The Issue The issue in this case is whether Florida Housing's proposed action to deem Madison Landing eligible for an award of housing tax credit funds, as contemplated under Request for Applications 2020-202 Housing Credit Financing for Affordable Housing Developments Located in Broward, Duval, Hillsborough, Orange, Palm Beach and Pinellas Counties ("the 2020 RFA"), is contrary to governing statutes, rules or policies, or the 2020 RFA specifications. The standard of proof is whether Florida Housing's proposed action is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation organized pursuant to Chapter 420, Part V, Florida Statutes, whose address is 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32301, and for the purposes of these proceedings, an agency of the State of Florida. Madison Landing is an Applicant requesting an allocation of $1,950,000 in competitive housing credits in in the 2020 RFA. Its application, 2021-021C, was deemed eligible, but was not selected for funding by Florida Housing. Madison Park is an Applicant requesting an allocation of $2,881,960 in competitive housing credits in the 2020 RFA. Its application, 2021-004C, was deemed eligible, but was not selected for funding by Florida Housing. WRDG is an Applicant requesting an allocation of $2,375,000 in competitive housing credits in the 2020 RFA. Its application, 2021-025C, was deemed eligible and was preliminarily selected for funding by Florida Housing. Florida Housing administers various affordable housing programs, including the Housing Credit Program, pursuant to Section 42 of the Internal Revenue Code (the "IRC" or "the Code") and section 420.5099, under which Florida Housing is designated as the Housing Credit agency for the State of Florida within the meaning of Section 42(h)(7)(A) of the IRC, and Florida Administrative Code Chapters 67-48 and 67-60. Florida Housing has established, by rule, a competitive solicitation process known as the Request for Applications ("RFA") to assess the relative merits of proposed developments, pursuant to chapters 67-48 and 67-60. An RFA sets forth the information required to be provided by an Applicant, which includes a general description of the type of projects that will be considered eligible for funding and delineates the submission requirements. While there are numerous references to Florida Housing's rules throughout the RFA, RFAs themselves are not adopted or incorporated by rule. Florida Housing issues many RFAs each year. Although an issued RFA may be similar to these issued in previous years, each RFA is unique. The RFA process begins when Florida Housing requests the Florida Housing Board of Directors ("the Board") to approve Florida Housing's plan for allocating its resources through the various RFAs. If the plan is approved by the Board, Florida Housing begins working on each individual RFA. Florida Housing posts draft documents to its website for public review, such as a draft of the RFA, and holds a workshop in which the RFA is discussed in detail, highlighting language that changed from the previous year. The public is given the opportunity to ask questions and submit written comments for further suggestions and/or additional edits prior to the RFA's issuance. Marisa Button, Director of Multifamily Programs for Florida Housing, credibly and persuasively testified that Questions and Answers are provided as guidance, but do not provide new requirements to override the terms of an RFA. In the event of an inconsistency between Questions and Answers and another form of guidance for applicants, Florida Housing has maintained the position that the least restrictive guidance controls. Rule 67-60.006 provides, in pertinent part, that "[t]he failure of an Applicant to supply required information in connection with any competitive solicitation pursuant to this rule chapter shall be grounds for a determination of non-responsiveness with respect to its Application." By applying, each Applicant certifies that: Proposed Developments funded under this RFA will be subject to the requirements of the RFA, inclusive of all Exhibits, the Application requirements outlined in Rule Chapter 67-60, F.A.C., the requirements outlined in Rule Chapter 67-48, F.A.C. and the Compliance requirements of Rule Chapter 67-53, F.A.C. On August 26, 2020, Florida Housing issued the 2020 RFA, proposing to provide an estimated $18,669,520 of Housing Credit Financing for Affordable Housing Developments Located in Broward, Duval, Hillsborough, Orange, Palm Beach, and Pinellas Counties. Modifications to the 2020 RFA were made on September 11 and October 12, 2020. The Application Deadline for the 2020 RFA was October 20, 2020. On or about October 20, 2020, 35 applications were submitted in response to the 2020 RFA. A Review Committee was appointed to review the applications and make recommendations to the Board. The Review Committee found 34 applications eligible and one application ineligible. Through the ranking and selection process outlined in the 2020 RFA, eight applications were recommended for funding. In accordance with the funding selection process set forth in the 2020 RFA, one application was selected from each of Duval, Palm Beach, Pinellas, Hillsborough, and Orange counties; two applications were selected from Broward County; and one application (WRDG) was selected from any of these counties. On December 4, 2020, the Board approved these recommendations. On December 17, 2020, Madison Landing timely filed a Petition for Formal Administrative Proceedings, which was referred to DOAH and assigned Case No. 21-0146BID. This petition challenged the eligibility of both WRDG and MHP FL II, LLC. On January 13, 2021, Madison Landing dismissed all of its allegations against MHP FL II, LLC. On December 17, 2020, Madison Park timely filed a Petition for Formal Administrative Proceedings, which was referred to DOAH and assigned Case No. 21-0147BID. An amended petition was filed on January 13, 2021. This petition challenged the eligibility of both WRDG and Madison Landing. On January 26, 2021, all parties entered into a Stipulation for Entry of Findings of Fact in which WRDG conceded that its application should have been found ineligible. WRDG is ineligible for funding under the 2020 RFA. With WRDG ineligible for funding, Madison Landing would be selected for funding in place of WRDG. If both WRDG and Madison Landing were found to be ineligible for funding, Madison Park would be selected for funding in place of WRDG and Madison Landing. No other Applicant selected for funding will be impacted regardless of the outcome of this case. No challenges were made to the terms of the 2020 RFA. Madison Landing's application includes an executed Applicant Certification and Acknowledgment Form, which provides, "The Applicant, the Developer and all Principals are in good standing among all other state agencies and have not been prohibited from applying for funding." The phrase "good standing among all other state agencies" is not defined; and no evidence was presented as to the definitive meaning of the phrase. No evidence was presented that Madison Landing's Principals are not in good standing with any state agency or have been prohibited from applying for funding. The 2020 RFA at Section Four A.3.a. provides that Applicants must disclose the name of the Applicant entity and provide evidence that it is legally formed: (2) The Applicant must be a legally formed entity [i.e., limited partnership, limited liability company, etc.] qualified to do business in the state of Florida as of the Application Deadline. Include, as Attachment 2 to Exhibit A, evidence from the Florida Department of State, Division of Corporations, that the Applicant satisfies the foregoing requirements. Such evidence may be in the form of a certificate of status or other reasonably reliable information or documentation issued, published or made available by the Florida Department of State, Division of Corporations. Rule 67-48.002(9) (6/23/2020), defines "Applicant" as follows: (9) "Applicant" means any person or legal entity of the type and with the management and ownership structure described herein that is seeking a loan or funding from the Corporation by submitting an Application or responding to a competitive solicitation pursuant to rule Chapter 67-60, F.A.C., for one or more of the Corporation's programs. For purposes of Rules 67-48.0105, 67-48.0205 and 67- 48.031, F.A.C., Applicant also includes any assigns or successors in interest of the Applicant. Unless otherwise stated in a competitive solicitation, as used herein, a 'legal entity' means a legally formed corporation, limited partnership or limited liability company. The 2020 RFA at Section Four A.3.c. provides that Applicants must disclose Principals of both the Applicant and Developer entities. The 2020 RFA provides in pertinent part: c. Principals Disclosure for the Applicant and for each Developer (5 points) (1) Eligibility Requirements To meet the submission requirements, upload the Principals of the Applicant and Developer(s) Disclosure Form (Form Rev. 05-2019) ("Principals Disclosure Form") as outlined in Section Three above. Prior versions of the Principal Disclosure Form will not be accepted. To meet eligibility requirements, the Principals Disclosure Form must identify, pursuant to Subsections 67-48.002(94), 67-48.0075(8) and 67- 48.0075(9), F.A.C., the Principals of the Applicant and Developer(s) as of the Application Deadline. A Principals Disclosure Form should not include, for any organizational structure, any type of entity that is not specifically included in the Rule definition of Principals. For Housing Credits, the investor limited partner of an Applicant limited partnership or the investor member of an Applicant limited liability company must be identified on the Principal Disclosure Form. Rule 67-48.002(94) defines "Principal" as follows: (94) "Principal" means: For a corporation, each officer, director, executive director, and shareholder of the corporation. For a limited partnership, each general partner, and each limited partner of the limited partnership. For a limited liability company, each manager and each member of the limited liability company. For a trust, each trustee of the trust and all beneficiaries of majority age (i.e., 18 years of age) as of the Application Deadline. Page 10 of 22. For a Public Housing Authority, each officer, director, commissioner, and executive director of the Authority. The requirement to provide evidence that the Applicant is a legally formed entity, as well as the requirement to provide a Principals for Applicant and Developer(s) Disclosure Form, are identified as "Eligibility Items." Section Five A.1. of the 2020 RFA states that "only Applications that meet all of the following