16-000738 Agency For Health Care Administration vs. Fort Lauderdale Women's Center, Llc
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Thursday, August 4, 2016.


View Dockets  

1STATE OF FLORIDA

4AGENCY FOR HEALTH CARE ADMINISTRATION

92011 my - 5 P 3. 5q

16STATE OF FLORIDA, AGENCY FOR CASE NO. 16- 433PH

25HEALTH CARE ADMINISTRATION, AHCA NOS. 2015011449

312015011451

32Petitioner, FILE NO. ( CL) 26933634

38AC) 13910012

40V. LICENSE NO. ( CL) 800003239

46AC) 822

48EPOC CLINIC, LLC. FACILITY TYPE: CLINICAL

54LABORATORY; ABORTION

56Respondent. CLINIC

58STATE OF FLORIDA, AGENCY FOR CASE NO. 16- 433PH

67HEALTH CARE ADMINISTRATION, AHCA NOS. 2015011454

732015011456

74Petitioner, FILE NO. ( CL) 26933634

80AC) 13960056

82V. LICENSE NO. ( CL) 800016263

88AC) 854

90FORT LAUDERDALE WOMEN' S FACILITY TYPE: CLINICAL

97CENTER, LLC, LABORATORY; ABORTION

101CLINIC

102Respondent.

103STATE OF FLORIDA, AGENCY FOR CASE NO. 16- 433PH

112HEALTH CARE ADMINISTRATION, AHCA NOS. 2015011450

118FILE NO. 13960051

121Petitioner, LICENSE NO. 850

125FACILITY TYPE: ABORTION

128CLINIC

129FOI- OLC

131OCALA WOMEN' S CENTER, LLC, RENDITION NO.: AHCA- \\ A -

142Respondent.

143STATE OF FLORIDA, AGENCY FOR CASE NO. 16- 433PH

152HEALTH CARE ADMINISTRATION, AHCA NOS. 2015011452

1582015011455

159Petitioner, FILE NO. ( CL) 26966848

165AC) 13950035

167M LICENSE NO. ( CL) 800010456

173AC) 764

175ORLANDO WOMEN' S CENTER, LLC, FACILITY TYPE: CLINICAL

183LABORATORY; ABORTION

185Respondent. CLINIC

187FINAL ORDER

189After the administrative law judge at the Division of Administrative Hearings

200relinquished jurisdiction due to Respondents' assertion that there were no material facts in

213dispute, the Agency Clerk referred these cases to a hearing officer ( hereafter referred to as the

230Presiding Officer) for a proceeding to be conducted pursuant to Section 120. 57( 2), Florida

245Statutes. The Presiding Officer' s Recommended Order, which was signed on April 6, 2017, and

260filed with the Agency Clerk' s office on the same date, is attached to this Final Order and

278incorporated herein by reference.

282FINDINGS OF FACT

285The Agency adopts the findings of fact set forth in the Recommended Order.

298CONCLUSIONS OF LAW

301The Agency adopts the conclusions of law set forth in the Recommended Order.

314IT IS THEREFORE ADJUDGED THAT:

3191. The Agency' s Administrative Complaints in all the cases referenced above are

332hereby upheld, and all of Respondents' licenses referenced in the case styles above are

346hereby revoked.

3482. In order to ensure the health, safety, and welfare of Respondents' clients, the

362licenses' expiration dates are extended for 30 days for the sole purpose of allowing the safe

378and orderly discharge of clients. § 408. 815( 6), Fla. Stat. As a condition of this extension,

395Respondents are prohibited from accepting any new admissions during this period and must

408immediately notify the clients that they will soon be discharged. Respondents are subject to

422monitoring by the Agency and possibly third parties. The Agency may terminate the 30 - day

438extension or modify the conditions at any time. Respondents must comply with all other

452applicable federal and state laws. At the conclusion of 30 days, or upon the discontinuance

467of operations, whichever is first in time, Respondents shall promptly return both license

480certificates which are the subject of this agency action to the appropriate licensure unit in

495Tallahassee, Florida. Fla. Admin. Code R. 59A- 35. 040( 5).

