99-004349 Agency For Health Care Administration vs. Gene A. Grier, D/B/A El-Amin Shelter And Care, Inc. Status: Closed Recommended Order on Monday, June 12, 2000.

Summary: Agency established that Respondent committed five Class II violations in an Assisted Living Facility; $750 fine imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-4349

)

GENE A. GRIER, d/b/a EL- AMINS )

SHELTER & CARE CENTER, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on April 27, 2000,

in Jacksonville, Florida, before Donald R. Alexander, the

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration

Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5803

For Respondent: Gene A. Grier, pro se

El- Amins Shelter & Care Center

2035 Baldwin Street

Jacksonville, Florida 32209

STATEMENT OF THE ISSUE

The issue is whether Respondent should have a civil penalty

in the amount of $1,500.00 imposed for failing to timely correct

five violations of administrative regulations, as alleged in the

Administrative Complaint filed by Petitioner on September 2,

1999.

PRELIMINARY STATEMENT

This matter began on September 2, 1999, when Petitioner,

Agency for Health Care Administration, issued an Administrative

Complaint charging that Respondent, Gene A. Grier, doing business

as El- Amins Shelter & Care Center, a licensed assisted living

facility, had failed to timely correct five violations of

administrative rules discovered during the course of two

inspections by Petitioner in June and August 1999. Because of

these omissions, Petitioner intends to impose upon Respondent a

civil penalty in the amount of $1,500.00.

Respondent denied the allegations and requested a formal

hearing under Section 120.569, Florida Statutes, to contest the

charges. The matter was referred by Petitioner to the Division

of Administrative Hearings on October 13, 1999, with a request

that an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated October 28, 1999, a final

hearing was scheduled on December 20, 1999, in Jacksonville,

Florida. At the request of Petitioner, the matter was

rescheduled to April 27, 2000, at the same location.

At the final hearing, Petitioner presented the testimony of

Robert A. Cunningham, a health facility evaluator II. Also, it

offered Petitioner's Exhibits 1-8. All exhibits were received in

evidence. Respondent testified in his own behalf and offered

Respondent's Exhibits 1, 2, 10, 13, 13A, 13B, 18, and 20-22,

which were received in evidence.

The Transcript of the hearing was filed on May 12, 2000.

The exhibits were retained by the court reporter pending the

preparation of the Transcript; they were then forwarded to the

agency. After numerous requests, the agency eventually filed the

exhibits with the undersigned on June 6, 2000. Proposed Findings

of Fact and Conclusions of Law were filed by Petitioner and

Respondent on May 18 and June 5, 2000, respectively, and they

have been considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. When the events herein occurred, Respondent, Gene A.

Grier (Respondent), was licensed to operate an assisted living

facility ( ALF) under the name of El- Amins Shelter & Care Center

at 2035 Baldwin Street, Jacksonville, Florida. As an ALF,

Respondent is subject to the regulatory jurisdiction of

Petitioner, Agency for Health Care Administration ( AHCA).

Although the facility was licensed to handle up to 11 residents,

Respondent had only 5 or 6 residents when the events occurred.

2. When it receives a complaint from a third party about a

licensed facility, AHCA has the regulatory responsibility of

conducting an inspection to ensure that the facility is complying

with certain standards embodied in Chapter 58A-5, Florida

Administrative Code. If standards are not being met, depending

on their nature and severity, the deficiencies are classified as

Class I, II, and III violations, with Class III being the least

serious violation. After the deficiencies are noted in a Summary

of Deficiencies, the facility is given a time certain in which to

correct those violations. If no correction is made, AHCA

normally imposes a civil penalty upon the erring facility.

3. Respondent is charged with having failed to timely

correct five Class III violations. That class of deficiency is

one which the agency determines to have an indirect or potential

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

home residents.

4. On an undisclosed date, the Jacksonville office of the

Human Rights Advocacy Committee (Committee), an independent

organization which monitors residents in ALFs, filed a complaint

against Respondent and certain other ALFs in the Jacksonville

area alleging that the facilities were not in compliance with

AHCA regulations in various respects. In response to that

complaint, on June 25, 1999, an AHCA health facilities evaluator,

Robert A. Cunningham (Cunningham), conducted an unannounced

inspection of Respondent's facility.

5. During his inspection, Cunningham noted, among other

things, that Respondent "did not ensure that there [was] at least

one staff member on duty at all times who [had] certification in

an approved first-aid and CPR course"; that Respondent's menus

were not "reviewed, signed, and dated by a Registered Dietician";

that Respondent's menus "were not dated and planned at least one

week in advance for regular and therapeutic diets"; that the

facility's "dry and canned foods were not dated"; and that "the

interior and exterior of the buildings and grounds were not kept

reasonably attractive" in various respects, including a "broken

mirror in the hall and peeling ceilings." Each of these

deficiencies contravened an agency rule and constituted a Class

III violation.

6. After the inspection was completed, Respondent was given

a copy of the Summary of Deficiencies and advised that the

deficiencies must be corrected by July 25, 1999.

7. On August 11, 1999, or approximately six weeks after the

first inspection, Cunningham conducted a second inspection of

Respondent's facility. While some of the violations had been

remediated, Cunningham noted that none of the deficiencies cited

in paragraph 5 had been corrected. At hearing, Respondent

admitted that except for the violations pertaining to dated

canned goods and a broken mirror, to which he takes "strong

exception," the remaining violations were uncorrected.

