STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GARY M. SCHMITZ and SUNCOAST ) ADULT CARE ASSOCIATION, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 89-0596RX
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a formal hearing was conducted in this case on March 27, 1989, in Tallahassee, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: William R. Hanley, Esquire
242 Office Plaza Post Office Box 1834
Tallahassee, Florida 32302
For Respondent: Stephen M. Presnell, Esquire
First Florida Bank Building Suite 804
Tallahassee, Florida 32304
Deanna Eftoda
2727 Mahan Drive, Suite 103
Tallahassee, Florida 32308 INTRODUCTION
On February 6, 1989, Petitioners filed a petition with the Division of Administrative Hearings pursuant to Section 120.56, Florida Statutes, challenging Respondent's Rule 10-5.022, Florida Administrative, Code as an invalid exercise of delegated legislative authority. The petition was assigned to the undersigned Hearing Officer on February 8, 1989.
At hearing five witnesses testified: Petitioner Schmitz; his wife; Elfie Stamm, the employee who originated the challenged rule; and two Department of Commerce employees who deal with matters concerning small and minority businesses. Petitioners and Respondent offered into evidence seven exhibits and one exhibit, respectively.
The transcript of the hearing was filed with the Division on April 3, 1989.
Respondent and Petitioners filed Proposed Final Orders on April 10, 1989, and
April 14, 1989, respectively. Their Proposed Final Orders each contain proposed findings of fact. These proposed factual findings have been carefully considered and are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence admitted at hearing and the stipulations entered into by the parties, the Hearing Officer makes the following findings of fact:
By the passage of Section 35 of Chapter 88-394, Laws of Florida, the 1988 Florida Legislature made the following changes to Section 381.703(3), Florida Statutes (underlined language reflects additions; language struck through indicates deletions):
The legislature intends that the cost of local health councils and the Statewide
Health Council be borne by application fees for certificates of need and by assessments on health care facilities subject to facility licensure by the department, including abortion clinics, adult congregate living facilities, adult day care centers, ambulatory surgical centers, birthing centers, clinical laboratories, crisis stabilization units, home health agencies, hospices, hospitals, intermediate care facilities for the mentally retarded, nursing homes, and multiphasic testing centers.
A hospital licensed under chapter 395, a nursing home licensed under [chapter] 400,
a home health agency licensed under chapter
400 shall be assessed an annual fee of $500. All other facilities listed in paragraph (a) shall each be assessed an annual fee of $150. Facilities operated by the Department of Health and Rehabilitative Services or the Department of Corrections are exempt from the fee required in this subsection.
The department shall, by rule, establish a facility billing and collection process for the billing and collection of the health facility fees authorized by this subsection.
A health facility which is assessed a fee under this subsection is subject to a fine of $100 per day for each day in which the facility is late in submitting its annual fee up to maximum of the annual fee owed by the facility. A facility which refuses to pay the fee or fine is subject to the forfeiture of its license.
(e)(b) There is created in the State Treasury the Local and State Health Trust Fund. Moneys in the fund shall be appropriated only to the department for the purposes of this section.
(f)(c) The department shall, on an ongoing basis, deposit 90 percent of all certificate-
of-need application fees and 100 percent of health care facilities assessments assessed pursuant to s. 381.703(3) in the Local and State Health Trust Fund.
Pursuant to Section 41 of Chapter 88-394, these changes were to "take effect October 1, 1988." Chapter 88-394 was approved by the Governor on July 6, 1988, and filed with the Secretary of State on the same date.
Elfie Stamm is an employee of the Department of Health and Rehabilitative Services (HRS, Respondent) who works in its Office of Comprehensive Health Planning under the supervision of J. Robert Griffin, the Assistant Secretary for Regulation and Health Facilities. Stamm was assigned "lead responsibility" for the development of a rule to implement the provisions of Section 35 of Chapter 88-394.
Stamm's efforts resulted in the following proposed rule, which was published in the Florida Administrative Weekly on August 26, 1988, after receiving Griffin's approval:
10-5.022 Health Care Facilities Fee Assessments and Fee Collection Procedures
Health Care Facilities Subject to Fee Assessment. In accordance with subsection 381.703(3), Florida Statutes, the following health care facilities, licensed by the Department of Health and Rehabilitative Services, shall be subject to an annual fee assessment to be collected by the department:
Abortion clinics licensed under Chapter 390, F.S.