Eligibility Items will be eligible for funding and considered for funding selection." Madison Landing submitted Principals of the Applicant and Developer(s) Disclosure Form(s) with its application. Both forms were approved during the Advance Review Process. On the Principals of the Applicant form, Madison Landing II, LLC, was identified as the Applicant entity. The Principals of the Applicant entity were identified as Patrick E. Law, Manager; Madison Landing II Apartments, LLC, Non-Investor Member; and Patrick E. Law, Investor Member. Madison Landing II Apartments, LLC, filed Articles of Organization for Florida Limited Liability Company with the Florida Division of Corporations on January 5, 2021, with an effective date of December 31, 2020. The 2020 RFA requires that the Applicant demonstrate that it is a legally formed entity as of the Application Deadline; however, there is no explicit requirement in the 2020 RFA that each Principal of the Applicant demonstrate that it is a legally formed entity as of the Application Deadline. Ms. Button testified that her initial view was that the failure of Madison Landing's Principal, Madison Landing II Apartments, LLC, to incorporate by the application deadline should render the application ineligible. However, upon further research, she changed her position, believing that Florida Housing was precedentially bound by a previous final order, which found that an application was eligible under similar legal and factual circumstances. The previous case, on which Florida Housing relied, was decided before Florida Housing adopted the current RFA procedures for awarding funding. Ms. Button testified, however, that while some of the processes followed during the Universal Cycle, in place at that time, were different than the RFA process, the requirements for disclosure of Principals were essentially the same. Florida Housing allows interested parties to submit written questions to be answered by Florida Housing staff for each RFA that is issued. The Question-Answer period is referenced specifically within each RFA. The following Question and Answer are posted on Florida Housing's website for RFA 2018-111: Question 12: Do the entities listed on the Principal Disclosure Form have to be active as of the stamped "Approved" date or as of the Application Deadline? Answer: As of the Application Deadline. The Applicant may upload a Principals Disclosure Form stamped "Approved" during the Advance Review Process provided (a) it is still correct as of the Application Deadline, (b) it was approved for the type of funding being requested (i.e., Housing Credits or Non-Housing Credits) The same Question and Answer above are on Florida Housing's website for RFA 2018-110; RFA 2018-112; and RFA 2018-113. The same Question and Answer, however, do not appear in Questions and Answers for the 2020 RFA at issue in this case. Although Questions and Answers from past RFAs remain on the Florida Housing website, they are discrete to the specific RFA for which they were issued. Rule 67-48.002(9) (7/2018) defines Applicant as follows: (9) "Applicant" means any person or legal entity of the type and with the management and ownership structure described herein that is seeking a loan or funding from the Corporation by submitting an Application or responding to a competitive solicitation pursuant to rule chapter 67-60, F.A.C., for one or more of the Corporations programs. For purposes of rules 67-48.0105. 67-48.0205 and 67- 48.031, F.A.C., Applicant also includes any assigns or successors in interest of the Applicant. Unless otherwise stated in a competitive solicitation, as used herein, a legal entity means a legally formed corporation, limited partnership or limited liability company with a management and ownership structure that consists exclusively of all natural persons by the third principal disclosure level. For Applicants seeking Housing Credits, the Housing Credits Syndicator/Housing Credit investor need only be disclosed at the first principal level and no other disclosure is required. The terms "first principal disclosure level" and "third principal disclosure level" have the meanings attributed to them in the definition of "Principal." Rule 67-48.002(9) (11/2011) defines Applicant as follows: (9) "Applicant" means any person or legally formed entity that is seeking a loan or funding from the Corporation by submitting an Application or responding to a request for proposal for one or more of the Corporation's programs. For purposes of Rules 67-48.0105, 67-48.0205 and 67-48031, F.A.C., Applicants also includes any assigns or successors in interest of the Applicant. Madison Park argues that Madison Landing's Principal, Madison Landing II Apartments, LLC, did not demonstrate that it was a legally- formed entity as of the Application Deadline, and therefore, Madison Landing's Principal Disclosure Form did not satisfy the 2020 RFA's requirements. Madison Park argues that Madison Landing's application should be deemed ineligible for funding as a result. Based on the weight of the credible evidence and the language of the 2020 RFA and the governing law, the undersigned finds that Florida Housing did not contravene the 2020 RFA, or any other applicable authority, through the process by which it determined that Madison Landing's application was eligible for the award.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order: (1) finding the application of WRDG ineligible for funding; (2) finding the application of Madison Landing eligible for funding; and (3) dismissing the protest of Madison Park. DONE AND ENTERED this 29th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Christopher Dale McGuire, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2021. J. Timothy Schulte, Esquire Zimmerman, Kiser & Sutcliffe, P.A. 315 East Robinson Street Post Office Box 3000 (32802) Orlando, Florida 32801 Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 1400 Village Square Boulevard, Suite 3-231 Tallahassee, Florida 32312
The Issue The issue in the case is whether Eldon Sadler, Taylor County Property Appraiser, (Petitioner) is required to enroll Connie LaValle in the Florida Retirement System (FRS) for all of her employment with the Taylor County Property Appraiser's Office from June 1993 until the present.
Findings Of Fact Connie LaValle has been employed in Petitioner's office as a permanent part-time employee since September 16, 1992, as a "mapper." Pursuant to a contract, she has also been performing additional mapping services for Petitioner since June 1993, for which no contributions have been made to FRS. Contributions have been made for LaValle's other part-time employment in the office. Prior to June 2, 1993, LaValle and Petitioner spoke regarding LaValle's performing services related to implementing a Geographic Information System (GIS) in the event that Taylor County decided to obtain such a system. As a consequence, LaValle sought and obtained placement of her name on the Department of Revenue's approved bidder's list. Placement on the list is a prerequisite to entering into a contract with Petitioner's office. On June 2, 1993, Petitioner's office and LaValle entered into a contract whereby LaValle would perform "mapping services to aid in assessment." While not detailed as such in the written contract, these services were related to the GIS mapping function and were in addition to LaValle's existing part-time employment in the office. The contract was renewed on May 30, 1996. LaValle was not given any training for the tasks for which she contracted, she was not required to follow daily or weekly routines or schedules established in Petitioner's office, she was given no instructions in the way that work was to be performed, and Petitioner could not change methods used by LaValle or otherwise direct her as to how to do the work. LaValle did the contractual work at her convenience and was not required to perform that work in the office or pursuant to any schedule. She was paid for the work product as she finished it. Payment under one contract resulted in a $60 per map payment from Petitioner when the product was completed. Under the renegotiated contract, she received $3 per parcel on computerized maps. She was not guaranteed a minimum payment, nor did she receive pension benefits, bonuses, paid vacation time, or sick pay. Earnings pursuant to the contract were reported by LaValle as self-employment income on form 1099. The contract provided that neither Petitioner nor LaValle could terminate the agreement absent 30 days notice to the other party. In addition to furnishing her own work location, work equipment, tables, engineering scales, computer and other necessary equipment, LaValle also paid all related expenses. LaValle performed all contract work in her home. Although not prohibited by terms of the contract, she did not work for other entities. Respondent, pursuant to an audit of retirement records of Petitioner's office, determined that LaValle was performing additional duties for Petitioner's office and receiving salary for which no retirement contributions were paid. Petitioner was notified by Respondent by letter dated August 10, 1999, that LaValle previously filling a part-time regularly established position, was now performing additional duties for the same employer and was now considered to be filling a regularly established position for her total employment. Petitioner was informed that salary earned by LaValle for the additional duties should have been reported and contributions paid to Respondent for retirement benefits. Petitioner maintains that LaValle is an independent contractor with regard to additional duties and no retirement contributions are due and payable. Respondent has determined LaValle is not an independent contractor. Respondent asserts that the additional duties are an extension of her normal duties in her part-time position and contributions for retirement benefits are due with regard to compensation paid to her by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Division of Retirement, enter a final order finding that payments made to Connie LaValle for additional duties from Petitioner's office constitute salary for additional employment requiring payment of retirement contributions by Petitioner. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: Levy E. Levy, Esquire 1828 Riggins Road Tallahassee, Florida 32308 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Florida Administrative Code Rule 59C-1.018(3)(c) requires that a request for an extension of a CON's validity period be made 15 days in advance of the period's expiration (the "15-Day Requirement.") The issue is whether the Agency for Health Care Administration should waive the 15-Day Requirement for Miami Jewish Home.
