STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE GIBBS, d/b/a GIBBS GUEST ) HOME, )

)

Petitioner, )

)

vs. )

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

Case No. 02-0597

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on December 16, 2002, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied Petitioner's renewal application for an assisted living facility license.

PRELIMINARY STATEMENT

On or about December 20, 2001, Respondent Agency for Health Care Administration (Respondent) issued a Notice of Intent to deny the renewal application for an assisted living facility (ALF) license filed by Petitioner Joyce Gibbs', d/b/a Gibbs Guest Home (Petitioner). The notice alleged that Petitioner failed to meet minimum licensure standards pursuant to

Sections 400.414(3) and 400.417(3), Florida Statutes. According to the notice, Petitioner owed $10,000 in outstanding administrative fines imposed pursuant to a Final Order in AHCA Case No. 04-01-0019-ALF.

Petitioner, through counsel, filed a Petition for Administrative Hearing with Respondent on January 9, 2002. Respondent referred the case to the Division of Administrative Hearings on February 15, 2002.

The parties filed a Joint Response to Initial Order on March 11, 2002. A Notice of Hearing by Video Teleconference dated March 13, 2002, scheduled the hearing for April 22, 2002.

On March 25, 2002, Respondent filed a Motion to Remand Case to Agency for Informal Proceedings, or in the alternative, Motion in Limine. Petitioner did not file a response to the motions. The undersigned issued an Order dated April 10, 2002, denying the Motion to Remand and granting, in part, the Motion in Limine.

When the hearing commenced on April 22, 2002, the parties advised the undersigned that they had reached a settlement agreement. An Order Closing File was issued that same day. The Order was without prejudice for either party to reopen the case if Respondent's Office of Licensure and Certification disapproved the settlement agreement.

A Transcript of the April 22, 2002, proceeding was filed on May 2, 2002.

On September 6, 2002, Respondent filed a Re-Notice and a Motion to Reopen. These pleadings state that the parties had attempted to negotiate a settlement in good faith and that they had been unable to do so. On September 10, 2002, the undersigned issued an Order Granting Motion to Reopen and Requiring Status Report.

On September 30, 2002, Respondent filed a unilateral Response to ALJ's Order Requesting Status Report. On

October 11, 2002, the undersigned issued a Notice of Hearing by Video Teleconference, scheduling the hearing for December 16, 2002.

On December 4, 2002, the undersigned's office attempted to contact the counsel for both parties to confirm that they intended to make appearances at the hearing. On December 5, 2002, Petitioner's counsel returned the call, confirming that he intended to appear at the hearing on Petitioner's behalf.

When the hearing commenced, neither Petitioner nor her counsel were present. After waiting for an appropriate period of time, the undersigned recessed the proceeding. The undersigned's office then contacted Petitioner's counsel by telephone. During that conversation, Petitioner's counsel advised the undersigned's office that he was on his way to another hearing in an unrelated case. Petitioner's counsel also made an ore tenus request for a continuance. When the hearing reconvened, the undersigned declined to continue the hearing.

Respondent presented the testimony of one witness and offered eleven exhibits that were accepted into evidence.

A Transcript of the proceeding was filed on January 23, 2003.

Respondent filed a Proposed Recommended Order on January 31, 2003. As of the date of the issuance of this

Recommended Order, Petitioner had not filed proposed findings of facts or conclusions of law.

FINDINGS OF FACT

1. On June 18, 2001, Petitioner filed a renewal application for an ALF license with limited mental health.

2. On June 21, 2001, Respondent issued an Administrative Complaint in AHCA Case No. 04-01-0019-ALF. The complaint alleged that Respondent had cited Petitioner for one Class I

   deficiency and one unclassified deficiency during an appraisal visit on May 30, 2001.

3. Specifically, the complaint alleged as follows:

   
   

   1. Petitioner had an interest in more than one facility and was providing personal services to residents within a facility that was not licensed in violation of Section 400.419(8), Florida Statutes (2000), resulting in an unclassified deficiency; and

   2. Petitioner was not in compliance with building construction codes and the documented evidence of violation put residents in immediate danger of death or serious physical harm in violation of Section 400.444(1), Florida Statutes (2000), resulting in a Class I deficiency.

