18-001275CON Nhi Spb Operations, Llc vs. Agency For Health Care Administration
 Status: Closed
Recommended Order on Friday, July 27, 2018.


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Summary: Pet. proved good faith delay in commencing construction continued due to same two governmental action/inaction impediments with respect to regulations/permitting that AHCA agreed warranted 1st 60-day CON extension. AHCA should grant another 60-day ext.

1over which it has substantive jurisdiction. When rejecting or modifying such

12conclusion of law or interpretation of administrative rule, the agency must state

24with particularity its reasons for rejecting or modifying such conclusion of law or

37interpretation of administrative rule and must make a finding that its substituted

49conclusion of law or interpretation of administrative rule is as or more reasonable

62than that which was rejected or modified. Rejection or modification of

73conclusions of law may not form the basis for rejection or modification of

86findings of fact. The agency may not reject or modify the findings of fact unless

101the agency first determines from a review of the entire record, and states with

115particularity in the order, that the findings of fact were not based upon competent

129substantial evidence or that the proceedings on which the findings were based did

142not comply with essential requirements oflaw ....

149§ 120.57(1)(1), Fla. Stat. Additionally, "[t]he final order shall include an explicit ruling on each

164exception, but an agency need not rule on an exception that does not clearly identify the disputed

181portion of the recommended order by page number or paragraph, that does not identify the legal

197basis for the exception, or that does not include appropriate and specific citations to the record."

213§ 120.57(1 )(k), Fla. Stat. In accordance with these legal standards, the Agency makes the

228following rulings on Petitioner's exceptions:

233In its First, Second, Third, Fourth, Fifth and Sixth Exception to the Recommended Order,

247Respondent takes exception to the following paragraphs of the Recommended Order: 3, 60, 70,

26171, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96 and 97, as well as

286Endnote 2. In doing so, Respondent makes the following arguments: 1) Since Petitioner does not

301own or have an interest in any land, it cannot be found to have made a good faith effort to

321commence construction as defined by section 408.032, Florida Statutes, and rule 59C-1.018,

333Florida Administrative Code; 2) the ALJ erred in equating the term "permitted use" in the

348Florida Atlantic Research and Development Authority ("F ARDA") handbook with the term

"362permit" in section 408.040, Florida Statutes; 3) the ALJ erred in finding that exhibits the parties

378had stipulated to admitting into evidence constituted hearsay; 4) the ALJ erred in concluding

392Petitioner met its burden of proof; and 5) the ALJ erred in considering evidence that did not exist

410at the time the Agency decided to deny Petitioner's extension request.

421The Agency is unable to grant any of Respondent's exceptions as they pertain to

435Paragraphs 3 and 60 of the Recommended Order because these paragraphs contain findings of

449fact that are based on competent, substantial evidence. See Transcript, Volume II, Pages 221,

463231; and Petitioner's Exhibit 12. Thus, the Agency cannot reject or modify them. See §

478120.57(1)(!), Fla. Stat.; Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281

492(Fla. 1st DCA 1985) (holding that an agency "may not reject the hearing officer's finding [of

508fact] unless there is no competent, substantial evidence from which the finding could reasonably

522be inferred").

525The Agency IS unable to grant Respondent's Fourth Exception, which pertains to

537Paragraphs 88, 89, 90 and Endnote 2 of the Recommended Order, because the conclusions oflaw

552in these paragraphs concern the evidentiary issue of whether exhibits, which the parties have

566stipulated can be entered into evidence, are hearsay because the conclusions of law are outside of

582the Agency's substantive jurisdiction. See Barfield v. Department of Health, 805 So. 2d 1008

596(Fla. 1st DCA 2002). Thus, the Agency is unable to reject or modify them.

610The Agency denies Respondent's First, Second and Fifth Exceptions' to Paragraphs 70

622and 71 (which are conclusions of law erroneously labeled as ultimate findings of fact) and

637Paragraphs 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 91, 92, 93, 94, 95, 96 and 97 of the

658Recommended Order because, while it does have substantive jurisdiction over the conclusions of

6711 In denying Petitioner's First, Second and Fifth Exceptions, Petitioner's Third Exception, which deals with the issue

688of whether ALJ erred in equating the term "permitted use" in the Florida Atlantic Research and Development

705Authority ("FARDA") handbook with the term "permit" in section 408.040, Florida Statutes; and Petitioner's Sixth

722Exception, which deals with the issue of whether the ALJ erred in considering evidence that did not exist at the time

743the Agency decided to deny Petitioner's extension request (and is also outside of the Agency's substantive

759jurisdiction) are rendered moot and need not be addressed.

768law in these paragraphs, the Agency is unable to substitute conclusions of law that are as or more

786reasonable than those of the ALJ.

792FINDINGS OF FACT

795The Agency hereby adopts the findings of fact set forth in the Recommended Order.

