Judges: W. MATTHEW STEVENSON
Agency: Agency for Health Care Administration
Latest Update: May 01, 1987
Summary: Case dismissed. Res judicata applied. Issues presented were previously litigated.
86-3671.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IDA BELLE HILL, d/b/a ) IDA BELLE HILL'S RETIREMENT HOME ) and IDA BELLE HILL'S BOARDING HOME, )
)
Petitioner, )
)
vs. ) CASE NO. 86-3671
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on February 13, 1987, in Fort Lauderdale, Florida. The following appearances were entered.
APPEARANCES
For Petitioner: Ruby Seymour-Campbell, Esquire
5739 Pembroke Road
Hollywood, Florida 33023
For Respondent: Michael Mathis, Esquire
Office of Licensure and Certification Post Office Box 210
Jacksonville, Florida 32231
The issue is whether or not the Petitioner's application for re-licensure as an Adult Congregate Living Facility (ACLF) should be approved.
PROCEDURAL BACKGROUND
This cause came on for final hearing on February 13, 1987. At the beginning of the final hearing, the Respondent made an ore tenus Motion to Dismiss this cause, arguing that a Final Order resolving this matter had already been entered by the Department of Health and Rehabilitative Services on November 17, 1986. Because of the untimeliness of the Motion to Dismiss and because all of the parties and witnesses had assembled in Ft. Lauderdale for the final hearing, a ruling on the motion was reserved and both parties presented the testimony of witnesses and offered documentary evidence. The parties submitted post-hearing Proposed Findings of Fact. A Ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order. For reasons discussed in the Conclusions of Law Section herein, the Motion to Dismiss is well taken and should be granted.
FINDINGS OF FACT
Ida Belle Hill Retirement Home and Ida Belle Hill Boarding Home are adult congregate living facilities (ACLF) located at 5218 and 5512 Mayo Street, Hollywood, Florida.
The licenses on both facilities expired on November 19, 1985, and by letter dated November 25, 1985, the Petitioner's applications for licensure renewal were denied.
The Petitioner requested a formal hearing on the licensure renewal denials. The denial of the license renewal applications was based on the results of an administrative inspection performed on the facilities by HRS officials on July 19, 1985, with a follow-up visit on November 5, 1985. Certain deficiencies which were cited on July 19, 1985, remained uncorrected at the time of the follow-up visit on November 5, 1985.
The case was assigned DOAH Case Number 86-0921 and the final hearing was held on May 1, 1986.
While the case was pending before the Division of Administrative Hearings, the Department of Health and Rehabilitative Services allowed the two ACLF's to continue operating under a conditional license pending resolution of the administrative proceedings.
Sometime prior to August 1, 1986, the case had still not been resolved and the Petitioner submitted another application for licensure renewal for both facilities. Neither party presented a copy of the Petitioner's renewal applications and it is impossible to determine from the record as it is, whether these renewal applications were addressed to the conditional licenses or the original annual licenses which had expired.
By letter dated August 1, 1986, the Department of Health and Rehabilitative Services notified the Petitioner that the most recent applications for licensure renewal of the two facilities would also be denied. The letter acknowledged that an "appeal" was pending on the previous denial of the applications for renewal. The denial of the recent applications for renewal was based on the same reasons which the original denial was based upon--failure to correct certain deficiencies cited in a July 19, 1985, survey within the mandated time-frame.
The Petitioner requested a hearing on the recent application renewal denials pursuant to the August 1, 1986, letter. The case was then forwarded to the Division of Administrative Hearings, assigned Case Number 86-3671 and scheduled for final hearing on February 13, 1987.
On November 17, 1986, a Final Order was entered by the Department of Health and Rehabilitative Services in Case Number 86-0921 finding that the Petitioner's original applications for re-licensure of the two facilities would be denied. The Petitioner failed to file or take an appeal of this Final Order.
At the final hearing in the instant case, the Respondent presented a copy of the Final Order in the DOAH Case Number 86-0921, and requested that the cause be dismissed as moot.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The Respondent, Department of Health and Rehabilitative Services is charged with the responsibility of licensing and regulating adult congregate living facilities in the State of Florida. Chapter 400, Florida Statutes.
