STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Fort Lauderdale, Florida, on October 21, 1980, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioners: Stephen W. Toothaker, Esquire

222 Southeast 10th Street

Fort Lauderdale, Florida 33316

For Respondent: Harold S. Braynon, Esquire

Department of Health and Rehabilitative Services

District X Legal Counsel

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301 ISSUE PRESENTED

Whether Petitioners' applications for renewal of license as adult congregate living facilities should be approved pursuant to Section 400.417, Florida Statutes.

These cases were consolidated with DOAH Case No. 80-1603R which involved a petition for an administrative determination of the validity of Respondent's

Rule 10A-5.04(2)(e), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.

Petitioners in these cases filed petitions under Section 120.57(1), Florida Statutes, contesting the denial by Respondent of their applications for renewal of licensure as adult congregate living facilities under Chapter 400, Part II, Florida Statutes. Pursuant to stipulation, the Section 120.57(1) proceedings were consolidated for hearing.

During the course of the hearing, the parties orally stipulated to certain facts. Additionally, the parties were directed by the Hearing Officer to submit certain exhibits subsequent to the hearing. Joint exhibits were filed by the parties on January 22, 1981.

FINDINGS OF FACT

1. Petitioners are all corporations which own and operate adult congregate living facilities in Broward County, Florida. Each of the Petitioners had previously been licensed by the Respondent under Chapter 400 and timely applied for renewal of licensure on various dates. Golden Years Retirement Home, Lincoln Manor Retirement Home, and Southside Retirement Club, Inc. applied in November 1979, and Camelot Retirement Home applied in May 1980. (Stipulation, Exhibits 6-8)

   
   

2. Golden Years, Lincoln Manor, and Southside Manor were advised by letters from Respondent in February and March, 1980, that their applications would not be processed because the current statement of assets and liabilities prepared by an independent bookkeeper or accountant in accordance with Rule 10A- 5.04(2)(e) F.A.C., had not been submitted. They were also informed in the letter of the availability of procedures under Chapter 120, Florida Statutes. They thereafter requested an administrative hearing. (Stipulation, Exhibits 6- 8)

   
   

3. Camelot Retirement Home, Fort Lauderdale, Florida, who is the Petitioner in DOAH Case 80-1218, submitted its application for relicensure in May 1980, and enclosed a financial statement executed by the administrator of the facility. By letter, dated June 4, 1980, Respondent advised the home that, although Chapter 10A-5 formerly required an applicant to submit the required financial statement prepared by an independent bookkeeper or accountant, an emergency amendment to Rule 10A-5.04(2)(e) then permitted an applicant to prepare its own statement. It further noted that because Camelot Retirement Home is a corporation, the personal statement of the administrator was not acceptable because Rule 10A-5.01(4) defines "applicant" to be the owner of the facility. (Stipulation, Exhibit 9)

   
   

4. Respondent's District Program Specialist who reviews license applications for adult congregate living facilities, determines the financial solvency of an applicant based on the statement of assets and liabilities submitted with an application to determine if the facility would "go bankrupt in providing care to the residents." She makes this determination by observing whether the facility has excessive debt which would render it unable to provide proper care to the residents and continue operation. In doubtful cases, she would have the district fiscal staff, including accountants, review financial statements, but, to date, has had no reason to do so. Since February, 1980, the district office has had sample financial forms available for applicants upon request. Respondent has promulgated no rules nor does it have any written policies setting forth criteria as to the financial requirements for licensure.

   None of the petitioners in these proceedings except Camelot Retirement Home submitted financial statements with their applications for license renewal. No application has been denied for an insufficient financial condition since the promulgation of Rule 10A-5.04(2)(e), F.A.C., on October 3, 1979. License application files, including financial statements of applicants, are available in Respondent's offices for inspection by the general public. (Testimony of Kroeger, Exhibits 1-2)

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 400.411, Florida Statutes (1979) provides that an applicant for a license to operate or maintain an adult congregate living facility must provide satisfactory proof of financial ability operate and conduct the facility in accordance with the requirements of Chapter 400, Part II, Section 400.417(1) concerning annual license renewal provides as follows:

   
   

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

   1. Licenses issued for the operation of a facility, unless sooner suspended or revoked, shall expire 1 year from the date of issuance. Sixty days prior to the expiration date, an application for renewal shall be submitted

      to the department, and licenses 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 act and all rules promulgated hereunder. The facility shall file with the application satisfactory proof of financial ability to operate and conduct the facility in accordance with the require- ments of this part. (Emphasis added)

      
      

      Respondent has implemented subsection 400.417(1) by Rule 10A-5.04, Florida Administrative Code. Rule 10A-5.04(2)(e) states:

      
      

      10A-5.04 Licensure procedure

      * * *

   2. The application for licensure shall be notarized and contain the following:

   * * *

   (e) Satisfactory evidence of the financial ability to operate the facility, which shall include a current statement of the assets and liabilities of the applicant prepared by an independent bookkeeper or accountant.

   
   

   Although Chapter 400 does not define the word "applicant," subsection 400.431(2), relating to facility closing, provides that upon discontinuance of the operation of a facility, the "owner shall surrender the license therefor to the department. Respondent's Rule 10A-5.01(4) defines "applicant" as the "owner of a facility."

   
   

6. The evidence reflects that none of the applicants filed the required financial statements. The statement submitted by the administrator of Camelot

   Retirement Home did not meet the requirements of Respondent's Rule 10A-5.01 (4), F.A.C., which defines "applicant" as the owner of a facility.

   
   

7. By Final Order, this date, in DOAH Case No. 80-1603R, this Hearing Officer determined that the Petitioners therein had failed to establish that Rule 10A-5.04(2)(e), F.A.C., is an invalid exercise of delegated legislative authority.

   
   

8. In view of the foregoing, it is concluded that Petitioners have failed to establish entitlement to relicensure as adult congregate living facilities under Chapter 400, Part II, Florida Statutes.

RECOMMENDATION

That the applications of Petitioners for renewal of licensure as adult congregate living facilities under Chapter 400, Part II, Florida Statutes, be denied.

DONE and ENTERED this 18th day of February, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 18th day of February, 1981.

COPIES FURNISHED:

Stephen W. Toothaker, Esquire

222 SE 10th Street

Fort Lauderdale, Florida 33316

Harold S. Braynon, Esquire Donna Stinson, Esquire Department of HRS General Counsel

District X Legal Counsel Department of HRS

201 West Broward Boulevard 1323 Winewood Boulevard

Ft. Lauderdale, Florida 33301 Tallahassee, Florida 32301

Docket for Case No: 80-000666

Orders for Case No: 80-000666