vs. ) Case No. 85-2444
Intervenor. )
A final hearing was held in Orlando, Florida, on June 23 through 26, 1986, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings, to consider whether there is a need for an additional freestanding ambulatory surgical center in Orange County, and whether Orlando Surgi-Center's application for a Certificate of Need (CON) to construct a two operating room free-standing ambulatory surgical center meets the requirements of Section 381.494(6)(c), Florida Statutes. The parties were represented as follows:
For Petitioner: Chris H. Bentley, Esquire
For Intervenor: E. G. Boone, Esquire
Jeffrey Boone, Esquire Gregory Roberts, Esquire 1001 Avenida del Circo Post Office Box 1596 Venice, Florida 34284
At the hearing, Orlando Surgi-Center, Petitioner, introduced twenty exhibits (Numbered P-1 to 20) and called nine witnesses to testify. The Department of Health and Rehabilitative Services, Respondent, called one witness and introduced one exhibit (Numbered H-1). Florida Hospital, Intervenor, called eleven witnesses to testify and introduced nine exhibits (Numbered I-1 to 3, 7, 9 to 12, and 16). During the hearing, Intervenor offered exhibit number I-8 which was rejected on the basis of relevance as well as the fact it was not included on Intervenor's final exhibit list, and also offered exhibits numbered I-13 and 14, upon which a ruling as to their admissibility was reserved.
By Order entered August 8, 1986, exhibits I-13 and 14 were rejected since they are inadmissible under the terms of Rule 1.330(a)(3), Florida Rules of Civil Procedure. A transcript of the hearing in this case was filed on August 20, 1986 and the parties were allowed to file proposed findings of fact and conclusions of law by September 26, 1986. A ruling on each timely filed proposed finding is included in the Appendix to this Recommended Order.
On or about December 13, 1984, Petitioner applied to Respondent for a CON for an ambulatory surgical center (ASC). Respondent assigned CON number 3677 to Petitioner's application.
Petitioner seeks to construct a two operating room, free standing ASC at 1710 West Colonial Drive in Orlando, Orange County, Florida. The primary area to be served by this application is Orange County, and the facility as proposed is reasonably accessible to Orange County residents. Orange County is located within Respondent's District VII, which is also comprised of Osceola, Brevard and Seminole Counties.
Stuart and Joseph Yachnowitz are owners of Y and S Management and are partners in the application here at issue. Y and S Management will provide medical management services at this facility, as it provides at nine other facilities throughout the country which performed approximately 17,500 outpatient surgical procedures in 1985, primarily gynecological. Two of the facilities managed by Y and S Management are licensed as ASCs under the laws of the states in which they are located. The
chief operating officer of Y and S Management, Susan Hill, prepared the CON application which is here at issue.
Financing for this project will be provided from the personal funds of Stuart and Joseph Yachnowitz. No funds will be borrowed for this purpose. They have sufficient liquid personal funds to fully finance the project cost of $473,000, as well as operating costs.
Petitioner will lease 6,500 square feet on the first floor of a professional building to be constructed at 1710 West Colonial Drive in Orlando from West Colonial Properties, Ltd., at
$12 per square foot. This property is owned by Stuart and Joseph Yachnowitz. An abortion clinic known as Orlando Women's Health Center, which they also own, is located next door at 1700 West Colonial Drive. The facility as proposed can reasonably be expected to meet licensure requirements for an ASC.
Ambulatory surgical procedures to be performed at Petitioner's facility will include, but not be limited to abortions, tubal ligations, hernia repairs, diagnostic laproscopies, eye surgery for cataracts, hand surgery, plastic surgery, tonsillectomies, and dilatation and curettage.
Equipment cost estimates for this project of $161,158 are realistic and complete. Staffing requirement estimates of
11.54 F.T.E., and salary requirements of approximately $182,000 annually are also realistic and complete.
Petitioner estimates that for 1987 and 1988, 20% of all cases will be paid by Medicaid, 5% by Medicare, and 75% will be insurance and private pay, with 4% of this figure ultimately being bad debt or indigent care. With total cases estimated for 1987 and 1988 to be 1700 and 2100, respectively, total net revenues for 1987 and 1988 are estimated to be $732,000 and
$903,000, respectively. Providing services to Medicaid patients in 20% of its cases would be beneficial to the community since this is a high level of service to patients who are typically underserved.
