Caring Hands, Inc. v. Department of Human Resources

Pope, Chief Judge. Defendant, Caring Hands, Inc., appeals the trial court’s order granting plaintiff, Department of Human Resources (“DHR”), a per *854 manent injunction that prohibits defendant from continuing to oper ate a personal care home or other health care facility above its li censed capacity of six residents, and which compels defendant to tak immediate steps to relocate those residents presently living at th home over and above this licensed capacity. Additionally, defendan and its owners and officers, Wayne Putnam and June Putnam (th “Putnams”), appeal the trial court’s order holding them in wilful cor tempt for failing to obey the permanent injunction. In 1990, defendant was given approval by DHR to operate a Adult Day Rehabilitation Center (“ADR”) in Ranger, Gordo County, Georgia. The ADR was to provide day services only and nc 24-hour-a-day personal care. Since 1992, defendant also has operate a separate personal care home on the same property as the ADR. Thi personal care home is licensed to provide sleeping, eating and livin quarters for a maximum of six people. In September 1992, defendai built two dormitories adjacent to the ADR building and the personé care home. According to defendant these two dormitories were bui to provide living quarters for its ADR clients. Defendant began usin these dorms to house approximately thirty-five people prior to applj ing for a permit that would allow it to expand its personal care horn from a six resident facility to a forty-two resident facility. DHR firs learned of defendant’s use of the dormitories after an inspection ( the personal care home was conducted by the Gordon County Healt Department on September 15, 1992. The health inspector determine that the home was operating above its licensed capacity and furthé observed that many of the facility’s residents appeared to need se: vices beyond those which a personal care home is authorized to pr< vide. It was not until after this inspection that defendant applied f( an expansion permit. After receiving defendant’s application to expand its person; care home, DHR did nursing assessments on the home’s residents an conducted inspections of the dormitories. During a nursing asses ment, which occurred on October 29, 1992, DHR determined that ¡ least 19 of the 41 total residents assessed were not appropriate placed in the personal care home because they either needed servia beyond those authorized to be delivered in a personal care home se ting, or because they were unable to recognize or react to an erne gency situation. During an inspection of the premises on March 1 1993, DHR found numerous deficiencies. Specifically, DHR dete mined that several of the residents did not meet the definition “ambulatory adult” and therefore should not have been housed in personal care home. DHR also determined that the dormitories hi an inadequate number of bathing facilities, improper door handl and a lack of adjoining living and sleeping areas. Additionally, DH noted that the dormitories did not meet fire safety requirements. P *855 these deficiencies were recorded in an inspection report which was given to defendant. The inspection report also directed defendant to remove all non-ambulatory residents from the premises within 30 days. On April 20, 1993, another inspection took place, during which DHR found that defendant had made no improvements to the dormitories and that the characteristics of the residents had not changed. On May 28, 1993, based on the March and April assessments and inspections, DHR denied defendant’s application to expand. Defendant initiated an administrative appeal, but subsequently withdrew this ippeal. On June 22, 1993, a follow-up inspection took place. Again, DHR found that no changes had been made to the condition of the dormi-;ories. During another follow-up inspection on August 9, 1993, the mly changes DHR found were that the door handles had been replaced and the dorms had obtained a certificate of occupancy from he fire marshal. However, on August 20, 1993, this certificate of occupancy was revoked upon re-inspection by the fire marshal. An addi-;ional nursing assessment during this period revealed that resident haracteristics had remained basically the same except that residents ippeared to be more in need of skilled nursing care. Restraints were found on at least three residents and DHR observed that approxi-nately twenty-eight of the forty-one residents could not respond appropriately to an -emergency situation. DHR issued a letter on September 3, 1993, requiring defendant ;o submit a plan for the relocation of its residents that would reduce he resident population to its licensed capacity by October 11, 1993. This plan was to be submitted no later than September 10, 1993. Defendant was informed that if it failed to do this then DHR would seek ippropriate injunctive action. DHR also informed defendant that if it leeded assistance in relocating its residents, it should contact the ^dult Protective Services of the Gordon County Department of Famly & Children Services. Defendant failed to provide a relocation plan ;o DHR, but continued to house more than six residents at its facility. Consequently, DHR filed its verified complaint for injunction on Sep-ember 23, 1993, alleging that defendant was operating a personal :are home without the required permit or license contrary to OCGA i 31-7-3. Hearings were held on DHR’s request for preliminary and permanent injunctive relief on October 7,1993 and November 8,1993. 