STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOY FAMILY LIVING BOARDING ) HOME, INC., d/b/a JOY'S FAMILY ) LIVING BOARD HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3036

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on October 20, 1988, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: William Park, Esquire

8001 North Dale Mabry Building 601, Suite B Tampa, Florida 33614

For Respondent: Edward Haman, Esquire

Office of Licensure and Certification 7827 North Dale Mabry

Tampa, Florida 33614

The issue in this case is whether the Department of Health and Rehabilitative Services, Respondent, should issue a license renewal as an adult congregate living facility (ACLF) to Joy Family Living Boarding Home, Inc., d/b/a Joy's Family Living Boarding Home, Petitioner. The parties agreed to correct the style of this case, as shown above, prior to commencement of the final hearing. As the hearing began, counsel for Respondent sought to amend the letter dated May 12, 1988, which sets forth the reasons for denial of Petitioner's license renewal. On October 19, 1988, Respondent had filed a Motion incorrectly titled Motion to Relinquish Jurisdiction, but which was intended to be a Motion for Continuance based upon the Respondent's position that there was a need to amend this May 12, 1988, letter "in order to accurately and completely set forth the basis of the agency action." The Petitioner opposed a continuance, and also opposed any amendment to the letter which denied license renewal since Petitioner had prepared for hearing on the basis of the May 12, 1988, letter.

The Respondent's Motion for Continuance was denied, as untimely filed. Rule 22I-6.017, Florida Administrative Code. Thereupon, Respondent moved to dismiss this matter, alleging that Petitioner had failed to file a petition which conforms to the requirements of Rule 22I-6.004(3), Florida Administrative Code. It is hereby recommended that the motion to dismiss be denied, as

untimely filed. Rules 22I-6.004(5) and 22I-6.016, Florida Administrative Code. The Respondent's letter of May 12, 1988, amended an earlier letter of denial dated March 28, 1988, in response to which Petitioner timely requested a hearing on the Respondent's decision not to renew its ACLF license. The issues in this case are clearly and properly framed by the Respondent's letters of denial, and the Petitioner's request for hearing to contest this denial. The fact that the Respondent has waited until the day before hearing to file a motion which, for the first time, asserts that Petitioner has not filed a proper petition, and which seeks to amend its already amended letter of denial, should not be allowed to deprive Petitioner of its right to a hearing to resolve this matter. The Respondent cannot continually amend its letters of denial, even on the day of hearing, and thereby prejudice the rights of licensees to a fair and impartial consideration of their application for license renewal.

At the hearing, the Respondent called two witnesses and introduced eleven exhibits, while four exhibits which Respondent sought to introduce were rejected as irrelevant, incompetent, and outside the scope of the May 12, 1988 letter.

The Petitioner called Ruby Byrd, Administrator of the ACLF and President of the corporation, to testify, and introduced one exhibit.

The transcript of the hearing was filed on November 9, 1988, and the parties were thereafter allowed to file proposed recommended orders, including proposed findings of fact, within ten days. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner owns and operates an ACLF in Tampa, Florida, and has been continuously licensed by the Respondent as an ACLF since at least 1984. The Administrator, President and major stockholder of Petitioner is Ruby Byrd.

   
   

2. On or about October 9, 1987, Petitioner applied for license renewal, and the Respondent requested additional information by letter dated October 15, 1987. According to Respondent's witness, John C. Morton, the Petitioner's license expired on December 25, 1987. However, the Department sent letters purporting to deny Petitioner's renewal on March 28 and May 12, 1988, which both state that Petitioner's license expired on March 25, 1988. This discrepancy between the testimony offered by Respondent and the Respondent's letters of denial is unexplained, and no finding can therefore be made as to when the Petitioner's most recent license did, in fact, expire. ACLF licenses are issued for a period of one year, and must be renewed annually.

   
   

3. The sole specific reason for renewal denial set forth in the Respondent's March 28, 1988, letter is the Petitioner's "failure to provide proof of business liability insurance and proof of surety bond coverage." The Respondent's May 12, 1988, letter specifically deleted this reason as a basis for renewal denial, and superseded the previous letter by setting forth three reasons for denial. First, it is alleged that Ruby Byrd was arrested for grand theft from a former resident of the ACLF and was awaiting trial. Second, it is alleged that the facility lacks the financial ability to operate. Third, it is alleged that the facility has committed multiple and repeated violations as evidence by surveys and follow-up visits from 1985 through 1987. The only witness called as a representative of Respondent testified that he did not make a recommendation regarding Petitioner's license renewal application.

   
   

4. The parties have stipulated that Ruby Byrd was found not guilty of the charge of grand theft.

5. Competent substantial evidence was not presented to support the charge that Petitioner lacked the financial ability to operate. This ACLF has been in operation since at least 1984, and the evidence did not show the facility's failure to meet any of its financial obligations. Evidence produced by the Respondent was unclear in its distinction between Ruby Byrd, individually, and the corporate Petitioner in this case.