Assuming that 20% of the cases handled at Petitioner's facility have multiple procedures, the projected charge rates for 1987 are $326 per case for Medicare and Medicaid, and $489 per case for private pay and insurance. These are reasonable and competitive charges. The projected charge rate for private pay and insurance is simply 150% of the Medicare and Medicaid rate, which in turn is based on the projected case mix considering the various levels of reimbursement.
Petitioner will pay Y and S Management a fee of $50 per case for management services.
The financial pro forma prepared for Petitioner demonstrates that using a conservative approach that somewhat overestimates expenses, Petitioner will reach the break-even point at 1400 cases, after allowing for management fees, depreciation and amortization. Using a less conservative, but more typical approach to estimating expenses, Petitioner will break-even at 1100 cases. Need in the service area exceeds the conservative break-even point and Petitioner estimates it will handle 1700 cases in its first year of operation and 2100 in its second. These are reasonable estimates.
Respondent has not promulgated a rule setting forth a methodology for determining need for an ASC. However, Respondent has utilized an evolving non-rule policy in evaluating the need for such facilities. Reid Jaffe, Respondent's expert in health care planning, explained the methodology used in this case which resulted in his determining that in July, 1987, there will be a need for additional ambulatory surgical facilities in Orange County sufficient to recommend approval of Petitioner's CON application. Specifically, Jaffe's methodology is as follows:
Acquire data from the local health council regarding the number of inpatient and outpatient procedures performed by existing providers, as reported for the current calendar year (1985) by hospitals in the appropriate service district (District VII).
Acquire data from the Governor's Office of the population estimate for the appropriate service area (Orange County) for the current and planning horizon years.
Using this data, calculate the current overall surgical and outpatient surgical use rates per 1000 population for hospitals in the service area.
Using the projected population for the planning horizon year (1987) and the current use rates calculated in (c) above, calculate the projection of overall surgical procedures in the planning horizon year.
Multiply projected overall surgeries by 40% to establish total number of out-patient
surgeries to be performed in the planning horizon year.
Subtract from (e) all outpatient surgical procedures to be performed in hospitals, other ASCs in the service area, as well as the financial break-evens of all CON approved free-standing outpatient surgery centers in the service area.
After performing these calculations and subtractions, the number of outpatient surgical procedures remaining are compared to the break-even of the CON applicant at issue. If the remaining number is larger than the applicant's break even, a quantitative need is demonstrated.
Applying Jaffe's methodology to this case and applying data he obtained from the Local Health Council of East Central Florida, as reported to it by hospitals in District VII for calendar year 1985, as well as population data for Orange County he obtained from the Governor's Office, it appears that a total of 83,054 surgical procedures were performed in District VII in 1985, with 21,084 of these being outpatient procedures performed in a hospital. Using a July, 1985, population estimate for Orange County of 556,384, the overall surgical use rate for Orange County is 83,054 divided by 556,384 over 1000, or 149.27 surgical procedures per 1000 population; the use rate for outpatient procedures performed in hospitals is 21,084 divided by 556,384 over 1000, or 37.89 outpatient procedures performed in hospitals per 1000 population. Multiplying the overall surgical use rate of 149.27 by 574,599 (projected Orange County population for July 1987) over 1000 and applying a factor of 40% yields a projection of 34,308 outpatient surgical procedures to be performed in 1987. The use rate of 37.89 for outpatient services performed in a hospital is then multiplied by 574,599 over 1000 to obtain 21,722 which is the projected number of outpatient procedures which will be performed in a hospital in 1987. By subtracting this number (21,722) from the projection of total outpatient surgical procedures to be performed in 1987 (34,308) you identify 12,536 procedures which could be performed in ASCs in 1987. The reported number of outpatient procedures being performed in existing ASCs and the break-evens of CON approved facilities are calculated to be 5,488 (Surgical Services 2,693; MediVision 903; AMI Single Day Surgery
1,832; Surgical Associates 60) which is then subtracted from 12,536 to leave a need of 7,048 outpatient procedures which could be performed in ASCs which are not now approved for this service area. Since Petitioner has a conservative break-even point of 1400 cases, and a more typical break-even point of 1100 cases, a quantitative need has been identified which far exceeds Petitioner's break-even point. Jaffe testified that in his experience this is the largest margin between break-even and available procedures he has seen in reviewing CON applications.
