STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUIDED MANAGEMENT, INC.,

vs.

Petitioner,

Case No. 14-5518

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

/

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, the final hearing in this cause was convened on January 22, 2015, at 9:30 a.m. in Tallahassee, Florida, before Elizabeth W. McArthur, Administrative Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: No appearance

For Respondent: Teresita A. Vivó, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

Whether the request for an administrative hearing filed on Petitioner’s behalf on November 4, 2014, to contest Respondent’s proposed denial of an application to change ownership of a licensed assisted living facility should be dismissed with prejudice because of Petitioner’s abandonment of its challenge.

PRELIMINARY STATEMENT

On October 9, 2014, the Agency for Health Care Administration (Respondent) issued a notice to Guided Management, Inc. (Petitioner), advising of the intent to deny Petitioner’s application to change ownership of a licensed assisted living facility. Petitioner was informed of its right to contest the denial, and a timely request for a disputed-fact administrative hearing before a DOAH Administrative Law Judge was filed by Maritza Perez on Petitioner’s behalf. Respondent forwarded the matter to DOAH, and the case was assigned to the undersigned.

By Initial Order issued on November 21, 2014, the parties were directed to consult and submit information to facilitate scheduling, including dates available for hearing and preferred location. Petitioner did not comply with the Initial Order.

Respondent filed a unilateral response in which it provided its available dates and preferred location, and represented that several attempts were made to contact Petitioner, to no avail. The hearing was set for January 22, 2015, in Tallahassee, Florida, based on the information provided by Respondent and the absence of any contrary information from Petitioner.

A Notice of Hearing and Order of Pre-Hearing Instructions were issued on December 10, 2014. Also issued that day was a separate Order directed to Petitioner, as a corporation, to explain that the corporation was required to designate an

individual to represent the corporation, and provide documentation that the person purporting to represent the corporation was properly authorized by the corporation. In addition, if the representative was not an attorney licensed in Florida, the representative would need to demonstrate qualifications to represent the corporation in the administrative hearing. A deadline of January 8, 2015, was set for the required documentation to be filed. Petitioner was informed that failure to comply with the Order could result in Petitioner not being allowed to participate in the final hearing due to lack of an authorized or qualified representative. Petitioner filed nothing in response to this Order, either by the deadline of January 8, 2015, or thereafter.

Shortly before the hearing, Respondent served a notice that it would take Petitioner’s deposition on January 15, 2015, through a corporate representative with knowledge of specific matters listed in the notice. Respondent filed a Motion to Dismiss Petition for Administrative Hearing (Motion) late in the day on January 15, 2015, in which Respondent represented that Petitioner failed to appear at its noticed deposition.

The Motion asserted that, in light of Petitioner’s failure to comply with the orders described above, and Petitioner’s failure to appear at its noticed deposition, it was apparent that Petitioner had abandoned its request for an evidentiary hearing.

Along with the Motion, Respondent also filed a Motion to Expedite Time for Filing a Response, since the deadline for Petitioner to file a response otherwise would be the day of the final hearing, January 22, 2015. No order was entered expediting the time in which Petitioner could respond to the Motion; instead, ruling on the Motion was reserved.

Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits, pursuant to the Order of Pre-Hearing Instructions. Respondent timely filed and served its witness list, exhibit list, and proposed exhibits.

The final hearing was convened as noticed. No one appeared at the final hearing on behalf of Petitioner. No one filed anything with DOAH or telephoned DOAH to indicate whether Petitioner did or did not intend to appear at the hearing that it requested. Counsel for Respondent appeared, along with Respondent’s representative and witnesses. A court reporter was in attendance, having been retained by Respondent pursuant to its obligation (as stated in the Notice of Hearing) to record the proceedings.

Counsel for Respondent represented on the record that she received an email communication from Maritza Perez stating that Petitioner would not be appearing at the hearing, and that Petitioner intended to relinquish the license for the assisted living facility.

Respondent renewed the pending Motion, asking the undersigned to dismiss the request for hearing with prejudice. In addition, Respondent made an ore tenus motion on the record for sanctions against Petitioner, and requested the undersigned

to reserve jurisdiction for the purpose of allowing Respondent to reduce its motion to writing and document its costs and attorney’s fees incurred.