Therefore, the allegations pertaining to the remaining violations

have been established. As to the two violations which Respondent

has denied, the more persuasive evidence supports a finding that

they were also uncorrected as of August 11, 1999.

8. Even so, Respondent contended that he was only given one

follow-up inspection, while two other ALFs, one in Jacksonville

and the other in Hilliard, were given at least two follow-up

inspections in which to correct violations discovered during

their initial inspection. According to Respondent, he "got the

treatment" from the inspector, while the others did not, and his

facility was labeled a "hell hole." At the same time, Respondent

suggested that if he had been given additional time like the

others, he would have eventually corrected the deficiencies.

9. While it is true that two other facilities were given

more than one follow-up visit, the number of follow-up visits is

a discretionary matter on the part of the evaluator, depending on

the nature and severity of the violations and other

circumstances. Here, there was no abuse of discretion shown on

the part of the inspector, and Respondent presented no compelling

reason why he was unable to correct the violations within the

six-week period between the first and second inspections, or why

he needed more than a normal period of time to correct a

particular violation. It is noteworthy that both of the

facilities which were given two follow-up inspections were also

fined.

10. Respondent further contended that the Committee which

filed the complaint was biased against him and unjustly singled

him out. Even if this is true, however, AHCA is legally required

to investigate all complaints, even if anonymous and no matter

what their underlying motivation, to determine if the allegations

are true. This is because ALFs are entrusted with the care of

elderly persons and require special oversight by AHCA. In this

case, the evidence shows that Respondent was not singled out, and

that the Committee triggered inspections of several other area

ALFs.

11. While one of the two deficiencies alleged by the

Committee to be present in Respondent's facility was later

determined to be unfounded, one was substantiated, and during the

inspection, the evaluator found a number of other violations at

the facility. The fact that the Committee also filed complaints

against Respondent with the Department of Children and Family

Services, City Code Enforcement Board, and County Health

Department regarding alleged violations is of no concern here.

12. At hearing, Respondent also contended that he was

denied due process because the Committee failed to honor its own

procedural rules (regarding notice and the use of a check list)

and it has no expertise in operating an ALF. However, AHCA (and

not the Committee) is the agency which has regulatory

jurisdiction over Respondent's facility, and there is no evidence

that AHCA's inspections failed to comport with the law.

Therefore, the concerns about the Committee have no relevance

here.

13. Respondent further contended that the Committee's

complaint, and the inspector's evaluation, were based on a 1999

version of administrative rules, even though the rules did not

become effective until after the recommendation for sanctions was

made. The evidence shows, however, that the evaluator used the

then-effective 1995 version of rules, and the later-adopted rules

were never considered nor used during the inspection.

14. According to Respondent, he has been licensed for 27

years, first by the Department of Health and Rehabilitative

Services, and then AHCA. This was not contradicted. There is no

evidence that he has ever violated any rules prior to this

proceeding. Finally, there is no evidence that the residents

were placed in jeopardy by the violations not being corrected by

August 11, 1999. These circumstances should be taken intoaccount

when determining the amount of a civil penalty to be imposed upon

Respondent.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

16. Because Respondent is subject to the imposition of an

administrative fine, Petitioner bears the burden of proving by

clear and convincing evidence that the allegations in the

Administrative Complaint are true. See , e.g. , Osborne Stern &

Co. v. Dep't of Banking and Finance , 670 So. 2d 932, 935 (Fla.

1996).

17. By clear and convincing evidence, Petitioner has

established that Respondent violated Rules 58A-5.019(5)(f), 58A-

5.020(1)(e), (h), and ( i), and 58A-5.022(1)(b), Florida

Administrative Code, as charged in the Administrative Complaint.

Therefore, Respondent is guilty of five Class III violations.

18. In reaching this conclusion, the undersigned has

considered Respondent's arguments that his facility was unfairly

treated in relation to two other facilities, that the Committee

was biased against him, and that he was given insufficient time

in which to correct the violations. For the reasons set forth in

the Findings of Fact, each of these contentions is found to be

without merit.

19. In its Proposed Recommended Order, Petitioner seeks to

impose a $300.00 penalty for each Class III violation, or a total

of $1,500.00. The source of authority for those penalties is

found in Section 400.419(3)(c), Florida Statutes (1997). This

provision authorizes AHCA to impose "a civil penalty of not less

than $100 nor more than $500 for each [uncorrected Class III]

violation." Because the statute contains a range of penalties,

this implies that the amount of the fine to be imposed depends on

the facts of each case and any mitigating or aggravating

circumstances that may be present.

20. Given the mitigating circumstances outlined in

paragraph 14, an administrative fine in the amount of $150.00 for

each Class III violation is appropriate, or a total fine of

$750.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a final order determining that the charges in the

Administrative Complaint have been sustained, and that Respondent

should have a $750.00 civil penalty imposed.

DONE AND ENTERED this 12th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 2000

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration

Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Michael O. Mathis, Esquire

Agency for Health Care Administration

Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Gene A. Grier

El- Amins Shelter & Care Center

2035 Baldwin Street

Jacksonville, Florida 32209

Julie Gallagher, General Counsel

Agency for Health Care Administration

Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

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.