A need analysis conducted by Howard E. Fagin, Ph.D., who was accepted as an expert in health care planning, facility planning and operations analysis, also confirms that there is a quantitative need for the ASC proposed by Petitioner. The methodology used by Dr. Fagin starts by calculating a target utilization for ambulatory surgical operating rooms. Assuming that a facility operates 250 days/year, 6 hours/day, it takes 1.25 hours/case and that there are 1.2 procedures/case with a utilization rate of 75%, a target utilization of 1,080 procedures/year for an ambulatory surgical room is thereby determined. In 1985 there were 10 approved hospital "dedicated" ambulatory surgical rooms in Orange County, and 9 approved rooms in free-standing ASCs (Surgical
Services-5, AMI Single Day Surgery-2, MediVision-2) not
counting the 2 rooms approved in CON 3313 for Surgical Associates which are used for no more than 60 cases per year. Multiplying these 19 rooms by the target utilization of 1,080 procedures/year results in a calculation of 20,520 total utilization in available dedicated and free-standing ASC rooms. Data from the Local Health Council of East Central Florida for 1985 indicates that 11,413 outpatient procedures were performed in hospital, non-dedicated, operating rooms. Therefore if we take Jaffe's projection of 34,308 outpatient surgical procedures to be performed in 1987, and subtract 20,520 (total utilization in available dedicated and free-standing ASC rooms) and also subtract 11,413 (outpatient procedures performed in hospital, non-dedicated, rooms), we arrive at a need of 2,375 procedures in 1987 and 3,770 procedures in 1989. Since Petitioner's break-even is conservatively 1400 cases, and again assuming 1.2 procedures per case, Petitioner's conservative break-even is 1680 procedures, which is within the need which will exist in 1987, and well within the need in 1989.
The need methodology and opinion of Intervenor's expert, Dr. Deborah Kolb, is rejected because she incorrectly:
(a) considered Orange and Seminole Counties as comprising a two county service area; (b) included all existing inpatient hospital based operating rooms, regardless of whether they are dedicated to outpatient surgery, in arriving at her conclusion that there is excess capacity; and (c) assumed all hospital operating rooms are available for outpatient surgery without modification.
Ambulatory surgery is typically performed in three types of facilities: hospitals which utilize their operating rooms for both inpatient and outpatient surgery; hospitals which maintain separate "dedicated" outpatient operating rooms, sometimes even in separate facilities adjacent to the main hospital; and free-standing ASCs which are not associated with a hospital. There are definite disadvantages to serving outpatients in hospitals without "dedicated" outpatient operating rooms, including the "bumping" of outpatients in emergencies and increased costs to the patient for services. On the other hand there are advantages and disadvantages to the other two modes of delivering ambulatory surgical services. Hospital based "dedicated" rooms are obviously closer to a hospital in case an emergency develops, and some patients may prefer this proximity to additional equipment and emergency medical staff. On the other hand, costs at a free-standing ASC are generally lower, and some patients prefer to avoid a hospital atmosphere altogether. Surgical procedures performed at ASCs have grown from 10% of all procedures in the early 1970s to 40% currently, and are projected to grow to 50% in the near future. This growth is somewhat the result of a change in Medicaid/Medicare reimbursement policies which now pay 80% for procedures performed in a hospital and require a 20% co-payment by the patient, but which pay 100% for procedures performed in an ASC and require no patient co-payment. The decision to have outpatient surgery performed at one or the other of these types of facilities is primarily the result of patient preference. However, it is clear that the increasing utilization of ASCs is a market force that is driving the cost of hospital outpatient services down.