Adult Congregate Living Facilities licensed under Part II, Chapter 400, F.S.
Adult Day Care Centers licensed under Part IV, Chapter 400, F.S.
Ambulatory Surgical Centers licensed under Part I, Chapter 395, F.S.
Birthing Centers licensed under Chapter 383, F.S.
Clinical Laboratories licensed under Part I, Chapter 483, F.S.
Crises Stabilization Units licensed under Chapter 394, F.S.
Home Health Agencies licensed under Part III, Chapter 400, F.S.
Hospices licensed under Part I, Chapter 400, F.S.
Hospitals licensed under Part 1, Chapter 395, F.S.
Intermediate Care Facilities for the Mentally Retarded licensed under Chapter 393,
F. S.
Nursing Homes licensed under Part I, Chapter 400, F.S.
Multiphasic Testing Centers licensed under part II, Chapter 483, F.S. Facilities operated by the Department of
Health and Rehabilitative Services or the Department of Corrections are exempted from the assessment fee.
Billing and Collection Process. The department shall collect annually, by October 1, of each year, an assessment in the amount of $500 for all hospitals, home health agencies, and nursing homes licensed pursuant to subsection (1). All other health care facilities, as specified in subsection (1), shall pay an annual assessment fee of $150 by October 1 of each year. The first assessment fee shall be due October 1, 1988. The department shall notify each health care facility, in writing, at least 30 days prior to October 1, of each year, of the amount due to the department. Failure to receive notice from the department shall not relieve the provider of the responsibility to pay the assessment fee within the time frames specified by the department.
Delinquent Account. The assessed fee
is considered delinquent when the fee is not received by the department within 45 calendar days after October 1 of each year.
Notification of Delinquency. The department shall notify the health care facility, in writing by certified mail, within 10 days after the delinquency date, that the fee has become delinquent.
Penalties. In accordance with
paragraph 381.703(3)(d), the department shall impose a fine of $100 per day, not to exceed the total annual assessment amount, after the assessment becomes delinquent as specified in subsection (3). A health care facility shall be subject to forfeiture of its license for failure to pay the annual assessment fee within the time frames specified by the department.
Dishonored Checks. The department shall assess a service charge of $10 for returned checks.
In developing the proposed rule, although she did not so indicate in writing in her files, Stamm weighed various alternatives to requiring that the fee be paid in full by October 1. She considered moving back the due date as well as allowing installment payments, but ultimately rejected these options in favor of the billing and collection procedure codified in the proposed rule.
In so doing, Stamm considered the impact that the proposed rule would have on small business, as defined in Chapter 288, Florida Statutes. She determined that it would have no adverse impact on such businesses and so indicated in the economic impact statement she prepared in conjunction with the proposed rule. In view of this determination, written notice of the proposed
rule was not sent to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, or the Division of Economic Development of the Department of Commerce.
A copy of the proposed rule was sent to the Joint Administrative Procedures Committee. Zane Leeper, a Legislative Analyst for the Committee, reviewed the proposed rule. In a letter he sent to Stamm on September 6, 1988, Leeper suggested that certain technical changes be made to the proposed rule. Among the provisions of the proposed rule addressed in Leeper's letter was that which provided that a "health care facility shall be subject to forfeiture of its license for failure to pay the annual assessment fee within the time frames specified by the department." Leeper recommended that this provision be made more definite and specific.
During the 21-day period following the publication of the proposed rule in Florida Administrative Weekly, Stamm also received written materials from members of the public, including a suggestion from one Adult Congregate Living Facility (ACLF) proprietor. Petitioners, however, were not among those who submitted comments concerning the proposed rule within this time frame.
By letter dated September 23, 1988, HRS apprised affected health care facility administrators of the amendments to Section 381.703(3), Florida Statutes, that had been made by the 1988 Florida Legislature and, in addition, advised them that the annual fee required by the statute, as amended, would be due on October 1 and become delinquent on November 15 of each year. In bold print at the bottom of the letter was the following warning:
Failure to submit the fee by November 15, 1988 will result in a fine of $100.00 per day for each day the facility is late in submitting its annual fee up to a maximum fine of the annual fee owed by the facility. A facility which refuses to pay the fee or fine is subject to the forfeiture of its license.
