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.
Settled and/or Dismissed prior to entry of RO/FO on Thursday, August 4, 2016.
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
- Date
- Proceedings
- PDF:
- Date: 06/15/2016
- Proceedings: Notice of Hearing (hearing set for September 15, 2016; 9:30 a.m.; Tallahassee, FL).
- PDF:
- Date: 04/08/2016
- Proceedings: Respondent's Response to Agency's First Request for Production filed.
- PDF:
- Date: 03/31/2016
- Proceedings: Order Granting Continuance (parties to advise status by June 15, 2016).
- PDF:
- Date: 03/31/2016
- Proceedings: Motion for Leave to Reply to Plaintiff's Response to Motion to Dismiss filed.
- PDF:
- Date: 03/30/2016
- Proceedings: Notice of Filing Documents in Support of Respondent's Motion for Continuance filed.
- PDF:
- Date: 03/11/2016
- Proceedings: Agency's Notice of Service of First Set of Interrogatories filed.
- PDF:
- Date: 03/01/2016
- Proceedings: Order of Consolidation (DOAH Case Nos. 16-0737, 16-0738, 16-0739, and 16-0740).
- PDF:
- Date: 02/25/2016
- Proceedings: Response to Motion to Relinquish: Request for Extension of Time and Request for Hearing 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
Counsels
-
Lindsay Worsham Granger, Esquire
Address of Record -
Frederick Timothy Lowe, Esquire
Address of Record