STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FEDERAL PROPERTY MANAGEMENT ) CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-0816

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice of hearing dated June 25, 1984, the final administrative hearing in this case was held before William C. Sherrill, Jr., Hearing Officer with the Division of Administrative Hearings, on October 12, 1984, in Tallahassee, Florida.

Appearing for the parties were:

For Petitioner: Robert D. Newell, Jr., Attorney at Law

646 Lewis State Bank Building Tallahassee, Florida 32301

For Respondent: Jay Adams, Esquire

John Carlson, Esquire Building 1, Room 406

1323 Winewood Boulevard

Tallahassee, Florida 32301 FINDINGS OF FACT

1. Procedural background: Petitioner in this case seeks a certificate of need to construct a one hundred twenty bed community nursing home in Palm Beach County. Upon denial of that application by the Department of Health and Rehabilitative Services (HRS) on January 31, 1984, Petitioner requested a formal hearing pursuant to 120.57(1), Florida Statutes. By letter received on February 28, 1982 the Petition was referred to the Division of Administrative Hearings, and a final hearing was held before the undersigned on October 12, 1984, pursuant to timely notice of hearing.

   
   

2. Petitioner meets all of the criteria in rule 10-5.11, F.A.C., with the exception of subpart (21) of that rule. Transcript, p. 5-6, hereinafter T-5,6.

   
   

3. Petitioner likewise meets all of the criteria of 381.494, Florida Statutes, to the same extent that it meets the criteria of the rule. (T-8)

4. Petitioner has waived any right it may have to require HRS to apply any amendments to 10-5.11(21), F.A.C. which may become effective after October 12, 1984.

   
   

5. Petitioner applied for a certificate of need to construct a one hundred twenty bed nursing home in Palm Beach County by application received by HRS on October 14, 1982. (T-22)

   
   

6. On October 26, 1982, HRS wrote an "errors and omissions" letter to Petitioner, requesting additional information. Petitioner's exhibit 4; (T-22)

   
   

7. Petitioner's application was complete and ready for HRS review when received on October 14, 1982. (T-23) The "errors and omissions" letter was sent to extend the 45 day period due to excess workload at HRS. (T-26) The information requested in the letter of October 26, 1984, was not needed to begin agency review since the application was sufficiently complete as filed. (T-24)

   
   

8. Subpart (21) of rule 10-5.11, F.A.C. became effective on November 9, 1982. Petitioner's exhibit 2.

   
   

9. Mark Druash, the Medical Facilities Consultant for HRS who reviewed Petitioner's application, did not at any time tell Petitioner that the new subpart (21) was going to be used in review of Petitioner's application, and he knew of no one in HRS who communicated that fact to Petitioner. (T-29)

   
   

10. There is no contention in this case that rule 10-5.11 (21), F.A.C. was not duly promulgated, and the rule was in fact effective and filed with the Secretary of State as stated in paragraph 8 above on November 9, 1982.

    
    

11. On December 15, 1982, HRS wrote the Petitioner to inform it that its application was complete. Petitioner's exhibit 6. As found in paragraph 7 above, however, the letter of December 15, 1982 was not the date that the application was complete for review.

    
    

12. On January 31, 1983, HRS denied Petitioner's application for a certificate of need solely on the basis that the application failed to show need pursuant to suboart (21) of rule 10-5.11, F.A.C., adopted November 9, 1982. (T-

    31) Petitioner's exhibit 7.

    
    

13. Prior to November 9, 1982, HRS followed a policy of determining need for nursing home beds based upon a need formula of 27 beds per 1,000 population. (T-32)

    
    

14. Applying the former policy to Petitioner's application, there would have been a determination of a need for 517 beds in Palm Beach County, a number substantially in excess of Petitioner's request for permission to build 120 beds. (T-33)

    
    

15. Mr. Druash would have recommended approval of Petitioner's application if he had used the earlier policy of 27 beds per 1,000 population. (T-33) He further testified that Petitioner's application would have been approved using the earlier policy. (T-33) HRS concedes this point in its proposed findings of fact, page 3, paragraph 3.

    
    

16. New subpart (21) of rule 10-5.11, F.A.C. is applied to an application for a certificate of need by using data collected by HRS, whether promulgated by HRS or collected from sources such as the BEBR. (T-34-35.)

17. Neither the letter of October 26, 1982, or the letter of December 15, 1982 to Petitioner from HRS advised Petitioner that its application was to be evaluated under subpart (21) of the rule.

    
    

18. The amount of the fee paid by Petitioner to apply for a certificate of need was $4,000.

    
    

19. There is no evidence in this record that Petitioner was required to submit any additional information for proper consideration of its application under the new subpart (21) of the rule.

