Recommendation Having found the Respondent technically guilty of a violation of Section 489.129(1)(d), and thereby guilty of violating Section 489.129(1)(m), Florida Statutes, and based upon the matters in mitigation, the Hearing Officer recommends that the Respondent receive a private letter of reprimand for his technical violation. DONE and ORDERED this 30th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1982. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. David H. Otto 1527 C Road Loxahatchee, Florida 33470 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent Louis C. Eder (hereafter Respondent) is a registered building contractor holding license number RB 0010762. At all times pertinent to this proceeding, the Respondent was the qualifying agent for Lujack Construction Company. On September 11, 1979, Dennis Ecks, a complainant in this proceeding, entered into a written contract with Abco Contracting and Construction Company, through its agent Jack Greenblatt, for remodeling his residence for the sum of $5,200. The permit for the Ecks job was pulled by the Respondent in the name of Lujack Construction Company. Ecks paid $4,900 to Abco for the job. He withheld $300 to compensate for the failure of Abco to install a screen door. Ecks paid the $4,900 directly to Abco and never met or spoke to the Respondent during the time the contract was being negotiated and executed. After the job was started, the Respondent sent letters to Ecks rescinding the permit for the job and orally communicated his concern that Ecks should exercise caution in his business dealings with Abco. The Respondent received no monies from either Ecks or Abco for the Ecks' job. On January 21, 1980, Dominic Sicilian, the other complainant in this proceeding, entered into a written contract with Abco General Contracting and Construction Company, through its agent, Jack Greenblatt, to enclose a carport for $11,675. The permit for the Sicilian job was pulled by the Respondent in the name of Lujack Construction Company. Sicilian paid $9,000 of the contract sum directly to Abco. This job was abandoned after approximately fifty percent of the construction work was completed, Sicilian, like Ecks, had no discussions with the Respondent before the contract was executed. Approximately one year after the contract was executed, Sicilian spoke to the Respondent concerning his problems with Abco. At that time the Respondent offered to finish the job for the remainder of the contract price. Additionally, shortly after Abco started the job, the Respondent informed Sicilian, both orally and in writing, that he would not be working on the job because he had not been paid by Abco and Sicilian should exercise caution in his business dealings with Abco. Both Ecks and Sicilian believed that they were dealing with Abco and neither had any knowledge of Lujack Construction or its relationship to Abco. The Respondent did not enter into construction contracts with either Ecks or Sicilian. The Respondent began working for Abco in the capacity of foreman. Shortly after commencing employment with Abco, the Respondent was requested by Abco to obtain permits for pending jobs due to a problem Abco encountered in obtaining permits. The problem resulted from Abco maintaining a business in an area zoned noncommercial. Approximately two weeks after commencing employment with Abco, the Respondent's relationship with Abco changed and he became the contractor on the job under the name Lujack Construction Company, a name which the Respondent had used for many years. Shortly after commencing work at Lujack Construction, the Respondent quit when he was not paid from the first draw. The Respondent terminated his relationship with Abco and notified Ecks and Sicilian that he was no longer working on the job due to non-payment and was rescinding the permits which he had pulled. The Respondent attempted without success to as certain the proper procedure to terminate the permits by directing inquiries to the Cooper City Building Department, Broward County Building Department, Palm Beach County Building Department and the Palm Beach County Construction Industry Licensing Board and the Department of Professional Regulation. The Respondent has been a licensed general contractor for fourteen years. During that period of time, he has built hundreds of homes in the Palm Beach area. Other than the complaints filed in the instant case, the Respondent has not been the subject of any previous complaint or disciplinary proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Construction Industry Licensing Board dismissing the Administrative Complaint filed against Respondent Louis C. Eder. DONE and ENTERED this 15th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed January 21, 2011 10:24 AM Division of Administrative Hearings DCA Order No. DCA11-GM-007
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies haye been furnished by U.S. Mail or Electronic May to each of the persons listed below on this day of January, 2011. / a Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Amy Taylor Petrick, Esquire Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, Florida 33401 Gary K. Hunter, Esquire Vinette D. Godelia, Esquire Hopping Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 33301 Richard Grosso, Esquire Robert N. Hartsell, Esquire Everglades Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 DCA Order No. DCA11-GM-007