Findings Of Fact CON 9893 and its Construction Timeline On June 29, 2007, AHCA awarded CON 9893 (the "CON") to MJHHA. The CON authorized MJHHA to establish a 30-bed long term acute care hospital (LTCH) in Dade County. The Agency determined that the LTCH authorized by the CON was needed and would be of benefit in the service district (AHCA Acute Care District 11) where it would be located. It also determined that the LTCH would enhance access to health care in conformance with the goals of the Health Facilities and Services Development Act. The determination followed a contested comparative review proceeding at DOAH in which it was found that Miami Jewish Home had "demonstrated need for its project through a thorough and conservative analysis." MJHHA Ex. 26, p. 49, para. 106. All findings of fact and conclusions of law of the administrative law judge in the Recommended Order were accepted by the Agency in its Final Order that approved MJHHA's CON application. Un-rebutted evidence in this proceeding, moreover, establishes that the need for the LTCH continues to exist in AHCA Acute Care District 11. Miami Jewish Home proposed to locate the LTCH on its Douglas Gardens Campus, the site of a broad array of health and social services that span the continuum of health care. The continuum includes services related to community outreach, independent and assisted living facilities, nursing home diversion, chronic illness, outpatient programs, acute care hospital, rehabilitation and post-acute care, Alzheimer's disease, pain management, skilled nursing and hospice. The community surrounding the campus is an area known as "Little Haiti," one of the most densely populated areas of Dade County. The community is primarily low-income. It is a federally-designated "medically underserved area." Miami Jewish Home is a "safety net" provider of health care services, one of only 20 or so in the entire state. Its skilled nursing facility is the largest provider of Medicaid skilled nursing services in the state. Miami Jewish Home operates Florida's only Teaching Nursing Home program. Medical students, interns, and other health professionals rotate through the service program in the nursing home and hospital on a regular basis. In its teaching capacity, Miami Jewish Home serves as a student and resident training site for the University of Miami and Nova Southeastern University Medical Schools and the Barry University, Florida International University and University of Miami nursing schools. The LTCH was proposed as a hospital-in-a-hospital (HIH), that is, it would be part of an existing hospital and constructed within the hospital's existing structure rather than as a free-standing facility. Its status as an HIH meant that the construction required for it to achieve operable status would be more in the nature of renovation as opposed to breaking new ground as in the case of a free-standing LTCH facility. The Construction Deadline Paragraph (a) of Subsection 408.040(2), Florida Statutes, requires successful applicants for CONs to commence construction within 18 months of the CON's issuance. If construction is not timely commenced, the CON validity period expires and the CON terminates. By operation of law, therefore, December 28, 2008, was the deadline for the commencement of construction (the "Commencement of Construction Deadline" or the "Deadline"). See Finding of Fact 1. The Approach of the Deadline In the wake of the issuance of the CON, Miami Jewish Home worked to develop the project approved by the CON and to implement it. Shortly after the award of the CON, Miami Jewish Home contracted for the construction and development work with an architectural firm, Louis Sousa & Associates ("Sousa"). The firm was engaged "to do preliminary drawings to cost out [the] project and get … more detail on … other issues that [might] be encountered in the renovation of the area." Tr. 68. Garrett's Construction was identified as the construction company that would perform the construction on the basis of the Sousa drawings. After the issuance of the CON, a new Chief Executive Officer took the helm at MJHHA. Eventually, Sousa completed a full scale set of drawings that included changes and expansions in the program that had not been shown on the drawings that accompanied the CON application. Among the expansions were the addition of an elevator tower, a drive-through canopy and a second operating room in which the new CEO took an interest because of his development background. The completed drawings were submitted to the City of Miami for approval and Sousa was engaged to be the architect during construction. There were several surprises during the process of developing the drawings. These were described at hearing by Mr. Knight, MJHHA's Chief Financial Officer: It was identified that the backup generator located in the Chernin Building was not sufficient and could not bear the load to support a 30-bed acute care hospital [the LTCH.] * * * In addition . . . , it was identified that the current 02 or oxygen tank farm that we have on the west side of the property was problematic. It was freezing up. . . . it was advised . . . by an external vendor that it would not be able to accommodate the additional 30 beds [beyond] the 30 beds … in operation. *** It was a little over a million two [hundred thousand dollars] for both of those projects . . . , a significant increase over what we had anticipated to be the total cost of the project. Tr. 69-70. Submitted in June of 2008 to the City of Miami, permits for the generator and the 02 farm project were received in December of 2008. The 02 farm project started in the third week of March 2009 and was fully underway at the time of the final hearing in this case. Demolition for the generator project was scheduled to commence within two weeks of the conclusion of the hearing, that is, in April of 2009. By December of 2008, however, none of the construction plans had been submitted for review to AHCA. (In fact, none had been submitted by the last day of final hearing in this case, March 25, 2009.) AHCA's review "of plans . . . is an essential part of implementing a project that requires construction." Tr. 263. Following cross-examination on this point at hearing, Mr. Gregg was asked by AHCA's counsel to review the definition of "commenced construction" in the Health Facility and Services Development Act: "Commenced construction" means initiation of and continuous activities beyond site preparation associated with erecting or modifying a health care facility, including procurement of a building permit applying the use of agency-approved construction documents, proof of an executed owner/contractor agreement or an irrevocable or binding forced account, and actual undertaking of foundation forming with steel installation and concrete placing. § 408.032(4), Fla. Stat. (emphasis added.) After his review of the definition, Mr. Gregg explained that construction cannot be commenced without AHCA plan review because "it's a[]. . . technical . . . area that requires the expertise of the people in [AHCA's] office of plans and construction to give a project an okay from the health care perspective before it proceeds to the point of construction." Tr. 319. Plans were not submitted and construction was not commenced by the Deadline because of difficulty in financing the construction. The more than one million dollars required to update the generator system and the O2 Farm, unanticipated at the time of the CON approval, contributed to the difficulty. In the main, however, the delay was due to what the stipulation of the parties describes as "unique in the history of Florida's CON regulation," that is, the financial crisis of which the public became generally aware in the early fall of 2008. Distress in the Financial Markets In the early autumn of 2008, as the Commencement of Construction Deadline neared, the financial markets in the United States became unstable. World-wide financial markets followed suit. The gravity of the financial situation has been widely acknowledged to be the most serious since the Great Depression that immediately preceded World War II. During the years that Florida's CON regime has been in place, there has been no time period during which economic distress has been as severe as the period that commenced in September of 2008 and continued at least into early 2009, after the expiration of the Deadline. The problems in financial markets made further development of the CON unreasonable. Miami Jewish Home had proposed and was approved to pay for the costs of the implementing the LTCH from its cash on hand and other assets. At the time of the approval, the "cash-on-hand" approach was reasonable. It continued to be achievable, despite cost increases, until the late 2008 financial crisis' serious negative impact on MJHHA's investments. Loss in Investment Income Miami Jewish Home's un-audited balance sheet, admitted into evidence as MJHHA's Ex. 1, shows a steep reduction in Net Assets over the six months from June 30, 2008 to December 31, 2008, the six months in which the financial crisis occurred. The Balance Sheets June 30, 2008 column (audited) shows "Net Assets" of $101,363,000. The 12/31/2008 column shows "Net Assets" of $82,209,000 a reduction in net assets of between $19 million and $20 million. Over $12 million of the loss was due to losses suffered by MJHHA's endowment and foundation account which represents Miami Jewish Homes investments. This "investment account" was $72 million on June 30, 2008 and had shrunk to $50 million by the end of 2008. At the time of hearing, the investment account had lost another $40 million, making MJHHA's decision not to proceed with the LTCH appear to be a prudent one at the time of final hearing. The decision was prudent not merely because of a loss of funds. The impact of the loss of investment funds was compounded for Miami Jewish Home because of the use of income from those funds to keep MJHHA's nursing home operation afloat. Mr. Knight explained, "when the significant decrease in cash occur[red], that also reduced the income potential on that cash and ultimately the subsidy back to the nursing home." Tr. 74. Miami Jewish Home's nursing home operation's financial stability was also threatened by Medicaid reimbursement "looking to be getting worse." Tr. 75. With the Deadline approaching, the situation was summed up by Mr. Knight: [B]etween the incremental costs that were identified [with regard to the generator and the O2 farm] and the significant decrease in our ability to fund from cash [the loss of investment return produced by the investment account] and ultimately the . . . loss on the nursing home operations, in September and October of '08 [MJHHA] began the process of seeking another developer or another