STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNICARE HEALTH FACILITIES, d/b/a ) NORTH HORIZON HEALTH CARE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 85-4226

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 15, 1986, at St. Petersburg, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing by the following counsel:

.

For Petitioner: Roch Carter, Esquire

Legal Counsel

Unicare Health Facilities, Inc.

105 West Michigan Street Milwaukee, Wisconsin 53203

For Respondent: Carol M. Wind, Esquire

Assistant District Legal Counsel Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546

Subsequent to the hearing the parties filed their proposed findings of fact and conclusions of law. Specific rulings on the proposed findings of fact of each party are contained in the Appendix which is attached to and incorporated into this Recommended Order.

ISSUES

The basic issue in this case is whether, after licensing one of the Petitioner's facilities for 50 beds for numerous years,

the Respondent can issue a license for only 49 beds due to Petitioner's failure to comply with the isolation room requirement. Petitioner contends that Respondent is without statutory authority to reduce the number of licensed beds at the subject facility and, alternatively, that Respondent is estopped from reducing the number of beds. Respondent's position is that its action is authorized and that there is no estoppel.

FINDINGS OF FACT

Based on the testimony of the witnesses and on the exhibits received in evidence, I make the following findings of fact:

1. Petitioner, Unicare Health Facilities, Inc., is a corporation with its principal offices at 105 West Michigan Street, Milwaukee, Wisconsin. Petitioner is licensed to operate North Horizon Health Care Center, 1301 16th Street North, St. Petersburg, Florida, in compliance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code.

   
   

2. The Department of Health and Rehabilitative Services has jurisdiction over the Petitioner by virtue of the license held by North Horizon Health Care Center under the provisions of Chapter 400, Part I, Florida Statutes.

   
   

3. The North Horizon Health Care Center has been licensed as a 50-bed facility since it first opened eighteen or nineteen years ago. It was so licensed until 1985. When North Horizon Health Care Center applied for renewal of its license in 1985, Respondent issued a license for only 49 beds. The reason for issuing a license for only 49 beds was because the isolation room at North Horizon Health Care Center has two beds in it and the facility does not have a single-bed isolation room. In order for the isolation room at the subject facility to be in compliance with the requirements of Rule 10D-29.121(9), Table I, General Standard No. 26, one of the beds must be removed from the isolation room. If a bed is removed from the isolation room, the subject facility does not have anywhere else to put the bed which would be removed from the isolation room and still remain in compliance with other rule requirements.

   
   

4. Rule 10D-29.121(9), Table I, General Standard No. 26, specifically requires that each nursing home have at least one single patient bedroom with private toilet and bathing facilities and scrubbable walls and ceiling.

   
   

5. For a substantial period of time, at least 11 years, the Respondent had allowed the Petitioner to operate North Horizon Health Care Center with a license for 50 beds and no single-bed

   isolation room based on an understanding that in the event a resident of the subject facility required isolation, the facility would implement its "isolation policy." The "isolation policy" is to provide an isolation room on an as-needed basis at the subject facility or to transfer the patient to another facility that has an isolation room. This isolation "policy" does not comply with the requirements of Rule 10D-29.121(9), Table I, General Standard No. 26.

   CONCLUSIONS OF LAW

   
   

6. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law: 1. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See Section 120.57, Florida Statutes.

   
   

7. Section 400.111(1), Florida Statutes, reads as follows in pertinent part:

   
   

   1. 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 submitted to the Department of Health and Rehabilitative Services. A license shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first met the requirements established under this part and all rules and regulations promulgated hereunder. (Emphasis added)

      
      

8. In order for Petitioner to meet the requirements of all applicable rules, it had to have a single-bed isolation room at the subject facility. To be in compliance it will have to remove one bed from its isolation room. When that bed is removed, there is nowhere it can be placed at the subject facility without being in violation of some other rule. Accordingly, the maximum number of licensed beds to which the Petitioner is entitled at the subject facility is 49.

   
   

9. With regard to Petitioner's estoppel argument, in Florida the elements of estoppel are rather well settled. They were recently described as follows in Fiorentino v. Dept. of Administration, Div. of Retirement, 10 FLW 140 (Fla. 1st DCA 1985):

   In Florida equitable estoppel consists of four elements: (1) a representation by the party estopped to the party claiming the estoppel as to some material fact; (2) which representation is contrary to the condition of affairs later asserted by the estopped party; (3) a reliance upon the representation by the party claiming the estoppel and (4) a change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon.

   Travelers Indemnity Co. v. Swanson, 662 F.2d 1098 (5th Cir. 1981).

