STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YESTERDAY'S RETIREMENT MANOR, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-3046

)

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 November 16, 1982, in Coral Gables, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Alvin Capp, Esquire

700 Southeast Third Avenue, Third Floor Fort Lauderdale, Florida 33316

For Respondent: Harold L. Braynon, Esquire

Department of Health and Rehabilitative Services

201 West Broward Boulevard Fort Lauderdale, Florida 33301

The issue for determination in this case is whether the application of Petitioner Yesterday's Retirement Manor, Inc., to operate an adult congregate living facility should be approved.

At the final hearing, Petitioner's Exhibits 1-0, previously designated C1- 8, were offered and admitted into evidence pursuant to a prehearing stipulation filed November 2, 1982. Vivian Zaleta, owner and operator of Yesterday's Retirement Manor, Inc., and Jerome Rosen, Zaleta's accountant, testified for the Petitioner. Luretha Laws, Program Specialist for the Department of Health and Rehabilitative Services and Iris Pueschel, District Financial Officer, testified for the Respondent.

Proposed Recommended Orders have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this Order, they are rejected as being not supported by competent and substantial evidence or as being irrelevant to the issues determined here.

PROCEDURAL BACKGROUND

By letter dated November 24, 1981, the Petitioner, Yesterday's Retirement Manor, Inc., (hereafter "Petitioner" or "Yesterday's") was informed by the Aging and Adult Unit of the Respondent Department of Health and Rehabilitative Services (hereafter "Department") that its application for licensure as an adult congregate living facility (hereafter "ACLF") had been denied for failure to submit certain financial documents as required by Sections 10A-5.14(6)(b) and 10A-5.14(6)(c), Florida Administrative Code. As a result of the denial, on November 27, 1981, the Petitioner requested an administrative hearing.

The Petitioner submitted additional financial information on June 14, 1982.

The Department, by letter dated June 29, 1982, again denied Petitioner's application because the financial documents submitted failed to establish the owner's financial ability to provide continuing adequate care to its residents.

This case was scheduled to be heard on April 8, 1982, but was continued due to a stipulation between the parties.

FINDINGS OF FACT

1. The Petitioner is an ACLF which is owned by Vivian Zaleta, its sole stockholder. Prior to May, 1980, and continuing through the present, the Petitioner corporation operated the ACLF from its location at 700 S. E. 20th Street, Fort Lauderdale, Florida.

   
   

2. Mrs. Zaleta purchased the property and improvements at 700 S. E. 20th Street for $150,000 and from the period May, 1980, through the date of the final hearing, November 16, 1982, invested an additional $80,000 to $100,000 on repairs and improvements to the property.

   
   

3. Petitioner was granted a license by the Department to operate as an ACLF and began operations on May 2, 1981. The Petitioner's initial license expiration date was August 5, 1981.

   
   

4. Applications for renewal of the license must be submitted to the Department on required renewal forms which were furnished to Petitioner by the Respondent for completion and submission.

   
   

5. Petitioner's renewal license application was completed May 9, 1981, and received by the Department on May 11, 1981.

   
   

6. By letter dated June 2, 1981, the Department requested the Petitioner to complete certain financial reports which were enclosed in said letter and required:

   
   

   ...in order to comply with the Florida Statute 400, Chapter II and the changes in Section 10A-5 of the Florida Administrative Code which

   became effective May 14, 1981.." (Petitioner's

   Exhibit 3)

   
   

7. Petitioner completed the additional financial report requested by the Department. This financial report was received by the Department on August 7, 1981.

8. On September 14, 1981, the Department requested additional information from the Petitioner. The Petitioner's application was denied by the Department by letter to Mrs. Zaleta dated November 24, 1981, due to a failure of Petitioner to comply with Chapter 10A-5.14, Florida Administrative Code, and requests for specified information. Moreover, in its letter of denial, the following was noted:

   
   

   Florida Statute 120, "Administrative Procedure Act stipulates that every application for license shall be approved or denied within ninety days after receipt of the application. Since your application was received on May

   11, 1981, the expiration of the ninety-day time limit was August 11, 1981. There is no statutory provision (sic) to extend this mandated time limit on applications, there fore, it is necessary that your application for a license for an Adult Congregate

   Living Facility be denied because the fol lowing licensure requirements have not been met... (Petitioner's Exhibit 1a)

   
   

9. By letter dated November 27, 1981, and received by the Department on November 30, 1981, Mrs. Zaleta, as administrator of Yesterday's, filed a timely request for an administrative hearing to review the denial of the requested license renewal.