potential acquirer of a certificate of need. Tr. 77. Looking for a Purchaser of the CON As Miami Jewish Home became aware of the deterioration of its financial situation, it began to seek alternative means to finance the development of the LTCH, including standard loans and alternative financing. It approached its commercial banker SunTrust. The deterioration of MJHHA's finances, however, was occurring at the same time as "the credit crunch came into place." Tr. 96. SunTrust was not interested in financing the LTCH. With the realization that it could not reasonably fund the development of the LTCH and still believing it to be a needed service, MJHHA began to seek out other operators and developers. At first, MJHHA looked for a known LTCH company or a compatible provider to develop the LTCH on the Miami Jewish Home campus. Promise Health Care and Mt. Sinai were approached. For various reasons, no firm commitments were forthcoming. As autumn wore on, Miami Jewish Home continued to make progress toward the permits necessary to develop the LTCH, but it became clear it was not in a financial position to go forward with construction. It scheduled a call with AHCA for December 18, 2009, to inform AHCA that it would be abandoning the project. Nearly resigned to the loss of the project, MJHHA management met with principals of the Sanderling group in mid- December 2008. Sanderling showed a desire to work through the details of the LTCH project with Miami Jewish Home. A general agreement was reached between Sanderling and Miami Jewish Home by the time of the scheduled call with AHCA. When the call took place on December 18, 2008, instead of relinquishing the CON, MJHHA informed AHCA that there was a provider compatible with Miami Jewish Home that intended to purchase the CON and develop the LTCH. During the call, the Agency responded verbally that MJHHA should do whatever it needed to do to keep the project moving forward. Miami Jewish Home took immediate action. It submitted a written request for the extension of the validity period of the CON. The December 18 Written Request for an Extension On the same day as the call, Miami Jewish Home provided AHCA with written notice of intent to transfer the CON. The letter informed AHCA of MJHHA's financial difficulty due to "additional costs . . . required to develop the LTCH which were material, . . . the large (20%)losses to the Homes endowment . . . and] [g]iven these changed circumstances, . . . [that] the Home . . . cannot justify the development costs to implement [the CON] without impacting other services." MJHHA Ex. 11. Dated December 18, 2009, the letter bears the heading, "Via Electronic Mail". Id. The letter went one step further. It specifically noted that paragraph (c) of Florida Administrative Code Rule 59C-1.018(3) (the "Transfer Extension Paragraph"), provides that a 60-day extension of the life of the CON would be granted upon receipt of a notice and application for a transfer if the notice and application were received 15 days prior to the deadline for commencement of construction. After quoting the paragraph verbatim, the letter asked for relief under the variance and waiver provision of the Administrative Procedure Act, "[p]ursuant to Section 120.542, F.S., we are requesting a waiver of the 15 days prior notice provision." Id. at 2. Noting that "there is no statutory requirement for the 15 days notice," the letter asserted that the notice and proof of the closing of the acquisition would be submitted "with the initial transfer application as soon as possible and before the December 28, 2008 termination date." Id. The written request that comprised the letter (the "December 18 Written Request") was furnished five days later than required by the Transfer and Extension Paragraph. Had it been submitted on December 13, 2008, instead of December 18, 2008, it would have been timely. Before AHCA responded in writing to the December 18 Written Request, Miami Jewish Home took further action. It submitted a more formal request for relief: an emergency petition. The Emergency Petition On December 24, 2008, six days after the submission of the December 18 Written Request, Miami Jewish Home filed with AHCA a document entitled, "Emergency Petition for Variance of Waiver of Rule 59C-1.018(3)(c), F.A.C." (the "Emergency Petition"). See MJHHA Ex. 12. Denominated an emergency "because the CON is scheduled to terminate on December 28, 2008," id. at 2, the Emergency Petition pointed out that "the 90 days typically provided for review of petitions for variance or waiver would not allow the resolution of this petition." Id. Substantially similar to the December 18 Written Request, the petition expressed one new fact and pointed out an additional significant feature for AHCA's consideration. The new fact was that the initial application for transfer of the CON to Sanderling had been submitted to AHCA on December 24, 2009, along with the petition. The featured consideration was asserted in the petition's final paragraph: Granting the waiver will foster the goals of the Health Facility and Services Development Act as stated in the Recommended Order and Final Orders in DOAH Case No. 06-557 (AHCA No. 2006000716) approving CON 9893. Id. at para. 12., p. 4 (emphasis added.) This assertion amounted to the claim that the statute underlying the Transfer Extension Paragraph and the entire Termination and Extension Rule is not merely the law implemented by the rule but the entire Health Facility and Services Development Act. The Act The Act is a subset of one part of Chapter 408, Florida Statutes. The chapter governs "Health Care Administration" and is composed of Parts I - IV. Part I consists of Sections 408.031 through 408.7071. Fifteen sections, Sections 408.031 through 408.045, comprise the Act. "Sections 408.031-408.045 shall be known and may be cited as the "Health Facility and Services Development Act." § 408.031, Fla. Stat. Of the Act's fifteen statutory sections, several stand out as having been applied by the Agency and the DOAH in the process that led to the approval of Miami Jewish Home's application and the award of the CON. These include Section 408.037, which prescribes the content for a CON application, Section 409.035, which delineates the criteria for review of a CON application, and Section 408.039, which establishes the process for review of a CON application. The Act recognizes the transfer of CONs from the holder of a CON to another. See § 408.042, Fla. Stat., the catchline of which is: "Limitation on Transfer." This recognition is reflected in the section's opening sentence: "The holder of a certificate of need shall not charge a price for the transfer of the certificate of need to another person that exceeds the total amount of the actual costs incurred by the holder in obtaining the certificate of need." (emphasis added.) One of the 15 provisions of the Act bears particular relevance to this proceeding: Section 408.040, Florida Statutes, the "Conditions and Monitoring" Section. Section 408.040, Conditions and Monitoring Section 408.040 has two subsections: the first is concerned primarily with "conditions," the second with monitoring." The section, accordingly, bears the catchline, "Conditions and monitoring." Subsection (2), the "monitoring" subsection, is directly at issue in this case because it is cited in Rule 59C- 1.018 as its "law implemented." It provides, in pertinent part: (2)(a) Unless the applicant has commenced construction . . . , a certificate of need shall terminate 18 months after the date of issuance. The agency shall monitor the progress of the holder of a certificate of need in meeting the timetable for project development specified in the application, and may revoke the certificate of need, if the holder of the certificate is not meeting such timetable and is not making a good faith effort, as defined by rule, to meet it. * * * (c) The certificate-of-need validity period for a project shall be extended by the agency, to the extent that the applicant demonstrates to the satisfaction of the agency that good-faith commencement of the project is being delayed by litigation or by governmental action or inaction with respect to regulations or permitting precluding commencement of the project. § 408.040(2), Fla. Stat. Because the subsection is concerned with termination and extension of the deadlines for commencement of construction of CON project, the subsection will be referred to in this order as the "Termination and Extension Subsection." Paragraph (a) of the Termination and Extension Subsection focuses on the 18-month CON validity period during which the agency is to monitor the progress toward project development. It provides for revocation of a CON if a good faith effort is not being made toward meeting the 18-month timetable. It further provides for termination of the CON at the end of the 18-month CON validity period. Paragraph (c) of the Termination and Extension Subsection focuses on when the time for termination may be extended and the circumstances for such an extension: in cases plagued by litigation or when governmental action or inaction causes delay. One observation of the Termination and Extension Subsection is of particular import to this proceeding. It is silent with regard to extensions of a deadline for commencement of construction when a CON is transferred. Although not mentioned as a basis for an extension in the Termination and Extension Statute, transfer of a CON is a basis for an extension under paragraph (c) of Section (3) of Florida Administrative Code Rule 59C-1.018 (the "Termination Rule"). The Termination Rule The Termination Rule is divided into three sections. The first, denominated "Validity Period of Certificate of Need," restates the Termination and Extension Subsection's prescription that a CON shall terminate 18 months after issuance "unless the holder meets the applicable conditions for an extension set forth in Section 408.040(2), F.S., and this rule." Fla. Admin. Code R. 59C-1.018(1). The second section of the Termination Rule, called "Undertaking a Project Authorized by a Certificate of Need," prescribes minimum requirements to prevent termination of a CON and the expiration of its validity period. These requirements govern both new construction or renovation projects and non- construction projects that involve capital expenditures. The third section of the Termination Rule governs extension of a CON's validity period. It is divided into three paragraphs. Paragraph (a) deals with extensions when there is a demonstration that "good faith commencement of the project is being delayed by litigation or governmental action or inaction," Fla. Admin. Code R. 59C-1.018(3)(a), related to regulation which precludes commencement. Delay caused by litigation or