Respondent issued its original notice of intent to deny Petitioner's application on or about May 17, 1985, and on June 14, 1985, Petitioner filed its Petition for Formal Hearing. Thereafter, Respondent reconsidered its position and on March 6, 1986, notified the parties that it intended to grant Petitioner's application. The reason for this reconsideration was that when the initial denial was made, Respondent's projections of procedures were premised on the use of a 30% outpatient surgical factor. Subsequently, the Respondent began using 40% in its projection of the total volume of surgical procedures which might
be performed on an outpatient basis. Given the fact that the reason Petitioner was initially denied was due to insufficient procedures, and utilization of the new projection of outpatient volume indicated there would be sufficient volume to support the facility, Respondent determined to support Petitioner's application. The notice of change of position was prepared by Reid Jaffe, who based his testimony at hearing on the 40% factor, and was approved by Robert E. Maryanski, Administrator of Community Medical Facilities, and Marta V. Hardy, Deputy Assistant Secretary for Health Planning and Development.
Since Respondent has not adopted a need methodology rule for ambulatory surgical centers, the increase in the factor used to calculate outpatient surgeries from overall surgeries performed was not accomplished through rule-making proceedings. In 1985 Respondent used a factor of 30%, but in early 1986 increased this to the 40% applied in this case..
Intervenor provides services similar to those which Petitioner will perform, and has four free-standing, "dedicated" operating rooms which are used for ambulatory surgery. It also has 17 operating rooms that are used for both in and out-patient surgery. The Intervenor opposes Petitioner's application.
In 1985, Intervenor made a profit of $10.9 million on total revenues collected of $184 million; it had an actual total of $37.4 million in uncompensated care which includes partial or no payments, charity, bad debt, and contractual patients. For 1986, it projects an $18.9 million profit on collected revenues of $211 million, with projections of actual uncompensated care of approximately $52 million. In 1985, 2% of Intervenor's costs were for providing indigent care, and this totaled approximately
$6 million. Petitioner projects net revenues of approximately
$900,000, and it has not been established if this will have any impact on Intervenor's revenues.
According to Billie June, Assistant Director of Operating Rooms at Florida Hospital who was accepted as an expert in surgical nursing, and the management and operation of surgical units from a nursing standpoint, Intervenor has had considerable difficulty attracting qualified nursing staff for its operating rooms, and has had to develop its own qualified staff through an internship program. However, Petitioner's facility will not contribute to this difficulty or result in higher salaries.
Susan Hill testified based on her experience since 1973 of managing and hiring staff in the Orlando area of the type needed to operate an ASC, that she has had no difficulty obtaining the cooperation of physicians in the area and in attracting fully qualified staff. Based on Hill's experience with other ASCs managed by Y and S Management throughout the country as well as
her experience in Orange County, it is found that the staffing needs of Petitioner's proposed facility can be met with nursing and medical staff available in the area.
It is found as a matter of fact that there is a need in Orange County for the two operating room ASC proposed by Petitioner, that Petitioner has the ability and will provide quality care, the project is financially feasible, Petitioner will work with and help to meet the needs of health maintenance organizations and will promote cost effectiveness in Orange County.
Petitioner's proposal is consistent with the goals, objectives and recommended actions in the 1985-87 Florida State Health Plan and the local health plan. The State Plan encourages the existence of ASCs and the removal of obstacles to the use of outpatient surgery; the local plan provides that applicants for an ASC must demonstrate a willingness to provide services to underserved patient groups and considers the provision of ambulatory surgery to the underserved population to be a desirable objective. In this case Petitioner intends to provide 20% of its cases to Medicaid patients, and another 4% to indigents.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes.
Initially it must be determined if Intervenor has standing to participate in this proceeding. Petitioner argues that since the definition of "ambulatory surgical center" found at Section 381.493(3)(a), Florida Statutes, specifically excludes facilities which are part of a hospital, and since in fact Intervenor is a hospital, it is not an "affected person" within the meaning of Rule 10-5.02(20), Florida Administrative Code. It is the position of Petitioner that since Intervenor is not, and by definition cannot be, an ASC that it has no standing in this proceeding.
