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12/22/88 Riviera Manor, Inc., v. the Department of Public

December 22, 1988





536 N.E.2d 1212, 182 Ill. App. 3d 800, 130 Ill. Dec. 1 1988.IL.1854

Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.


PRESIDING JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.


The plaintiff, Riviera Manor, Inc. (Riviera), is a licensed nursing home which was cited for several violations of the 1967 National Fire Protection Association Life Safety Code (see 77 Ill. Adm. Code 200.906 (1986)) (Life Safety Code) by the defendant, the Illinois Department of Public Health (Department). Following administrative proceedings, the Department assessed a $5,000 penalty and imposed a six-month conditional license. Riviera filed a complaint for administrative review, and the trial court confirmed the decision of the Department. Riviera has appealed, contending that: (1) the findings of the Department concerning the alleged violations of the Life Safety Code were against the manifest weight of the evidence; (2) the Department abused its discretion in classifying the purported violations as "type A" violations supporting imposition of the most severe penalties; (3) the inspection provisions of the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-101 et seq.) (Act) are unconstitutional; (4) even if the Act is constitutional, the Department agents exceeded their authority in conducting an unreasonable inspection of the facility; and (5) the hearing officer abused his discretion in refusing to admit certain evidence offered by Riviera.

Riviera is licensed as a skilled and intermediate care facility owned and operated by Gus Potekin. In the early 1970s Riviera began to accept mental patients from State-operated facilities, and at the time of the administrative proceedings here, approximately 90% of its 170 residents were chronically mentally ill or severely retarded. Because of the nature of its resident population, Riviera experienced serious problems with patients wandering out of the facility.

On September 19, 1985, the Department received a hot-line complaint concerning safety violations at Riviera. Pursuant to this complaint, Department inspector Mario Vitale went to the facility at approximately 10 a.m. on September 25, 1985, to conduct an on-site inspection. Vitale was an architect and as such was concerned with the life-safety aspects of the facility. Vitale testified that when he arrived at Riviera, he observed two sets of doors at the front entrance. The outside doors led to a foyer and were unlocked. However, the interior foyer doors were locked and controlled by a buzzer located at the front desk. When Vitale asked whether Riviera had approval for electric locks, he was shown a copy of a letter from Gus Potekin to a Department administrator, Helen Steadman, thanking her for "granting us the use of an electric buzzer on the two interior doors." The letter was dated September 24, 1971.

Once inside, Vitale was accompanied on his inspection by Riviera's administrator, Betty Frey. During the inspection, he observed that the hallway door leading to Room 124 was secured with a dead-bolt cylinder lock. Although there was a lighted exit sign above the door, it could not be opened without a key and did not have panic hardware. Vitale defined panic hardware as a device used to disengage a locked door in the event of an emergency. Upon gaining access to Room 124, Vitale observed that the door leading to the outside was locked by means of a horizontal latch bolt going from the door into the door frame. The bolt was located approximately 10 inches above the floor. An exit sign above the door was not lighted, and although the door had panic hardware, it could not be operated because of the latch bolt near the floor.

Vitale further testified that the hallway door leading to Room 138 was secured by a dead-bolt lock. The door providing egress from Room 138 to the outside of the building opened into an area closely confined by a chain link fence secured by a locked gate. Vitale stated that there was no safe area of refuge between the door and fence.

On the southeast side of the building, there was an exit provided by two doors. The right door was inoperable. The left door opened, but provided inadequate clearance and did not latch properly. There were two doors allowing egress from the basement. One led to a ramp which ended at a padlocked chain link fence, and the other led to a stairway which ended near the locked foyer doors.

As a result of his inspection, Vitale concluded that 4 1/2 of the 8 available exit doors were locked. Two of the remaining doors led to areas closely confined by a fence. Only one exit provided access to a public way. Vitale testified that in his opinion, the locked doors constituted a "type A" violation under the Act, which is defined as a violation "presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom." Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-129.

Vitale conducted a second inspection which began on the evening of October 8, 1985, and continued into the early morning hours of the following day. Vitale was accompanied by Daniel Schmidt, a State Police officer assigned to the Department. Vitale and Schmidt toured the outside of the facility for 15 minutes, then knocked at the front door and showed their photo identification cards to a woman who appeared at the door. She told them that she had to get the keys and walked away. After waiting approximately five minutes, the agents slipped the mechanism on the lock and gained entry to the facility. During the inspection that followed, Vitale and Schmidt found substantially the same conditions that existed on September 25. An incident report prepared by a Riviera employee concerning the October 8, 1985, inspection was not admitted into evidence.

Gus Potekin testified that Riviera had received permission from the Department for the front-door buzzer in 1971 and referred to the letter he wrote to Helen Steadman thanking Steadman for granting permission for the buzzer. Potekin stated that he showed the letter to the State Fire Marshall, who approved the facility on October 4, 1971. Potekin claimed that he had received permission to place locks on Rooms 124 and 138 and on the gate at the end of the basement ramp in 1974. Because of the serious problem of residents wandering out of the facility, Potekin drew up a floor plan showing the doors which were to be locked and submitted the plan for approval to Helen Steadman. According to Potekin, the letter referred to section 10 -- 0004 of the Life Safety Code, which pertains to the locking of doors in buildings housing psychiatric patients. The attached floor plan, which was admitted into evidence at the administrative hearings, was dated March 4, 1974, and showed red Xs on the front interior doors, the hallway doors leading to Rooms 124 and 138, the east dining-room exit and the gate outside the basement ramp. The plan also contained the notation, written in red, "or where ever necessary from time to time." The plan was marked "received for tentative approval" by a Department health surveyor, Nicholas Colaizzi.

Potekin testified that in response to his request to secure the areas in question, he received a letter from the Department's program architect, Don Jardine. The letter ...

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