STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MR. & MRS. C. W. PRICE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2006

)

STATE OF FLORIDA, ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings. by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on February 13, 1981, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: No appearance was made on

behalf of Petitioner.

For Respondent: Harold Braynon, Esquire

District X Legal Counsel Department of Health and Rehabilitative Services

201 West Broward Boulevard Ft. Lauderdale, Florida 33301

By letter dated October 6, 1980, the Petitioners, Mr. and Mrs. C. W. Price, requested an administrative hearing on the Respondent's refusal to license their home as an adult congregate living facility (ACLF). The basis for the denial was the inability of the Petitioners to operate their home as an ACLF due to improper zoning on the subject property.

The issue in this case is whether the property proposed for licensure as an ACLF complies with Rule 10A-5.04(6), Florida Administrative Code, which requires as a condition of licensure that ACLF facilities comply with applicable city and county zoning ordinances.

FINDINGS OF FACT

1. On September 23, 1980, Ms. Patricia Kroeger, ACLF Specialist, Department of Health and Rehabilitative Services, sent to the Petitioners, Mr. and Mrs. C. W. Price, a letter denying ACLF licensure to a home for the elderly owned and operated by the Prices in Plantation, Florida.

2. The reason for the denial was the lack of multi-family zoning on the subject property which is necessary to lawfully operate an ACLF within the City of Plantation.

   
   

3. The Petitioners were given 30 days by the Department to either cease operation of the facility or obtain a variance to the zoning code from the City of Plantation.

   
   

4. Counsel for the Petitioners requested an administrative hearing on October 6, 1980, and a final hearing was held on February 13, 1981.

   
   

5. The hearing was lawfully noticed for 10:00 A.M. on February 13, 1981. At the noticed hour, neither counsel for Petitioner nor the Petitioners were available and a call was placed to the law office of Ms. Marie Hotaling by counsel for the Department, Mr. Harold Braynon. The Hearing Officer was informed by Mr. Braynon that the Petitioners and their counsel were on the way to the hearing and would arrive shortly. At 11:00 A.M., with neither Petitioner nor their counsel present, the hearing was begun. The Department presented testimony and documentary evidence which established that the zoning on the Price's property for which ACLF licensure was sought would not permit the operation of a multiple resident facility such as an ACLF.

   
   

6. At the close of Respondent's case, the Petitioners had not yet made an appearance and the hearing was adjourned.

   
   

7. No subsequent communication has been received by the Hearing Officer from the Petitioners or their counsel concerning the final hearing.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Rule 10A-5.04(6), Florida Administrative Code, provides in regard to licensing procedures for ACLF's that:

   
   

   it is the responsibility of the facility to comply with applicable city and county ordinances to include, but not be limited to, business licenses, zoning, fire and safety codes.

   
   

10. The uncontradicted testimony reflected that the subject property could not lawfully operate as an ACLF under its existing zoning as established by the City of Plantation and, therefore, licensure as an ACLF was properly denied in the absence of any evidence that the property had been excepted from its existing zoning by city officials.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Petitioner's request for licensure of their home in Plantation, Florida as an Adult Congregate Living Facility, be denied for failure to comply with Rule 10A-5.04(6), Florida Administrative Code.

DONE and ORDERED this 16th day of March, 1981, in Tallahassee, Florida.

SHARYN L. SMITH, 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 16th day of March, 1981.

COPIES FURNISHED:

Harold Braynon, Esquire District X Legal Counsel Department of HRS

201 W. Broward Boulevard

Fort Lauderdale, Florida 33301

Marie S. Hotaling, Esquire 1523 N. E. 4th Avenue

Fort Lauderdale, Florida 33304

Docket for Case No: 80-002006

Orders for Case No: 80-002006