As summarized below, rather than grant Respondent’s Motion to Dismiss, the undersigned is entering this Recommended Order of Dismissal, based on the findings of fact and conclusions of law below. In addition, jurisdiction is reserved to consider Respondent’s motion for an award of reasonable attorney’s fees and costs as a sanction against Petitioner.

FINDINGS OF FACT

1. Petitioner is the applicant for a change of ownership of a licensed assisted living facility.

2. By Notice of Intent to Deny, Respondent gave Petitioner notice that its application would be denied, subject to Petitioner’s right to contest the denial in an administrative hearing.

3. A timely request for an administrative hearing involving disputed issues of material fact was filed on behalf of Petitioner.

   
   

4. However, after filing the hearing request, Petitioner took no further action to avail itself of the hearing it requested. Petitioner failed to comply with requirements specified in the Initial Order, the Order regarding designation of a representative for the corporation, or the Order of Pre- Hearing Instructions. Petitioner failed to appear at a duly- noticed deposition. Petitioner failed to respond in opposition to a Motion to Dismiss that took the position that Petitioner had abandoned its hearing request. And finally, Petitioner failed to appear at the final hearing that Petitioner had requested.

5. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding whether Petitioner’s application for change of ownership is entitled to approval.

6. Petitioner did, in fact, abandon its hearing request, but did not do so responsibly, with sufficient notice so that costs would not be incurred convening a hearing when Petitioner apparently did not intend to appear.

7. Throughout the pendency of this proceeding, Petitioner has been allowed to operate the assisted living facility for which it applied to change ownership. As of the hearing date, Petitioner still had not relinquished the facility’s operating license. Despite the fact that Petitioner expressed to Respondent that Petitioner did not intend to appear at the

   
   

   hearing it requested, Petitioner only communicated a vague intent to relinquish the license to Respondent at some unspecified point in the future.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

   §§ 120.569 and 120.57(1), Fla. Stat. (2014).

   
   

9. As the applicant challenging the denial of its change of ownership application, Petitioner has the burden of proving that its application should be approved. Fla. Dep't of Transp. v.

   J.W.C. Co., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

   
   

10. Petitioner failed to meet its burden of proof.

    
    

    Accordingly, Respondent should take final agency action denying Petitioner’s change of ownership application, with such provisions as are necessary or appropriate to close down the assisted living facility that Petitioner has been operating while its hearing request remained pending.

11. DOAH has jurisdiction to resolve Respondent’s ore tenus motion for sanctions made on the record at the final hearing by separate final order. See, e.g., Procacci Commercial Realty, Inc. v. Dep’t of Health & Rehab. Servs., 690 So. 2d 603, 606

    (Fla. 1st DCA 1997). Therefore, while issuance of this Recommended Order of Dismissal serves to relinquish DOAH’s jurisdiction over the merits of Petitioner’s change of ownership

    
    

    application, jurisdiction is reserved to consider Respondent’s request for sanctions through a separate final order.

12. Since Petitioner was not present when Respondent made its request for sanctions on the record at the final hearing, Respondent shall set forth its motion for sanctions in writing, which shall be served on Petitioner and filed at DOAH by no later than February 23, 2015. Failure to file and serve a motion for sanctions by the deadline shall be considered a withdrawal of Respondent’s ore tenus request for sanctions, and an order will be entered closing DOAH’s file.

13. If Respondent timely files and serves a written motion for sanctions, Petitioner shall file at DOAH any written response to Respondent’s motion that Petitioner wants the undersigned to consider by no later than March 9, 2015. If Petitioner files a written response, Petitioner shall serve a copy of the response on counsel for Respondent at the same time the response is filed at DOAH and certify in its written response that a copy of the response was provide to counsel for Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, issue a final order: (a) dismissing with prejudice Petitioner’s request for an administrative hearing;

1. denying Petitioner’s change of ownership application; and

   
   

2. imposing such requirements for the orderly transfer of any residents and relinquishment of the assisted living facility license as is necessary or appropriate.

Jurisdiction is reserved for consideration of Respondent’s motion for sanctions against Petitioner, which will be resolved by separate final order.

DONE AND ENTERED this 30th day of January, 2015, in Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2015.

COPIES FURNISHED:

Teresita A. Vivo, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Maritza Perez

Guided Management, Inc. 5434 Adams Morgan Way

New Port Richey, Florida 34653

Elizabeth Dudek, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 14-005518

Orders for Case No: 14-005518