11-003366 Unique Health Care Orlando vs. Department Of Health Status: Closed Recommended Order on Tuesday, November 8, 2011.

Summary: Petitioner's license to operate as a pain management clinic should be revoked under s. 458.3265, as clinic is not a licensed health care clinic under part X of chapter 400, nor owned by a physician or group of physicians licensed under chapter 458 or 459.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIQUE HEALTH CARE ORLANDO , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3366

)

DEPARTMENT OF HEALTH , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, on September 13, 2011, a formal hearing

in this cause was held in Orlando, Florida, before the Division

of Administrative Hearings by its designated Administrative Law

Judge Linzie F. Bogan.

APPEARANCES

For Petitioner: A. Anthony Giovanoli, Es quire

A. Anthony Giovanoli, P.A.

Post Office Box 2429

Winter Park, Florida 32790

For Respondent: Morris Shelkofsky, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

STATEM ENT OF THE ISSUE

Whether Petitioner ' s certificate of registration as a pain

management clinic should be revoked pursuant to section

458.3265, Florida Statutes (2010). 1/

PRELIMINARY STATEMENT

Effective July 1, 2009, all privately - owned pain management

c linics, facilities, or offices were required to register with

Respondent, Department of Health (Department), by January 4,

2010, unless the clinics met certain enumerated statutory

exceptions. On or about January 5, 2010, Petitioner, Unique

Health Care Or lando (Unique or Petitioner), submitted to the

Department an application for pain management clinic

registration. On March 10, 2010, the Department issued to

Petitioner pain management clinic certificate registration

n o. PMC 681 (License). On October 1, 2010, approximately seven

months after Unique was registered as a pain management clinic,

there was a change in the law such that the Department was

required to revoke previously - issued certificates of

registration if a clinic was neither fully owned by a properly

licensed physician or group of physicians, nor licensed under

part X of chapter 400, Florida Statutes.

The Department contends that Unique failed to meet the

requirements that became effective October 1, 2010, and ,

accordingly, the Department, on or about November 19, 2010,

advised Unique of its intent to revoke its License. In response

to the Department ' s proposed action, Unique, on December 13,

2010, filed a request for formal hearing as authorized by

c hapter 120, Florida Statu t es. On or abo ut July 8, 2011, the

Department referred the matter to the Division of Administrative

Hearings for a disputed fact hearing.

A Notice of Hearing was issued setting the case for formal

hearing on September 13, 2011. At the hearing, Unique called

one witnes s, Ronald Van Der Kuijl. Mr. Van Der Kuijl is part -

owner of Unique. The Department also offered the testimony of

only one witness, JoAnne Trexler. Unique ' s Exhibits 1 through 6

and 9 through 12 were offered and received into evidence without

objection. By stipulation, Unique ' s Exhibits 7 and 8 were

admitted for limited purposes. 2/ The Department ' s Exhibits 1

through 3 were offered and received into evidence without

objection. 3/

A Transcript of the proceeding was ordered and filed with

the Division o f Administrative Hearings on October 25, 2011. On

October 31, 2011, Petitioner and Respondent each submitted a

Proposed Recommended Order. The Proposed Recommended Orders

submitted by the parties have been considered in the preparation

of this Recommende d Order.

FINDINGS OF FACT

1. By stipulation the parties agreed to the following:

A) Unique is a Florida for - profit corporation;

B) Unique is not a pain management clinic. However,

Unique is registered as a pain management clinic

with the Department; a nd

C) Ronald and Grace Van Der Juijl are not physicians

licensed under chapters 458 or 459, Florida

Statutes. Unique is, therefore, not fully owned by

a physician licensed under chapters 458 or 459, or

a group of physicians, each of whom is licensed

unde r chapter 458 or 459.

2. Section 458.309(4), Florida Statutes (2009), reads, in

part, as follows:

All privately owned pain - management clinics,

facilities, or offices, hereinafter referred

to as " clinics, " which advertise in any

medium for any type of pai n - management

services, or employ a physician who is

primarily engaged in the treatment of pain

by prescribing or dispensing controlled

substance medications, must register with

the department by January 4, 2010, unless

that clinic is licensed as a facility

pursuant to chapter 395.

3. On January 5, 2010, Unique, pursuant to section

458.309(4), submitted to the Department an a pplication for p ain

c linic r egistration. On March 10, 2010, the Department issued

to Unique, pain management clinic license n o. PMC 681. 4/

4. On October 1, 2010, approximately nine months after

becoming effective, section 458.309(4) was repealed.

5. Also on October 1, 2010, section 458.3265 became

effective. Section 458.3265(1) provides, in part, as follows:

(d) The departm ent shall deny

registration to any clinic that is not fully

owned by a physician licensed under this

chapter or chapter 459 or a group of

physicians, each of whom is licensed under

this chapter or chapter 459; or that is not

a health care clinic licensed u nder part X

of chapter 400.

* * *

(f) If the department finds that a pain -

management clinic does not meet the

requirement of paragraph (d), . . . the

department shall revoke the certificate of

registration previously issued by the

department. As determined by rule, the

department may grant an exemption to denying

a registration or revoking a previously

issued registration if more than 10 years

have elapsed since adjudication. As used in

this subsection, the term " convicted "

includes an adjudicati on of guilt following

a plea of guilty or nolo contendere or the

forfeiture of a bond when charged with a

crime. (Emphasis supplied . )

6. Unique is not a health care clinic licensed under

part X of chapter 400.