government are the two bases for an extension provided by the statutory Termination and Extension Subsection. Unlike the case where extensions are sought because of a transfer, the filing of a request under paragraph (a) does not extend the validity period of a CON. A paragraph (a) extension request requires the Agency to pay close attention to a number of details in its review. The requester must make a showing of good faith. Other details the Agency must examine are revealed by the following provisions: The request must provide the agency a detailed explanation of the problem and a plan of action to be undertaken by the holder to resolve the problem within the time frame requested. Land zoning issues will be considered for extension of the certificate of need validity period beyond the 18 months, if the certificate of need holder can demonstrate that action has been initiated to obtain proper zoning for the proposed site for the facility, and that such action was timely with respect to the requirements for obtaining proper zoning. Untimely filing of submission of plans and requests for local and state permits, based on the processing time required by the state and local governments for such plans and permits, will not be considered as justification for an extension beyond the 18-month period. Fla. Admin. Code R. 59C-1.018(3)(a). Paragraph (b) contains yet another consideration for the Agency in cases of extensions requests on the basis of litigation. The extension "shall be granted for the actual time of the validity period which is equivalent to the period of litigation, including appeal." Fla. Admin. Code R. 59C- 1.018(3)(b). Paragraph (c) (the "Transfer Extension Paragraph") deals with extensions requests in the case of transfers, as in this case: Upon written request from the holder of a certificate of need received at least 15 days prior to the termination date of the certificate of need, and upon submission of a transfer application by the proposed transferee, the agency will extend the validity period of the proposed transferred certificate of need for a period of 60 days to ensure that the certificate of need remains valid throughout the agency's timetable for review of the transfer application. Only one such request for a 60 day extension will be granted under the provisions of this subsection. Fla. Admin. Code R. 59C-1.108(3)(c) (emphasis added.) The terms of the Transfer Extension Paragraph that govern "transfer extensions" are significantly different from the terms of paragraphs (a) for other extensions. For one, there is no showing of "good faith" required on the part of the holder of the CON as there is with paragraph (a). Instead, Paragraph (c) directs extension upon the submission of two documents: a written request and a transfer application ("the agency will extend the validity period . . .", emphasis added). By comparison, paragraph (a) is written in "discretionary" language: "[e]xtensions . . . may be requested by a certificate of need holder . . .". (emphasis added.) Paragraph (a) extensions require much more review by the Agency; the paragraph sets up points at which the Agency may exercise discretion in turning down the request. In addition to the "good faith" demonstration by the holder of the CON, there must be a detailed explanation offered and a plan of action to resolve the problem within the time frame requested. In contrast, review triggered under the Transfer Extension Paragraph by a written extension request is minimal. All the Agency need determine is whether a transfer application has been submitted by the transferee and that no other requests on the basis of a transfer have been granted previously. Miami Jewish Home seeks a waiver from only one clause in the Transfer and Extension Paragraph: that its written request must have been received fifteen days prior to the termination date of the CON (the "15-day Requirement"). It makes the request for the waiver under Section 120.542, Florida Statutes. Section 120.542: the Variance and Waiver Statute Section 120.542, Florida Statutes (the "Variance and Waiver Statute") was enacted in 1996 as part of a major revision to Chapter 120, Florida Statutes. Described as perhaps "the most significant aspect of the revised APA," Loosening the Chains that Bind: the New Variance and Waiver Provision in Florida's Administrative Procedure Act, Vol. 24, at 353, Florida State University Law Review (1997), the section sets forth the legislative intent in two straightforward sentences: Strict application of uniformly applicable rules requirements can lead to unreasonable, unfair and unintended results in particular instances. The Legislature finds that it is appropriate in such cases to adopt a procedure for agencies to provide relief to persons subject to regulation. § 120.542, Fla. Stat. The operative part of the Variance and Waiver Statute is found in subsection (2), the first sentence of which reads, "Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness." The Variance and Waiver Statute provides a process for agencies in dealing with variance and waiver petitions. The agency is to give notice to the Department of State within 15 days of receipt of the petition. The Department of State, in turn, publishes notice of the petition in the first available issue of the Florida Administrative Weekly. See § 120.542(6), Fla. Stat. Within 30 days of receipt of the petition, the agency is to review it and request additional information it is permitted to require, see Section 120.542(7), Florida Statutes, "except for requests for emergency variances or waivers". Id. Agency Response to the December 18 Written Request The Agency did not rule on the December 18 Written Request prior to the expiration of the CON's validity period on December 28, 2008. The December 18 Written Request was hand-delivered to Mr. Gregg's office six days before the filing of the Emergency Petition (December 24, 2008). Mr. Gregg took the December 18 Written Request to the legal staff and said "please respond to this." Tr. 265. Before any response to the December 18 Written Request was issued in writing, the Emergency Petition was filed with AHCA together with the transfer application. Agency Response to the Emergency Petition The timing of the filing of the Emergency Petition, Christmas Eve, was problematic for the Agency. Mr. Gregg explained at hearing: [B]eing the holiday season, various key people were not there . . . The chief facilities counsel had broken his foot. The deputy secretary was out before Christmas. I was out after Christmas. This is a perfect example, apart from the fact that we all are juggling many different subjects, of why we would need [a] review period [as called for by the 15-Day Requirement] in order to develop an opinion about any request for extension or a request for a variance and transfer. Tr. 273. Since Mr. Gregg was not available to review the Emergency Petition the day of its submission, it was reviewed by the Deputy Secretary and Acting General Counsel. They formulated the Agency response: denial. Later, after Mr. Gregg had returned to the office and read the Emergency Petition, "we all agreed it was not something that we could grant." Tr. 266. In the wake of the receipt of the Emergency Petition and the transfer application, the Agency followed prescribed process. It issued a CON application omissions letter to Sanderling. Notice of the receipt of the Emergency Petition was published on January 16, 2009 in the Florida Administrative Weekly. Notice was also published on the Agency internet site. In the meantime, AHCA notified counsel for MJHHA that the CON had expired. The Agency letter, dated January 15, 2009, states: It has been determined that the holder of CON Number 9814 for the above referenced project [CON 9893] has violated the provision of section 408.040(2)(a), Florida Statutes . . . and Rule 59C-1.018(2) Florida Administrative Code in that the project has not commenced continuous construction, as defined in section 408.032(4), F.S., by the December 28, 2008 termination date. Therefore the CON has expired. * * * The final determination on your request for an emergency waiver could have an impact on whether or not this CON remains valid. Exhibit "E" attached to MJHHA Ex. 13. On January 22, 2009, written comments in opposition to the Emergency Petition were received from Victoria Healthcare, Inc., a wholly owned subsidiary of Select Medical Corporation and from Kindred Hospitals East, L.L.C. No comments were received in support of the petition. On January 23, 2009, the Agency issued a Final Order denying the Emergency Petition. The Agency's Final Order The findings of fact in the Final Order relate the history of the CON and the filing of the Emergency Petition. The order does not make reference to the December 18 Written Request. The findings of fact also cite and quote text from relevant statutory and rule provisions. The sixth and last finding of fact in the final order is: Since CON 9893 expired on December 28, 2008, Rule 59C-1.018(3)(c) required . . . the request and transfer application be received by the Agency no later than December 13, 2008. The petition and transfer application were received on December 24, 2008, eleven days late. MJHHA Ex. 13, at 2-3. The Final Order does not identify the specific statute underlying the Termination and Extension Rule. Nonetheless, it concludes with regard to the first prong of the Waiver and Variance Statute that the Emergency Petition comes up short: Beyond the bare, unsupported, and conclusory allegation in paragraph 9 of the Petition that "requiring the CON to terminate would be detrimental to the goals of the Health Facility and Services Development Act and the accessibility and quality of health care services to the community," and a reference in passing to the Recommended and Final Orders in DOAH Case No. 06-0557 CON, the Petition does not address or provide specifics explaining how waiving the 15 day prior notice rule requirement would achieve the purpose of the statute. Id. After its conclusion that MJHHA failed to meet the first prong, the Final Order reflects the Agency's conclusion that it was not necessary to address the second prong of the Variance and Waiver Statute. The order, however, reflects the Agency's decision to deal with the second prong "briefly." MJHHA Ex. 13, at 5. The Final Order finds that MJHHA failed to demonstrate that application of the rule would work create a substantial hardship or that principles of fairness had been violated. Accordingly, the Final Order denies the Emergency Petition. Section 120.57(1) Petition The Final Order's denial of MJHHA's request for a variance was challenged by a petition filed on February 2, 2009 (the "Section 120.57(1) Petition"). In the Section 120.57(1) Petition, MJHHA