Findings Of Fact The proposed dialysis clinic 1/ would be located in West Boca Raton near "Century Village," a large condominium complex serving mainly the retired and elderly. The clinic would be owned and controlled by Neil Schneider, M.D., a nephrologist. The application is opposed by two nearby clinics which are owned and controlled by Ashok Patel, M.D., also a nephrologist. The "Service Area" at issue was disputed by the parties. HRS District 9 encompasses Palm Beach, Indian River, Okeechobee, Martin and St. Lucie Counties. Although this district has not been subdivided by either the local health council or HRS, a smaller "Service Area" must be defined for purposes of these proceedings. Kidney dialysis patients are required to visit their dialysis facility three times each week for approximately four hours per treatment. Most patients are in poor health and unable to drive (or even be transported by others) for long periods. Thus, accessibility of the dialysis clinic is an important consideration in this health care field. Either Palm Beach County or a South Palm Beach County "cachment" area 2/ constitutes an appropriate service area for purposes of this proceeding. Patients can drive from most locations in the county to existing dialysis clinics in 45 minutes or less. As noted above, however, much shorter driving times are desirable for these patients. The HRS witness, who was qualified as an expert in health care planning, calculated a county-wide need for four additional kidney dialysis stations. She based her calculations on the mathematical formula set forth in Rule 10-5.11(18)(a), F.A.C., using information from "Network 19" quarterly report's 3/ and average patient census data for calendar year 1984. The Network 19 representative, who was similarly qualified, calculated a need for five additional kidney dialysis stations in the proposed South Palm Beach County sub-area. His input consisted of the latest Network 19 patient data and projections for mid-1986. Petitioners attacked the designation of a sub-area for this proceeding as well as the patient and general population estimates utilized. The identification of a sub-area is reasonable in this situation given the relative immobility of these patients. However, the sub-area need calculations should be cross checked and confirmed by county-wide figures. Given the similarity of conclusions, a number of four to five is found to be an appropriate "hard number" starting point in this proceeding. Rule 10-5.11(18)(a), F.A.C. provides that "the base period. . . is one year from the date that the application is deemed complete by. . .[HRS]. Petitioners argue that the application was complete several years ago, and that it is improper to consider 1986 population data. This argument is rejected, however, as it is inconsistent with HRS practice and with common sense. Because of the years which CON cases often spend in processing, litigation and facility construction, one year from the date of final hearing has been recognized as the most appropriate period for these determinations. Petitioners identified some relatively minor errors in input data and calculations. These errors would not, however, significantly change the so called "hard numbers" stated above. Both the Applicant and Petitioners presented additional expert testimony of health care consultants. Not surprisingly, their conclusions tended to reduce the need on one hand (Petitioners) and increase it on the other (Applicant). Although their testimony is incorporated in those considerations discussed below, it is rejected as to modification of the data utilized and generated by the HRS and Network 19 witnesses. The strongest argument favoring grant of the application concerns Petitioners' restrictive policies. This argument was well supported by the testimony of area nephrologists who have practiced in or attempted to utilize Dr. Patel's clinics, by the testimony of former employee, by patients of Dr. Patel's clinics and by documents setting forth these policies. One nephrologist (Dr. Krause) was refused admission to Petitioners' staff because he was not admitted to the staff of the local community hospital. However, that hospital also had a closed staff policy which, in "Catch 22" fashion, seriously limited this nephrologist's ability to practice his specialty. Petitioners argue that such hospital staff privileges are needed so that the nephrologist can follow his patient to the hospital in the event of emergency. This argument ignores the nephrologist's responsibility for his patients, and is not a proper basis for denial of staff privileges. Additionally, Petitioners denied staff privileges altogether to another nephrologist (Dr. Sonneborn) when he set up his practice in Boca Raton in 1976, on the claim that the Boca Raton facility was a closed unit. Here, it should be noted that Petitioners' two dialysis clinics are the only units in the South Palm Beach area. Because of patient immobility, this has resulted in something of a monopoly. Without staff privileges at a convenient dialysis clinic, Dr. Sonneborn was literally unable to practice nephrology, and turned these patients over to Dr. Patel. Area nephrologists also complained of being required to sign a contract with Petitioners as a condition of gaining staff privileges at either of Dr. Patel's clinics. Although such a contract is not customarily required, this in itself was not shown to be a