The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations. Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Petition was not timely filed.
Findings Of Fact On December 15, 1994, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a Charge of Discrimination with FCHR on November 2, 1993, charging an unlawful employment practice by Respondent in connection with her lay off on October 29, 1992. On October 21, 1994, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was mailed to Petitioner and Respondent on October 21, 1994 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial to seek legal counsel prior to filing the petition. If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Counsel for Petitioner, George T. Paulk II, received the Notice of Determination on behalf of Petitioner and prepared the petition to be "filed" with the FCHR. On November 25, 1994, 35 days after the Notice was mailed, Counsel for Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR. The petition was sent by regular U.S. Mail. The Petition for Relief was filed with the FCHR on November 29, 1994, 39 days after the Notice of Determination was issued. The FCHR transmitted the pleadings to the Division of Administrative Hearings for further proceedings. At the same time of the transmittal to Division of Administrative Hearings, FCHR issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. Respondent timely filed its answer with affirmative defenses, including the first affirmative defense that "Petitioner failed to file her petition within the time allowed by law." Respondent also filed a separate Notice to Dismiss raising the same issue. The Petition for Relief was deposited in the mail on Friday, November 25, 1994, the day after Thanksgiving which is an official state holiday. The next business day was Monday, November 28, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in Division of Administrative Hearings' Case No. 94-6976 and FCHR Case No. 94-7490, for failure to timely file the Petition. DONE AND ENTERED this 29th day of March, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 29th day of March, 1995.
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds 1 The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:38 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”’], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7/_ day of Alauacte , 2014. Elizabeth Dudak, Secretary th Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to 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 of 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. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this L2 ay of F a , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Licensure Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia Caufman, Field Office Manager Revenue Management Unit Local Field Office (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Suzanne Suarez Hurley, Esq. Medicaid Accounts Receivable Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Corinne Porcher, Esquire Medicaid Contract Management Smith & Associates Agency for Health Care Administration 3301 Thomasville Road, Suite 201 (Electronic Mail) Tallahassee, FL 32308 (U.S. Mail) Lynne Quimby-Pennock Brandia Presha, Owner/Administrator Administrative Law Judge Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW. 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
