STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, ) OFFICE OF LICENSURE AND )

CERTIFICATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4967

) CONTEMPORARY CARE, INC. d/b/a ) COLLINS COURT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on November 19, 1992, in Gainesville, Florida.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration General Counsel's Office

2727 Mahan Drive, Suite 103

Tallahassee, Florida 32308

For Respondent: Mark K. Glaeser, o/b/o

Contemporary Care, Inc. d/b/a Collins Court 2924 SW 39th Avenue

Gainesville, Florida 32608 STATEMENT OF THE ISSUES

The issue for determination is whether Respondent's license to operate an adult congregate living facility, which license was inadvertently renewed in error by Petitioner, should be revoked in the view of Respondent's nonpayment of civil penalties previously assessed by final order of Petitioner for violations of Section 400.419(3)(c), Florida Statutes.

PRELIMINARY STATEMENT

By final order rendered March 16, 1991, Petitioner ordered the payment of civil penalties by Respondent totalling $937.50. The final order was predicated upon a stipulation between Petitioner and Respondent's representative that Respondent would satisfy this debt through monthly payments of $156.25.

Respondent never made any payments and, on May 6, 1992, the Administrative

Complaint which forms the basis for this proceeding was issued, seeking the revocation of Respondent's license.

Respondent's representative subsequently requested a formal administrative hearing and the matter was transferred to the Division Of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of one witness and nine exhibits. Respondent's representative presented the testimony of one witness, himself, and four exhibits. A transcript of the final hearing was filed on December 9, 1992.

Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. No proposed findings were timely submitted by Respondent and none had been received at the time of preparation of this recommended order.

FINDINGS OF FACT

1. By Administrative Complaint issued August 13, 1990, Petitioner charged Respondent with violation of Chapter 400, Part II, Florida Statutes and provisions of Rule Chapter 10A-5, Florida Administrative Code, due to Respondent's failure to correct five Class III deficiencies cited during a survey of Respondent's premises by Petitioner's representative on March 6, 1990. Respondent holds license number 0005512, issued by Petitioner or its predecessor, the Department of Health and Rehabilitative Services.

   
   

2. Respondent's representative requested an administrative hearing on August 28, 1990. By joint stipulation between Respondent's representative and Petitioner's counsel, bearing a date stamp of February 13, 1991, the parties resolved their differences. As a result, the pending administrative proceeding before Hearing Officer Robert Benton, a duly designated representative of the Division of Administrative Hearings, was concluded.

   
   

3. Under provisions of the stipulation between the parties, Respondent agreed to pay a fine of $937.50 through monthly payments to Petitioner of

   $156.25 for a period of six months beginning March 1, 1991. In the event of non-payment, Respondent agreed that it would be in default of a final order requiring payment of the entire fine amount.

   
   

4. A final order incorporating the parties' stipulation was entered by Petitioner on March 16, 1991, directing the parties' compliance with the stipulation and its requirements that Respondent make the required monthly payments to prevent a default declaration. Respondent never made any payments, monthly or otherwise.

   
   

5. On April 1, 1991, Respondent applied for a renewal of it's license to operate an adult congregate living facility. Thereafter the requested license renewal for the period of July 2, 1991 through July 1, 1993, was erroneously granted by Petitioner's representatives, contrary to the prohibition against such a renewal contained in Section 400.417(1), Florida States, and without regard to Respondent's noncompliance with Petitioner's final order of March 16, 1991.

   
   

6. Respondent was informed by certified mail letter dated July 2, 1991, from Petitioner's counsel that no payment had been made pursuant to the

   parties's stipulation or the March 16, 1991, final order of Petitioner directing the parties' compliance with the terms of the stipulation. Respondent was requested to respond within 30 days. Respondent's representative received the letter on July 8, 1991.

   
   

7. Petitioner's counsel, by certified mail, again notified Respondent on August 19, 1991, that no payment had been received and requested a response within seven days. Respondent's representative received the letter on August 21, 1991.

   
   

8. On May 6, 1992, Petitioner issued the Administrative Complaint which forms the basis of this proceeding and declares that Petitioner is in default of the requirements of the parties' stipulation and subsequent final order. As requested relief, Petitioner seeks the revocation of Respondent's license in lieu of payment of the stipulated fine. Respondent's representative received the Administrative Complaint on May 8, 1992.