5053. In accordance with Florida law, Respondents are responsible for retaining and

517appropriately distributing all client records within the timeframes prescribed in the

528authorizing statutes and applicable administrative code provisions. Respondents are advised

538of Section 408. 810, Florida Statutes.

5444. In accordance with Florida law, Respondents are responsible for any refunds that

557may have to be made to the clients.

5655. Respondents are given notice of Florida law regarding unlicensed activity.

576Respondents are advised of Section 408. 804 and Section 408. 812, Florida Statutes.

589Respondents should also consult the applicable authorizing statutes and administrative code

600provisions. Respondents are notified that the cancellation of an Agency license may have

613ramifications potentially affecting accrediting, third party billing including but not limited to

625the Florida Medicaid program, and private contracts.

632DONE AND ORDERED in Tallahassee, Florida, on this day of

642QV 12017.

644JUSTIN44. SENI , SECRETARY

647AGENCY FOR HEALTH CARE ADMINISTRATION

652NOTICE OF RIGHT TO JUDICIAL REVIEW

658A party who is adversely affected by this Final Order is entitled to judicial review, which shall be

676instituted by filing the original notice of appeal with the Agency Clerk of AHCA, and a copy,

693along with the filing fee prescribed by law, with the District Court of Appeal in the appellate

710district where the Agency maintains its headquarters or where a party resides. Review

723proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of

737Appeal must be filed within 30 days of the rendition of the order to be reviewed.

753CERTIFICATE OF SERVICE

756I CERTIFY that a true and correct copy of this Final Order was served on the below -

774named persons by the method designated on this day of

78452017.

785RICHARD J. SHOOP, Age Clerk

790AGENCY FOR HEALTH CARE ADMINISTRATION

7952727 Mahan Drive, MS # 3

801Tallahassee, Florida 32308

804Telephone: ( 850) 412- 3689

809M

810Copies furnished to:

813Jan Mills Jack Plagge, Unit Manager

819Facilities Intake Unit Hospital and Outpatient Services Unit

827Agency for Health Care Administration Agency for Health Care Administration

837Electronic Mail) Electronic Mail)

841Finance & Accounting Theresa DeCanio, Field Office Manager

849Revenue Management Unit Area 7 Field Office

856Agency for Health Care Administration Kriste Mennella, Field Office Manager

866Electronic Mail) Area 3 Field Office

872Arlene Mayo - Davis, Field Office Manager

879Area 9/ 10 Field Office

884Agency for Health Care Administration

889Electronic Mail)

891Katrina Derico- Harris Bradford C. Herter, Esquire

898Medicaid Accounts Receivable Assistant General Counsel

904Agency for Health Care Administration Agency for Health Care Administration

914Electronic Mail) Electronic Mail)

918Shawn McCauley James Ippoliti, Esquire

923Medicaid Contract Management Celebration Law, P. A.

930Agency for Health Care Administration 506 Celebration Avenue

938Electronic Mail) Celebration, Florida 34747

943U. S. Mail)

946Thomas J. Walsh 11, Esquire Mark Gushiken, Esquire

954Presiding Officer Widerman Malek, P. A.

960Electronic Mail) 1990 West New Haven Avenue

967Suite 201

969Melbourne, Florida 32904

972U. S. Mail)

975NOTICE OF FLORIDA LAW

979408. 804 License required; display. --

9851) It is unlawful to provide services that require licensure, or operate or maintain a provider that

1002offers or provides services that require licensure, without first obtaining from the agency a

1016license authorizing the provision of such services or the operation or maintenance of such

1030provider.

1031E

10322) A license must be displayed in a conspicuous place readily visible to clients who enter at the

1050address that appears on the license and is valid only in the hands of the licensee to whom it is

1070issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The

1084license is valid only for the licensee, provider, and location for which the license is issued.

1100408. 812 Unlicensed activity. --

11051) A person or entity may not offer or advertise services that require licensure as defined by this

1123part, authorizing statutes, or applicable rules to the public without obtaining a valid license from

1138the agency. A licenseholder may not advertise or hold out to the public that he or she holds a

1157license for other than that for which he or she actually holds the license.

