Judges: J. STEPHEN MENTON
Agency: Department of Health
Latest Update: Aug. 23, 1989
Summary: Whether Petitioner's applications for renewal of Drug Wholesaler Permit Number 03:00375 for the years 1988 and 1989 should be granted.Respondent denied renewal of drug wholesaler's license; prior denial of renewal application was upheld on appeal; petitioner had continued operations pending appeal
88-3596.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
VETCO INTERNATIONAL, INC., ) d/b/a POMPANO VET SUPPLY, )
)
Petitioner, )
vs. ) CASE NO. 88-3596
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
) VETCO INTERNATIONAL, INC., ) d/b/a POMPANO VET SUPPLY, )
)
Petitioner, )
vs. ) CASE NO. 89-0717
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on June 7, 1989, in Fort Lauderdale, Florida before the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton.
APPEARANCES
For Petitioner: Karen Coolman Amlong, P.A.
101 Northeast 3rd Avenue, 2nd Floor Fort Lauderdale, Florida 33301
For Respondent: John Rodriguez, Esquire
Technical Health Services Department of Health and
Rehabilitative Services 1317 Winewood Boulevard
Building 1, Room 304
Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES
Whether Petitioner's applications for renewal of Drug Wholesaler Permit Number 03:00375 for the years 1988 and 1989 should be granted.
PRELIMINARY STATEMENT
These consolidated cases were brought by Petitioner to challenge the denial by Respondent of the renewal of Petitioner's license under Chapter 499, Florida Statutes to operate as a drug wholesaler. Case No. 88-3596 involved the renewal for calendar year 1988 and Case No. 89-717 involved the renewal for calendar year 1989. Because the parties are identical and there are a number of common factual and legal issues involved, the cases were consolidated by Order dated April 19, 1989.
At the outset of the hearing, Respondent filed a Motion to Dismiss which was denied without prejudice to Respondent's ability to renew the motion after all the evidence had been received. Respondent's Motion was marked as Respondent's Composite Exhibit 1. Attached to that Motion were three documents which were marked as Exhibits A, B and C and admitted into evidence by stipulation between the parties. The parties also agreed that Respondent had the burden of proof and would present its case first. After filing the Motion to Dismiss with the attachments, Respondent rested. Thereafter, Petitioner offered 10 exhibits into evidence which were accepted without objection.
Petitioner also called two witnesses, Richard Grant, Pharmacy Program Director for Respondent and Thomas Karpinski, the owner and operator of Petitioner.
After Petitioner concluded its case, Respondent recalled Mr. Grant as a rebuttal witness and offered one additional exhibit which was accepted without objection.
A transcript of the proceeding was filed on July 5, 1989. Both parties have timely filed proposed recommended orders. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made part of this Recommended Order.
FINDINGS OF FACT
Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact:
The Department of Health and Rehabilitative Services (??"HRS") is the regulatory agency charged with the administration of Chapter 499, Florida Statutes, which includes the issuance of permits to operate a drug wholesale facility.
Sometime prior to December, 1986, Petitioner, Vetco International, Inc. d/b/a Pompano Vet Supply ("Vetco") was issued Wholesale Drug Permit Number 03:00375 by the Pharmacy Program of HRS.
On December 15, 1986, HRS received an application from Thomas Karpinski, owner of Vetco, to renew Vetco's drug wholesale permit for 1987.
On December 17, 1986, HRS denied Vetco's application for renewal of its wholesale drug permit for the year 1987.
Vetco requested a formal administrative hearing on the denial and the matter was referred to the Division of Administrative Hearings where it was assigned Case No. 87-0832. A hearing was held in that case on August 18, 1987 by Hearing Officer, James Bradwell of the Division of Administrative Hearings.
On March 28, 1988, Hearing Officer Bradwell entered a Recommended Order recommending that Vetco's renewal application for the year 1987 be denied. The basis for that recommendation was that the applicable statutes and rules required that facilities where drugs are held be made available for inspection; that on several occasions Vetco's facility was not made available to authorized agents of HRS for inspection; and that Vetco's denial of inspections to HRS constituted a substantial violation of Chapter 499, Florida Statutes and Rule 10D-45, Florida Administrative Code.
Hearing Officer Bradwell's Recommended Order was approved and incorporated in a Final Order by HRS dated April 20, 1988.