The letter made no mention of the proposed rule that had been published in Florida Administrative Weekly the previous month. Notwithstanding that the rule had not yet been finally adopted, HRS, needed to collect the assessments as soon as possible to be able to provide funding to the state and local health councils in a timely manner.
Gary Schmitz is now, and has been since 1985, the co- owner/administrator of Golden Years Manor III, an ACLF licensed by HRS with four beds and one full-time employee. He previously owned two other ACLFs with licensed capacities of five and eight beds, respectively. He recently sold the net assets of these two businesses for approximately $50,000 each. Based on these recent transactions and his experience as a licensed real estate salesman specializing in the sale of ACLFs, Schmitz estimates that the net worth of his remaining ACLF is around $50,000. His gross revenues for the past year were less than $50, 000.
Schmitz is the President of the Suncoast Adult Care Association, Inc. (SACA), an organization which represents 112 ACLFs licensed in the State of Florida. The bed capacities of these ACLFs range from four to 280. Approximately 85 of these facilities have 10 beds or less. The average 10-bed facility, according to Schmitz, generates $80,000 to $90,000 in gross revenues
annually and has three full-time employees. During the time that Schmitz has been in the real estate business, he has never been involved in a sale where an ACLF with a capacity of 10 beds or less has been valued as having a net worth in excess of $300,000.
On September 28, 1988, Schmitz received a copy of the September 23, 1988, letter HRS sent health care facility administrators. Other members of the SACA also received a copy of the letter. Many expressed their displeasure to Schmitz about having to pay the statutorily mandated $150 fee.
The members of the SACA subsequently directed Schmitz to retain an attorney to challenge the proposed rule that Stamm had drafted to implement the amendments to Section 381.703(3), Florida Statutes. Schmitz hired William R. Hanley of the law firm of Papy, Weissenborn and Papy. On November 10, 1988, Hanley sent the following letter to HRS Secretary Gregory Coler:
Please be advised by this correspondence
that this office represents Mr. Gary Schmitz, individually and as President of the Suncoast Adult Care Association, Inc., of Pinellas County, Florida.
Mr. Schmitz and his association are affected by the adoption of the above
referenced rule, and are concerned that it is about to be signed and transmitted to the Secretary of State. It is our concern that this rule is in substantial noncompliance with sec. 120.54[2](a), F.S., requiring that your Department, prior to the adoption of the rule, consider the impact of the proposed action on small business as defined by sec.
288.702, F.S., the Florida Small and Minority Business Assistance Acts [of] 1985.
Many of the licensees affected by the above referenced rule have one (1) employee and gross income well within the definition of the act.
I enclose herewith a copy of the letter mailed to my client advising them that they are not obligated to pay the $150.00 assessment on or after October 1, 1988. It is clear that your Department cannot make a demand for payment of the assessment when the above referenced rule is not yet established. Please note sec. 381.703(3)(c), F.S., attached hereto.
The above referenced rule should not be adopted without consideration of the effect it will have on the small businesses.
Your district H.R.S. offices can confirm with you that many licensed A.C.L.F.'s have threatened that they will simply give up their license rather than pay the $150.00 assessment.
Your agency has not complied with the requirement that it shall consider reducing the impact of the proposed rule on small
business by establishing less stringent compliance schedules as contemplated by sec. 120.54[2](a)1, F.S. and sec. 120.54[2](a)2, F.S.
Please accept this correspondence as a demand on behalf of Mr. Schmitz and his association that you withhold execution of this document pending compliance with the Florida Small and Minority Business Association Act of 1985.
Stamm did not receive a copy of this letter.
In response to Leeper's suggestions and written comments from the public received within the 21-day period following the August 26, 1988, publication of the proposed rule in the Florida Administrative Weekly, Stamm, with the approval of Griffin, made certain changes to the proposed rule. The prefatory language of subsection (1) was amended to read as follows:
(1) Health Care Facilities Fee Assessments
In accordance with subsection 381.703(3), Florida Statutes, the following health care facilities, licensed by the Department of Health and Rehabilitative Services, shall be assessed an annual fee to be collected by the department within the time frames specified in subsection (2):
The remaining portions of subsection (1) were not changed. The only change to subsection (2) was the deletion of the last sentence. No modification was made to subsection (3). Subsections (4), (5) and (6) were modified to read as follows:
Notification of Delinquency. The department shall send, by certified mail, delinquency notices, not later than 10 days prior to the delinquency date, indicating when the assessment will become delinquent.