11712) The operation or maintenance of an unlicensed provider or the performance of any services

1186that require licensure without proper licensure is a violation of this part and authorizing statutes.

1201Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of

1214clients. The agency or any state attorney may, in addition to other remedies provided in this part,

1231bring an action for an injunction to restrain such violation, or to enjoin the future operation or

1248maintenance of the unlicensed provider or the performance of any services in violation of this

1263part and authorizing statutes, until compliance with this part, authorizing statutes, and agency

1276rules has been demonstrated to the satisfaction of the agency.

12863) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If

1304after receiving notification from the agency, such person or entity fails to cease operation and

1319apply for a license under this part and authorizing statutes, the person or entity shall be subject to

1337penalties as prescribed by authorizing statutes and applicable rules. Each day of continued

1350operation is a separate offense.

13554) Any person or entity that fails to cease operation after agency notification may be fined

13711, 000 for each day of noncompliance.

13785) When a controlling interest or licensee has an interest in more than one provider and fails to

1396license a provider rendering services that require licensure, the agency may revoke all licenses

1410and impose actions under s. 408. 814 and a fine of $ 1, 000 per day, unless otherwise specified by

1430authorizing statutes, against each licensee until such time as the appropriate license is obtained

1444for the unlicensed operation.

14486) In addition to granting injunctive relief pursuant to subsection ( 2), if the agency determines

1464that a person or entity is operating or maintaining a provider without obtaining a license and

1480determines that a condition exists that poses a threat to the health, safety, or welfare of a client of

1499the provider, the person or entity is subject to the same actions and fines imposed against a

1516licensee as specified in this part, authorizing statutes, and agency rules.

15277) Any person aware of the operation of an unlicensed provider must report that provider to the

1544agency.

1545STATE OF FLORIDA

1548AGENCY FOR HEALTH CARE ADMINISTRATION

1553STATE OF FLORIDA, AGENCY FOR

1558HEALTH CARE ADMINISTRATION,

1561Petitioner, CASE NO. 16- 433PH

1566AHCA NOs. 2015011449

1569VS. 2015011451

1571EPOC CLINIC, LLC,

1574Respondent.

1575STATE OF FLORIDA, AGENCY FOR

1580HEALTH CARE ADMINISTRATION,

1583Petitioner, CASE NO. 16- 433PH

1588ARCA NOs. 2015011454

1591VS. 2015011456

1593FORT LAUDERDALE WOMEN' S CENTER, LLC,

1599Respondent.

1600STATE OF FLORIDA, AGENCY FOR

1605HEALTH CARE ADMINISTRATION,

1608Petitioner, CASE NO. 16- 433PH

1613AHCA NOs. 2015011450

1616V3.

1617OCALA WOMEN' S CENTER, LLC,

1622Respondent.

1623J

1624STATE OF FLORIDA, AGENCY FOR

1629HEALTH CARE ADMINISTRATION,

1632Petitioner, CASE NO. 16- 433PH

1637AHCA NOs. 2015011452

1640VS. 2015011455

1642Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

1654ORLANDO WOMEN' S CENTER, LLC,

1659Respondent.

1660RECOMMENDED ORDER

1662On or about January 14, 2016, the State of Florida, Agency for Health Care

1676Administration ( hereinafter " Agency") issued Administrative Complaints against EPOC Clinic,

1687LLC; Fort Lauderdale Women' s Center, LLC; Ocala Women' s Center, LLC; and Orlando

1701Women' s Center, I. LC ( hereinafter Respondents). Respondents, on or about February 1, 2016,

1716filed pleadings or papers seeking formal administrative proceedings, see § 120. 57( 1), Florida

1730Statutes ( 2015), and the actions were forwarded to Florida' s Division of Administrative

1744Hearings.

1745While pending at the Division of Administrative Hearings, the actions were consolidated.

1757Based upon an Agreed Motion to Relinquish Jurisdiction, dated August 4, 2016, wherein

1770Respondents assert no factual disputes existed, the Division of Administrative Hearings

1781relinquished jurisdiction to the Agency.