4. The complaint also stated that Section 400.419(8), Florida Statutes (2000), and Rule 58A-5, Florida Administrative Code, authorized the imposition of a $5,000 administrative fine for each of the alleged violations.

5. By letter dated June 27, 2001, Respondent advised Petitioner that a conditional ALF license with limited mental health had been issued effective June 19, 2001, through September 18, 2001. The letter indicates that the conditional license was issued because of deficiencies cited during a survey of Petitioner's facility.

6. On September 12, 2001, Respondent issued a Final Order in AHCA Case No. 04-01-0019-ALF. The Final Order was filed with

   Respondent's Clerk on September 20, 2001, and served on Petitioner by U.S. mail on September 21, 2001.

7. The Final Order states that Petitioner had not requested an administrative hearing. Finding that Petitioner's failure to request a hearing constituted a waiver of the hearing rights and an admission of the alleged facts, the Final Order imposed an administrative fine in the amount of $10,000.

8. On October 2, 2001, Respondent, through her attorney, filed a Motion to Reopen Record with Respondent. The motion asserted that, through no fault of her own, Petitioner failed to respond to the Administrative Complaint. Specifically, the motion claimed that Petitioner's attorney was in the process of winding down his then-existing law partnership and that in the course of packing, the file pertaining to the administrative proceeding and his instructions as to a response were apparently misplaced.

9. By letter dated October 4, 2001, Respondent advised Petitioner that a conditional ALF license with limited mental health had been issued. The conditional license was effective September 19, 2001, through December 18, 2001. The letter advised Petitioner that all fines had to be paid before a standard license could be issued.

10. On November 7, 2001, Respondent issued an Order Denying Motion to Reopen Record.

11. On December 20, 2001, Respondent issued a Notice of Intent to Deny Petitioner's ALF license renewal application due to her failure to pay the administrative fines in AHCA Case

    No. 04-01-0019-ALF in the amount of $10,000. This instant administrative proceeding followed.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

13. Section 400.414, Florida Statutes, reads, in pertinent part, as follows:

    400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds.--

    
    

    1. The agency may deny, revoke, or suspend any license issued under this part, or impose an administrative fine in the manner provided in chapter 120, for any of the following actions by an assisted living facility, any person subject to level 2 background screening under s. 400.4174, or any facility employee:

       
       

       * * *

       
       

       1. Failure of the license applicant, the licensee during relicensure, or a licensee that holds a provisional license to meet the minimum license requirements of this part, or related rules, at the time of the license application or renewal.

    * * *

    
    

    (3) The agency may deny a license to any applicant . . . [which] has an outstanding fine assessed under this chapter.

    
    

14. Section 400.417, Florida Statutes, reads in pertinent part as follows:

    400.417 Expiration of license; renewal; conditional license.--

    
    

    * * *

    
    

    (3) . . . A license for the operation of a facility shall not be renewed if the licensee has any outstanding fines assessed pursuant to this part which are in final order status.

    
    

15. The burden of proof in this proceeding is on Respondent. To prevail in this proceeding, Respondent is required to prove by clear and convincing evidence that Petitioner's license should not be renewed because she has not paid administrative fines that are in final order status. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Coke v. Department of Children and Family Services, 704 So. 2d 726 (5th DCA 1998).

16. Respondent has met its burden. Clear and convincing evidence indicates that Petitioner has not paid the administrative fine imposed by Final Order in AHCA Case

No. 04-01-0019-ALF. Respondent may properly deny Petitioner's

ALF license renewal application as long as the fine remains unpaid.

RECOMMENDATION

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

RECOMMENDED:

That Respondent enter an order denying Petitioner's application to renew her ALF license.

DONE AND ENTERED this 4th day of February, 2003, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2003.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403

Lamar Winegeart, III, Esquire Winegeart Law Firm, P.A.

2220 Riverplace Tower

1301 Riverplace Boulevard

Jacksonville, Florida 32207

Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building, Suite 3431 Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-000597

Orders for Case No: 02-000597