809CONCLUSIONS OF LAW

812The Agency hereby adopts the conclusions of law set forth in the Recommended Order.

826ORDER

827Based upon the foregoing, Petitioner's request for an extension of CON No. 10412 is

841hereby granted, and the validity period of CON No. 10412 is hereby extended for an additional

857sixty (60) days from the date of rendition of this Final Order. The parties shall govern

873themselves accordingly.

8759"119

877DONE and ORDERED this 7 y, day of Ja.nl{().rV , 201f, in Tallahassee, Florida.

890I

891AGENCY FOR HEALTH CARE ADMINISTRATION

896NOTICE OF RIGHT TO JUDICIAL REVIEW

902A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

915A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A

928NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY

941ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT

953COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY

963MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW

972PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA

981APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF

994RENDITION OF THE ORDER TO BE REVIEWED.

1001CERTIFICATE OF SERVICE

1004I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has

1019been furnished by the method indicated to the persons named below on this . rday of

1035_ ___._, __ ,, 2018.

10397

1040. HOOP, Agency Clerk

1044Agency for Health Care Administration

10492727 Mahan Drive, MS #3

1054Tallahassee, Florida 32308-5403

1057(850) 412-3630

1059COPIES FURNISHED TO:

1062Honorable Elizabeth W. McArthur

1066Administrative Law Judge

1069Division of Administrative Hearings

1073The DeSoto Building

10761230 Apalachee Parkway

1079Tallahassee, Florida 32399-3060

1082(via electronic filing)

1085Richard J. Saliba, Esquire

1089Nicole M. Barrera, Esquire

1093Assistant General Counsels

1096(via electronic mail to Richard.Saliba@ahca.myflorida.com,

1101and Nicole.Barrera@ahca.myflorida.com)

1103John F. Gilroy III, Esquire

1108John F. Gilroy III, P.A.

1113Post Office Box 14227

1117Tallahassee, Florida 32317

1120(via electronic mail to john@jgilroylaw.com)

1125Marisol Fitch

1127Certificate ofNeed Unit

1130(via electronic mail to Marisol.Fitch@ahca.myflorida.com)

1135Jan Mills

1137Facilities Intake Unit

1140(via electronic mail to Janice.Mills@ahca.myflorida.com)