characterizes the December 18, 2009 Written Request, as a "written request" within the meaning of the term in the Termination Rule and characterizes the Emergency Petition as a "second" written request. The Section 120.57(1) Petition, of course, raises the issue of whether it demonstrated that both prongs of the Variance and Waiver Statute had been met. It also raises a number of issues surrounding the emergency nature of the Emergency Petition, whether the CON terminated, and whether there is a statutory basis for the 15-Day Requirement. See Section 120.57(1) Petition, at 7-9. Stipulated Facts Prior to hearing, the parties filed a joint pre- hearing stipulation. The stipulation contains a section entitled, "Facts Which Are Admitted and Require No Proof at Hearing." The section contains the following: AHCA is the state agency responsible for the administration of the Certificate of Need program in Florida. AHCA did not provide MJHHA copies of the relevant statutes and rules when it was presented with a request for relief (the December 18 letter) from the provisions of the rule. (Item a of the petition) The current financial crisis is unique in the history of the Florida's CON regulation. (Item g of the petition) Joint Pre-hearing Stipulation, at. 4. Final Hearing At final hearing, the Agency identified the statute it believes underlies the Termination and Extension Rule: Section 408.040(2), Florida Statutes, referred to in this order as the Termination and Extension Subsection. The Agency offered further evidence of the context in which its decision was made. Mr. Gregg opined that Miami Jewish Home was not positioned to request an extension. Construction plans had not been submitted for AHCA review. The extension request was first presented to AHCA ten days before the Construction Deadline; normally, AHCA is informed months in advance of the need for an extension. The Agency denied the request in an "attempt to be consistent and treat each situation in the same way." Tr. 274. Mr. Gregg further opined: And in the case of CON, given that we know that the financial situation is very widespread, if we were to be too liberal in our application of these laws and rules, I can guarantee you that we would quickly have other people asking us to do a similar thing, based upon financial problems. And we don't feel we have [that] flexibility . . . . In recognition of that, we have proposed . . . a total extension of the CON validity period that would extend it from 18 month to three years. And that is included in a bill that is generally referred to in this season as the agency's regulatory reform bill. [Without such legislation] we don't think we have authority to [give MJHHA an extension.] Tr. 275-6. Mr. Gregg also mentioned another instance in which a CON holder "had communicated . . . that they have financial problems . . . but they also happen to have local planning and zoning issues and environmental issues as well." Tr. 274. That instance was a case involving Hillsborough Extended Care, LLC. The Hillsborough Case On August 30, 2005, CON 9814 was issued to Hillsborough Extended Care, LLC, ("Hillsborough") to relocate 120 existing community nursing home beds from one facility in Tampa to a new freestanding 120-bed facility. The deadline for commencing construction of the project authorized by CON 9814 was February 28, 2007. Prior to November of 2007, Hillsborough invoked the Termination and Extension Rule on four separate occasions. Extensions were granted each time on February 1, May 17, June 15, and August 13, 2007. The letter granting the last extension informed Hillsborough that the CON validity period expired October 7, 2007 "and specifically stated that to request another extension pursuant to Rule 59C-1.018, Florida Administrative Code, that the extension request must have been received by the Agency no later than October 7, 2007." MJHHA Ex. 21 at 2; see also the fourth page of Exhibit "B" attached to MJHHA Ex. 21. On October 16, 2007, nine days late, Hillsborough filed a fifth extension request. The Agency sent a letter to Hillsborough on October 23, 2007. It denied the request and informed Hillsborough as follows: It has been determined that the holder of CON Number 9814 . . . has violated the provisions of section 408.040(2)(a), Florida Statutes . . . and Rule 59C-1.018(2), Florida Administrative Code in that the project has not commenced continuous construction, as defined in Section 408.032(4), F.S., by the October 22, 2007 termination date. Therefore, the CON has expired. Fifth page of Exhibit "B" attached to MJHHA Ex. 21. Hillsborough filed an emergency petition for a variance from or a waiver of the Termination Rule. The emergency petition invoked the Variance and Waiver Statute. The emergency petition recognized the law implemented by the Termination Rule to be the Termination and Extension Subsection, Section 408.040(2), Florida Statutes. With regard to the "underlying statute," Hillsborough took a position similar to that of Miami Jewish Home in this proceeding, that is, that the underlying statute is the Act. See MJHHA Ex. 20 at 2. The emergency petition asserted that in support of the end promoted by the Act, "the orderly development of health facilities and services in the State," id., the Agency had determined a need for the nursing home beds authorized to be relocated by CON 9814. The Agency issued a Final Order denying Hillsborough's emergency petition on December 28, 2007 (the "Hillsborough Final Order of December 28, 2007.") The Agency found that although a need for the nursing home beds had been determined when CON 9814 was issued, "there is no longer a need for these beds in Hillsborough County." MJHHA Ex. 21. The Agency at first, see Finding of Fact 86, below, concluded that the statute underlying the Termination Rule was the Termination and Extension Subsection not the Act. The Agency in the order further concluded that while "it appears there may have been ongoing litigation or other matters pending relating to permitting which may have justified a fifth extension of CON 9814," id. at 5, that the issue was whether a variance from or waiver should be granted as to the 15-Day Requirement. The Agency recognized that the 15-Day Requirement is not statutory. See MJHHA Exhibit 21 at 6, para. 18: "[i]t is true that there is nothing in the statute explicitly requiring that CON validity extension requests by received at least 15 days prior to the extension date . . .". The Agency further concluded that Hillsborough did not demonstrate that the purpose of the underlying statute, the Termination and Extension Subsection, would be met by a variance from or waiver of the 15-Day Requirement. In fact, the Agency wrote an untimely request "is contrary to the purpose of the underlying statute, which requires the Agency to determine whether an extension is justified before the CON has expired." Id. at 7. The Agency expanded upon the meaning of the term, "underlying statute" when it wrote the following in the Hillsborough Extended Care final order: Moreover, the entire CON statute, found at Chapter 408, Part I, [the Act] is dedicated to the principle that a CON is granted when there is a demonstrated need. * * * Therefore, the purpose of the underlying CON statute [emphasis added] has not been met in this case: this district does not need these beds [any longer.] The issue, always, in the CON program is whether there is a need for a facility or service, not whether it would be desirable to have additional options and choices beyond that need. In this case, the need does not exist. The Petitioners have not demonstrated that they have met the purpose of the underlying statute. [emphasis added.] Id. at 7-8. Thus, the Agency concluded that the Act is the statute underlying the Termination Rule as well as the law implemented, a provision contained within the Act. The Hillsborough Final Order or December 28, 2007, accordingly denied Hillsborough's emergency petition. Hillsborough challenged the decision by filing two petitions for formal administrative hearings. On February 19, 2008, the Agency entered a second final order (the "Hillsborough Final Order of February 19, 2008.") It reports, "[t]he Agency and Hillsborough have reached a settlement by which the AHCA notices are superseded and Hillsborough is given an extension to begin continuous construction pursuant to the time line schedule included in the Settlement Agreement." MJHHA Ex. 22 at 2. The final order approves and adopts the Settlement Agreement as part of the final order. The Settlement Agreement in its "whereas" clauses describes action and inaction of the local government that justified an extension. See MJHHA Ex. 22, Settlement Agreement at 3-4. With regard to the 15-day Requirement that its earlier letter had found Hillsborough to have violated, the Settlement Agreement recites the following in a "whereas" clause: "the parties agree that AHCA has evenly enforced its fifteen day requirement for filing an extension request and did nothing incorrect in denying the late filed extension request and canceling the CON ...". Id. at 5. Neither the Hillsborough Final Order of February 19, 2008 nor the Settlement Agreement attached to it provides any explanation as to why the 15-Day Notice Requirement was no longer to be enforced against Hillsborough. The lack of explanation is particularly worthy of observation in light of the agreement that AHCA did nothing incorrect in enforcing it in the first place. The Settlement Agreement sets out a detailed schedule for plan review, commencing construction and continuing construction. Id. As for future extensions, the Settlement Agreement contained a few additional provisions that relate to circumstances that would support further extensions and timely requests for extensions: The schedule and continuous construction commencement date of CON 9814 may only be extended by agreement of the parties because of governmental action or inaction or for unforeseen natural disasters or Acts of God. If such an extension or extensions become necessary, the Petitioner agrees to timely file the request(s) for extension in full compliance with the requirements of Rule 59C-1.018(3)(a), F.A.C., and upon failure to fully comply with the requirements of said rule, Petitioner agrees that CON 9814 shall become null and void by operation of law, without further action by the agency, and without any further administrative or legal remedies being available to the Petitioner. Id. at 7-8. The Agency's Position at Final Hearing At final hearing, the Agency embellished upon the circumstances that led to its decision to deny the Emergency Petition, including its view of why the outcome in the Hillsborough case is justifiably different from the Agency's preliminary denial in the Final Order in this case. See Finding of Fact 76. In essence, the Agency adhered to the position taken in the Final Order in this case: that MJHHA's Emergency Petition should be denied because it was filed eleven days late and Miami Jewish Home had failed to demonstrate a basis for waiving the 15-Day Requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency waive the 15-Day Requirement for Miami Jewish Home with regard to its written request to extend the validity period of CON 9893, revoke the termination of the CON, and grant an extension of 60 days of the CON's validity period upon issuance of a final order. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 11th day of May, 2009. COPIES FURNISHED: Karl David Acuff, Esquire Watkins & Associates, P. A. 3051 Highland Oaks Terrace, Suite D Post Office Box 15828 Tallahassee, Florida 32317-5828 Shaddrick Haston, Esquire Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Holly Benson, Secretary Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Petitioner, John F. Morack, is a member of the Teachers Retirement System (TRS). The TRS is administered by respondent, Department of Administration, Division of Retirement (Division). On April 18, 1988, petitioner began working for a new employer and concurrently filled out an application form to enroll in the Florida Retirement System (FRS), a plan also administered by the Division. By letter dated June 27, 1988, the Division, through its chief of bureau of enrollment and contributions, Tom F. Wooten, denied the request on the ground Morack failed to qualify for such a transfer. Dissatisfied with the agency's decision, Morack initiated this proceeding. Petitioner first enrolled in the TRS on September 18, 1970, when he began employment as a dean at Broward Community College. At that time, he had no option to enroll in any retirement program except the TRS. Under the TRS, an employee did not have to make contributions to social security and earned "points" for calculating retirement benefits at a rate of 2% for each year of creditable service. In contrast, under the FRS, which was established in late 1970, members earned benefits at a rate of only 1.6% per year but were participants in the social security program. Finally, a TRS member could not purchase credit for wartime military service unless he was an employee at the time he entered the military service and was merely on a leave of absence. On the other hand, an FRS member could purchase credit for military service after ten years of creditable service as long as such military service occurred during wartime. When the FRS was established in late 1970, members of the TRS were given the option of transferring to the newly created FRS or remaining on TRS. Morack executed a ballot on October 15, 1970 expressing his desire to remain on the TRS. In November 1974, the Division offered all TRS members an open enrollment period to change from TRS to FRS. Morack elected again to remain on the TRS. In the latter part of 1978, the Division offered TRS members a second open enrollment period to switch retirement systems. On November 21, 1978, Morack declined to accept this offer. On January 1, 1979 Morack accepted employment with the Department of Education (DOE) in Tallahassee but continued his membership in the TRS. He remained with the DOE until July 1981 when he accepted a position in the State of Texas. However, because Morack intended to eventually return to Florida, he left his contributions in the fund. Approximately two years later, petitioner returned to Florida and accepted a position at Florida Atlantic University (FAU) in Boca Raton as assistant vice president effective July 11, 1983. About the same time, he prepared the following letter on a FAU letterhead. To Whom it May Concern: This is to indicate that I elect remaining in TRS rather than FRS. (Signature) John F. Morack The letter was received by the Division on July 19, 1983, and the enrollment form was processed on November 2, 1983. Although Morack stated that he was told by an FAU official that he could not transfer plans at that time, there is no competent evidence of record to support this claim since the testimony is hearsay in nature. On November 18, 1985, Morack requested the Division to audit his account for the purpose of determining how much it would cost to purchase his Korean War military service. On January 24, 1986, the Division advised Morack by memorandum that because he had "no membership time prior to (his) military service, that service is not creditable under the provisions of the Teachers' Retirement System." During the next two years Morack requested two audits on his account to determine retirement benefits assuming a termination of employment on July 31, 1987 and June 30, 1988, respectively. On April 14, 1988, Morack ended his employment with FAU and began working on April 18, 1988, or four days later, at Palm Beach Junior College (PBJC) as construction manager for the performing arts center. When he began working at PBJC he executed Division Form M10 and reflected his desire to be enrolled in the FRS. As noted earlier, this request was denied, and Morack remains in the TRS. The denial was based on a Division rule that requires at least a thirty day break in service with the state in order to change retirement plans after returning to state employment. Because Morack's break in service was only four days, he did not meet the requirement of the rule. At hearing and on deposition, Morack acknowledged he had several earlier opportunities to transfer to the FRS but declined since he never had the benefits of the FRS explained by school personnel. As retirement age crept closer, petitioner began investigating the differences between the TRS and FRS and learned that the latter plan was more beneficial to him. This was because the FRS would allow him to purchase almost four years of military service, a higher base salary would be used to compute benefits, he could participate in social security, and there would be no social security offset against his retirement benefits. Also, petitioner complained that school personnel were not well versed in retirement plans and either were unaware of alternative options or failed to adequately explain them. As an example, Morack points out that when he returned from Texas in 1983 he was not told by FAU personnel about the change in the law now codified as subsection 121.051(1)(c). Finally he thinks it unfair that the Division counts four days employment in a month as a full month's creditable service for computing benefits but will not count his four days break in service in April 1988 as a full month for computing the time between jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to change retirement plans be DENIED. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4183 Respondent: 1. Covered in finding of fact 6. 2-4. Covered in finding of fact 7. 5. Covered in finding of fact 10. 6-7. Covered in finding of fact 11. Covered in findings of fact 8 and 11. Covered in findings of fact 1 and 10. COPIES FURNISHED: Mr. John F. Morack 10474 Green Trail Drive Boynton Beach, Florida 33436 Stanley M. Danek, Esquire 440 Carlton Building Tallahassee, Florida 32399-1550 Andrew J. McMullian, III State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Adis Maria Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire general Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case is whether the Petitioner, Mr. Robert P. Hatcher, is eligible to retire under the Florida Retirement System rather than under the Teachers' Retirement System.
Findings Of Fact The Petitioner was employed by the Hillsborough County School Board on August 25, 1959, and was enrolled in the Teachers' Retirement System (TRS) at that time. The Petitioner worked for the Palm Beach County School Board for 27 years, from 1966 through May 15, 1992. The Petitioner worked with no breaks in service during all years in which the Legislature provided open enrollment periods for members of the TRS to transfer to the Florida Retirement System (FRS). The Petitioner was aware of the open enrollment periods, but declined all opportunities to transfer to the FRS. In this regard, the Petitioner specifically rejected membership in the FRS for the 1974 and 1978 open enrollment periods by signed ballots dated November 27, 1974, and November 2, 1978. Petitioner voluntarily terminated his employment with the Palm Beach County School Board on May 15, 1992. Following his termination with the Palm Beach County School Board, Petitioner began seeking employment with an agency that participated in the FRS in order to become eligible to transfer from the TRS to the FRS. The Petitioner's first contact with the Okeechobee County School Board (OCSB) was approximately two years ago when Dr. Mary Gray, Petitioner's acquaintance, introduced Petitioner to Mr. Owens. The Petitioner approached Mr. Owens in an attempt to obtain employment with the OCSB. The Petitioner sought employment with the OCSB for the sole purpose of obtaining entry into the FRS. Mr. Owens recruited and interviewed the Petitioner for the position of Custodian I at the OCSB. At the time the Petitioner was recruited and interviewed, Mr. Owens knew the Petitioner wanted to work for the OCSB for the sole purpose of establishing retirement eligibility. The Petitioner requested that he be hired to work only long enough to establish retirement eligibility by working for a state employer that was a member of the Florida Retirement System. Prior to the Petitioner's request, the OCSB had never had such a request before. The OCSB hired the Petitioner with the knowledge that he had health problems and believing that he would not be able to perform the duties of custodian for more than a short period of time. By letter dated June 23, 1993, the OCSB approved the Petitioner's employment as Custodian I for the OCSB effective June 30, 1993. The Custodian I position was classified as a regular position, not a short-term position. The Petitioner reported to work at the Okeechobee High School on June 30, 1993. He answered phones for several hours, performed some inventory work, then resigned that afternoon. The OCSB acknowledged receipt of the Petitioner's resignation letter, effective June 30, 1993, by letter dated August 2, 1993. The Petitioner submitted an application for membership in the FRS to the OCSB on June 30, 1993. Prior to his employment with the OCSB, the Petitioner investigated the possibility of transferring from the TRS to the FRS. The Petitioner was neither told nor did he receive any written communication by the DOR that he could transfer to the FRS based upon employment for one day. By letter dated August 16, 1993, the Respondent notified the Petitioner that he could not obtain entry into the FRS because his employment was not bona fide, but that he could retire under the TRS. If the Petitioner were to retire under the TRS, his Option 1 monthly benefit payment would be $2,571.64; his Option 3 monthly benefit payment would be $2,396.25. Under the FRS, Petitioner's Option 1 monthly benefit payment would be $3,054.91; his Option 3 monthly benefit payment would be $2,771.20.