   
   

6. The parties stipulated that representatives of the Respondent found what they believed to be violations which are enumerated in survey deficiency reports prepared in 1985 through 1987. The evidence establishes that all deficiencies noted in reports prepared in 1987 had been either corrected, administratively deleted, or the time for corrective action had not arrived by the time of hearing. Survey reports prepared prior to 1987 predominately indicate corrective action taken prior to 1987. In any event, these reports which precede the license year for which renewal is at issue in this case, are irrelevant, as is a report of a survey conducted subsequent to the Respondent's May 12, 1988 letter.

   
   

7. The Petitioner operated under a conditional license issued by Respondent from March 26, 1988 until September 25, 1988. There is no evidence that Respondent issued any conditional license or otherwise responded to Petitioner's renewal application for the period between December 25, 1987 and March 26, 1988, assuming testimony at hearing is correct and this license expired on December 25, 1987. Similarly, there is no evidence that the Respondent has issued a conditional license, or otherwise responded to the Petitioner's renewal request for the period of September 25, 1988 until the date of hearing, which period of time would be relevant regardless whether the Petitioner's license expired in December, 1987, or March, 1988.

   
   

8. According to the Respondent's witness, Petitioner's facility does not present any danger to the public health, safety and welfare.

   
   

9. The Respondent does proceed against licensed ACLFs, and seek to administratively suspend or revoke their licenses during a period of licensure.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

11. Section 400.417, Florida Statutes, governs the renewal of ACLF licenses, and specifically provides at subsections (1) and (4) that:

    
    

    A license shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first

    met the requirements established under this part and rules promulgated hereunder.

    ... An applicant for renewal

    of a license who has complied on the initial license application with the provisions of Section 400.411 with respect of proof of financial ability to operate shall not be required to provide proof of financial ability on renewal applications unless the facility has

    demonstrated financial instability as evidenced by bad checks, delinquent accounts, or non- payment of withholding taxes, utility expenses, or other essential services... A conditional license may be issued to an applicant for license renewal when the applicant fails to meet all standards and requirements for licensure.

    A conditional license issued under this subsection shall be limited in duration to a specific

    period of time not to exceed 6 months, as determined by the department, and shall be accompanied by an approved plan of correction. (Emphasis supplied.)

    
    

    See also Rule 10A-5.014(7), Florida Administrative Code, which governs license renewals.

    
    

12. Once an applicant has been licensed, the annual renewal of that license is generally a mandatory, ministerial act, and if violations occur, the licensing agency must resort to formal disciplinary proceedings which may result in an administrative fine, license suspension or revocation. Vocelle v. Riddell, 119 So.2d 809 (Fla. 2nd DCA 1960); Sopp v. Florida Construction Industry Licensing Board, 353 So.2d 174 (Fla. 4th DCA 1977).

    
    

13. In City of Tampa v. Islands Four, Inc., 364 So.2d 738 (Fla. 2nd DCA 1978), the Court specifically recognized that a licensee has a property right in the renewal of a license which he cannot be deprived of absent the requisites of due process. A primary requirement of due process is notice. In this case, to have allowed the Respondent to amend its May 12, 1988 letter at hearing, would have been a clear denial of Petitioner's right to reasonable notice, and a denial of due process in a matter which directly and substantially affects its property right in the renewal of its license.

    
    

14. As pointed out by the Court in Islands Four, a key factor in the Vocelle decision was the fact that the statute under consideration in Vocelle "specifically addressed renewal in terms which did not require any determination to be made by the (agency) as to renewal." 364 So.2d 741, fn. 5. In this case, Section 400.417, Florida Statutes, also specifically addresses the renewal of ACLF licenses, and at Subsection (1) leaves no discretion to the agency by using the term "shall be renewed" if an applicant files the appropriate renewal forms, and has "first" met all statutory and rule requirements. The use of the term "first" must be read in pari materia with the term "initial license application" which is also found in the same statutory subsection, and therefore, the terms are understood to be synonymous. Thus, Subsection (1) of Section 400.417 provides that after a licensee has initially sought and obtained licensure, renewal shall be issued as a mandatory, ministerial act by the Respondent upon the filing of appropriate application for renewal forms.

    
    

15. This does not mean that Respondent must always renew an ACLF license, even if there are apparent violations of Chapter 400, Florida Statutes, or applicable administrative rules. However, in such a case, the Respondent bears the burden of establishing that those alleged violations did, in fact, occur. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Co., Inc.,

    396 So.2d 778, 788 (Fla. 1st DCA 1981). The Respondent in this case has the burden of proving the alleged reasons for denial of Petitioner's renewal as set forth in its letter of May 12, 1988. This letter provided notice to Petitioner

    of the basis for Respondent's refusal to carry out what would otherwise be the mandatory, ministerial act of renewing Petitioner's license. This is not a case involving initial licensure wherein the applicant bears the burden to establish entitlement to licensure. Rather, this is a case in which the Petitioner established its entitlement some years ago, and was seeking annual renewal when informed of this denial.

