GOLFVIEW NURSING HOME v. STATE, AHCA, No. 1D02-0027

• Decision Date: 25 November 2003
• Docket Number: No. 1D02-0027, No. 1D02-1966.
• Citation: 859 So.2d 581
• Parties: GOLFVIEW NURSING HOME, Appellant/Petitioner, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee/Respondent.
• Court: Florida District Court of Appeals

859 So.2d 581

GOLFVIEW NURSING HOME, Appellant/Petitioner, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee/Respondent.

Nos. 1D02-0027, 1D02-1966.

District Court of Appeal of Florida, First District.

November 25, 2003.

Alfred W. Clark, Tallahassee, for Appellant.

Garnett Chisenhall, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.

ERVIN, J.

We consolidate these two appeals, both of which arise from an annual licensure survey of appellant's facility, Golfview Nursing Home, conducted on April 3-5, 2001. Case No. 1D02-1966 is an appeal from final agency action finding Golfview in violation of various regulations and imposing civil penalties amounting to $25,000 in fines. Case No. 1D02-0027 is an appeal from final agency action imposing conditional licensure status on the facility as a result of the same alleged violations.

The facts are essentially undisputed. The Agency for Healthcare Administration (AHCA), appellee, conducted an annual licensure survey of Golfview on April 3-5, 2001. During that survey, AHCA noted problems with the temperature of the hot water used at the facility. As a result, AHCA's field office in St. Petersburg, Florida, filed an administrative complaint against Golfview on April 26, 2001, seeking to impose $25,000 in civil penalties based upon the following two deficiencies: (1) Golfview failed to ensure that the resident environment remained as free of accident hazards as possible in that there was a lack of a facility-wide system to ensure control of the hot water used by the residents, and (2) Golfview failed to administer the facility to ensure the highest practicable physical well-being of each resident in that excessive hot-water temperatures placed the residents at risk for burns and scalding. Golfview, through attorney Alfred Clark, filed a petition for a formal administrative hearing on May 16, 2001.

On May 24, 2001, while the above administrative proceeding was pending, AHCA's Long Term Care Unit, Health Facility Regulation, in Tallahassee, Florida, sent a "Notice of Intent to Assign Conditional Licensure Status" to Golfview's administrator, but did not send a copy to attorney Clark. This notice was based upon the survey completed on April 5, and the same deficiencies alleged in the administrative complaint. An election form was included with the notice of intent, and the administrator executed that form by checking Option 1, which states: "I do not dispute the allegations of fact contained in the Notice of Intent and waive my right to object or to be heard. I understand that by waiving my rights, a final order will be issued that adopts the Notice of Intent and imposes the sanctions sought."

In the meantime, the administrative complaint proceeded to formal hearing, and on November 6, 2001, a recommended order was issued which found that clear and convincing evidence failed to establish the deficiencies/violations charged and recommended no civil penalties be assessed.

On December 3, 2001, AHCA, relying on the election form previously executed by Golfview's administrator, issued a final order imposing a conditional license on Golfview. On December 13, attorney Clark, on behalf of Golfview, filed a motion to vacate or amend the final order, contending that the administrator had acted without the advice of counsel or knowledge of the effect of the election, and pointing out that Golfview had disputed the same facts and conclusions that formed the basis for the conditional license in the administrative proceeding that had resulted in the November 6 recommended order. That motion was abandoned, however, when Golfview filed a notice of appeal, because it was unsure whether the motion tolled the time for appeal.

On April 15, 2002, AHCA entered a final order regarding the administrative complaint, adopting all the findings of fact set forth in the recommended order and all the conclusions of law except a portion of paragraph 55. In so doing, AHCA stated:

In paragraph 55, the ALJ concluded, contrary to the admissions of respondent [Golfview], that "there is no evidence of any on-going violation of the regulatory requirement for hot water temperatures." The evidence of such a violation existed, but the violation is clearly to be mitigated given the circumstances of this particular case.

(Emphasis added.) AHCA therefore assessed no penalties and dismissed the administrative complaint. Golfview also appealed that order.

Golfview's first issue in these consolidated appeals is that there is no competent, substantial evidence to support AHCA's finding of "admissions" by Golfview; therefore, it erred in rejecting paragraph 55. AHCA concedes this point on appeal and agrees that the case should be remanded for entry of a revised final order adopting the recommended order's findings of fact and conclusion of law without reservation. We accept that concession and therefore reverse the April 15 final order entered in Case No. 1D02-1966 and remand with directions to adopt the November 6, 2001, recommended order in toto.

In its two remaining issues on appeal, Golfview, pursuant to sections 120.68(7)(c) and (a), Florida Statutes (2000), argues that the December 3 final order imposing conditional licensure status should be reversed, (1) because the fairness of the proceedings or correctness of the action from which it resulted was impaired by a material error in procedure in that attorney Clark was never served with the notice of intent, and (2) because the validity of the final order depends on disputed facts for which Golfview was not afforded a hearing.

AHCA defends the December 3 order, arguing that the notice of intent initiated a totally separate, independent proceeding, i.e., the "licensure proceeding," from that commenced by the administrative complaint, i.e., the "violation proceeding." It reasons that the different burdens of proof in...