On May 16, 1988, Vetco filed a Notice of Administrative Appeal to the Fourth District Court of Appeal regarding the Final Order issued by HRS on April 20, 1988. The case number assigned by the District Court of Appeal was Case No. 88-1342.
On June 23, 1988, Vetco filed a Motion for Imposition of Automatic Stay with the Fourth District Court of Appeal seeking to stay the effect of HRS' April 20, 1988 Final Order.
The Motion to Stay was granted by the Fourth District Court of Appeal on July 15, 1988.
On December 28, 1988, the Fourth District Court of Appeal, per curiam, affirmed HRS' April 20, 1988 Final Order.
The Mandate from the Fourth District Court of Appeal was issued on January 13, 1989.
During the time period between the conclusion of the formal administrative hearing in August, 1987 and the issuance of the Recommended Order by Hearing Officer Bradwell in March, 1988, counsel for Vetco initiated efforts to obtain a renewal of the drug wholesale permit for the year 1988.
Vetco contends that it did not receive the standard 1988 renewal application form typically sent by HRS prior to the beginning of the new year.
By letter dated January 21, 1988, counsel for Vetco advised HRS that Vetco intended to keep its license in effect. In that letter, counsel for Vetco submitted a check for the amount of the renewal fee and provided certain other information required as part of the renewal process.
During the period from January, 1988 through May, 1988, there were several exchanges between counsel for Vetco and the representatives of HRS regarding the renewal for the year 1988. HRS took the position that the January 21, 1988 letter from counsel for Vetco could not serve as a renewal application because it was not signed by the owner of the company and was not submitted on the appropriate HRS form. Vetco contends that the January 21, 1988 letter included all of the information legally required to process the renewal application and should have been treated as a renewal application.
After exchanging correspondence and phone calls with counsel for Vetco and obtaining a signed form from Vetco, HRS acknowledged on May 24, 1988, that the renewal application was complete.
On June 6, 1988, HRS denied Vetco's application for license renewal for the year 1988 citing the Final Order filed on April 20, 1988 and the Findings of Fact set forth in the Recommended Order entered by Hearing Officer Bradwell on March 28, 1988 in connection with the 1987 renewal application.
By petition filed June 30, 1988, Vetco sought a formal hearing on the denial of its 1988 renewal application. The matter was referred to the Division of Administrative Hearings and assigned Case No. 88-3596. It is one of the two cases consolidated in the current proceeding.
As noted above, by order dated July 13, 1988, the Fourth District Court of Appeal stayed the effect of the Final Order regarding the 1987 renewal application and, by agreement of the parties, Division of Administrative Hearings Case No. 88-3596 was abated pending the decision of the Fourth District Court of Appeal on the 1987 renewal. Thus, Vetco was able to continue business operations uninterrupted throughout 1987 and 1988.
On January 6, 1989, Vetco applied for renewal of its drug wholesale permit for the year 1989.
By letter dated January 17, 1989, HRS refused to renew Vetco's permit for 1989 citing the Fourth District Court Of Appeal's decision on the 1987 application.
On February 2, 1989, Vetco filed a Petition for Formal Hearing challenging this denial. The Petition for Formal Hearing was transferred to the Division of Administrative Hearings and assigned Case No. 89-717. It is the second case involved in this current proceeding.
By order dated April 19, 1989, Division of Administrative Hearings' Case Nos. 88-3596 and 89-717 were consolidated.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Subsection 120.57(1), Florida Statutes (1987).
HRS is empowerd by Chapter 499, Florida Statutes (1980) and Chapter 10D-45, Florida Administrative Code to issue and renew permits for drug wholesalers in the State of Florida.
Section 499.011, Florida Statutes (1987) provides the procedure and requirements for drug wholesaler permits and renewal of permits. Subsection (5) states:
During the anniversary month of each year, the owners or proprietors of a drug repackaging, drug wholesaling, or drug, device or cosmetic manufacturing establishment for which an initial permit has been secured after December 31, 1981, shall, on forms to be furnished by the department, make application for renewal of such permit, together with payment of appropriate fees to the department; and the
application shall be approved, provided the applicant meets the requirements of ss.499.001-081 and rules promulgated under such section...
Section 499.067, Florida Statutes (1987) provides: The department is authorized to deny,
suspend, or revoke a permit in any case
in which it finds that there has been a substantial failure to comply with the provisions of ss. 499.001-499.079, the rules promulgated under such
sections, . . .