CONCLUSIONS OF LAW

7. The Division of Ad ministrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1).

8. The Department, pursuant to section 458.3265(1), seeks

to revoke occupational license n o. PMC 681 issued by the

Department to Uniq ue. Accordingly, the Department has the

burden of establishing by clear and convincing evidence the

facts necessary to support revocation. See , e.g. , Ferris v.

Turlington , 510 So. 2d 292, 294 (Fla. 1987). Clear and

convincing evidence has been described by the courts as follows:

[C]lear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact the firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Hen son , 913 So. 2d 579, 590 (Fla. 2005) (citing Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) ) .

9. The undisputed evidence shows that Unique is neither

fully owned by a physician or group of physicians licensed under

chapter 458 or chapter 45 9, nor is it licensed under part X of

chapter 400. Consequently, Unique does not meet the

requirements of section 458.3265(1)(d), and the Department, in

accordance with section 458.3265(1)(f), must revoke Unique ' s

license, unless Unique can show that its license is exempt from

revocation.

10. Unique argues that it is exempt from having its

license revoked by the Department because it is affiliated with

" an accredited medical school at which training is provided for

medical students, residents, or fellow s " as authorized by

sections 458.3265(1)(a)4. and 459.0137(1)(a)2.d. As more fully

illuminated below, the essence of Unique ' s argument is that the

relevant statutory framework provides, by implication, for the

exception that it seeks. The burden of proof related to

establishing entitlement to an exemption is on the party

asserting the affirmative of the issue. Young v. Dep ' t of Cmty.

Aff. , 625 So. 2d 831 (Fla. 1993); Balino v. Dep ' t of HRS ,

348 So. 2d 349 (Fla. 1st DCA 1977). In the instant case, Unique

bears the burden of proving that it fits within the scope of any

purported exemption.

11. As applied to the instant case, section s

458.3265(1)(f) and 459.0137(1)(f), contain parallel provisions

which provide that the Department may exempt a clinic from

l icense revocation " if more than 10 years have elapsed since

adjudication. " 5/ Contrary to Unique ' s assertion, the " 10 year

adjudication " exemption is the only exemption contained in

either section 458.3265(1)(f) or 459.0137(1)(f) , and Unique

makes no claim to its entitlement.

12. Inclusio unius est exclusion alterius is the Latin

maxim which instructs that the inclusion of one thing implies

the exclusion of another. Smith v. State , 982 So. 2d 69, 70

(Fla. 1st DCA 2008)(citing Rivera v. Singletary , 707 S o. 2d 326

(Fla. 1988)). If the Legislature intended to exempt from

license revocation pain management clinics that may be

affiliated with accredited medical programs, as set forth in

sections 458.3265(1)(a)4 . and 459.0137(1)(a)2.d . , then it could

have sai d so. By expressly providing for the " 10 year

adjudication " exemption and setting forth no other, it is

evident that the Legislature intended not to create other

exemptions (either express or implied) , including those

suggested by Petitioner. 6 / Unique ha s failed to satisfy its

burden of demonstrating entitlement to the exemption provided

for in either section 458.3265(1)(f) or 459.0137(1)(f) .

13. The Department has met its burden of proof by clearly

and convincingly establishing that Unique has failed to satisfy

the statutory requirements for holding a license as a pain

management clinic.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED that Respondent , Department of Health, enter a

final order revoking Petitioner , Unique Health Care Orlando ' s ,

license to operate as a pain management clinic.

DONE AND ENT ERED this 8th day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrat ive 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

thi s 8th day of November , 2011 .

ENDNOTES

1/ All references to Florida Statutes are to the 2010 edition

unless otherwise indicated.

2/ As for Petitioner ' s Exhibit 7, the parties stipulated that

" Central Florida Institute Orlando is, at a minimum, a healt h

education school accredited by the accrediting bureau of health

education schools at which training is provided for medical

students to become medical assistants. " As for Petitioner ' s

Exhibit 8, the parties stipulated that " Sanford Brown Orlando

is, at a minimum, a health education school accredited by the

accrediting council for independent colleges and schools and the

accrediting bureau of health education schools at which training

is provided for medical students to become nurses and medical

assistant s. "

3/ Petitioner objected to pages 10, 29, and 30 of Respondent ' s

E xhibit 1. Respondent removed each objectionable page , and the

remaining pages were admitted as evidence.

4/ Petitioner was actually issued a certificate of registration.

Section 120. 52(10) provides generally that a " registration " is

considered a license.

5/ Section 459.0137, which also became effective on October 1,

2010, contains the same material proscriptions as found in

section 458.3265.

6 / The issue of whether Unique is aff iliated with an accredited

program, as contemplated by sections 458.3265(1)(a)4. and

459.0137(1)(a)2.d., may be germane in a proceeding dealing with

whether Unique can operate as a pain management clinic without

registering with the Department. However, t he Notice of Intent

to Revoke Certification of Registration filed by the Department

makes no mention of whether Unique can continue its operations

post revocation. Because this issue is not before the Division

of Administrative Hearings, the undersigned n eed not, and

arguably cannot, address the same.

COPIES FURNISHED :

H. Frank Farmer, MD., Ph.D., Secretary

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Nicholas Romanello, General Counsel

Dep artment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 170 3

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

A. Anthony Giovanoli, Esquire

A. Anthony Giovanoli, P.A.

Post Office Box 2429

Winter Park, Florida 32790

Morris Shelkofsky, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wit hin

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.