1786On or about August 24, 2016, this consolidated action was referred for informal

1799administrative proceedings. See § 120. 57( 2), Florida Statutes ( 2016).

1810An Amended Notice of Telephone Hearing and Order of Prehearing Instructions was

1822issued requiring the submission of a joint or unilateral prehearing statement.' These statements

1835were ultimately filed.

1838On February 16, 2017, an Informal Hearing was held pursuant to law. § 120. 57( 2),

1854Florida Statutes ( 2016). Mr. Bradford C. Herter, Assistant General Counsel, represented the

1867Agency. Mr. James Ippoliti, Esq., and Mr. Mark Gushiken, Esq., represented Respondents.

1879I An Amended Notice of Telephone Hearing and Order of Prehearing Instructions was necessitated due to a change

1897of Counsel for Respondents.

19012

1902Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

1914Neither party presented witness testimony. The Agency introduced as exhibits select portions of

1927the record. Respondents introduced as their exhibit an affidavit of Jack Swerling, Esq., dated

1941February 8, 2017.

1944At the conclusion of the hearing, each party was provided times certain to file

1958memoranda of law and responses thereto.

1964All participants appeared telephonically.

1968FINDINGS OF FACT

1971Respondent has admitted all material facts contained in the Agency' s Complaints. In so

1985doing, the following facts are established:

1991a. Dr. James Pendergraft is the Financial Officer of the Respondents'

2002business entities and is a controlling interest of the Respondents' business entities.

2014b. In late 2015, Dr. Pendcrgraft was arrested for drug related charges in the

2028State of South Carolina and criminal charges related to the arrest remain pending in the

2043State of South Carolina.

2047C. The criminal charges against Dr. Pendergraft under prosecution by the

2058State of South Carolina constitute disqualifying offenses under Florida law.

20682. The Agency seeks the revocation of Respondents' licenses to operate abortion clinics in

2082the State of Florida based upon Respondents' failure to comply with Florida law related to

2097criminal history background screening for personnel associated with health care facilities

2108regulated by the Agency.'

21122 To the extent Respondents either assert that the Agency' s intended action is unconstitutional in its application to

2131abortion clinics, or to the extant any such argument has been preserved, no opinion is expressed herein. The

2149executive branch of government, this tribunal being a branch thereof, see, § 20. 42 Fla. Stat. ( 2016), lacks the

2169authority to determine or consider constitutional issues. See, State ex rel. Atlantic Coast Line r. Co. v State Board of

2189ualizers, 94 So. 681 ( Fla. 1922), Rice v. Department of Health and Rehabilitative Services, 386 So. 2d 844 ( Fla.

2210V DCA 1980).

2213Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

22253. Respondents have reported to the Agency that Dr. Pcndergraft is their Financial Officer.

2239Respondents have maintained Dr. Pendergraft as their Financial Officer, and Dr. Pendergraft

2251maintained his ownership interests in the Respondents through the date of hearing. 3

2264Respondents' counsel asserts that Dr. Pendergraft has no involvement in Respondents'

2275operations and does not receive any compensation as the Financial Officer. 4

22874. Dr. Pendergraft, whose criminal trial had not yet been conducted by the date of hearing,

2303is asserting in those proceedings that his arrest and the resulting criminal charges were the direct

2319result of an unconstitutional search incident to a traffic stop. Respondents argue that should the

2334presiding court find the search unconstitutional, Dr. Pendergraft' s arrest would he " wiped out."

23485. It is uncontroverted that Dr. Pendergraft was arrested by South Carolina law enforcement

2362authorities in 2015 and faces criminal charges.'

2369b. In mitigation, Respondents assert licensure revocation would severely impact access to

2381women' s constitutionally protected reproductive health care in the geographical areas served by

2394Respondents. 6 Respondent also asserts that revocation would directly result in job and income

2408loss to those persons employed by Respondents, property owners of the physical plants in which

2423Respondents operate, and Respondents' suppliers.

2428CONCLUSIONS OF LAW

2431The Agency has jurisdiction of the parties and the issues presented herein.

