. On May 7, 2002, the Agency surveyor,

Ed Melvin, began i nvestigating the complaint and spent

approximately seven hours at the Blue Haven facility conducting

an investigation by reviewing records, interviewing residents

and others, and observing the operation and grounds of the

facility.

3. Mr. Melvin executed a survey report on May 7, 2002,

detailing his findings. He cited the respondent for

deficiencies including two deficiencies related to a hole in the

backyard over the septic tank (where it had been pumped out in

the past). These two deficiencies were fo r alleged failure to

comply with "resident care standards" and with "physical plant

standards".

4. Although AHCA's pleadings charge that the Respondent

had violated both specified regulatory resident care standards

and the physical plant standards as obs erved by Mr. Melvin, on

May 6 and May 7, 2002, the Agency withdrew the allegations

regarding the resident care standards. Thus, the Agency

continues to prosecute this case based upon violation of the

physical plant standards only with regard to the circum stances

and perceived effects of the hole in the backyard of the Blue

Haven facility over its septic tank. The testimony and evidence

adduced at hearing clearly focused on facts surrounding the

existence of, and the circumstances pertaining to, the hole o ver

the septic tank and its alleged danger or potential danger to

residents of the facility.

5. In the course of his investigation on May 7, 2002,

Mr. Melvin observed a depression or hole in the ground over the

lid to the facility septic tank. He believ es the hole to be

somewhere between a foot deep to 18 inches deep at its maximum

depth. Mr. Fretwell, of the septic tank service company who had

pumped the tank out, testified that the hole was already

existing when he arrived to pump the septic tank out and he

could see the top of the tank in the bottom of the hole about a

foot to 14 inches below the ground surface. The hole over the

septic tank lid had sloped sides so that the holes depth varied

from a few inches to a foot or more at its deepest point. There

is no photograph in evidence showing the exact configuration of

the hole as it existed on May 7, 2002, when Mr. Melvin made his

inspection. Thus the hole was between a foot and a foot and

one - half deep at its deepest point, but was certainly more t han

a depression only two or three inches in depth as the Respondent

seemed to claim at one point in the Respondent's case. The hole

was between two feet square and three feet by two feet at the

top or where the depression or hole began to descend from th e

grade level or ground surface of the yard surrounding the area

in question. The hole was approximately 18 inches square at the

bottom. There was a slope from the ground surface to the bottom

of the hole. There is no evidence to clearly establish what

degree of slope existed, but it was more than a gentle slope.

There was no obstruction, shrubbery, brush, or structure

blocking access to the hole although there were four to six

boards or wooden slats covering the top of the hole, placed

about four inche s apart. There is no dispute that the septic

tank lid was intact and in place and that there was no sewage

leaking in the hole itself, even though the top of the concrete

septic tank could be seen at the bottom of the hole.

6. The residents of the facil ity are ambulatory and free

to walk about the premises, including the backyard where the

hole was located. The residents are a mix of people, some with

mental disabilities who had previously been residents of the

state hospital or various psychiatric faci lities. There is no

question that the residents are not of sufficient disability as

to require immediate close supervision. There is no requirement

that they be assisted in the normal activities of walking in a

safe fashion. Although the residents have a variety of either

psychological or physical problems or both, all are independent

ambulators who are able to walk unassisted.

7. The area of the hole was open, visible and well - enough

marked because the boards were so placed over the hole as to

draw an yone's attention who was walking in the area to the

existence of the hole or at least the boards and to alert people

of the hole's existence. There is no evidence that suggests

that any person has stepped into this space and suffered any

injury, or that t here has been any complaint about the hole in

the vicinity of the septic tank access point.

8. Mr. Melvin opined that the risk of the hole's existence

would be greater in hours of darkness or at night time because

of the lack of light. The evidence sh owed, however, that there

was ample light from two large overhead lights in the vicinity

of this area in the backyard of the facility.

9. Mr. Max Fretland who works for Hall Septic Tank Company

pumped out the septic tank in April of 2002. He testified t hat

he replaced the septic tank lid and covered the access point

with some dirt and the boards. He testified that when he left

in early April he did not perceive this area as a danger.

Cham Hewitt is a case manager with the "Life Management Center."

H e had clients at Blue Haven and was familiar with the area and

a frequent visitor to the facility. He testified that he was

familiar with the boards across the hole area and had seen them.