   
   

9. At the final hearing, Respondent's representative and corporate officer, candidly admitted that it was his signature, on behalf of Respondent, on the original stipulation between the parties. He further stated that he never intended to pay anything toward retirement of the stipulated fine amount and that his execution of the stipulation was purely for the purpose of delay. He was motivated to seek delay in this manner because his wife was eight months pregnant and his brother was a political candidate for city commissioner at the time.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The last sentence of Section 400.417(1), Florida Statutes, reads as follows:

    
    

    A license for the operation of a facility shall not be renewed if the licensee has any outstanding fines assessed pursuant to this part which are in final order status.

    
    

12. The $937.50 fine is in final order status per the parties' February 13, 1991 stipulation which was subsequently adopted by the March 16, 1991 final order.

    
    

13. Petitioner argues that the issuance of the license renewal for the period of July 2, 1991 through July 1, 1993, was, in view of provisions of Section 400.417(1), Florida Statutes, an act beyond the legal authority of the administrative agency granting the license and did not invalidate the stipulation of the parties or the March 16, 1991 final order.

    
    

14. There was no evidence presented at hearing that Petitioner intended or expected that issuance of the license renewal to Respondent would amount to a ratification of Respondent's failure to comply with the settlement stipulation payment terms and thereby alter the terms of that agreement. See, Donaldson v. State of Florida Department of Health and Rehabilitative Services, 425 So.2d 145 (Fla. 1st DCA 1983).

15. Accordingly, Petitioner is now in a position to enforce the provisions of the stipulation as agreed to by the parties and subsequently incorporated in the March 16, 1991 final order.

    
    

16. Petitioner bears the burden of establishing by clear and convincing evidence the matters alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner has met this burden.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a final order be entered requiring Respondent to satisfy the March 16, 1991 final order by payment of the $937.50 fine by a date certain or suffer the immediate revocation of license number 0005512 without further proceedings.

DONE AND ENTERED this 1st day of February, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 1st day of February, 1993.

APPENDIX

The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings 1.-11. Accepted.

Respondent's Proposed Findings None submitted.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration General Counsel's Office

2727 Mahan Drive, Suite 103

Tallahassee, Florida 32308

Mark K. Glaeser, Pro Se Collins Court

2924 SW 39th Avenue Gainesville, Florida 32608

Sam Power Agency Clerk

Agency For Health Care Administration The Atrium, Ste. 301

325 John Knox Road Tallahassee, FL 32303

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

vs.

Petitioner, CASE NO.: 92-4967

RENDITION NO.: AHCA-93-30 -FOF-OLC

CONTEMPORARY CARE, INC. d/b/a COLLINS COURT,

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 Agency for Health Care Administration (AHCA). The Recommended Order entered February 1, 1992, by Hearing Officer Don W. Davis is incorporated by reference.

RULING ON EXCEPTIONS

Counsel excepts to the conclusion that the burden of proof applicable to the agency is the clear and convincing standard. Counsel relies on Section 400.414(1), Florida Statute (Supp. 1992) which reads as follows:

1. The department may deny, revoke, or suspend a license or impose an administrative fine in the manner provided for in Chapter

120. At the Chapter 120 hearing, the department shall prove by a preponderance of the evidence that its actions are warranted. (Emphasis added).

The exception is granted.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for paragraph 16.

Based upon the foregoing, it is

ADJUDGED, that Respondent shall pay the outstanding fine of $937.50 no later than April 15, 1993. Failure to timely pay the above fine will result in the revocation of Respondent license without further order.

DONE and ORDERED this 8th day of March, 1993, in Tallahassee, Florida.

Douglas M. Cook, Director Agency for Health Care

Administration

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Suite 103

Tallahassee, Florida 32308

Mark K. Glaeser o/b/o Contemporary Care, Inc. 2924 SW 39th Avenue Gainesville, Florida 32608

Don W. Davis Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named people by U. S. Mail this 9th day of March, 1993.

R. S. Power, Agency Clerk State of Florida, Agency for Health Care Administration

325 John Knox Road

The Atrium Building, Suite 301 Tallahassee, Florida 32303

(904)922-3012

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER 15 ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, 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: 92-004967

Orders for Case No: 92-004967