STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMMUNITY MEDICAL TRANSPORTERS, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-2189

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Michael Pearce Dodson, held a public hearing in this case on December 18, 1979, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: S. Steven Craycraft

Community Medical Transporters, Inc. 5270 Northwest 15th Street

Margate, Florida 33063

For Respondent: Harold Braynon, Esquire

District X Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

These proceedings began on October 16, 1979, when the Petitioner requested a hearing on Respondent's denial, dated September 27, 1979, of Petitioner's application for a temporary non-emergency medical transportation service license. On October 31, 1979, the matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. By a notice to all parties, the hearing was scheduled for December 18, 1979.

At the time noticed for the scheduled hearing, no one initially appeared for the Petitioner. After an inquiry by telephone from the undersigned to Mr. Craycraft, it was shown that by a letter written December 8, 1979, and mailed December 9, 1979, Mr. Craycraft had requested a continuance of the hearing.

That request was not received by the Division of Administrative Hearings until December 17, 1979, too late to reach the undersigned prior to the hearing time. A copy of the request was not furnished by the Petitioner to the Respondent.

Subsequent to sending the request, the Petitioner made no effort either by letter or telephone to determine if it had been received or granted. Mr.

Craycraft testified that he assumed the Hearing Officer would forward a copy of the request to the Respondent.

Petitioner was given one hour from the time of the Hearing Officer's telephone inquiry at 10:39 A.M., to appear and present argument on its request for a continuance. Mr. Craycraft did appear and argued that in spite of the fact that Petitioner had originally agreed to the scheduling of a Final hearing on December 18, 1979, he believed that more time was needed to research Petitioner's case. The Respondent argued that a continuance would be a serious inconvenience to it since, with no notice of a continuance, it had arranged for its witnesses to appear as scheduled. In view of the foregoing, the request by Petitioner for a continuance was denied and the hearing proceeded as scheduled.

The parties stipulated that the applicant was duly qualified for a temporary non-emergency medical transportation service license except for the grounds set out in the Department's denial letter dated September 27, 1979, Respondent's Exhibit No. 2. These grounds are:

1. There is already non-emergency medical transportation service available in Broward County, the area which the applicant proposes to serve.

   
   

2. The public interest, safety, and convenience will not be served by providing the proposed service for all of Broward County and its large population with only three vehicles.

The witness for the Petitioner was Mr. Craycraft. Petitioner's Exhibits A through O were offered into evidence. They are all hearsay offered for the purpose of showing that Petitioner's proposed serviced would be in the public interest, safety, and convenience. Exhibits D, G, I, J, L, M, and Composite O are not relevant as they speak only to the need for ambulance service in general and do not specifically relate to non-emergency medical transportation. They are not admitted into evidence.

Petitioner's Exhibits A B, C, E, F, II, K, and N, are received into evidence but only for the purpose of supplementing or explaining other evidence. Section 120.58(1)(a), Florida Statutes (1978 Supp.). Petitioner, however, presented no direct evidence on the public interest, safety, and convenience for the hearsay exhibits to supplement or explain.

Respondent offered Exhibits 1 and 2 which were received into evidence. One witness, Mr. Edward L. Wilson, Jr., Supervisor of Ambulance Licensure for the Department of Health and Rehabilitative Services (HRS), testified on behalf of the Respondent.

FINDINGS OF FACT

1. On an application received by the Respondent on September 5, 1979, the Petitioner, Community Medical Transporters, Inc. (CMT), applied for a temporary non-emergency medical transportation license. CMT indicated that it proposed covering the Broward County area and had three vehicles available. The application was denied on September 21, 1979, by Respondent for the reasons already set out above.

   
   

2. CMT was recently incorporated in September, 1979, and has not operated a non-emergency medical transportation service in Broward County or any place else.

3. While at present and at the time of the denial there are no medical transportation services in Broward County providing exclusively non-emergency service, there are at least four HRS licensed ambulance services which provide both emergency and non-emergency service in the area. In addition, there are several transportation services licensed by the Public Service Commission under Chapter 323, Florida Statutes, providing non-emergency service in Broward County.