He did not perceive the area as a danger. Keith Peacock is a

res ident of Blue Haven retirement center and has lived there for

approximately four years. Mr. Peacock was aware of the space or

the hole but did not perceive it as a danger nor had he had any

problems slipping or tripping or falling in this vicinity. He

wa s unaware of anyone else having a problem with the area in

dispute (i.e. the hole).

10. Immanuel Connor is the husband of Verna Connor and is

a co - owner and worker at the Blue Haven retirement center. He

corroborated the fact that there were boards cove ring the septic

tank access point or hole. He also established that when

Mr. Melvin discovered the hole or deficiency involving the hole

that Mr. Melvin insisted that a concrete block structure be

built around the access point. Mr. Connor, with the assistance

of another worker promptly accomplished this, blocking access to

the hole (one wonders why the hole was not simply filled up and

the location of the septic tank access point marked so that any

future worker who was attempting to pump out the sep tic tank

would readily find the access point).

11. There is no question that, although a person could

step into the hole and possibly suffer a foot, or ankle or leg

injury, that an intervening event, such as a person failing to

see the boards covering t he hole, stepping into the area and

turning their foot so that it would go between the four inch

intervals of the boards would be a required event in order to

cause any harm to a resident. There is no substantial evidence

to clearly and convincingly sugge st that the residents were not

properly supervised with regard to use and access to this

portion of the premises.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceedin g. Sections 120.57(1) and 120.569, Florida Statutes.

13. The Agency has the burden of proven by clear and

convincing evidence that the Respondent Blue Haven Retirement

Center, Inc., was guilty of a Class II deficiency, as charged by

the Agency, which is defined in Section 400.419(1)(b), Florida

Statutes, and Rules 58A - 5.0182 and 58A - 5.023, Florida

Administrative Code. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932 (Flori da 1996); Ferris v.

Turlington , 510 So. 2d 292 (Florida 1987); Florida Department of

Transportation v. JWC Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

14. A Class II violation is designated under Section

400.19(1)(b), Florida Statutes as a conditi on that " directly

threaten[s ] the physical or emotional health, safety, or

security of the facility resident." The American Heritage

Dictionary defines "directly" as "(1) in a direct line or

manner; straight; (2) without anyone or anything

intervening; im mediately."

15. Analogizing to the jurisprudence relating to nursing

homes, Class II deficiencies are defined as those that impact

the health and well being of a resident as, for example, an

avoidable pressure sore. Beverly Enterprises - Florida v. Agency

for Health Care Administration , 745 So. 2d 1133, (Fla. 1st DCA

1999).

16. In the context of assisted living facilities operating

under Section 400.419(1), Florid Statutes, a Class III violation

is one that "indirectly or potentially threaten[s] the phys ical

or emotional health, safety, or security of facility residence.

The American Heritage Dictionary defines "potentially" as: "(1)

capable of being, but not yet in existence; latent."

17. The evidence shows in a clear and convincing manner

that the ho le in the ground at issue covered by the boards over

the septic tank access point had the potential to harm a person.

However, before that harm could come to pass an intervening

event would have to occur such as the failure of the person

walking in the vi cinity of the area of the hole to see the hole

or to see the boards covering the hole and then to have to step

into the area in such a fashion that the person's foot would

turn in such an orientation as to slip between the spaces

separating the boards (fou r inches). Such intervening events

would be necessary before a person could fall potentially

suffering an injury. Thus the clear and convincing evidence of

record does supports a finding of an indirect or potential for

harm to the facility residents but does not support a finding of

direct or immediate harm.

18. Accordingly, the clear and convincing evidence of

record establishes that a violation of Section 400.419(1), and

the above - cited rule has been established to the extent that an

indirect or poten tial threat to the physical safety of the

facility residents has been established but not a direct threat

to the physical security or safety of the facility residents.

Accordingly, a Class III violation has been established.

RECOMMENDATION

Having consider ed the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED:

That a Final Order be entered by the Agency for Health C are

Administration finding that a Class III violation in the above

particulars has occurred but, because the matter has been

corrected, that no fine be imposed.

DONE AND ENTERED this 30th day of May, 2003, in

Tallahassee, Leon County, Florida.

__________ _________________________

P. MICHAEL RUFF

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 30th day of May, 2003.

COPIES FURNISHED :

Thomas R. Moore, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Alvin L. Peters, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Heal th Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

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.