Penalties. In accordance with
paragraph 381.703(3)(d), the department shall impose a fine of $100 per day, not to exceed the total assessment amount of $150 and $500, after the assessment becomes delinquent as specified in subsection (3). Refusal by a health care facility to pay the annual assessment fee shall result in forfeiture of its license. Refusal of payment is defined as non-payment by the provider of the assessment within 60 days of receipt of the delinquency notice.
Dishonored Checks. The department
shall assess a service charge of $10 for each returned check.
The proposed rule, as amended, was adopted and filed with the Secretary of State on November 17, 1988. It was published in the Florida Administrative Weekly on December 2, 1988, and became effective on December 7, 1988.
On or around December 16, 1988, Assistant Secretary Griffin sent a letter to those health care facilities which had not paid their annual fee assessment. In the letter, Griffin stated:
Payment of the fee assessment is due January 15, 1989 at 5 p.m. Failure to submit payment will be taken as refusal to pay. Pursuant to Section 381.703(3)(d), F.S., "A facility which refuses to pay the fee is subject to the forfeiture of its license."
As of the date of hearing, 87 ACLFs, including Schmitz', had not paid the $150 fee assessment. None of these ACLFs had been fined or had suffered the loss of their license as a result of their failure to pay the assessment.
CONCLUSIONS OF LAW
In their petition, Petitioners contend that Florida Administrative Code Rule 10-5.022 should be declared invalid on the following grounds: (1) because it was adopted without due regard having been given to its impact on small businesses, as required by Section 120.54, Florida Statutes; (2) because it requires ACLFs to pay an assessment, even though they "are not health care facilities as defined by Section 381.702(7), F.S.;" (3) because it "requir[es] payment on or before October 1, 1988," notwithstanding that it did not take effect until more than two months later on December 7, 1988; and (4) because it provides for the mandatory forfeiture of the license of any licensee who refuses to pay the assessment or any fine, whereas Section 381.703(3)(d), Florida Statutes, provides that a "facility which refuses to pay the fee or fine is subject to the forfeiture of its license." Respondent refutes these allegations concerning the validity of its rule and, in addition, contests Petitioners' standing to advance such arguments, particularly the argument that Respondent did not follow the requirements of Section 120.54, Florida Statutes.
Standing
Standing has been described as "that sufficient interest in the outcome of litigation which will warrant the [tribunal's] entertaining it." General Development Corporation v. Kirk, 251 So.2d 284, 286 (Floa. 2d DCA 1971). The Florida Legislature has incorporated this notion of standing in Section 120.56, Florida Statutes. Not everyone can challenge the validity of an agency rule pursuant to this statutory provision. Only those persons who are able to establish that they are "substantially affected by [the] rule" "by showing that [the] rule has a real and immediate effect upon [their] case, as well as by proving injury in fact," may launch such a challenge. Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194, 1196 (Fla. 1st DCA 1981).
Gary Schmitz is the co-owner of an ACLF located in the State of Florida. All Florida ACLFs, including Schmitz', are subject to the regulatory provisions of rule 10-5.022. Schmitz therefore is "substantially affected by [the] rule." See Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d at 1196. Accordingly, he has
standing to question the procedures followed by Respondent in adopting the rule and to otherwise challenge the rule's validity pursuant to Section 120.56, Florida Statutes.
SACA is an organization comprised exclusively of Florida ACLFs. Its purpose is to advance the collective interests of these facilities. Inasmuch as all of the SACA's members must pay their $150 assessment in accordance with the billing and collection procedures established by Rule 10-5.022 or suffer the consequence of a fine or forfeiture of their license, and because the subject matter of the rule is within the SACA's general scope of interest and activity," the SACA also has standing to contest the validity of the rule. Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351, 353-54 (Fla. 1982). Compliance with Section 120.54, Florida Statutes.