The Respondent properly denied the renewal of Petitioner's permit for the year 1989 based upon the final resolution of the proceeding initiated in connection with the 1987 renewal. The resolution of the appeal on the denial of the 1987 permit renewal conclusively established that Vetco was never entitled to a 1987 permit. Once the appeal was completed in January, 1989, Petitioner no longer had a permit to renew and could only apply for a new permit under Section 499.011, Florida Statutes (1987).
Since the Petitioner was able to continue in business throughout 1988 without interruption, the challenge to the denial of its application for renewal for 1988 is moot.
Petitioner argues that the issues involved in its challenge to the denial of the 1988 permit are relevant to its challenge of the denial of the 1989 permit. Specifically, Petitioner contends that if it is correct in its contention that HRS erred in failing to treat the January 1988 correspondence from Petitioner's attorney as a renewal application, Petitioner was entitled to the issuance of a default renewal for 1988 and this default renewal can serve as the basis for renewal in 1989. However, even assuming that Petitioner was entitled to the issuance of a default renewal in 1988, such a renewal was still dependent upon the existence of a valid 1987 permit. Since the appellate decision in January, 1989 has now established that the 1987 permit was properly denied, there can be no further renewals of that permit by default or otherwise. Therefore, it is irrelevant whether HRS should have granted Petitioner a default permit renewal in 1988. Moreover, Section 499.067 authorizes HRS to deny or revoke any permit when there has been a substantial failure on the part of the owner to comply with the provisions of 499.001-499.79. Such a substantial failure to comply by Petitioner was found to exist in the challenge to the denial of the 1987 permit, but this finding was not finally concluded until the issuance of the Mandate by the Fourth District Court of Appeal in January, 1989. By appealing HRS' Final Order and obtaining a stay from the appellate court, the Petitioner has been able to successfully postpone the ultimate consequences of its failure to comply with the applicable statutes and rules. Petitioner should not be able to continue to escape the ramifications of its conduct by raising technical objections to the processing of its renewal applications during the time it was challenging the initial findings, especially since Vetco was able to continue in business during that whole time period.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is:
RECOMMENDED:
Petitioner's application for renewal of its wholesale drug permit No.
03:00375 for the year 1988 be dismissed as moot and the application for renewal for the year 1989 be DENIED.
DONE and ENTERED in Tallahassee, Leon County, Florida, this 23rd day of August, 1989.
J. STEPHEN MENTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550 904/488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23th day of August, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-3596 AND 89-0717
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number Findings of Fact where accepted or
reason for rejection
1 | 2-7 |
|
2-12 | Adopted in part in Findings of | Fact |
| 13-16, otherwise rejected as |
|
| irrelevant. |
|
13 | Adopted in part in Findings of | Fact |
| 17, otherwise rejected as |
|
| irrelevant. |
|
14 | Rejected as irrelevant. |
|
15 | Adopted in part in Findings of | Fact |
| 18-19, otherwise rejected as |
|
| irrelevant. |
|
16 | Adopted in part in Findings of | Fact |
9-12 and 20, otherwise rejected as irrelevant.
17-21 Rejected as irrelevant.
The Respondent's Proposed Findings of Fact
The proposed findings of fact in Respondent's Proposed Recommended Order are not numbered. The individual paragraphs are treated as though separately numbered.
Proposed Finding Paragraph Number in Recommended Order of Fact Paragraph Findings of Fact where accepted Number reason for rejection
1 | 3 |
|
2 | Adopted in part in | Findings of Fact | 4, |
| otherwise rejected | as irrelevant. |
|
3 | Adopted in part in | Findings of Fact | 5, |
| otherwise rejected | as irrelevant. |
|
4 | 6 |
|
|
5 | 6-7 |
|
|
6 | 8-12 |
|
|
COPIES FURNISHED:
Karen Coolman Amlong, Esquire Amlong & Amlong, P.A.
101 N.E. 3rd Avenue 2nd Fl.
Fort Lauderdale, Florida 33301
John Rodriguez, Esquire Technical Health Services, Department of Health and Rehabilitative Services 1317 Winewood Boulevard
Building 1, Room 304
Tallahassee, Florida 32399-070
Sam Power, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Docket for Case No: 88-003596
Orders for Case No: 88-003596
| Issue Date |
Document |
Summary |
|
Aug. 23, 1989 |
Recommended Order
|
Respondent denied renewal of drug wholesaler's license; prior denial of renewal application was upheld on appeal; petitioner had continued operations pending appeal
|
