STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3236

)

Y & S PARTNERSHIP, d/b/a ) MANHATTAN CONVALESCENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R.L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on April 14, 1983, in Tampa, Florida.

APPEARANCES

For petitioner: Janice Sortor, Esquire

Department of Health and Rehabilitative Services

4000 West Buffalo Avenue Tampa, Florida 33603

For Respondent: Edward M. Chew, Esquire

de la Parte & Gilbert, P.A. 705 East Kennedy Boulevard Tampa, Florida 33602

ISSUE

Whether respondent should pay a late fee of $5,000.00 for filing an application for renewal of its nursing home license 81 days late.

BACKGROUND

By administrative complaint dated October 28, 1982, petitioner Department of Health and Rehabilitative Services ("DHRS") charged respondent Y & S Partnership, d/b/a Manhattan Convalescent Center ("Y & S Partnership") with violating Section 400.111(1), Florida Statutes, by filing an application for renewal of its nursing home license 81 days late. As penalty, DHRS sought to impose a $5,000.00 late fee.

Y & S Partnership disputed the charges and requested a hearing. On November 30, 1982, DHRS forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing was initially set for February 18, 1983, then--on DHRS' unopposed motion--continued and reset for April 14, 1983.

At hearing, DHRS presented the testimony of John Adams; Y & S Partnership presented the testimony of Willard Roth. Petitioner's Exhibit Nos. 1 and 2 were received into evidence. No posthearing proposed findings of fact and conclusions of law were filed. Neither has a transcript of the hearing been filed.

Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

1. At all times material to the charges, Y & S Partnership owned and operated Manhattan Convalescent Center, a nursing home located at 4610 South Manhattan Avenue, Tampa, Florida. This nursing home operated under the authority of a license issued by DHRS pursuant to Chapter 400, Part I, Florida Statutes.

   
   

2. Nursing Home licenses require annual renewal. Application for renewal must be submitted to DHRS at least 90 days prior to expiration of the current license. Section 400.111(1), Fla. Stat.

   
   

3. The expiration date for the Manhattan Convalescent Center nursing home license was October 18, 1982. Thus the application for renewal was due 90 days earlier--on July 21, 1982. Instead, DHRS received the application on October 11, 1982--81 days late. (Testimony of Adams, Petitioners Exhibits Nos. 1 and 2).

   
   

4. DHRS routinely sent licensees applications for renewal prior to the date which they must be filed. In this case, DHRS mailed a renewal application to the administrator of Manhattan Convalescent center on May 24, 1982. The application was received on June 1, 1982, as evidenced by a receipt signed by a nursing home employee.

   
   

5. If a licensee fails to timely file a renewal application with DHRS, a statutory late fee is imposed for each day which the application is late. The fee is equal to fifty percent of the fee in effect on the last preceding regular renewal date. The aggregate late fee cannot, however, exceed $5,000.00. Here, the required fee in effect in 1981 was $300.00. Although 81 times $150.00 totals $12,150.00, the late fee cannot exceed the statutory maximum of

   $5,000.00. Section 400.111(1), Fla. Stat. (Supp. 1982).

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1981).

   
   

7. Under Chapter 400, Part I, Florida Statutes, DHRS issues licenses authorizing nursing homes to operate in Florida. Section 400.111(1), Florida Statutes (Supp. 1982), provides in part:

   
   

   Section 400.111(1).

   1. Expiration of license; renewal.--

      * * *

      Ninety days prior to the expiration date, an application for renewal shall be submitted to the Department of

      Health and Rehabilitative Services . . . .

      The failure to file an application within the period established herein shall result in a late fee charged to the facility

      by the department in an amount equal to

      50 percent of the fee in effect on the last preceding regular renewal date.

      A late fee shall be levied for each and every day the filing of the license application is delayed, but in no event shall such fine aggregate more than

      $5,000 . . . Late fees shall be deposited and disbursed through the Patient Protection

      Trust Fund established by s. 400.063 1/

      
      

8. This statutory late fee is mandatory and allows DHRS no discretion. The evidence in this case establishes that Y & S Partnership violated Section 400.111(1), Florida Statutes, by submitting an application for renewal 81 days late. When calculated in accordance with the statutory formula, the late fee

totals $12,150.00. But since there is a $5,000.00 limit on aggregate late fees, a $5,000.00 late fee must be levied.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That DHRS enter a final order requiring Y & S Partnership to pay a late fee of $5,000.00, which should be deposited and disbursed through the Patient Protection Trust Fund established by Section 400.063, Florida Statutes.

DONE and ENTERED this 25th day of August, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 25th day of August, 1983.

ENDNOTE

1/ Section 400.111(1), Florida Statutes (1981), in effect during the time in question, contains similar language but lacks the $5,000.00 statutory limit.

COPIES FURNISHED:

Janice Sortor, Esquire Department of Health and

Rehabilitative Services 4000 W. Buffalo Avenue Tampa, Florida 33603

Edward M. Chew, Esquire

de la Parte & Gilbert, P.A. 705 E. Kennedy Boulevard Tampa, Florida 33602

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-003236

Orders for Case No: 82-003236