STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3680

) HERNANDO COUNTY BOARD OF COUNTY ) COMMISSIONERS, d/b/a LYKES )

MEMORIAL HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

By MOTION FOR CONTINUANCE dated April 11, 1984, Petitioner, by and through its counsel, requested the hearing scheduled to commence April 13, 1984, be continued. As grounds therefor it was alleged no disputed issues of material fact exist and the parties desired to waive formal hearing and submit the case to the Division of Administrative Hearings on stipulated facts for the preparation of a Recommended Order. The motion was granted by Order dated April 17, 1984, which provided stipulated facts and memoranda of law be submitted to the Hearing Officer not later than May 15, 1984. A Joint Stipulation has been received signed by the attorney for each party. That Joint Stipulation is the sole basis for the findings of fact herewith submitted.

FINDINGS OF FACT

1. Lykes Memorial Hospital is a hospital within the meaning of Florida Statutes 395.002(6).

   
   

2. Lykes Memorial Hospital is maintained by the Board of County Commissioners of Hernando County, Florida.

   
   

3. The Board of County Commissioners of Hernando County, Florida, were licensed by the Department of Health and Rehabilitative Services to maintain and operate Lykes Memorial Hospital by License No. 1078 for the period July 1, 1982, through June 30, 1983.

   
   

4. Application for renewal of the aforesaid License No. 1078 was received by the Department of Health and Rehabilitative Services on Nay 6, 1983.

   
   

5. The Board of County Commissioners of Hernando County, Florida, is the governing legislative body of Hernando County, Florida; Hernando County is a political subdivision of the State of Florida.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

7. Section 395.003(1)(a), Florida Statutes, provides no person or governmental unit shall establish, conduct, or maintain a hospital in this state without first obtaining a license under this part. Section 395.003(2)(c), Florida Statutes, provides:

   
   

   A license, unless sooner suspended or revoked, shall automatically expire 2 years from the date of issuance and shall be renewed biennially upon application for renewal and payment of the fee prescribed by Sec. 395.004(2), provided the applicant and hospital or ambulatory surgical center facility meet the requirements established under this part and rules promulgated hereunder. An application for renewal of a license shall be made 90 days prior to the expiration of the license, on forms provided by the department.

   
   

8. Section 395.018, Florida Statutes, provides in pertinent part:

   
   

   1. Any person establishing, conducting, managing, or operating any hospital or ambulatory surgical center without a license under this part is guilty of a misdemeanor and, upon conviction, shall be fined not more than $100 for the first offense and not more than $500 for each subsequent offense, and each day of violation after conviction shall be considered a separate offense.

      (2)(a) The department may deny, revoke, or suspend a license or impose an administrative fine, not to exceed $500 per violation, per day, for the violation of any provision of this part or rule promulgated hereunder. Each day of violation constitutes a separate violation and is subject to a separate fine.

      (b) In determining the amount of fine to be levied for a violation, as provided in paragraph (a), the following factors shall be considered:

      1. The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of this part were violated.

      2. Actions taken by the licensee to correct the violations or to remedy complaints.

      3. Any previous violations of the licensee.

      
      

9. Applying the above-quoted statutory provisions to the stipulated facts in the case presents some conflicts. Initially the statute requires the

   hospital to apply for renewal of a license 90 days prior to expiration. The date of the application would normally be the date posted if the application was sent by U.S. mail. That date was not provided. The only date provided was the date the application was received by the Department of Health and Rehabilitative Services. If, in the improbable event, an application was timely posted but was received by DHRS 15 days later, or ever. 35 days later, it would not be in conformity with the above-quoted statutory provisions to assess a fine for each day receipt of the application was so delayed.

   
   

10. Under a literal reading of Section 395.018(1) above-quoted, if the Respondent operated the hospital after the license had expired and criminal proceedings were brought, the hospital would be subject to a fine of $100 and, if it continued to operate without a license after conviction, it would be subject to a fine of $500 per day for each day it continued to so operate. Under this interpretation of the statute, the hospital could operate after the expiration of its license for X-number of days before a conviction was obtained and for those X-days the maximum fine would be $100 total. Here the Respondent

    has applied for renewal of its license, this application was received by DHRS 55 days before the expiration of the license and DHRS now proposes to impose a fine of $100 per day for each of those 35 days less than the 90 days prior to renewal the statute prescribes an application for renewal should be made.

    
    

11. Section 395.018(2)(b) above-quoted provides criteria upon which to base the administrative penalty to be assessed for violations of the provisions of this part including the failure to timely submit an application for renewal of license. Seriousness of the violation includes the probability of death or serious harm to patients. Here no threat to the well being of patients is involved nor is potential harm to patients involved. The extent to which the provisions of this part were violated cannot be determined from the stipulated facts as those facts do not disclose when the application for renewal was submitted.

    
    

12. No stipulation was submitted from which it can be ascertained what actions the licensee took to preclude future violations of this statutory provision. And, finally, no facts were presented regarding any previous violations by' the licensee. Accordingly, it is assumed there were no previous violations.

    
    

13. From the foregoing it is concluded that, based solely on the stipulated facts and applicable statutory provisions, Hernando County Board of County Commissioners, d/b/a Lykes Memorial Hospital, was late in submitting its application for renewal of its license for the period July 1, 1983, to June 30, 1985. It is

RECOMMENDED that Lykes Memorial Hospital be assessed an administrative fine of five hundred dollars ($500).

ENTERED this 24th day of May, 1984, at Tallahassee, Florida.

K. N. AYERS 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 24th day of May, 1984.

COPIES FURNISHED:

Robert Bruce Snow, Esquire

112 North Orange Avenue Post Office Box 2060 Brooksville, Florida 33512

James A. Sawyer, Jr., Esquire Department of Health and

Rehabilitative Services 1000 Northeast 16th Avenue Gainesville, Florida 32601

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-003680

Orders for Case No: 83-003680