The Petitioner is required to be licensed to operate an adult congregate living facility in the State of Florida. Sections 400.402(2), 400.404(1) and 400.407(a), Florida Statutes.
Upon application for renewal of licensure, a license shall be renewed by the Department if the applicant has first met the requirements of Chapter 400, part 2, Florida Statutes and all rules and regulations promulgated thereunder. Section 400.417(1), Florida Statutes.
The Department of Health and Rehabilitative Services final order of November 17, 1986, in DOAH Case No. 86-0921 was a final agency action in regard to the Petitioner's licenses to operate the two adult congregate living facilities in question. Pursuant to that final order, as of November 17, 1986, the Petitioner had no licenses to operate the two facilities. The final order was not appealed.
The parties did not present any evidence which made clear whether the August 1, 1986, letter of denial was based on a request by Petitioner to renew the conditional license or on a second request to renew the previous license which expired on November 19, 1985. Nevertheless, and in any event, the final order of November 17, 1986, made moot the Petitioner's request for a formal hearing.
If the basis of the Petitioner's request for a formal hearing was predicated on the Respondent's denial of an application for renewal of a conditional license, the instant case became moot upon the entry of the final order because conditional licenses are only effective pending final agency action or during the duration of judicial proceedings. Section 400.417(2) and
(4) Florida Statutes.
On the other hand, if the basis of the Petitioner's request for a formal hearing was predicated on Respondent's denial of a second application for renewal of the initial license which expired in November of 1985, the matter has been resolved by the final order in DOAH Case Number 86-0921. When there is identity of the parties, identity of the thing sued for, identity of the factual and legal issues in dispute and identity of the cause of action, the doctrine of res judicata will apply. Albrecht v. State, 444 So.2d 8 (Fla. 1984). Res judicata is applicable in the circumstances herein, and it is a bar to re- litigation in DOAH Case Number 86-3671 of the same matters decided in DOAH Case Number 86-0921. See White v. School Board of Dade County, 466 So.2d 1141 (Fla. 3rd DCA 1985).
RECOMMENDATIONS
Based on the foregoing findings of fact and conclusions of law, it is,
RECOMMENDED that the Petitioner's application for re-licensure as an Adult Congregate Living Facility (ACLF) be dismissed as moot.
DONE and ORDERED this 1st day of May 1987 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550 904/488-9675
FILED with the Clerk of the Division of Administrative Hearings this 1st day of May 1987.
APPENDIX TO RECOMMENDED ORDER FOR DOAH CASE #86-3671
The following my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case.
RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER
Rejected as unnecessary.
Adopted in Finding of Fact 1.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Adopted in subsentence in Finding of Fact 8.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Rejected as contrary to the weight of the evidence and/or unnecessary.
Rejected as subordinate and/or unnecessary.
Rejected as subordinate and/or unnecessary.
RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT
Adopted in subsentence in Finding of Fact 6.
Adopted in subsentence in Finding of Fact 3 and 8.
Adopted in subsentence in Finding of Fact 8.
Addressed in Conclusions of Law section.
Addressed in Conclusions of Law section.
Rejected as unnecessary and/or subordinate.
Rejected as unnecessary and/or subordinate.
Rejected as a recitation of testimony and/or unnecessary.
Rejected as a recitation of testimony and/or unnecessary.
COPIES FURNISHED:
Ruby Seymour-Campbell, Esquire 5739 Pembroke Road
Hollywood, Florida 33023
Michael Mathis, Esquire
Office of Licensure and Certification Post Office Box 210
Jacksonville, Florida 32231
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services 1323 Winewood Blvd.
Tallahassee, Florida 32399-0700
John Miller
Acting General Counsel 1323 Winewood Blvd.
Tallahassee, Florida 32399-0700
Sam Power
Department of Health and Rehabilitative Services 1323 Winewood Blvd.
Tallahassee, Florida 32399-0700
Docket for Case No: 86-003671
Orders for Case No: 86-003671