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Retirement issue a final order concluding that the Petitioner is not eligible for participation in the Florida Retirement System and denying Petitioner's application for transfer from the Teachers' Retirement System to the Florida Retirement System. DONE AND ENTERED this 6th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of January 1994. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs a and b: Accepted in substance. Paragraph c: Accepted in part and rejected in part; accepted that the Petitioner obtained the described employment, but rejected that the employment was bona fide. Paragraph d: Accepted in part and rejected in part. The conclusion that the one day was sufficient to qualify the Petitioner for transfer to FRS is rejected as incorrect and as not warranted by the evidence; the remainder of the facts in this paragraph are accepted. Paragraph e: Rejected as constituting a conclusion of law, rather than a proposed finding of fact; a conclusion which is, in any event, not warranted by the evidence in this case. Paragraph f: Rejected as constituting a conclusion of law, rather than a proposed finding of fact; a conclusion which is, in any event, not warranted by the evidence in this case. Findings submitted by Respondent: All of the proposed findings of fact submitted by the Respondent have been accepted in whole or in substance in the Findings of Fact made in this Recommended Order. COPIES FURNISHED: Jodi B. Jennings, Esquire Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Allan L. Hoffman, Esquire 1610 Southern Boulevard West Palm Beach, Florida 3406 J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Sylvan Strickland, Acting General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Petitioner meets the residency requirement prescribed by Section 458.347(7)(b)1.d., Florida Statutes, for certification as a physician assistant?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: From May, 1957, until her retirement 33 years later, Petitioner was employed as a physician by a government agency in India. Her first position was that of an Assistant Surgeon. When she retired, she was the Chief Superintendent of a 350-bed hospital. Petitioner is now, and has been since November 11, 1959, happily married to Dayaldas M. Punwani. Petitioner and her husband were married in Bombay, India. They lived together in India until March, 1981, when Dayaldas moved to the United States. Petitioner remained in India with the couple's two children. At the time of their physical separation, Petitioner and her husband enjoyed a congenial relationship, as they have throughout their marriage. Their plan was for Petitioner to eventually join Dayaldas in the United States and live with him in the same household, but only following her retirement from government service and after their children were married and settled in accordance with Indian custom and tradition. When Dayaldas arrived in the United States, he first went to Boston, Massachusetts. Sometime in late 1981 or in 1982, he settled in Broward County, Florida and has lived there since. Using a visitor's visa to enter the United States, Petitioner visited her husband on two occasions after he had settled in Florida: from May, 1983, to August, 1983, and from November, 1985, to March, 1986. During her first visit, Petitioner and Dayaldas decided that when Petitioner joined Dayaldas in the United States to once again live with him, they would make Florida their permanent home. On neither of her visits to her husband did Petitioner come with the intention of staying for an indefinite period of time. Rather, she fully intended both times to return to India to continue her employment with the government until she reached retirement age 1/ and to discharge her responsibilities to her children. On February 8, 1990, Dayaldas became a permanent resident of the United States under this country's immigration laws. By February, 1990, both of Petitioner's and Dayaldas' children were married and settled. In April, 1990, Petitioner began to dispose of household items and other personal belongings in anticipation of her retirement and her subsequent move to Florida to join her husband. On May 30, 1990, at the age of 58, Petitioner retired from government service. The retirement age for physicians in government service in India is They have the opportunity, however, to seek reappointment to their position and work two years beyond their 58th birthday. Petitioner opted not to seek reappointment and extend her employment an additional two years because she wanted to move to Florida to live with her husband. At the time of her retirement, Petitioner was living in the same government-owned apartment in Bombay that she had been living in since September, 1964. The apartment was provided to her by the Indian government as part of her compensation package. 2/ Petitioner had a maximum of eight months following her retirement to vacate the apartment. Petitioner used only approximately one half of the allotted time. She vacated the apartment in December, 1990. On December 31, 1990, Petitioner arrived in Florida and moved in with her husband, with whom she has been living since. She came only with a few clothes. She had disposed of her other possessions, including her automobile, before leaving India. During the time that Petitioner was living in India and Dayaldas was living in the United States, Petitioner had an Indian driver's license and voted in local Indian elections. In or around April, 1991, Petitioner and Dayaldas filed a joint 1990 U.S. tax return. They subsequently filed an amended return. On June 14, 1991, Petitioner became a permanent resident of the United States under this country's immigration laws. On or around June 29, 1991, Petitioner mailed to the Board her completed application for certification as a physician assistant. On her application, she "list[ed her] place of residence on July 1, 1990," as "Bombay, Maharashtra, India."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order finding that Petitioner is not qualified to be certified as a physician assistant pursuant to Section 458.347(7)(b)1., Florida Statutes, because she has not shown that she was a legal resident of Florida on July 1, 1990, or was licensed or certified in any state in the United States as a physician assistant on July 1, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June, 1992. STUART M. LERNER 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 17th day of June, 1992. 1/ During both visits, she was on leave from her government position. 2/ The Indian government provides apartments to medical staff members regardless of their citizenship or immigration status. 3/ One may establish such a new residence in Florida without being a citizen of this country. See Pawley v. Pawley, 46 So.2d 464 (Fla. 1950); Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964). APPENDIX TO RECOMMENDED ORDER The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact 1-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that it suggests that Petitioner and her husband decided, during her 1983 visit, that they would both make Florida their permanent home from that moment on, rather than at some future date, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a statement of the law than a finding of fact. 7-11. Accepted and incorporated in substance. The Board's Proposed Findings of Fact 1-4. Accepted and incorporated in substance. 5. First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony; Second and third sentences: Accepted and incorporated in substance. 6-7. Accepted and incorporated in substance. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony. Accepted and incorporated in substance. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony. COPIES FURNISHED: Julian Gonzalez, Esquire 150 Southeast 12th Street, Suite 401 Fort Lauderdale, Florida 33316 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McCray, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Retirement Life Center, Inc., is licensed to operate Inverrary Retirement Center Annex at 5640 N.W. 28th Street, Lauderhill, Florida as an adult congregate living facility in compliance with Chapter 400, Part II, Florida Statutes. On October 27, 1985, at approximately 11:46 a.m. the Broward County Emergency Services received a call in reference to a person bleeding from the mouth at Inverrary Retirement Center Annex. Two paramedics with Broward County Emergency Services responded to the call and immediately went to the Respondent's adult congregate living facility. Upon arrival, the paramedics went to the fence but were unable to enter the premises because a locked padlock was on the gate. There were no staff members from the facility waiting for the emergency unit. The paramedics yelled out and rang a bell in an attempt to get someone to unlock the gate. One female staff member went to the gate, but she did not have a key so she left to get someone else. At least two minutes were wasted while the paramedics attempted to gain entry into the facility. When the gate was finally unlocked, the paramedics found the victim prone on the floor of the cafeteria, cyanotic and in cardiopulmonary arrest. The Respondent had previously performed an administrative inspection of Inverrary Retirement Center Annex on February 22, 1985. At that time, one of the deficiencies cited included the fact that locks were on the fence gate. When the facility was re-inspected on June 11, 1985, the deficiency had been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered assessing an administrative fine of $500.00 against Retirement Life Center, Inc., d/b/a Inverrary Retirement Center Annex. DONE and ORDERED this 8th day of May, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4214 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Addressed in Conclusions of Law section. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 7. Rejected as a recitation of testimony and/or contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Findings of Fact 3, 4 and 5. Adopted in Finding of Fact 7. COPIES FURNISHED: Dr. Martin Marenos Inverrary Retirement Center Annex 2057 North University Drive Sunrise, Florida 33322 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Suite 210 Miami, Florida 33014 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