5y order dated November 11, 1993, the trial court granted DHR’s equest for permanent injunction and enjoined defendant from oper-iting a personal care home or other health care facility beyond its icensed capacity of six residents. Defendant was further ordered to nsure that the residents housed in its licensed six person personal are home were appropriate for personal care. Additionally, the court *856 ordered defendant to take immediate steps to have those resident housed in the dormitories relocated from its premises, said relocatio to be completed immediately as allowed by law. Defendant filed it first notice of appeal on November 16, 1993, objecting to the trii court’s November 11, 1993 order granting DHR’s request for an ir junction. This appeal was docketed in this court as Case Nc A94A0947 on January 21, 1994. On November 23, 1993, DHR learned from the Gordon Count Health Inspector that defendant had not complied with the terms ( the injunction. Subsequently, DHR filed a verified motion for cor tempt against defendant on November 24, 1993. The motion w£ heard on December 7, 1993. In an order dated December 9, 1993, tl trial court held that the defendant and its owners and officers, tl Putnams, were in wilful contempt because they had made no attemi to accomplish relocation of the personal care home’s residents. Di fendant was fined and the Putnams jailed. The contempt proceedir was continued by the court until December 16, 1993. At the Decen ber 16 hearing the court again found defendant and the Putnams i wilful contempt, noting that although some attempt to effect reloc¡ tion had been made, in actuality there were two more residents at tl home as of December 15, 1993, than there were on. December 3, 199 The trial court ordered that defendant be fined and that the Putnan be jailed until such time as they reduced defendant’s resident popul tion to six or until defendant obtained an appropriate license. D fendant and the Putnams filed an application for supersedeas and notice of appeal regarding the trial court’s finding of contempt. Th appeal was docketed in this court as Case No. A94A1431 on Man 17, 1994. To date, the trial court’s final contempt order, which dated December 27, 1993, has not yet been executed. The appeals both cases originally were transferred by this court on March 22, 195 to the Supreme Court of Georgia, this court being of the opinion th Case No. A94A0947, which is from the trial court’s order granting permanent injunction, involves questions of equity, and therefoi falls within the Supreme Court’s jurisdiction under Art. VI, Sec. \ Par. Ill of the Constitution of the State of Georgia. The Suprer Court, however, transferred the cases back to this court on April 1994. We note that when these appeals were before the Supreme Cou of Georgia, both parties requested that the appeals be expedite Upon transfer of the cases back to this court we attempted to comp with the request for expedited review and scheduled oral argume for June 1, 1994. On May 20, 1994, however, Caring Hands’ attorn* Ralph McCallum, Jr., died. In light of Mr. McCallum’s death tin court, upon Caring Hands’ pro se motion, rescheduled oral argumeiH out of term, for September 6, 1994. Said argument was heard on thH *857 late. Case No. A94A0947 1. The first appeal turns on the issue of whether the trial court bused its discretion in granting DHR’s request for permanent in-anction. In cases such as this, the standard of review is whether or ot the trial court manifestly abused its discretion. Slaven v. Buford, 57 Ga. 100 (355 SE2d 663) (1987). In its first two enumerations, defendant argues that the trial ourt, in issuing its November 11, 1993 order requiring defendant to nmediately remove residents from its unlicensed facility, erred by ot taking into consideration evidence as to the feasibility or conse-uences of such an order, and that relocation of the residents under Eie circumstances was impossible. In its third enumeration, defendant aims that the mandatory injunction is not specific enough in its rms and fails to describe in reasonable detail the act or acts man-ated by the court. Although we do not specifically address defendant’s first two numerations of error here, we do find that the record in this case emonstrates that the trial court put a great deal of consideration ito its decision to grant the permanent injunction against defendant, loreover, we recognize the trial court’s concern with the fact that efendant has, for well over a year, continued to operate its personal ire home knowing that it lacked the appropriate license and further nowing that many of its residents were inappropriate for personal ire home living. Additionally, we can sympathize with the trial mrt’s frustration with defendant’s continued lack of effort to either itain the appropriate license or otherwise ensure that its residents ere relocated to appropriate facilities based on their individual ieds. Indeed the record supports the statements in the trial court’s ovember 11, 1993 order that defendant’s actions, or lack thereof, >me dangerously close to bad faith in this case. In sum, we wish to ress that we are not in any sense condoning the defendant’s actions . this case. Nevertheless, we are compelled by our paramount con-¡rn for the residents, most of whom are elderly and suffer from vary-g ailments, to hold that the issuance of the trial court’s November ., 1993 order, which mandates that defendant take immediate steps relocate those residents housed in the dormitories