Section 120.54(2)(a), Florida Statutes, mandates that before adopting a rule an agency must "consider the impact of such proposed action on small business as defined in the Florida Small and Minority Business Assistance Act of 1985." Small business is defined in this act as
. . . an independently owned and operated business concern which employs 25 or fewer permanent full-time employees, and which has a net worth of not more than $1 million. As applicable to sole proprietorships, the $1 million net worth requirement shall include both personal and business investments.
Section 288.703(1), Fla. Stat. The agency's analysis of the impact that the proposed rule will have on small business must be set forth in the economic impact statement the agency is required to prepare pursuant to Section 120.54(2)(b), Florida Statutes.
If the agency determines that the proposed rule will have an adverse impact on small business, it must consider alternatives to the rule which would have a less burdensome effect on small business. While the agency is required to consider these alternatives, it is not statutorily required to adopt them. The adoption of such alternatives is a matter within the sound discretion of the agency.
Section 120.54(2) (a), provides that the agency
. . . whenever possible, shall tier such rule to reduce disproportionate impacts on small business and to avoid regulating businesses which do not contribute significantly to the problem the rule is designed to regulate.
[Emphasis supplied.] The agency, in accordance with Section 120.54(2)(a), Florida Statutes, is obligated to
. . . consider each of the following methods for reducing the impact of the proposed rule on small business:
Establishing less stringent compliance or reporting requirements in the rule for
small business.
Establishing less stringent schedules or
deadlines in the rule for compliance or reporting requirements for small business.
Consolidating or simplifying the rule's compliance or reporting requirements for small business.
Establishing performance standards to replace design or operational standards in the rule for small business.
Exempting small business from any or all requirements of the rule.
[Emphasis supplied.]
In addition to the foregoing, the agency must comply with the following requirements of Section 120.54(3)(b), Florida Statutes:
If the agency determines that the proposed action will affect small business as defined by the agency as provided in paragraph (2)(a), the agency shall send written notice of such rule to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office , and the Division of Economic Development of the Department of Commerce not less than 21 days prior to the intended action.
Within the 21-day period after written notice has been sent and the day on which the intended action is to take place, the agency shall give the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce an opportunity to present evidence and argument and to offer alternatives regarding the impact of the rule on small business.
Each agency shall adopt those alternatives offered pursuant to this subsection which it finds are feasible and consistent with the stated objectives of the proposed rule and which would reduce the impact on small business.
If an agency does not adopt all alternatives offered pursuant to this subsection, it shall, prior to rule adoption or amendment and pursuant to subsection (11), file a detailed written statement with the committee explaining the reasons for failure to adopt such alternatives. Within 3 working days of the filing of such notice, the agency shall send a copy of such notice to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office and the Division of Economic Development of the Department of Commerce.
[Emphasis supplied.]
A "substantially affected" person seeking the invalidation of a rule on the ground that the agency failed to follow the above-described procedural requirements must establish not only that the agency departed from these requirements, but also that such departure was a material one which impaired the fairness of the rulemaking process or the correctness of the action taken by the agency. See Florida-Texas Freight v. Hawkins, 379 So.2d 944, 946 (Fla. 1979); Plantation Residents' Association v. School Board of Broward County, 424 So.2d 879, 881 (Fla. 1st DCA 1982); Polk v. School Board of Polk County, 373 So.2d 960, 962-63 (Fla. 2d DCA 1979). Such a material error will not be found if the person is unable to show that there were reasonable, less burdensome alternatives available to the agency that it failed to consider before adopting the rule. See Humana, Inc. v. Department of Health and Rehabilitative Services,
469 So.2d 889, 890 (Fla. 1st DCA 1985); Division of Worker's Compensation, Department of Labor and Employment Security v. McKee, 413 So.2d 805, 806 (Fla. 1st DCA 1982). Petitioners failed to make such a showing in the instant case.
