STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1722

)

NEWLEAF CENTER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 16, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Eric D. Dunlap, Esquire

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

For Respondent: Ms. Darlene Crockett, Office Manager Newleaf Center, Inc.

650 South North Lake Boulevard, Suite 410 Altamonte Springs, Florida 32701

STATEMENT OF THE ISSUE

The issue is whether a fee of $100 should be assessed against Respondent for filing its license renewal application late.

PRELIMINARY STATEMENT

Petitioner advised Respondent, by letter dated February 11, 1994, that Respondent's request for waiver of the late fee was denied. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner submitted one exhibit for admission in evidence. Petitioner's Exhibit 1 is a composite exhibit consisting of Respondent's application for license renewal and correspondence between the parties. Petitioner's Exhibit 1 was admitted in evidence without objection.

Respondent presented the testimony of Ms. Darlene Crockett, Respondent's Office Manager. Respondent submitted no exhibits for admission in evidence.

A transcript of the formal hearing was not requested by either party. Neither party submitted proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent provides substance abuse treatment services on an outpatient basis at 650 South North Lake Boulevard, Altamonte Springs, Florida. Respondent holds license number 7A- AD610.

   
   

2. By letter dated December 7, 1993, Petitioner notified Respondent that its license would expire on March 12, 1994. The letter notified Respondent that the application for renewal must be submitted no later than January 12, 1994, and advised Respondent that a fee of $100 would be assessed if the application for renewal was late.

   
   

3. The letter dated December 7, 1993, stated, in relevant part:

   
   

   This letter is official notification that your HRS license . . . to provide substance abuse outpatient treatment services . . . expires on March 12, 1994.

   
   

   Per 10E-16.004,(4)(d), Florida Administrative Code, you must submit your agency's renewal packet at least sixty (60) days prior to the date of expiration on your license. Please

   submit your packet no later than January 12, 1994.

   
   

   Per 397.407(3), Florida Statute, the [Petitioner] shall assess a fee of $100 per license for the late filing of an application for renewal of a license. . . .

   
   

4. On January 13, 1994, Petitioner provided Respondent with a second notification that its license was due to expire on March 12, 1994. The second notification imposed a late fee of $100.

   
   

5. On or about January 17, 1994, Respondent mailed its application for license renewal. On or about January 27, 1994, Respondent requested that Petitioner waive the late fee.

   
   

6. Respondent's renewal application was filed late as a result of an unspecified illness of its office manager and as a result of a fire inspection. Ms. Darlene Crockett, Respondent's Office Manager, was ill during the 60 days prior to January 12, 1994. During the same 60 day period, Respondent's premises were inspected by the local fire marshall.

   
   

7. Petitioner refused to waive the fee imposed for late renewal applications. By letter dated February 11, 1994, Petitioner explained that it had no statutory authority to waive the fee imposed on late filed renewal applications.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

9. The burden of proof is on Petitioner. Petitioner must prove by a preponderance of the evidence that the late fee should be imposed.

   
   

10. Section 397.407(1), Florida Statutes, provides, in relevant part, that Petitioner "shall establish licensure fees by rule." (emphasis supplied)

    Florida Administrative Code Rule 10E- 16.004(4)(d) provides, in relevant part:

    
    

    . . . Applications to renew an existing . . . license shall be submitted to [Petitioner] no later than 60 days prior to expiration of the current license. . . . (emphasis supplied)

    
    

11. Section 397.407(3), Florida Statutes, provides:

The [Petitioner] shall assess a fee of $100 per license for the late filing of an application for renewal of a license. (emphasis supplied)

Assessment of fees for late filed renewal applications are mandatory under Section 397.407(3). Applicable statutes do not authorize waiver of late fees based on the facts and circumstances in each case, including illness of the office manager or fire inspections of the premises.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein DENY

Respondent's request to waive the $100 fee imposed on late filed license renewal

applications.

RECOMMENDED this 9th day of September, 1994, in Tallahassee, Florida.

DANIEL S. MANRY

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 9th day of September, 1994.

COPIES FURNISHED:

Eric D. Dunlap, Esquire Assistant District Counsel Department of Health and

Rehabilitative Services

400 W. Robinson Street, Suite S-827 Orlando, Florida 32801

Ms. Darlene Crockett, Office Manager Newleaf Center, Inc.

Suite 410

650 South North Lake Boulevard Altamonte Springs, Florida 32701

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

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 contact 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.

Docket for Case No: 94-001722

Orders for Case No: 94-001722