and further re-lires that such relocation be completed immediately as allowed by w, constitutes error and a manifest abuse of discretion by that court scause the order provides no detailed guidance to defendant, its resi-Isnts or their families as to how they are to effectuate the relocation, lie order also fails to set out any reasonable timetable within which location should be completed. *858 OCGA § 9-11-65 (d) provides that, “[e]very order granting an in junction and every restraining order shall be specific in terms; shal describe in reasonable detail, and not by reference to the complaint o: other document, the act or acts sought to be restrained; and is bind ing only upon the parties to the action, their officers, agents, servants employees, and attorneys, and upon those persons in active concert o participation with them who receive notice of the order by persona service or otherwise.” Id. It is only logical to require that orders whicl compel a party to take some action be at least as specific, if not mon so, as orders which seek to restrain some action. Consequently, w hold that the specificity requirement of OCGA § 9-11-65 (d) applie equally to mandated acts, such as those found here, and acts of re straint. In this case, the trial court’s November 11, 1993 permanent in junction order states as follows: “Defendant should be and is hereb ENJOINED from operation of a personal care home or other healt care facility beyond the six residents for which it is presently licensee Defendant is further ordered to ensure that residents housed in th six person personal care home are appropriate for personal care. De fendant is ORDERED to take immediate steps to have those res dents housed in the dormitories relocated from its premises. Such r« location shall be completed immediately, as allowed by law.” Unde the circumstances set forth in this case, we find that the above orde does not meet the requirements set forth in OCGA § 9-11-65 (d). Th order fails to set forth, in reasonable detail, a plan under,which de fendant’s residents can be orderly, efficiently and safely relocated 1 other facilities suitable to their individual needs. The order also fai to set forth a reasonable time limit in which relocation should 1: completed. Although relocation within ten days is probably possibl our concern is that any attempt at relocation within such a short p< riod of time would place an undue burden on the residents and the families and might otherwise be detrimental to the residents’ healt and well-being. We therefore remand this case back to the trial court with tl instruction that the court order both parties in this case to subm plans for the orderly, efficient and safe relocation of the residen from defendant’s unlicensed facility. The plans shall set forth in re sonable detail a timetable within which each party reasonably b lieves that relocation can be accomplished. In developing this timetl ble, the parties should take into consideration any foreseen difficulti in said relocation, including, but not limited to, the availability of e ternative facilities and the locations of such facilities. Moreover, a sessments of each resident’s condition and individual needs shall 1 made by the parties, either in conjunction with each other or sep rately, to determine what type of facility is appropriate for each res *859 lent. This information shall be supplied to the trial court along with i list of each resident’s name and a corresponding prognosis of their ondition. The plans also shall contain a list of each resident’s legal ;uardian or next of kin. Additionally, the parties should submit any ither relevant information they believe to be necessary to the orderly, fficient and safe relocation of the residents. Decided October 18, 1994. June Putnam, pro se. Edwin Marger, for appellants. Michael J. Bowers, Attorney General, William C. Joy, Mary F. ussell, Senior Assistant Attorneys General, Margot M. Cairnes, As-stant Attorney General, Velma C. Tilley, for appellee. The plans shall be submitted to the trial court within a reasonable time limit set by that court. Upon review of the two plans, the rial court should issue another injunctive order, which shall be spe-ific as to the court’s findings warranting the grant of injunctive relief, nd shall be detailed as to the acts that each party shall perform in ffectuating relocation. The trial court should also set up a specific imetable, within which performance of the acts mandated by the ourt shall be completed. The residents’ next of kin or legal guardians hould be notified of the trial court’s order so that they may assist in re timely relocation of the residents. Failure to comply with the trial ourt’s new order will subject defendant and the Putnams to the ourt’s contempt powers, including the imposition of fines. Case No. A94A1431 . In the second appeal defendant and the Putnams argue that the rial court’s order of December 27, 1993, finding them in contempt of ourt for failing to comply with the court’s November 11,1993 perma-ent injunction order, constitutes error. Although it is clear from the icord that the Putnams and defendant essentially made no attempt o accomplish relocation of the residents located at the unlicensed ortion of defendant’s facility or otherwise comply with the trial ourt’s order, our holding in Division 1 of this opinion dictates that e reverse the trial court’s finding of contempt. Case No. A94A0947 remanded with instruction. Judgment in No. A94A1431 reversed. McMurray, P. J., and Smith, J., concor