The rulemaking authority given Respondent pursuant to Section 381.703(3), Florida Statutes, is narrow in scope. Respondent is not empowered to determine the amount of the fee assessment, who must pay it, or the consequences of a facility's failure to timely pay or its refusal to pay the assessment. These are matters that have already been determined by the Legislature and Respondent is not at liberty to substitute its judgment for that of the Legislature regarding these issues. The Legislature has restricted the rulemaking authority with which it has vested Respondent pursuant to Section 381.703(3), Florida Statutes, to establishing a "facility billing and collection process." In other words, Respondent's discretion in the area of health care facility fee assessments is limited to deciding when and how a facility must pay its assessment to avoid the penalties prescribed by the Legislature.
Respondent exercised this legislatively delegated discretion and adopted Rule 10-5.022. Before doing so, it considered the only alternative available to it that arguably would have reduced the rule's impact on small business: allowing facilities to delay full payment of their fee assessments until later than is provided for in the rule. Because Respondent gave consideration to this lone available alternative, there is no basis upon which to conclude that it committed prejudicial error by failing to adhere to the above-referenced procedural requirements of Section 120.54, Florida Statutes.
Payment of Assessment by ACLFs
Bordering on the frivolous is the argument made by Petitioners in their petition that Respondent is without statutory authority to collect an assessment from ACLFs. ACLFs are specifically mentioned in Section 381.703(3)(a), Florida Statutes, as among those facilities required to pay the assessment. It is difficult to imagine how the Legislature could have expressed itself more clearly on the subject. To read Section 381.703(3)(a), Florida Statutes, as exempting ACLFs from the requirements of the statute is to ignore the plain and obvious meaning of the language used by the Legislature, and to rewrite the statute. This the undersigned cannot and therefore will not do.
See Wagner v. Botts, 88 So.2d 611, 613-14 (Fla. 1956). To Petitioner's credit, they have recognized the weakness of their initial position regarding this issue and have conceded in their Proposed Final Order that it should be rejected.
Payment Due on or before October 1, 1988
Petitioners contend that Rule 10-5.022 "exceeds delegated legislative authority by requiring payment on or before October 1, 1988, since no rule was in effect on those dates as required by law." A review of the legislative enactment upon which Respondent has relied as authority in adopting the rule -- Chapter 88-394, Laws of Florida -- reveals that Petitioners' contention is without merit. Chapter 88-394, Laws of Florida imposed the requirement that regulated health care facilities pay an annual fee assessment and directed Respondent to, "by rule, establish a facility billing and collection process for the billing and collection of the[se] health facility fees." Inasmuch as Chapter 88-394, Laws of Florida, took effect on October 1, 1988, Respondent acted within the scope of its legislatively delegated authority by requiring in Rule 10-5.022 that regulated health care facilities pay their assessment by that date, notwithstanding that the rule itself did not become effective until after October 1, 1988.
Mandatory Forfeiture of License
Rule 10-5.022 provides, in pertinent part, that "[r]efusal by a health care facility to pay the annual assessment fee shall result in forfeiture of its license." Petitioners claim that this "mandatory forfeiture [provision] exceeds the statutory authority granted and must be invalidated" because it is inconsistent with Section 381.703(3)(d), Florida Statutes, which provides, in pertinent part, that a "facility which refuses to pay the fee or fine is subject to the forfeiture of its license." This contention is unconvincing.
The Legislature has stated without equivocation in Section 381.703(3)(d), Florida Statutes, that a licensee's refusal to pay the required fee will subject it to, or in other words, cause it, to lose its license. Webster's New Twentieth Century Dictionary 1813 (2d ed. 1980) ("subject," defined: "to cause to undergo or experience some action or treatment (with to)"). No mention is made in the statute of any other penalty besides license forfeiture, nor does the statute cite any circumstances under which a defiant licensee can escape this consequence. Had the Legislature, as Petitioners suggest, intended to vest Respondent with the discretion to impose a lesser penalty than license forfeiture, it would have provided that a licensee which refuses to pay "may be subject to the forfeiture of its license," and indicated the alternative penalties available to Respondent, instead of providing, as it did, that the defiant licensee "is subject to the forfeiture of its license," without referencing any other potential penalties. See Department of Business Regulation v. Stein, 326 So.2d 205 (Fla. 3d DCA 1976) (administrative agency, being a creature of statute, is not empowered to impose a penalty for a licensee's failure to comply with statutory provision if Legislature has not given agency authority to take such action). Furthermore, the Legislature would have given Respondent some guidance as to how this discretion should be exercised. Cf. Lewis v. Bank of Pasco County, 346 So.2d 53, 55-56 (Fla. 1976) ("statute must so clearly define the power delegated that the administrative agency is precluded from acting through whim, showing favoritism or exercising unbridled discretion"); Pinellas County v. Jasmine Plaza, Inc., 334 So.2d 639, 640 (Fla. 2d DCA 1976) (delegation of authority to administrative official "must be accompanied by definitive standards upon which the official's decision must be based"). The failure of the Legislature to take such measures is persuasive evidence that it had no intention of vesting Respondent with such discretion.