restrictive measure. However, some of the conditions of the contract were, indeed, restrictive. For example, the contract required that only bona fide residents of Palm Beach County under the care of local physicians could be admitted. This effectively excluded seasonal and transient patients (except when Petitioners found it convenient to waive the restriction). Petitioners also refuse to admit new "hepatitis positive" dialysis patients to either facility. Many dialysis patients acquire hepatitis or show hepatitis positive on their blood tests. Special handling of such patients is required, but to exclude them altogether is in the words of one such patient- witness "mean-spirited" (TR 738). The Applicant (Dr. Schneider), on the other hand, has a reputation at his existing clinics for accepting transients and hepatitis positive patients. The Applicant proposes to continue such policy at the proposed clinic if the C.O.N. is granted. However, the initial operating instructions prepared for this proposed clinic appear to prohibit hepatitis patients. Therefore, any C.O.N. issued as a result of this proceeding should require acceptance of hepatitis positive patients. Patients without coinsurance have also been refused by Petitioners. This is the patient who has only the 80 percent Medicare cost coverage and lacks the insurance or private resources to pay the remaining 20 percent of the clinic dialysis charge. In fairness however, Petitioners have occasionally taken "undesirable" patients such as indigents without basic Medicare coverage and prisoners. The quality of care at Petitioners' facilities is generally satisfactory. There was a large turnover in staff nurses about two years ago, and more recently, some inadequacies in supplies. Although these problems have apparently been corrected, the lack of "crash carts" for emergency treatment of patients who experience cardiac arrest is a significant and continuing deficiency. Petitioners' contention that nearby hospital paramedics can be called on in cardiac arrest situations is not an adequate response. In fact, one patient died in Petitioners' clinic from cardiac arrest. This patient's chance of surviving would have been greater had such emergency facilities been available. The proposed seven station facility was shown to be financially feasible. Even with as few as four stations, the unit was expected to be profitable by its second year of operation. Petitioners question the patient acquisition assumptions of the proposal and may well be correct that these are overly optimistic. However, Dr. Schneider has extensive experience in operating other South Florida clinics profitably, and has more than adequate personal financial resources to see the new facility through its initial loss period. The rate set by Medicare is $122 per patient treatment in South Palm Beach County. This provides a steady, predictable and secure source of revenue to the dialysis clinic. Thus, financial feasibility in this health care specialty is a near certainty, particularly in a high growth area such as South Palm Beach County. It should also be noted that the opening of the proposed clinic will have no impact on health care costs, since these costs are effectively controlled by Medicare. The Applicant seeks additional stations for hemo dialysis training and CAPD training. While these are worthwhile goals, it was not shown that a real need for such special stations exists in this area. Neither is there any medical school connection which would support additional stations. The Applicant also seeks to justify additional stations on the basis of hepatitis treatment which requires isolation, and an allowance for the large number of tourists and transients present during the winter months. These visitors were not included in the statistics which support the four to five stations discussed previously. Petitioners argue that their existing South Palm Beach County Clinics are under-utilized and that they will be injured if this application is granted. As of March 31, 1985, these facilities had utilization rates of only 54 percent (Boca Raton) and 72 percent (Delray). Although these units remain profitable, this is significantly below the 80 percent "optimum," or industry utilization standard. Additionally, there are three kidney dialysis centers in North Palm Beach County whose utilization rates are in excess of 100 percent. Although Petitioners, because of their restrictive policies, may be partially responsible for their low utilization rates, county-wide utilization figures do, in fact, indicate a greater need for additional facilities in North Palm Beach County than in the Applicant's proposed sub-area. However, there was no evidence that any of the existing facilities are seeking to expand so as to meet additional Palm Beach County dialysis needs. Therefore, the "unmet" need for additional stations must be considered as available for award to this Applicant.
Recommendation From the foregoing it is RECOMMENDED that HRS issue a Certificate of Need to the West Boca Raton Artificial Kidney Center authorizing the opening of a five-station kidney dialysis clinic on or after July 1, 1986, with the specific requirement that this clinic accept hepatitis and hepatitis positive patients, and that it agree to add no new stations without HRS approval prior to July 1, 1988. DONE and ENTERED this 18th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1985.