    
    

20. Petitioner did not submit any data at the hearing before this Hearing Officer relevant to application of subpart (21) of the rule.

    
    

    CONCLUSIONS OF LAW

    
    

21. The petition seeking an administrative hearing pursuant to Section 120.57(1), Florida Statutes, was timely filed, and this Hearing Officer has jursidiction to submit this recommended order.

    
    

22. Subpart (21) of rule 10-5.11, F.A.C., effective November 9, 1982, governs this case. The Hearing Officer has reached this conclusion of law for the following reasons:

    
    

    1. Rule 10-5.11 (21) is legally no different than rule 10-5.11 (23), F.A.C., found by the First District Court of Appeal in Turro v. Department of Health and Rehabilitative Services,

       9 FLW 2195., (October 12, 1984) to be an evidentiary standard, procedural in nature, applicable to pending certificate of need proceedings on effective date of the rule.

       
       

    2. Rule 10-5.11 (21), F.A.C., unlike the rule in the Turro case, became effective before HRS completed its review of the application and issued its state agency action report. Moreover, Petitioner has had from February 28, 1983, when it first sought an administrative hearing, until and including October 12, 1984, the

       date of the hearing, to gather data and prepare its case for presentation under the new rule. That HRS used certain data to implement the rule in preparing its decision to deny the application in January 1983, and did not convey such data to Petitioner until it issued the state agency action report, is irrelevant since the Petitioner was afforded ample opportunity to contest such data at the final hearing on October 12, 1984.

    3. An administrative hearing pursuant to Section 120.57, Florida Statutes, unlike trial in circuit court, is an integral part of the formulation of agency action, and not review of prior final agency action. New rules from the agency which seeks to formulate final action are particularly germane in this context.

       See McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 583 (Fla. 1st

       DCA 1977).

       
       

    4. The general rule seems to be that a change of law should be applied to a pending application for a permit or license. State of Florida Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891, 894 n.7 (Fla. 1st DCA 1980)(dicta). The rule has been applied to environmental permitting, Grove Isle, Ltd. v. Bayshore Homeowners' Association, Inc. 418 So.2d 1046 (Fla. 1st DCA 1982), and to zoning cases, City Council of the City of North Miami Beach, v. Trebor Construction Corp., 296 So.2d 490 (Fla. 1974), distinguishing Boynton Beach v. Carroll,

       272 So.2d 171 (Fla. 4th. DCA 1973); City of Coral Gables v. Sakolsky, 215 So.2d 329 (Fla. 2d DCA 1968).

       
       

    5. A different rule seems to apply to applications for professional licenses, Goldstein v. Sweeney, 42 So.2d 367 (Fla. 1949); Atwood v. State, 53 So.2d 101 (Fla. 1951) , although these cases may conceivably be explained as involving estoppel concepts or special circumstances. See Department of Health and Rehabilitative Services, v. Pettv- Eifert, 443 So.2d 266 (Fla. 1st DCA 1983). But see Bruner v. Board of Real Estate, 399 So.2d 4 (Fla. 5th DCA 181).

       
       

    6. The certificate of need law, sections

       381.493 et seq., Fla. Stat., is more analogous to zoning regulation than it is to professional licensing. The certificate of need law is focused upon a broadly defined future community need for health services in much the same fashion that zoning regulation governs future community land use. While professional licensing is properly concerned with the past accomplishments of one individual, and in fairness an individual ought not be judged by

       constantly moving standards, an applicant for a certificate of need necessarily must be judged by the most current concepts of future community need.

       
       

    7. As the Court pointed out in Turro, even in the certificate of need context the standards must eventually come to rest. The rule, however, did come to rest in this case, and the Petitioner had a fair opportunity to present its case under the new rule in a 120.57 hearing.

RECOMMENDATION

Based upon the findings of fact and conclusions of law set forth herein, it is RECOMMENDED that the Petitioner's application for a certificate of need be denied.

SUBMITTED and ENTERED this 30th day of November, 1984, in Tallahassee, Florida.

WILLIAM C. SHERRILL, JR.

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1984.

COPIES FURNISHED:

Robert D. Newell, Jr., Esquire Mr. David Pingree, Secretary 646 Lewis State Bank Building Department of Health and Tallahassee, Florida 32301 Rehabilitative Services

1323 Winewood Blvd.

Jay Adams, Esquire Tallahassee, Florida 32301 John Carlson, Esquire

Building 1, Room 406

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-000816

Orders for Case No: 83-000816