In any event, regardless of whether it requires Respondent to do so, Section 381.703(3)(d), Florida Statutes, at the very least, authorizes
Respondent to revoke the license of each health care facility which refuses to pay its fee assessment. Accordingly, Respondent did not exceed its statutory authority in giving warning to facilities in Rule 10-5.022 that their refusal to pay the assessment "shall result in forfeiture of its license."
HOLDING
Based upon the foregoing Findings of Facts and Conclusions of Law, it is ORDERED that:
Petitioners have standing to bring this rule challenge pursuant to Section 120.56, Florida Statutes.
Petitioners have failed to establish that Florida Administrative Code Rule 10-5.022 is an invalid exercise of delegated legislative authority.
DONE and ENTERED this 24th day of April, 1989, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1989.
APPENDIX
The following are my specific rulings on the findings of fact proposed by the parties: Respondent's Proposed Findings of Fact
Accepted and incorporated in this Final Order.
Accepted and incorporated.
Accepted and incorporated.
Accepted and incorporated, except to the extent that it states that "[t]he department subsequently amended the rule to reflect the intent of [Section] 381.703(3), Fla. Stat." This statement has been rejected because it is more in the nature of a legal conclusion than a finding of fact.
First sentence: rejected as a legal conclusion; second sentence: accepted and incorporated.
Accepted and incorporated.
Accepted and incorporated.
Rejected as a legal conclusion.
Rejected as a legal conclusion.
Rejected as both unsupported by competent substantial evidence and irrelevant and immaterial. The requirement that ACLFs pay a $150 assessment was imposed by statute, not by the rule being challenged.
Accepted and incorporated.
First sentence: accepted and incorporated; second sentence: rejected as a legal conclusion.
Accepted and incorporated.
Accepted and incorporated.
Rejected as a legal conclusion.
Accepted and incorporated.
Petitioners' Proposed Findings of Fact
First Unnumbered Paragraph: Accepted and incorporated.
Second Unnumbered Paragraph: Rejected as a legal conclusion. Third Unnumbered Paragraph: Rejected as a legal conclusion. Fourth Unnumbered Paragraph: Accepted and incorporated.
Fifth Unnumbered Paragraph: Rejected as a legal conclusion. Sixth Unnumbered Paragraph: Accepted, but not incorporated since it is irrelevant and immaterial.
Seventh Unnumbered Paragraph: Accepted and incorporated. Eighth Unnumbered Paragraph: Rejected as unnecessary.
Ninth Unnumbered Paragraph: Accepted and incorporated. Tenth Unnumbered Paragraph: Accepted and incorporated.
Eleventh Unnumbered Paragraph: First sentence: rejected as not supported by competent substantial evidence. Stamm testified that she did make inquiry into the proposed rule's impact on small business. Eleventh Unnumbered Paragraph: Second Sentence: accepted and incorporated.
Twelfth Unnumbered Paragraph: Accepted and incorporated.
COPIES FURNISHED:
R. S. Power, Esquire Agency Clerk
Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller, Esquire General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32308
Deanna Eftoda
2727 Mahan Drive, Suite 103
Tallahassee, Florida 32399-0700
Stephen Presnell, Esquire MacFarlane, Ferguson, Allison
and Kelly
First Florida Bank Building Tallahassee, Florida 32302
William R. Hanley, Esquire
242 Office Plaza
Suite 804 Post Office Box 1834
Tallahassee, Florida 32302
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68. FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Apr. 24, 1989 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 24, 1989 | DOAH Final Order | HRS acted lawfully in adopting rule requiring regulated facilities pay fee assessment by date prior to effective date of rule where statute so required |