2443The following statutory provisions, in relevant part, are applicable to this cause:

24553 Respondents, on or about February 27, 2017, filed a " Supplemental Statement" asserting Dr. Pendergraft had

2471resigned as Respondents' Financial Officer effective February 22, 2017.

2480No testimony or documentary evidence was offered to support this assertion.

2491s Provider' s argument that a contested issue of material fact exists as the South Carolina criminal proceedings may

2510include a ruling that the search leading to Dr. Pendergraft' s arrest in South Carolina was unconstitutional is not well

2530taken. The physical arrest of Dr. Pendergraft is the asserted event at issue and is not a contested fact.

25496 No evidence of the effect the closure of Provider' s facilities would have on the availability of women' s

2569constitutionally protected reproductive health care was introduced.

25764

2577Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

25891) Level 2 background screening pursuant to chapter 435 must be conducted through

2602the agency on each of the following persons, who are considered employees for the

2616purposes of conducting screening under chapter 435:

2623a) The licensee, if an individual.

2629b) The administrator or a similarly titled person who is responsible for the day- to- day

2645operation of the provider.

2649c) The financial officer or similarly titled individual who is responsible for the

2662financial operation of the licensee or provider.

2669d) Any person who is a controlling interest if the agency has reason to believe that

2685such person has been convicted of any offense prohibited by s. 435. 04. For each

2700controlling interest who has been convicted of any such offense, the licensee shall submit

2714to the agency a description and explanation of the conviction at the time of license

2729application.

2730e) Any person, as required by authorizing statutes, seeking employment with a licensee

2743or provider who is expected to, or whose responsibilities may require him or her to,

2758provide personal care or services directly to clients or have access to client funds,

2772personal property, or living areas; and any person, as required by authorizing statutes,

2785contracting with a licensee or provider whose responsibilities require him or her to

2798provide personal care or personal services directly to clients. Evidence of contractor

2810screening may be retained by the contractor' s employer or the licensee.

28224) In addition to the offenses listed in s. 435. 04, all persons required to undergo

2838background screening pursuant to this part or authorizing statutes must not have an arrest

2852awaiting final disposition for, must not have been found guilty of, regardless of

2865adjudication, or entered a plea of nolo contendere or guilty to, and must not have been

2881adjudicated delinquent and the record not have been sealed or expunged for any of the

2896following offenses or any similar offense of another jurisdiction:

2905a) Any authorizing statutes, if the offense was a felony.

2915b) This chapter, if the offense was a felony.

2924t) Section 831. 31, relating to the sale, manufacture, delivery, or possession with the

2938intent to sell, manufacture, or deliver any counterfeit controlled substance, if the offense

2951was a felony.

2954408. 809( 1) and ( 4), Florida Statutes ( 2016).

29642)( a) An employer may not hire, select, or otherwise allow an employee to have

2979contact with any vulnerable person that would place the employee in a role that requires

2994background screening until the screening process is completed and demonstrates the

3005absence of any grounds for the denial or termination of employment. If the screening

3019process shows any grounds for the denial or termination of employment, the employer

3032may not hire, select, or otherwise allow the employee to have contact with any vulnerable

3047person that would place the employee in a role that requires background screening unless

3061E

3062Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

3074the employee is granted an exemption for the disqualification by the agency as provided

3088under s. 435. 07.

3092b) if an employer becomes aware that an employee has been arrested for a

3106disqualifying offense, the employer must remove the employee from contact with any

3118vulnerable person that places the employee in a role that requires background screening

3131until the arrest is resolved in a way that the employer determines that the employee is still

3148eligible for employment under this chapter.

3154c) The employer must terminate the employment of any of its personnel found to be in

3170noncompliance with the minimum standards of this chapter or place the employee in a

3184position for which background screening is not required unless the employee is granted

3197an exemption from disqualification pursuant to s. 435. 07.

3206d) An employer may hire an employee to a position that requires background screening

3220before the employee completes the screening process for training and orientation

3231purposes. However, the employee may not have direct contact with vulnerable persons

3243until the screening process is completed and the employee demonstrates that he or she

3257exhibits no behaviors that warrant the denial or termination of employment.