   
   

10. Where the party against whom estoppel is sought is the State, a few additional considerations come into play. First, "the instances are rare when the doctrine will be so applied." See Jefferson National Bank v. Metropolitan Dade County, 271 So. 2d 207 (Fla. 3d DCA 1972); Bryant v. Peppe, 238 So. 2d 836 (Fla. 1970) North American Company v. Green, 120 So. 2d 603 (Fla. 1959). The Florida courts have also held that the application of the doctrine of estoppel against the State "requires exceptional or special circumstances and some positive act on the part of some officer of the sovereign." Gay v. Inter-County Tel. and Tel. Co., 60 So. 2d 22 (Fla. 1952). The Florida courts have also held that mere oversight or forebearance or inaction over a period of time "is hardly a basis for estoppel." Dept. of Revenue v. Hobbs, 368 So. 2d 367 (Fla. 1st DCA 1979). To similar effect see North American Company v. Green, supra; Lawrence Nali Construction Co. v. Dept. of Revenue, 366 So. 2d 27 (Fla. 1st DCA 1978). And from Greenhut Construction Company v. Knott Inc., 247 So. 2d 517 (Fla. 1st DCA 1971), we learn the following:

    The law of this state generally recognizes the proposition that although the sovereign may under certain circumstances be estopped, such circumstances must be exceptional and must include some positive act on the part of some officer of the state upon which the aggrieved party had a right to rely and did rely to its detriment. Under no circumstances may the state be estopped by the unauthorized acts or representations of its officers.

    
    

11. Yet another aspect of the doctrine of estoppel as applied against the State is addressed by the following from State v. Hadden, 370 So. 2d 849 (Fla. 3d DCA 1979):

    The burden of proving an estoppel rests on the party invoking it, and every fact essential to estoppel must be proved. (Citations omitted) One claiming estoppel on the basis of another's silence or omission must show he justifiably relied thereon to his prejudice, and that his reliance thereon and conduct to his prejudice was intended or reasonably anticipated by such other person. Ennis v. Warm Mineral Springs, Inc., 203 So. 2d 514, 520 (Fla. 2d DCA 1967).

    *** *** ***

    
    

    Moreover, estoppel will not be applied against the State for an omission to act, but will be applied only in special circumstances which must include "some positive act on the part of some [official] of the state upon which the aggrieved party had a right to rely and did rely to its detriment." (Citations omitted)

    
    

12. And in the recent case of Reedy Creek Improvement District v. Department of Environmental Regulation, et al., So. 2d (Fla. 1st DCA, Case No. BG-279, Opinion filed April 14, 1986), the court noted:

    
    

    Equitable estoppel will apply against a state agency, however, only upon a showing of exceptional circumstances. North American Co. v. Green, 120 So. 2d at 610. And, it is fundamental that the doctrine of estoppel will not apply to "transactions that are forbidden by statute or that are contrary to public policy." Montsdoca v. Highlands Bank and Trust Co., 85 Fla. 158, 163, 95 So. 666,

    668 (1923), Dade County v. Gayer, 388 So. 2

    1292, 1294 (Fla. 3rd DCA 1980). See

    also:Godson v. Town of Surfside, 150 Fla. 614, So. 2d 497 (Fla. 1942).

    
    

13. Application of the foregoing legal principles to the facts in this case leads inevitably to the conclusion that the Petitioner has failed to establish its entitlement to invoke the doctrine of estoppel. First, the Petitioner has not shown that it made any detrimental changes in its position in reliance on any representation by Respondent. Second, it would be contrary to the licensing statute, as well as contrary to public policy, to issue the Petitioner a license for more than 49 beds. The fact that the Petitioner enjoyed the benefits of the Respondent's oversight or inaction for many years does not entitle the Petitioner to enjoy it forever.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order to the following effect:

1. That Petitioner is entitled to a license for 49 beds at North Horizon Health Care

   Center for the period October 1, 1985, through September 30, 1986.

   
   

2. That Petitioner's petition in this case is dismissed.

DONE and ORDERED this 11th day of June, 1986, in Tallahassee, Florida.

MICHAEL M. PARRISH

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 June, 1986.

COPIES FURNISHED:

Roch Carter, Esquire Legal Counsel

Unicare Health Facilities, Inc.

105 West Michigan Street Milwaukee, Wisconsin 53203

Carol M. Wind, Esquire

Assistant District Legal Counsel Department of Health and

Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546

William Page, Jr. Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Steve Huss, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

APPENDIX

The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties

Rulings on Petitioner's proposed findings: Paragraphs 1 and 2: Accepted.

Paragraph 3: Accepted in substance, with additional findings for clarity.

Paragraph 4: Accepted with deletion of the word "alleged."

Paragraph 5: Ail but last sentence is accepted. The last sentence is rejected because it is not supported by competent substantial evidence.

Paragraph 6: Rejected as irrelevant.

Rulings on Respondent's proposed findings: Paragraphs 1, 2, and 4: Accepted.

Paragraph 3: Accepted in substance, with additional findings for clarity.

Paragraphs 5 and 6: Accepted in substance.

Docket for Case No: 85-004226

Orders for Case No: 85-004226