    
    

16. The record in this case is totally devoid of competent substantial evidence to support the grounds for denial set forth in the Respondent's letter dated May 12, 1988. First, Petitioner's Administrator, Ruby Byrd, was charged with being arrested for grand theft. Even if this was a proper basis for disciplinary action against Petitioner, the record establishes that Ruby Byrd was found not guilt of this charge. The Respondent did not charge Petitioner, or place Petitioner on notice in its May 12, 1988 letter, that the underlying allegations which formed the basis of this arrest would be pursued at hearing. The only charge on this point in the May 12, 1988 letter was the "arrest" of Ruby Byrd, and the record does not support any basis for disciplinary action in this regard. Second, it is alleged that the facility lacks the financial ability to operate, but competent substantial evidence was not produced to show that Petitioner has failed to meet any of its financial obligations. Third, it is alleged that the facility has committed multiple and repeated violations of applicable statutes and rules governing ACLFs. However, the evidence shows that Petitioner took timely and complete corrective actions whenever violations were noted on annual survey reports. All deficiencies noted in the 1987 reports had either been corrected, administratively deleted, or the time for corrective action had not arrived by the time of hearing.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Respondent issue a Final Order approving the Petitioner's application for renewal of its ACLF license at issue in this case.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of November, 1988.

DONALD D. CONN

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 30th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3036

Rulings on Petitioner's Proposed Findings of Fact:

1-2 Adopted and Rejected in part in Finding of Fact 3.

1. Adopted and Rejected in part in Findings of Fact 2 and 7.

2. Adopted in Finding of Fact 4.

3. Rejected as unnecessary.

4. Adopted in part in Finding of Fact 6, but otherwise Rejected as unnecessary.

5. Adopted in Finding of Fact 5.

6. Rejected as a conclusion of law and not a finding of fact.

Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Rejected in Finding of Fact 2

3. Adopted in part in Finding of Fact 2.

4-5 Rejected as irrelevant since the Respondent has the burden of proof in this case as discussed in the conclusions of law.

6-9 Rejected in Finding of Fact 6, and otherwise as irrelevant.

1. Rejected as irrelevant and as not supported by competent substantial evidence.

2. Rejected in Finding of Fact 5.

COPIES FURNISHED:

William Park, Esquire 8001 North Dale Mabry Building 601, Suite B Tampa, Florida 33614

Edward Haman, Esquire Office of Licensure and

Certification

7827 North Dale Mabry Tampa, Florida 33614

Sam Power, Clerk

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory Coler, Secretary 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, General Counsel 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

JOY FAMILY LIVING BOARDING HOME, INC. d/b/a JOY'S FAMILY LIVING BOARD HOME,

Petitioner, CASE NO.: 88-3036

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the conclusions of law stated in this Final Order and the department's exceptions. The exceptions to the findings of fact filed by counsel for the department are granted.

CONCLUSIONS OF LAW

Section 400.419(1), Florida Statutes (1987), provides that an ACLF license "shall expire automatically one year from the date of issuance." That section further provides that the renewal license is to be issued only "if the applicant has first met the requirements established under this part and all rules promulgated hereunder." Where multiple and repeated violations of such rules are found to exist, license denial may be the appropriate sanction.

The Hearing Officer correctly noted that one reason cited for licensure denial was that the petitioner committed "multiple and repeated violations."

The Hearing Officer's conclusion that the 1984, 1985, and 1986, violations prior to the renewal survey at issue are irrelevant would negate the provision of Section 400.414(2)(d), Florida Statutes (1987), which allows a license denial for "multiple and repeated violations." As facilities are generally only subject to survey once a year, "multiple and repeated" violations can only be shown by a comparison of two or more annual surveys. Clearly, evidence of a

history of violations in prior years is relevant to the decision whether or not to renew a license. It may be sufficient to justify licensure denial when a facility has a history of multiple violations, even though the violations were corrected. Thus, renewal of an ACLF license is not a mere ministerial act.

Based upon the foregoing, and the exceptions filed by counsel for the department, it is

ADJUDGED, that petitioner's application for license renewal be approved. DONE and ORDERED this 27th day of December 1988, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Programs

COPIES FURNISHED TO:

WILLIAM PARK, ESQUIRE 8001 NORTH DALE MABRY BUILDING 6, SUITE B TAMPA, FLORIDA 33614

EDWARD A. HAMAN, ESQUIRE OFFICE OF LICENSURE AND

CERTIFICATION

7827 NORTH DALE MABRY TAMPA, FLORIDA 33614

DONALD D. CONN HEARING OFFICER

DIVISION OF ADMINISTRATIVE HEARINGS THE OAKLAND BUILDING

2009 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA 32399-1550

JOHN C. MORTON, ACLF PROGRAM DIRECTOR OFFICE OF LICENSURE & CERTIFICATION DEPT. OF HRS

7827 NORTH DALE MABRY TAMPA, FLORIDA 33614

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this day of January, 1989.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

A PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-003036

Orders for Case No: 88-003036