3268435. 06( 2), Florida Statutes ( 2016).

32751) In addition to the grounds provided in authorizing statutes, grounds that may be

3289used by the agency for denying and revoking a license or change of ownership

3303application include any of the following actions by a controlling interest:

3314c) A violation of this part, authorizing statutes, or applicable rules.

3325408. 815( 1), Florida Statutes ( 2016).

3332Respondents are licensed under the provisions of the " Health Care Licensing Procedures

3344Act' ( hereinafter the " Act"). § 408. 810, et seq., Florida Statutes ( 2016). See also, §§ 390. 014( 1),

3365Florida Statutes ( 2016); 408. 802( 3), Florida Statutes ( 2016). Respondents are licensees under

3380the Act, and are legally responsible for all aspects of provider operations. See, § 408. 803( 9),

3397Florida Statutes ( 2016).

34014. This action addresses Respondents' compliance with statutory mandates, not Dr.

3412Pendegraft as an individual.

34165. At all times relevant, Dr. Pendergraft was Respondents' Financial Officer, a position that

3430is defined by law as an " employee" for the purposes of applying Florida' s statutory scheme

3446no

3447Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

3459related to criminal history background screening for entities licensed by the Agency. See, §

3473408. 809( 1)( c), Florida Statutes ( 2016).

34816. The legislature, in enacting Chapter 435, Florida Statutes, anticipated the situation where

3494an employee covered by the chapter' s proscription was arrested for a disqualifying offense but

3509awaiting final disposition of resulting charges.'

3515If an employer becomes aware that an employee has been arrested for a

3528disqualifying offense, the employer must remove the employee from contact with any

3540vulnerable person that places the employee in a role that requires background

3552screening until the arrest is resolved in a way that the employer determines that the

3567employee is still eligible for employment under this chapter." § 435. 06( 2)( b), Florida

3582Statutes ( 2016).

35857. The Administrative Complaints in this consolidated action were executed by Agency

3597counsel on January 14, 2016. Respondents filed a responsive pleading or paper to those

3611Administrative Complaints on or about February 1, 2016.

36198. Respondents have not pleaded or proven that any action was taken to address the

3634employment status of their Financial Officer or any access of their Financial Officer to the

3649licensees' operations for a period in excess of one ( 1) calendar year after the filing of the

3667Administrative Complaints herein.

36709. The onus is on Respondents, as the licensees, to take appropriate action as required by

3686law when encountered with the arrest of a covered employee for a disqualifying offense. No

3701its parts." A] statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all

3724State ex rel City of Casselberry v. Mager, 356 So. 2d 267 ( Fla. 1978). "( A] statutory phrase should also

3745be viewed not only in its internal context within the section, but in harmony with interlocking statutes." WFTV, Inc.

3764v. Wilke n, 675 So. 2d 674, 679 ( Fla. 4° i DCA 1996). Though not necessary for disposition of the instant cause,

3787Section 435. 06( 2)( c), Florida Statutes, would appear to encompass situations where an employee covered by the

3805legislative criminal history background screening scheme has reached final disposition as to a charged disqualifying

3820offense and an exemption under controlling law has not been obtained.

3831Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

3843provision of the controlling law provides an employer the discretion to delay taking action based

3858upon the employer or the employee' s conclusions as to the validity of the subject arrest.

387410. As a citizen is presumed to know the law under our justice system, a licensee is

3891presumed to know the law related to the licensee' s duties and responsibilities. See, Dqpartment

3906of Business and Professional Regulation, Division of Real Estate v. Eric T. Hartman 1997 WL

39211052986 ( Fla. Div. Admin. Hrgs.) and cases cited therein. Corporate citizens are not exempt from

3937such imputed knowledge.

394011. " Evidence is mitigating if, in fairness or in the totality of the defendant' s life or

3957character, it may be considered as extenuating or reducing the degree of moral culpability [.]"

3972Wickham v. State, 593 So. 2d 191, 194 ( Fla. 1991).