Intervenor bears the burden of establishing its right to intervene, and must show that its interest in the matter in litigation is of such a direct and immediate character that it will either gain or lose by direct legal operation and effect of the action taken in this case. Naples Community Hospital v. Department of Health and Rehabilitative Services, 463 So.2d 375 (Fla. 1st DCA 1985). Intervenor has met its burden in this case since it has shown that it is a "health care facilit(y). . . located in the health service area in which the service is
proposed to be offered or developed which provide(s) services similar to the proposed services under review. . . " Rule 10- 5.02(20), Florida Administrative Code. The key point is that the services must be similar to the services Petitioner will offer; neither the facilities, nor the services for that matter, must be identical. Just as the existence of different bed need methodologies does not control or exclude standing, the existence of different facilities also is not determinative of a party's right to intervene as long as the services rendered are similar. Psychiatric Institutes of America v. Department of Health and Rehabilitative Services, Case No. BR-251 (Fla. 1st DCA, Opinion filed July 17, 1986); St. Francis Parkside Lodge of Tampa Bay v. Department of Health and Rehabilitative Services, 486 So.2d 32 (Fla. 1st DCA 1986).
Petitioner bears the ultimate burden of demonstrating its entitlement to a CON. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Since this is a de novo proceeding, it is the position of the parties at the time of hearing that is relevant in determining whether Petitioner has met its burden. Therefore, Respondent's change of position is not improper, and evidence offered by Respondent in support of this application is relevant and has been considered. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Boca Raton Artificial Kidney Center v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985). It is, of course, recognized that McDonald does not compel the consideration of a new fixed pool of beds identified after the CON under review has been completed, without appropriate amendment or update. Gulf Court Nursing v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986).
In determining if there is a need for the proposed facility, a balanced consideration of all statutory and rule criteria must be made. Department of Health and Rehabilitative Services v. Johnson & Johnson, 444 So.2d 361 (Fla. 1st DCA 1984). The weight given to each individual criteria is not fixed, but varies depending on the facts of each case. North Ridge General Hospital, Inc. v. NME Hospitals, 478 So.2d 1138 (Fla. 1st DCA 1985). The fact that no rule exists setting forth a methodology for determining need for ASCs must therefore be addressed in order to determine what criteria must be applied in performing the required balanced consideration, and also whether such consideration can be given at all, absent a rule.
While the existence of non-rule policy has been recognized, it must be clearly explicated by the agency or party seeking to rely thereon. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). This is a heavy
burden and the non-rule policy does not have the presumption of validity which is afforded formally promulgated agency rules.
Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983).
In the recent case of Upjohn Healthcare Services, Inc. v. Department of Health and Rehabilitative Services, Case No. BH-
479 (Fla. 1st DCA, Opinion filed July 22, 1986) the Court addressed a situation similar to the one in this case. In Upjohn an applicant for a CON as a "home health agency" was also faced with no agency rules for determination of need. The applicant therefore produced expert testimony at the administrative hearing seeking to establish a need methodology, and ultimately a need for its CON. In reversing the Department's denial of a CON and remanding the case for issuance of the CON, despite the absence of need methodology rules, the Court stated:
. . .section 381.494(7)(b)(1) requires local health councils to develop district wide plans "using [a] uniform methodology as set forth by the department." Furthermore, the "elements of an approved district plan which are necessary to the review of any certificate of need application shall be adopted by the department as part of its rules." HRS, "as the single state agency to issue, revoke, or deny certificates of need," is required to "promulgat[e] rules and minimum standards for the issuance of certificates of need," s. 381.494(8)(b),
and it is to review CON applications "in
accordance with the district plans," s. 381.494(8)(a). Thus, Upjohn entered into the CON process without a preexisting statutorily mandated standard by which it, and thereafter HRS, could gauge the element of need for an additional home health agency in Escambia County. Upjohn attempted to surmount this unwarranted obstacle through its presentation of four need methodologiesone of which was found in the local health plan. . .
. . .Following the Upjohn hearing, HRS had settled on a formula that apparently disclosed a need for one additional home health agency in Escambia County, HRS had applied that formula as an incipient policy to other pending CON applications, and on the basis of that policy had entered into a
stipulation with Upjohn for the award of a CON. . .
In accordance with the foregoing, we reverse HRS' final order and remand this matter to it with direction that a CON be granted to Upjohn.
It is therefore clear that the non-existence of a need methodology rule is not fatal to an application for a CON if incipient, non-rule policy can be sufficiently explicated at hearing. In this case, unlike Upjohn, Respondent did offer evidence and expert testimony at hearing to elucidate its non- rule policy applicable here.
