STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3180

) EDEN HEALTH FACILITIES, INC., ) d/b/a ASHLEY MANOR CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on May l0, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Martha F. Barrera, Esquire

1320 South Dixie Highway Coral Gables, Florida 33146

For Respondent: Charles J. King, Esquire

3037 East Commercial Boulevard Fort Lauderdale, Florida 33308

The issue for determination at the final hearing was whether the Petitioner Department of Health and Rehabilitative Services (hereafter Department or HRS) should impose a late fee of $5,000 against the Respondent Eden Health Facilities, Inc., d/b/a Ashley Manor Care Center (hereafter Respondent or Eden).

At the hearing, John Adams, a former supervisor of licensure for the Department, William E. Garrett, acting director of licensure, and David Tuck, a hospital consultant, testified for the Petitioner. Jesse Brooks, office manager of Eden, Roberto Villaescusa, administrator of Eden, and Marvin Benson, president of Eden, testified for the Respondent.

Pursuant to a prehearing stipulation filed by the parties, Petitioner's Exhibits 1 through 5 were offered and admitted into evidence.

Proposed Recommended Orders have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. At all material times, the Respondent held license number 282 which was issued by the Department effective September 1, 1981, and expired August 31, 1982.

   
   

2. On or about September 1, 1981, the Respondent purchased the nursing home facility from Ramsey Nursing Facilities, Inc., which was owned and operated by Ethel G. Miller.

   
   

3. Roberto Villaescusa became administrator of Eden on or about September 1, 1981. He replaced the previous administrator, Ethel G. Miller.

   
   

4. On March 15, 1982, the Department mailed an application for license renewal to the facility by certified mail, return receipt requested. The envelope was addressed to "Ms. Ethel G. Miller, Ashley Manor Care Center, 8785

   N.W. 32nd Avenue, Miami, Florida 33147."

   
   

5. On March 18, 1982, the license renewal was received by Jesse Brooks, office manager of Eden, who forwarded the letter to D.I.S.C. Corporation, the agent and accountant for Ms. Miller. Mr. Brooks did not open the letter since he believed it was personal mail because it was addressed specifically to Ms. Miller.

   
   

6. The letter and other mail were subsequently returned by D.I.S.C. to the Respondent together with instructions that the mail be delivered to Manny Garcia, the son of Ms. Miller, who was then deceased.

   
   

7. Shortly after the receipt of the letter from D.I.S.C. and before forwarding it to Garcia, Roberto Villaescusa, Eden's administrator, contacted William Garrett, acting director of licensure for the Department, to inquire regarding license renewal procedures. Garrett advised Villaescusa that the official renewal form had been revised and that such form could only be obtained from Jacksonville.

   
   

8. The revised license renewal form was shipped from Jacksonville to Miami where it was obtained by Eden. Within two days of receipt, the new, revised form was completed and mailed back to Jacksonville. It was received in Jacksonville on July 26, 1982, fifty-two days past the renewal date.

   
   

9. It is the long standing policy of the Departments office of Licensure in Jacksonville to annually send to nursing facilities licensure notices and application forms in sufficient time for them to be completed and returned ninety days prior to the expiration date stated on their licenses. Nursing home operators and administrators have come to rely upon receiving such notification from Jacksonville.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. Section 400.111(1), Florida Statutes, (Supp. 1982) provides that:

    
    

    A license issued for the operation of a facility, unless sooner suspended or revoked, shall expire on the date set forth by the department on the face of the license or 1 year from the date of issuance, whichever occurs first.

    Ninety days prior to the expiration date, an application for renewal shall be sub- mitted to the Department of Health and Rehabilitative Services. A license shall be renewed upon the filing of an appli- cation on forms furnished by the department if the applicant has first met the require- ments established under this part and all rules and regulations promulgated here- under. An applicant for renewal of a license issued under this part for a period of 4 months or less, however, shall submit an application for renewal to the department, on forms furnished by the department, 14 days prior to the expiration date. 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, but in no event shall such fine aggregate more than $5,000. A license renewal for a period of 4 months or less shall not be subject to late fees provided for in this section. Late fees shall be deposited and disbursed through the Patient

    Protection Trust Fund established by s. 400.063. New facilities which are in substantial com- pliance with this section and with the rules

    of the Department of Health and Rehabilitative Services, but which have deficiencies, may be issued conditional licenses pending correction of deficiencies.

    
    

12. This provision requires the Department to impose a mandatory late fee not to exceed $5,000 when a renewal application is filed less than ninety days prior to a license expiration. See Dept. of Health and Rehabilitative Services

    v. Convalescent Services of West Palm Beach d/b/a Lakeside Health Center, DOAH Case No. 81-2364, Final Order entered March 29, 1982.

    
    

13. Petitioner's contention that the $5,000 fine should be mitigated due to the Department's failure to adequately ensure that notification for licensure renewal was provided to Eden, must be rejected. Section 400.111(1), Florida Statutes, precludes consideration of such a factor and requires the imposition of the late fee regardless of an inequity inherent in such determination.

14. While it is possible that the late payment provision of Section 400.111(1), Florida Statutes, could be avoided if the Department refused to furnish mandated forms or otherwise made it impossible for a licensee to comply with the statute, there has been no showing in the instant case that this occurred. Instead, the Petitioner has shown that while the Department did not assist the Respondent to comply with the statute, it also did not prevent compliance. Under such circumstances, Section 400.111(1), Florida Statutes, requires the imposition of a $5,000 late fee in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Final Order assessing a late fee of $5,000 against the Petitioner, for failing to timely renew its license to operate a skilled nursing facility.

DONE and RECOMMENDED this 3rd day of June, 1983, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983.

COPIES FURNISHED:

Martha F. Barrera, Esquire 1320 South Dixie Highway Coral Gables, Florida 33146

Charles J. King, Esquire

3037 East Commercial Boulevard Fort Lauderdale, Florida 33308

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-003180

Orders for Case No: 82-003180