398312. Respondents' argument that should the search leading to the arrest of Dr. Pendergraft be

3998determined unconstitutional, the instant action would lack merit is misplaced. The legislative

4010scheme demands a provider take action upon the arrest of an employee for a disqualifying

4025offense pending disposition. The outcome of an employee' s criminal proceeding would not and

4039could not retroactively sanction a provider' s decision to not follow the dictates of law mandating

4055that the provider take action pending the final disposition of an employee' s criminal charge.

407013. It is the Respondents' failure to demonstrate it took action to meet its statutory

4085obligations that constitutes the non- compliance cited by the Agency. Respondents' inaction

4097cannot be cured by the expungement of an employee' s criminal records, by an employee' s

4113ultimate verdict of not guilty for a charged disqualifying event, or any other post- dispositional

4128action obtained by an employee defendant charged with a disqualifying event.

413914. Even taking into consideration Respondents' counsel' s assertion that Dr. Pendergraft has

4152not participated in the operations of Respondents' facilities, Respondents did not demonstrate

4164Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

4176when this non - participation by Dr. Pendergraf3 was initiated and whether it was a result of

4193Respondent' s deliberative and implemented decision- making. This does not constitute

4204mitigation.

420515. The Florida Legislature has determined, in enacting statutory amendments to multiple

4217provisions of law, that Florida' s citizens must be protected from being served in Florida' s

4233regulated health care facilities by persons who have identified involvement with the criminal

4246justice system.$ The legislature' s comprehensive criminal background history requirement is

4257directed toward the prevention of abuse and neglect of Florida' s citizenry.

426916. The Agency has asserted as grounds to support its intended revocation actions that

4283Respondents have violated Chapters 390, Chapter 408, Part 11, or 435, Florida Statutes, or

4297Chapters 59A- 9 or 59A- 35, Florida Administrative Code. See, § 408. 815( 1), Florida Statutes

43132016).

431417. The Agency has the. discretion to revoke licensure under this statutory provision. The

4328Agency' s denial action is not mandatory. ("... grounds that may be used by the agency for

4346denying and revoking a license or change of ownership application include..."'), § 408. 815( 1),

4362Florida Statutes ( 2016)( emphasis added).

436818. An agency is afforded wide discretion in the administration of statutes it is charged with

4384enforcing. Pan American Airways, Inc. v. Florida Public Service Commission and Florida

4396Power & Light Company, 427 So. 2d 716 ( Fla. 1983). The Agency' s determination of its

4413discretionary penalty which is within the range of permissible penalties should be respected.

4426See, Florida Real Estate Commission v. Webb, 367 So. 2d 210 ( Fla. 1978); Gershanik v.

4442Department of Professional Regulation, 458 So. 2d 302 ( Fla. I` DCA 1984).

4455Reference to Chapter 2010- 114, Laws of Florida, illuminates the scope of these amendments.

4469Z

4470Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

448219. The Agency' s intended action is consistent with its legislative authority regarding

4495licensure.

449620. Therefore, there is no competent evidence or argument presented to mitigate the

4509Agency' s intended action.

451321. Respondents' oral motion to stay proceedings pending the disposition of the criminal

4526charges faced by Dr. Pendergraft is denied.

4533RECOMMENDATION

4534It is recommended that the Agency enter a final order revoking the licenses of EPOC

4549Clinic, LLC, Fort Lauderdale Women' s Center, LLC, Ocala Women' s Center, LLC, and Orlando

4564Women' s Center, LLC.

4568DONE AND ORDERED this da Y of April P 2016 in St. Petersburg, Pinellas

4582County, Florida.

4584J. Walsh II

4587rrmal Hearing Officer

4590Izegency for Health Care Administration

4595Office of the General Counsel

4600Copies furnished to:

4603Bradford C. Herter, Esq.

4607Agency for Health Care Admin.

46122727 Mahan Drive

4615Building 3, MS # 7

4620Tallahassee, FL 32308- 5403

4624James Ippoliti, Esq.

4627Celebration Law P. A.

