81 A.D.2d 1014 | N.Y. App. Div. | 1981
— Determination unanimously confirmed and petition dismissed, without costs. Memorandum: In this article 78 proceeding petitioner seeks to annul a determination of the New York State Department of Health which revoked her nursing home operating certificate because of various violations of regulations concerning construction and safety standards. Petitioner, the owner and operator since 1958 of the two-story wood frame nursing home, was charged by a notice dated June 14, 1976 with 135 violations of article 28 of the Public Health Law and of the regulations promulgated thereunder for existing nursing homes which incorporate the Life Safety Code, State Hospital Code and American National Standards Institute standards (10 NYCRR Part 700 et seq.). A substantially similar amended notice dated July 30, 1976 was later served. Following a hearing, the hearing officer sustained certain of the charges and concluded that the most critical issues related to the structure of the facility, which he found was neither “protected wood frame” or “fire resistive” and that “these violations adversely affect the health, safety and welfare of the occupants”. He recommended revocation of petitioner’s operating certificate. Respondent adopted the findings and conclusions of the hearing examiner and held that the nursing home was not and could not be made reasonably safe or functionally adequate for nursing home occupancy. He denied petitioner’s requests for waivers and modifications, revoked the operating certificate, and provided a general plan for closing the facility. Petitioner’s argument, that the relevant administrative construction standards and waiver regulations had been declared unconstitutional (Matter of Levine v Whalen, 39 NY2d 510; Matter of Koelbl v Whalen, 63 AD2d 408) and that, thus, she could not be guilty of their violation, is without merit. We hold that the regulations which were applicable to petitioner’s nursing home are not those which were declared unconstitutional in Levine and Koelbl and that the applicable regulations are constitutionally sound. The regulations governing nursing homes were variously amended in the period surrounding the filing of the charges against petitioner. The regulations which were relevant in determining the validity of these charges no longer included such modifying words as “determined”, “acceptable”, “approved” or “permitted” which the