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

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.

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

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

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

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

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

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

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

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

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

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

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

not comply with essential requirements oflaw ....

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

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

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

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

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

following rulings on Petitioner's exceptions:

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

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

71, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96 and 97, as well as

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

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

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

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

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

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

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

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

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

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

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

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

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

120.57(1)(!), Fla. Stat.; Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281

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

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

be inferred").

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

jurisdiction) are rendered moot and need not be addressed.

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

reasonable than those of the ALJ.

FINDINGS OF FACT

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

CONCLUSIONS OF LAW

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

ORDER

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

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

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

themselves accordingly.

9"119

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

I

AGENCY FOR HEALTH CARE ADMINISTRATION

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

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

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

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

COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY

MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW

PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA

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

RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

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

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

_ ___._, __ ,, 2018.

7

. HOOP, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, MS #3

Tallahassee, Florida 32308-5403

[phone]

COPIES FURNISHED TO:

Honorable Elizabeth W. McArthur

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(via electronic filing)

Richard J. Saliba, Esquire

Nicole M. Barrera, Esquire

Assistant General Counsels

(via electronic mail to [e-mail],

and [e-mail])

John F. Gilroy III, Esquire

John F. Gilroy III, P.A.

Post Office Box 14227

Tallahassee, Florida 32317

(via electronic mail to [e-mail])

Marisol Fitch

Certificate ofNeed Unit

(via electronic mail to [e-mail])

Jan Mills

Facilities Intake Unit

(via electronic mail to [e-mail])