4631506 Celebration Avenue

4634Celebration, Florida 34747

463710

4638Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

4650Mark Gushiken, Esq.

4653Widerman Malek PL

46561990 West New haven Avenue

4661Suite 201

4663Melbourne, Florida 32904

466611

4667Filed with AHCA Agency Clerk 4/ 6/ 2017 8: 56: 37 AM

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Date
Proceedings
PDF:
Date: 05/10/2017
Proceedings: Agency Final Order filed.
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Date: 05/05/2017
Proceedings: Agency Final Order
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Date: 08/04/2016
Proceedings: Order Closing Files and Relinquishing Jurisdiction. CASE CLOSED.
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Date: 08/04/2016
Proceedings: Agreed Motion to Relinquish Jurisdiction filed.
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Date: 07/25/2016
Proceedings: Agency's Request for Official Recognition filed.
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Date: 06/15/2016
Proceedings: Notice of Hearing (hearing set for September 15, 2016; 9:30 a.m.; Tallahassee, FL).
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Date: 06/14/2016
Proceedings: Joint Status Report filed.
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Date: 05/16/2016
Proceedings: Order Denying Motion to Dismiss and Motion for Leave to Reply.
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Date: 04/11/2016
Proceedings: Motion for Extension of Time to Answer Interrogatories filed.
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Date: 04/08/2016
Proceedings: Respondent's Response to Admissions filed.
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Date: 04/08/2016
Proceedings: Respondent's Response to Agency's First Request for Production filed.
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Date: 03/31/2016
Proceedings: Order Granting Continuance (parties to advise status by June 15, 2016).
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Date: 03/31/2016
Proceedings: Motion for Leave to Reply to Plaintiff's Response to Motion to Dismiss filed.
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Date: 03/30/2016
Proceedings: Notice of Filing Documents in Support of Respondent's Motion for Continuance filed.
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Date: 03/25/2016
Proceedings: Agency's Response to Respondents' Motion to Dismiss filed.
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Date: 03/23/2016
Proceedings: Motion to Dismiss filed.
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Date: 03/21/2016
Proceedings: Motion for Continuance of Final Hearing filed.
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Date: 03/11/2016
Proceedings: Agency's Notice of Service of First Set of Interrogatories filed.
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Date: 03/11/2016
Proceedings: Order Denying Motion for Mediation.
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Date: 03/10/2016
Proceedings: Motion for Mediation (filed in Case No. 16-000740).
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Date: 03/10/2016
Proceedings: Motion for Mediation filed.
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Date: 03/02/2016
Proceedings: Order Denying Motions to Relinquish Jurisdiction.
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Date: 03/01/2016
Proceedings: Notice of Transfer.
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Date: 03/01/2016
Proceedings: Notice of Transfer.
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Date: 03/01/2016
Proceedings: Notice of Transfer.
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Date: 03/01/2016
Proceedings: Order of Consolidation (DOAH Case Nos. 16-0737, 16-0738, 16-0739, and 16-0740).
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Date: 03/01/2016
Proceedings: Motion to Consolidate Pending Cases filed.
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Date: 02/25/2016
Proceedings: Response to Motion to Relinquish: Request for Extension of Time and Request for Hearing filed.
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Date: 02/22/2016
Proceedings: Motion to Relinquish Jurisdiction filed.
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Date: 02/18/2016
Proceedings: Notice of Hearing (hearing set for April 15, 2016; 9:00 a.m.; Tallahassee, FL).
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Date: 02/17/2016
Proceedings: Joint Response to Initial Order filed.
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Date: 02/17/2016
Proceedings: Joint Response to Initial Order filed.
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Date: 02/11/2016
Proceedings: Initial Order.
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Date: 02/11/2016
Proceedings: Election of Rights filed.
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Date: 02/11/2016
Proceedings: Administrative Complaint filed.
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Date: 02/11/2016
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
WILLIAM F. QUATTLEBAUM
Date Filed:
02/11/2016
Date Assignment:
03/01/2016
Last Docket Entry:
05/10/2017
Location:
Tallahassee, Florida
District:
Northern
Agency:
Other
 

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