   
   

10. During the pendency of these proceedings, counsel for the parties attempted to resolve their dispute. On behalf of Petitioner, Rosen and Santini, P.A., Certified Public Accountants, prepared a financial report and revised financial report concerning the financial status of the corporation on forms furnished by the Department and submitted the same to Aging and Adult Services.

    
    

11. The Department apparently considered the documents submitted pursuant to settlement discussions between counsel as part of a new and separate license renewal application and by letter dated June 29, 1982, again denied the requested license renewal for the failure of the Petitioner to provide a Statement of Operation or Renewal Questionnaire.

    
    

12. At the final hearing, the Department conceded that the letter of June 29, 1982, was incorrect, and that Petitioner had submitted and the Department had received and reviewed a Statement of Operations or Renewal Questionnaire which was submitted by the Petitioner's accounting firm.

    
    

13. Since August, 1981, the Department has deleted the Petitioner from its list of Adult Congregate Living Facilities to which health care providers may refer potential residents, thereby, causing Petitioner to lose both referrals and income.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdic- tion over the parties and subject matter of this dispute. Section 120.57(1), Florida Statutes. Section 120.60(2), Florida Statutes provides that:

    
    

    When an application for a license is made

    as required by law, the agency shall conduct

    the proceedings required with reasonable dis patch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant

    of any apparent errors or omissions, and request any additional information the agency is per mitted by law to require. Failure to correct an error or omission or to supply additional infor mation shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period... Every application for license shall be approveo or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law..

    Any application for a license not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved and,...the license shall be issued....[A]ny..agency, if specifically exempted by law, shall be exempt from the time limitations within this subsection. (Emphasis

    added)

    
    

15. The practical effect of Section 120.60(2), is to require licensing agencies to perform certain acts and make certain decisions by a time certain. The law deems the failure to act within the prescribed time the equivalent of an approval of an application and requires the issuance of a license forthwith.

    See Department of Business Regulation v. Hyman, 417 So.2d 671, 673 (Fla. 1982).

    
    

16. As to the applicant, the limitations imposed upon licensing agencies have the effect of also creating a substantive right, and, as to such applicant, the statute is a substantive right which may be freely and voluntarily waived. See World Bank v. Lewis, 406 So.2d 541 (Fla. 1st DCA 1981) and AGO 077-41.

    
    

17. In the instant case, the application was received by the Department on May 11, 1981. Within thirty days of receipt of the application the Department requested additional information from the applicant. See Petitioner's Exhibit

3. The requested information was provided by the applicant and received by the Department on August 7, 1981. Pursuant to Section 120.60(2), Florida Statutes, the Department had until November 10, 1981, or ninety days from August 7, 1981, to either approve or deny the application or receive a waiver of the ninety-day time requirement from the applicant. The failure of the Department to either receive a waiver from Zaleta of the ninety-day time requirement or deny the application before November 10, 1981, resulted in the issuance of the requested license by operation of Section 120.60(2), Florida statutes: 1/

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered by the Department of Health and Rehabilitative Services granting the requested license to the Petitioner Yesterday's Retirement Manor, Inc.

DONE and ORDERED this 7th day of March, 1983, 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 7th day of March, 1983.

ENDNOTE

1/ Assuming arguendo that the Petitioner failed to provide the documents requested on August 7, 1981, the time ran from the date of the original application and the Department had until August 10, 1981, to deny the application.

COPIES FURNISHED:

Alvin Capp, Esquire

700 Southeast Third Avenue Third Floor

Fort lauderdale, Florida 33316

Harold L. Braynon, Esquire Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-003046

Orders for Case No: 81-003046