We now turn to the statutory criteria found at Section 381.494(6)(c), Florida Statutes, to determine whether Petitioner, supported by Respondent, has established its entitlement to the CON it seeks. After considering all the evidence, and balancing these statutory criteria, it is concluded that Petitioner has met its burden. The evidence has shown that there is a need for this ASC in Orange County, the Petitioner has the demonstrated ability to provide quality care, there are sufficient human resources to properly staff this facility and thereby make its services readily available to residents of Orange County, the project is clearly financially feasible, there will be no adverse impact on the cost of providing health care in the area, and that the facility itself is appropriate under the circumstances. The Petitioner evidences a commitment to provide a high level of indigent care and service to Medicare and Medicaid patients, as well as a willingness to address the special needs and circumstances of health maintenance organizations. Balancing the positive benefits to be derived from the issuance of this CON against the almost de minimus impact Petitioner's operation will have on Intervenor, it is concluded that Petitioner's application for CON should be granted.
Finally, it is noted that the parties have not disputed the appropriate planning horizon to be considered in this proceeding and accordingly this is not an issue. The Hearing Officer lacks jurisdiction to determine matters which are not the subject of appropriate pleadings and notice. Department of Environmental Regulation v. Montco Research Products, 489 So.2d 771 (Fla. 5th DCA 1986).
Based on the foregoing, it is recommended that the Department of Health and Rehabilitative Services issue a Final Order granting Petitioner's application for CON number 3677.
DONE and ENTERED this 23rd day of October, 1986, at Tallahassee, Florida.
DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986.
Chris H. Bentley, Esquire Post Office Box 1739 Tallahassee, Florida 32302
E. G. Boone, Esquire Jeffrey Boone, Esquire Gregory Roberts, Esquire Post Office Box 1596 Venice, Florida 34284.
1. Adopted in Findings of Fact 1, 2. 2,3. Adopted in Finding of Fact 3.
23-25. Rejected in Finding of Fact 18 and otherwise rejected as irrelevant and not based on competent substantial evidence.
36,37. Rejected as irrelevant and unnecessary.
38. Adopted in Finding of Fact 22. 39,40. Adopted in Finding of Fact 23.
41. Rejected as a Finding of Fact since this is a request for further ruling on Petitioner's Motion to Limine which was granted at hearing. Petitioner filed a Motion in Limine on June 11, 1986 to exclude depositions taken of John Hutchens on April 23, 1986 and June 5, 1986. This is the motion dealt with at the prehearing conference on June 23, 1986. The only deposition of John Hutchens offered by Intervenor and admitted was one taken on June 20, 1986 (I-2). Therefore, Petitioner's motion and the prior ruling is moot since the depositions to which the motion was directed were not offered at hearing.
42-45. Adopted in Finding of Fact 22.
Rulings on Intervenor's Proposed Findings of Fact, as set forth beginning on page 3:
1. Adopted in Finding of Fact 12.
2-16. Rejected in Finding of Fact 15, and otherwise irrelevant and cumulative.
17,18. Rejected in Findings of Fact 12-14, 22.
19-26. Adopted in part in Finding of Fact 14, but otherwise rejected as contrary to competent substantial evidence.
27,28. Adopted in part in Findings of Fact 12, 13, but otherwise rejected as contrary to competent substantial evidence.
29. Rejected in Findings of Fact 12-15 and otherwise as argument rather than proposed findings of fact.
30-34. Adopted and rejected in part in Finding of Fact 16 and otherwise rejected as contrary to competent substantial evidence.
39,40. Adopted in part in Finding of Fact 16.
43,44. Rejected in Finding of Fact 22. 45-47. Rejected in Finding of Fact 7.
57-59. Rejected as simply a summation of testimony, irrelevant and contrary to competent substantial evidence.
62,63. Rejected in Finding of Fact 21 and otherwise irrelevant and contrary to competent substantial evidence.
72-75. Adopted in part in Findings of Fact 19-21, but otherwise rejected in Findings of Fact 21, 22 and as irrelevant.
76-79. Rejected as irrelevant, cumulative argument which does not provide citations to the record contrary to Rule 221-6.31(3), Florida Administrative Code.