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/22/2019
Proceedings: Agency for Health Care Administration's Exceptions to Recommended Order filed.
PDF:
Date: 01/22/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 01/22/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 01/07/2019
Proceedings: Agency Final Order
PDF:
Date: 01/07/2019
Proceedings: Agency Final Order
PDF:
Date: 07/30/2018
Proceedings: Transmittal letter from Claudia Llado forwarding Respondent's Proposed Exhibits to Respondent.
PDF:
Date: 07/27/2018
Proceedings: Recommended Order
PDF:
Date: 07/27/2018
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/27/2018
Proceedings: Recommended Order (hearing held May 9, 2018). CASE CLOSED.
PDF:
Date: 06/18/2018
Proceedings: Agency's Proposed Recommended Order filed.
PDF:
Date: 06/18/2018
Proceedings: Petitioner's Proposed Findings of Fact, Conclusions of Law and Recommended Order filed.
PDF:
Date: 06/06/2018
Proceedings: Order Granting Extension of Time.
PDF:
Date: 06/06/2018
Proceedings: Amended Agreed Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 06/06/2018
Proceedings: Agreed Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 06/01/2018
Proceedings: Notice of Filing Transcript.
PDF:
Date: 05/04/2018
Proceedings: Response to Motion in Limine filed.
PDF:
Date: 04/30/2018
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 04/30/2018
Proceedings: Agency's Motion in Limine filed.
PDF:
Date: 04/27/2018
Proceedings: Order Denying Motion to Relinquish.
PDF:
Date: 04/24/2018
Proceedings: Agency for Health Care Administration's Cross-Notice of Taking Deposition (Andrew Duffell) filed.
PDF:
Date: 04/24/2018
Proceedings: Notice of Deposition filed.
PDF:
Date: 04/23/2018
Proceedings: Stipulation for Judicial Notice filed.
PDF:
Date: 04/23/2018
Proceedings: Agency's Reply to the Petitioner's Motion To Amend Response to Motion for Judicial Notice filed.
PDF:
Date: 04/23/2018
Proceedings: (Petitioner's) Motion to Amend Response to Motion for Judicial Notice filed.
PDF:
Date: 04/20/2018
Proceedings: Notice of Taking Deposition (Marisol Fitch) filed.
PDF:
Date: 04/20/2018
Proceedings: Notice of Filing of Petitioner's Response to the Request for Production of Documents filed.
PDF:
Date: 04/19/2018
Proceedings: Response to Motion for Judicial Notice filed.
PDF:
Date: 04/19/2018
Proceedings: Response to Motion to Relinquish filed.
PDF:
Date: 04/19/2018
Proceedings: Notice of Filing Deposition of the Petitioner's Corporate Representative in Support of the Agency's Motion to Relinquish (part 6) filed.
PDF:
Date: 04/19/2018
Proceedings: Notice of Filing Deposition of the Petitioner's Corporate Representative in Support of the Agency's Motion to Relinquish (part 5) filed.
PDF:
Date: 04/19/2018
Proceedings: Notice of Filing Deposition of the Petitioner's Corporate Representative in Support of the Agency's Motion to Relinquish (part 4) filed.
PDF:
Date: 04/19/2018
Proceedings: Notice of Filing Deposition of the Petitioner's Corporate Representative in Support of the Agency's Motion to Relinquish (part 3) filed.
PDF:
Date: 04/19/2018
Proceedings: Notice of Filing Deposition of the Petitioner's Corporate Representative in Support of the Agency's Motion to Relinquish (part 2) filed.
PDF:
Date: 04/19/2018
Proceedings: Notice of Filing Deposition of the Petitioner's Corporate Representative in Support of the Agency's Motion to Relinquish filed.
PDF:
Date: 04/19/2018
Proceedings: Notice of Appearance (Nicole Barrera) filed.
PDF:
Date: 04/18/2018
Proceedings: Notice of Change of Address filed.
PDF:
Date: 04/12/2018
Proceedings: Motion for Judicial Notice (part 6) filed.
PDF:
Date: 04/12/2018
Proceedings: Motion for Judicial Notice (part 5) filed.
PDF:
Date: 04/12/2018
Proceedings: Motion for Judicial Notice (part 4) filed.
PDF:
Date: 04/12/2018
Proceedings: Motion for Judicial Notice (part 3) filed.
PDF:
Date: 04/12/2018
Proceedings: Motion for Judicial Notice (part 2) filed.
PDF:
Date: 04/12/2018
Proceedings: Motion for Judicial Notice (part 1) filed.
PDF:
Date: 04/12/2018
Proceedings: Motion to Relinquish (part 2) filed.
PDF:
Date: 04/12/2018
Proceedings: Motion to Relinquish (part 1) filed.
PDF:
Date: 04/12/2018
Proceedings: Agency for Health Care Administration's Response to the Petitioner's First Request for Production of Documents filed.
PDF:
Date: 04/12/2018
Proceedings: Agency for Health Care Administration's Notice of Service of Responses to NHI SPB Operations, LLC's First Set of Interrogatories filed.
PDF:
Date: 04/12/2018
Proceedings: Petitioner's Response to Agency for Health Care Administration's First Request for Production of Documents filed.
PDF:
Date: 04/12/2018
Proceedings: Petitioner's Responses to AHCA's First Request for Admissions filed.
PDF:
Date: 04/10/2018
Proceedings: Amended Notice of Taking Deposition (Corporate Representative) filed.
PDF:
Date: 04/03/2018
Proceedings: Amended Notice of Hearing (hearing set for May 9, 2018; 9:30 a.m.; Tallahassee, FL; amended as to Date and VTC Availability for Witnesses).
Date: 03/30/2018
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 03/26/2018
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for March 30, 2018; 2:00 p.m.).
PDF:
Date: 03/19/2018
Proceedings: Amended Motion to Reschedule Final Hearing to Accommodate Availability of Video Conferencing Services filed.
PDF:
Date: 03/16/2018
Proceedings: Motion to Reschedule Final Hearing to Accommodate Availability of Video Conferencing Services filed.
PDF:
Date: 03/16/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/16/2018
Proceedings: Notice of Hearing (hearing set for May 8, 2018; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 03/15/2018
Proceedings: Reply to Initial Order filed.
PDF:
Date: 03/13/2018
Proceedings: Notice of Taking Deposition (Corporate Representative) filed.
PDF:
Date: 03/13/2018
Proceedings: Agency for Health Care Administration's First Request for Production to NHI SPB Operations, LLC filed.
PDF:
Date: 03/13/2018
Proceedings: Agency for Health Care Administration's First Request for Admissions to NHI SPB Operations, LLC filed.
PDF:
Date: 03/13/2018
Proceedings: Petitioner's First Request for Production of Documents to the Agency for Health Care Administration filed.
PDF:
Date: 03/13/2018
Proceedings: Notice of Service of Petitioner's First Interrogatories to Agency for Health Care Administration filed.
PDF:
Date: 03/09/2018
Proceedings: Initial Order.
PDF:
Date: 03/09/2018
Proceedings: Agency action letter filed.
PDF:
Date: 03/09/2018
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 03/09/2018
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
ELIZABETH W. MCARTHUR
Date Filed:
03/09/2018
Date Assignment:
03/09/2018
Last Docket Entry:
01/22/2019
Location:
Tallahassee, Florida
District:
Northern
Agency:
Other
Suffix:
CON
 

Counsels

Related Florida Statute(s) (8):

Related Florida Rule(s) (1):