In Re: Petition for Variance from Emergency Rule 58AER17-1, Florida Administrative Code, filed by Casa de los Angeles, LLC STATE OF FLORIDA DEPARTMENT OF ELDER AFFAIRS / DOEA No. 2017-0074 FINAL ORDER DENYING A TEMPORARY VARIANCE FROM RULE 58AER17-1, FLORIDA ADMINISTRATIVE CODE The State of Florida, Department of Elder Affairs (Department) received the incorporated Petition 1 for Variance from Emergency Rule 58AER17-1, Florida Administrative Code (Petition) filed by the above named Petitioner with the Agency Clerk on October 17, 2017. After reviewing the Petition and any supporting attachments, the Department denies Petitioner s request for a temporary variance for compliance with subsection (1) of Emergency Rule 58AER17-1 related to the Facility s detailed plan for compliance and denies the variance request to comply with the provisions of subsection (2) of Emergency Rule 58AER17-1 related to the implementation of the Facility s detailed plan for compliance. GENERAL BACKGROUND AND PETITION ALLEGATIONS 1. The Agency received the incorporated Petition for Variance from the provisions of Rule 58AER17-1, Florida Administrative Code. 2. The statutory authority of the Department to grant a waiver or a variance from its rules is derived from Section 120.542(1)-(2), Florida Statutes (2017). 3. The administrative rule that is the subject of this Petition is Emergency Rule 58AER17-1 (the Rule) entitled Procedures Regarding Emergency Environmental Control for 1 The Petition is hereby incorporated by reference. The Petition is not attached as an exhibit in order to avoid redundancy. The Petition can be found on the Department s website, www.elderaffairs.state.fl.us. 1
Assisted Living Facilities. The intent of the Rule is to limit the multitude of potentially dangerous situations that arise in an emergency. If a majority of the assisted living facilities are operating under stable conditions where temperatures are safe and emergency power is working appropriately, then unanticipated challenges such as a generator failure or a fuel shortage can be addressed on an expedited and controlled basis. If local emergency responders only needed to address a small percentage of issues, as opposed to widespread issues, that allows more flexibility to assist with generator repairs and other like issues. 4. The underlying statute for Emergency Rule 58AER17-1 is section 429.41, Florida Statutes (2017). This statute authorizes the Department to adopt rules establishing reasonable and fair minimum standards in relation to... [the] maintenance of facilities..., relating to plumbing, heating, cooling, lighting, ventilation, living space, and other housing conditions, which will ensure the health, safety, and comfort of residents. See 429.41(1)(a), Fla. Stat. (2017). 5. The allegations of fact set forth within the Petition are accepted as fact solely for the purposes of this Final Order. 6. The Petitioner seeks a variance that would allow it additional time to comply with the planning and the implementation of the provisions of the Rule. The Petitioner recognizes its duty to safeguard the needs of its residents, but maintains that it needs additional time to fully comply with the requirements of the Rule. Without a variance, the Petitioner would be subject to the imposition of administrative fines and possibly license revocation. 7. The Petitioner maintains that a strict application of the Rule will result in a substantial hardship on the Petitioner or violate principles of fairness. 2
CONCLUSIONS OF LAW 8. The Department has substantive jurisdiction over this matter as the regulatory agency responsible for the promulgation of rules for assisted living facilities. See Chapter 429, Fla. Stat. (2017). The Department is the proper state agency to issue an order on a petition for a variance from or a waiver of one of its administrative rules. 9. Under section 120.542, Florida Statutes, the Petitioner is required to show that the purpose of the underlying statute, in this case section 429.41, Florida Statutes, will be or has been achieved by other means. In addition, a Petitioner is required to show that the application of the Rule to the Petitioner creates a substantial hardship or violates principles of fairness. 10. The facts set forth within the Petition, which have been accepted as true solely for purposes of this proceeding, demonstrate that the purpose of the underlying statute will not be achieved by other means by the Petitioner thereby not fulfilling their duties under section 429.41, Fla. Stat. (2017). 11. The facts set forth in the Petition do not warrant and justify a temporary variance of 90 days from the date of this order to comply with the provisions of subsection (1) of the Rule related to the Petitioner s detailed plan for compliance the Petitioner has not provided the Department with sufficient information to conclude that a good-faith effort has been made to comply with the Department s rule. Although the Petitioner notes having discussed the Rule s requirements with a fire marshal, and noted that the Petitioner will continue to follow up with the generator companies to see when they will receive generators, the Petitioner has not exhibited significant steps in the plan towards compliance. Therefore, the facts set forth in the Petition do not warrant and justify a temporary variance of 180 days from the date of this order to comply with the provisions of subsection (2) of the Rule related to the implementation of the Petitioner s 3
detailed plan for compliance. 12. The Department is aware that there may be a change in the law, either by statute or by rulemaking. In such an instance, the new statute or rule would control and dictate the regulatory requirements to safeguard assisted living facility residents. This order does not prohibit the Petitioner from seeking an additional variance after this temporary variance expires if the Petitioner is able to satisfy the requirements for an additional variance. Based upon the above, it is ORDERED: 1. The Petition for Variance from Emergency Rule 58AER17-1 is DENIED as set forth above. ORDERED in Tallahassee, Florida, on this 16th day of November, 2017. Jeffrey S. Bragg, Secretary Florida Department of Elder Affairs NOTICE OF RIGHT OF REVIEW A party that is adversely affected by this order is entitled to request an administrative hearing pursuant to sections 120.569 and 120.57, Florida Statutes. In order to obtain a formal proceeding before the Florida Division of Administrative Hearings under section 120.57(1), Florida Statutes, the request for an administrative hearing must conform to the requirements in Rule 28-106.201, Florida Administrative Code, and must state the material facts in dispute. The request for hearing must be filed with the Agency Clerk for the Department of Elder Affairs within 21 days of the receipt of this order. If the request for hearing is not timely received by the Agency Clerk by 5:00 p.m. Eastern Time on the 21st day, the right to a hearing will be waived. Electronic mail is acceptable. The address and facsimile number of the Agency Clerk are: Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, FL 32399-7000, Facsimile (850) 414-2126; agencyclerk@elderaffairs.org 4
CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the belownamed persons by the method designated on this 16th day of November, 2017. Lissette Grafals Authorized Representative Casa de los Angeles, LLC 1239 Myrtle Street Orlando, FL 32807 lissettegrafals@gmail.com Keisha Woods Assisted Living Unit Manager Agency for Health Care Administration Keisha.Woods@ahca.myflorida.com Francis Carbone, Agency Clerk Department of Elder Affairs 4040 Esplanade Way Tallahassee, Florida 32399-7000 (850) 414-2342 Joint Administrative Procedures Committee joint.admin.procedures@leg.state.fl.us 5