STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-844

) PINELLAS NURSING CARE, INC. d/b/a) BEACH CONVALESCENT HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on July 8, 1982, in St. Petersburg, Florida. The following appearances were entered: Robert Daniti, Tallahassee, Florida, appeared on behalf of the Petitioner, Department of Health and Rehabilitative Services; and the Respondent's president, Owen Beem, appeared on behalf of the Respondent, Pinellas Nursing Care, Inc. d/b/a Beach Convalescent Home.

The Petitioner filed an Administrative Complaint against the Respondent, alleging that the Respondent filed its application for licensure as a nursing home later than required by statute. Petitioner is seeking to impose an administrative fine against the Respondent in the amount of $1,710. The Respondent requested a formal administrative hearing. The matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled as set out above by notice dated April 23, 1982. Petitioner filed a Motion to Dismiss the request for hearing on the grounds that the Respondent's president had not qualified as a representative as required under the provisions of Rule 28-5.1055, Florida Administrative Code. Inquiry was made of the Respondent's president as to his qualifications to represent the Respondent on the record at the final hearing. He was found to be qualified, and the Motion to Dismiss was denied.

John Adams, the Supervisor of Licensure in the Department's Office of Licensure and Certification, testified on behalf of Petitioner. Owen Beem testified on behalf of the Respondent. Petitioner's Exhibits 1 through 11 and Respondent's Exhibit 1 were offered into evidence and received. The parties have submitted post-hearing legal memoranda. Petitioner's memorandum includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been accepted only to the extent that they are expressly set out in the findings of fact and conclusions of law which follow. It has been otherwise rejected as not supported by the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The issues in this proceeding are whether the Respondent unjustifiably filed its application for licensure as a nursing home for the 1982 calendar year later than required, and, if so, what, if any, administrative fine should be imposed.

FINDINGS OF FACT

1. The Petitioner is the agency responsible for enforcing the provisions of law pertaining to the licensure of nursing home facilities. Petitioner is specifically charged by statute with the responsibility of processing applications for renewal of nursing home licenses, and for determining when applications are filed late and whether a late fee should be imposed. Section 400.111, Florida Statutes.

   
   

2. The Respondent is a nursing home licensed by Petitioner. Petitioner issued the Respondent a license which specifically covered the period January 1, 1981,through December 31, 1981. The cover letter which accompanied delivery of the license to the Respondent also specified dates that the license was effective.

   
   

3. During 1980, the Florida Legislature amended provisions of Florida Statutes relating to licensure of nursing homes so as to require that nursing homes apply to renew licenses at least ninety (90) days prior to the expiration of the existing license. In August, 1980, Petitioner specifically notified all licensed nursing homes of the statutory amendments and of homes' responsibilities to reapply for licensure at least ninety (90) days in advance of the expiration of existing licenses. Petitioner developed a procedure whereby all licensed nursing homes would be mailed a notice and a blank application with instructions at least one hundred twenty (120) days prior to the expiration of the license. Petitioner developed a "master log" which listed all nursing home facilities and showed the dates when existing licenses would expire. Nursing homes whose licenses expired on December 31, 1981, were mailed this package of material on August 19, 1981. This allowed the nursing homes ample time within which to prepare and submit applications prior to October 2, 1981, which was ninety (90) days prior to the expiration of the 1981 licenses. While no specific evidence was offered to establish that the packet of materials was delivered to the Respondent, the Petitioner's office procedure is sufficient to give rise to a presumption that the package of materials was placed in the mail, and it is appropriate to presume that having been mailed, the materials were received by Respondent. Respondent's president testified that he never received the materials; however, no evidence was presented as to the Respondent's office procedures sufficient to overcome the presumptions that Petitioner's office procedures were followed and that materials placed in the mail are delivered.

   
   

4. On November 10, 1981, Petitioner sent another letter to Respondent reminding it of its responsibility to file an application for renewal of its license. Respondent ultimately submitted its renewal application on November 18, 1981, to the Pinellas County Health Department in accordance with the provisions of Rule 10D-29.35, Florida Administrative Code, which were in effect at that time. The application was thus filed forty-five (45) days after the October 2, 1981, deadline.

   
   

5. The Respondent is a thirty-eight (38) bed nursing home facility. The annual license fee imposed upon nursing home facilities for the 1981 licensure

   year was two dollars ($2) per bed. In Respondent's case, the fee was seventy- six dollars ($76). By statute, the late fee imposed for the untimely filing of an application for relicensure is one-half of the license fee for the prior year for each day that the application for relicensure is late. This amounts to a late fee in the Respondent's case of $1,710.

   
   

6. The Petitioner renewed Respondent's license for the 1982 calendar year on December 7, 1981. There was no period of time during which the Respondent was unlicensed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. When general office practices are established by evidence, it is appropriate to presume that materials that should have been placed in the mail in accordance with the practice were duly mailed. It is furthermore appropriate to presume that materials which have been duly mailed have been received by the addressee. While these presumptions are of the rebuttable sort, testimony from the addressee merely denying receipt of the notice is not sufficient to overcome the presumptions. Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973); Milros-San Souci, Inc. v. Dade County, 296 So.2d 545 (3 DCA Fla. 1974). In the context of this matter, these presumptions give rise to the factual findings that the Petitioner forwarded reapplication materials to the Respondent in a timely manner, and that the Respondent received them.

   
   

9. Section 400.111(1), Florida Statutes, provides in pertinent part as follows:

   
   

   Licenses issued for the operation of a facility [a nursing home facility]. . .shall expire 1 year from the date of issuance.

   Ninety days prior to the expiration date, an application for renewal shall be submitted to the Department of Health and Rehabilitative Services. . .The failure to file an application within the period established herein shall result in a late fee charged to the facility by the department in an amount equal to 50 percent of the fee in effect on the last preceding regular renewal date. A late fee shall be levied for each and every day the filing of the license application is delayed. . .

   
   

   The Respondent filed its application for relicensure for the 1982 calendar year forty-five (45) days later than required by statute. The statute mandates the imposition of a late fee by the Department in the amount of one-half the application fee for the prior year for each day that the application is late.

   The statute does not allow the Department any discretion to impose a lesser late fee. It is therefore appropriate that the Petitioner impose a late fee upon the Respondent in the amount of $1,710.

   
   

10. A late fee in the amount of $1,710 under the circumstances of this case appears somewhat disproportionate. The intention of the Legislature to

impose such a fee is, however, clear from the statute. It is not appropriate for either the Division of Administrative Hearings or the Department of Health and Rehabilitative Services to question the clear legislative intent.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order imposing a late fee upon the Respondent, Pinellas Nursing Care, Inc. d/b/a Beach Convalescent Home, in the amount of $1,710.

RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1982.

COPIES FURNISHED:

Robert P. Daniti, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

Mr. Owen W. Beem President

Pinellas Nursing Care, Inc. d/b/a Beach Convalescent Home 2551 DeSoto Way, South

St. Petersburg, Florida 33706

Mr. David H. Pingree Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-000844

Orders for Case No: 82-000844