   
   

4. CMT does not hold a certificate of public convenience and necessity from the Broward County Commission.

   
   

5. Respondent has no rules which define what statutes the public interest, safety, or convenience and the Department's witness was unable to define what the terms meant except to say that they meant holding a certificate of public convenience and necessity from the appropriate county commission.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Section 120.57(1) and Section 120.60, Florida Statutes (1978 Supp.).

   
   

7. Section 401.25, Florida Statutes (1978 Supp.), as amended by Chapter 79-280, Laws of Florida (1979), provides the criteria which must be met by an

   applicant to be granted a temporary non-emergency medical transportation service license. They are:

   
   

   1. The applicant is presently providing non- emergency medical transportation service.

      
      

   2. There is no other such service available in the area to be served.

      
      

   3. The public interest, safety, and convenience will be served by granting the license.

      
      

8. The Department contends that the latter criterion is fulfilled by having a county certificate of public convenience and necessity. That argument is rejected. A temporary license is issued to an applicant in order to give him one year in which to comply with the requirements for a permanent license. Section 401.25(7), Florida Statutes (1979). One of the requirements for a permanent license is the county certificate. Section 401.25(3)(d), Florida Statutes (1979). It would defeat the purpose of a temporary license to incorporate within the nebulous terms "public interest, safety, and convenience" one of the permanent license requirements.

   
   

9. The evidence shows that CMT is neither presently operating, nor has operated, a non-emergency medical transportation service in Florida. While ordinarily that fact would disqualify it from receiving a temporary license, the Department may not rely on that point in denying the license here due to the earlier mentioned stipulation and due to the operation of Section 120.60(2), Florida Statutes (1978 Supp.), which requires in part that, "Each agency upon issuing or denying a license, shall state with particularity the grounds or basis for the issuance or denial of same except where issuance is ministerial." The requirement to be presently operating a service was not mentioned in the Department's denial letter.

10. Because there are at least four licensed transportation services in Broward County providing non-emergency medical transportation, Petitioner has not met all the criteria in Section 401.25(7), Florida Statutes (1979), to receive a license. The application of Petitioner for a temporary license should, therefore, be denied.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the application of Community Medical Transporters, Inc., for a non- emergency medical transportation services license be DENIED BUT WITHOUT PREJUDICE to an application for a permanent license.

DONE and ENTERED this 28th day of December, 1979, in Tallahassee, Florida.

MICHAEL P. DODSON

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

S. Steven Craycraft

Community Medical Transporters, Inc.

5270 N.W. 15th Street Margate, Florida 33063

Harold Braynon, Esquire District X Counsel Department of HRS

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

COMMUNITY MEDICAL TRANSPORTS, INC.,

Petitioner,

vs. CASE NO. 79-2189

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

The Florida Department of Health and Rehabilitative Services, finding the Recommended Order to be correct, hereby adopts the findings of fact and conclusions of law of the attached Recommended Order entered in this cause by Hearing Officer Michael Pearce Dodson, dated December 28, 1979, and said Order is hereby declared to be and by this Order becomes the Final Order of the Department with the following exceptions:

1. Paragraph 2 of the Conclusions of Law of the Recommended Order is clarified as follows: A county certificate of public convenience and necessity is one method, although not the exclusive method, of demonstrating that the "public interest, safety, and convenience" will be served by granting the license. Applicants for licensure are at liberty to present other evidence to indicate that this statutory requirement is satisfied.

   
   

2. Paragraph 3 of the Conclusions of Law of the Recommended Order is clarified as follows: The requirement of Section 120.60(2), Fla. Stat. that the reasons for denial of a license be stated with particularity does not prohibit at the administrative hearing the reliance upon other grounds for denial due to the de novo nature of the administrative hearing and its function in formulating final agency action. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

ORDERED that the application of Community Medical Transporters, Inc., for a non-emergency medical transportation services license be DENIED BUT WITHOUT PREJUDICE to an application for a permanent license.

DONE and ORDERED this 21st day of January 1980.

DAVID H. PINGREE

Secretary

COPIES FURNISHED:

S. Steven Craycraft

Community Medical Transporters, Inc. 5270 N.W. 15th Street

Margate, Florida 33063

Harold Braynon, Esquire District X Counsel Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Michael Pearce Dodson Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

Edward L. Wilson

Emergency Medical Services

Department of Health and Rehabilitative Services

1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 79-002189

Orders for Case No: 79-002189