97-002807 Agency For Health Care Administration vs. A Doctor`s Office For Women North, Inc., D/B/A A Doctor`s Office For Women North, Inc. Status: Closed Recommended Order on Thursday, October 9, 1997.

Summary: Agency for Health Care Administration is without authority to impose a fine for the late filing of an application to renew an abortion clinic license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 97-2807

)

A DOCTOR'S OFFICE FOR WOMEN, )

INC., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on August 15, 1997, by telephone conference call,

before Stuart M. Lerner, a duly designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jean Claude Dugue, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street, First Floor

Miami, Florida 33166

For Respondent: Rafael A. Centurion, Esquire

2515 West Flagler Street

Miami, Florida 33135

STATEMENT OF THE ISSUES

1. Whether Respondent failed to timely file its application

for the renewal of its abortion clinic license, as alleged in the

Administrative Complaint.

2. If so, may the Agency for Health Care Administration

(Agency) fine Respondent for failing to timely file its renewal

application.

3. If the Agency is authorized to impose such a fine,

should it exercise such authority.

4. If so, what is the amount of the fine it should impose.

PRELIMINARY STATEMENT

On June 3, 1996, the Agency issued an Administrative

Complaint against Respondent which contained the following

allegations:

1. The Agency has jurisdiction over

Respondent by virtue of the provisions of

Chapter 390, Florida Statutes.

2. Respondent is licensed to operate at 3250

South Dixie Highway, Coconut Grove, Miami,

Florida 33133, as an abortion clinic in

compliance with Chapter 390, Florida

Statutes, and Chapter 59A-9, Florida

Administrative Code.

3. The Respondent has violated the

provisions of Chapter 390, Florida Statutes,

in that License Number 693 was issued to the

Respondent for the period of 3/22/95 through

3/21/96. Respondent's application for

renewal was due to be received by the Agency

on 1/21/96, sixty days prior to expiration;

however, it was received on 04/25/96, which

was ninety-five(95) days late. This is in

violation of Section 390.016(1), Florida

Statutes.

4. The Agency has determined that $1,000.00

will constitute the administrative fine for

filing late the application for renewal of

license.

5. The above-referenced violations

constitute grounds to levy this

administrative fine pursuant to Section

390.018.

The Administrative Complaint notified Respondent of its right to

request an administrative hearing on the matter within 21 days of

its receipt of the Administrative Complaint.

After 21 days had passed, the Agency, believing that

Respondent had not requested an administrative hearing, issued a

Final Order taking the action proposed in the Administrative

Complaint.

Respondent appealed the Agency's Final Order to the Third

District Court of Appeal. On June 3, 1997, the Third District

Court of Appeal issued the following order:

Upon consideration, the court relinquishes

jurisdiction for ninety (90)days to the

Agency for Health Care Administration, with

directions to refer this matter to the

Division of Administrative Hearings to make a

factual determination of whether [ A Doctor's

Office for Women, Inc.] submitted [a] timely

request[] for administrative hearing to the

appellee State of Florida, Agency for Health

Care Administration. See United Health, Inc.

v. Dept. of Health and Rehabilitative

Services , 511 So. 2d 684 (Fla. 1st DCA 1987).

The parties shall report the status of this

matter within ninety (90) days of the date

hereof.

Following the issuance of the Third District Court of

Appeal's order relinquishing jurisdiction, the Agency determined

that Respondent had in fact timely filed a request for an

administrative hearing on the allegations set forth in the

Administrative Complaint. Accordingly, the Agency proceeded to

take action to vacate its Final Order and to refer Respondent's

administrative hearing request to the Division of Administrative

Hearings "to conduct all necessary proceedings required under the

law, and to submit a Recommended Order to th[e A]gency." The

referral to the Division of Administrative Hearings was made on

June 12, 1997.

As noted above, the administrative hearing was held on

August 15, 1997. A total of two witnesses testified at the

hearing. Robert Van Sickle, a Human Services Program Specialist

with the Agency, testified on behalf of the Agency. Dr. Vladimir

Rosenthal, Respondent's Chief Operating Officer, testified for

Respondent. In addition to the testimony of these two witnesses,

five exhibits (Petitioner's Exhibits 1 through 5) were offered

and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned announced on the record that proposed recommended

orders had to be filed no later than 15 days from the date of the

filing of the transcript of the hearing with the Division of

Administrative Hearings. The hearing transcript was filed with

the Division of Administrative Hearings on September 22, 1997.

On September 25, 1997, the Agency filed its proposed recommended

order, which the undersigned has carefully considered. To date,

Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. At all times material to the instant case, Respondent

operated an abortion clinic located in Dade County, Florida, at

3250 South Dixie Highway, Coconut Grove, Miami, Florida (Coconut

Grove Clinic).

2. License number 693 constituted authorization from the

Agency to Respondent to operate the Coconut Grove Clinic for the

one-year period specified in the license.

3. License number 693 had an effective date of March 22,

1995, and an expiration date of March 21, 1996.

4. On or about December 22, 1995, the Agency sent

Respondent the following letter:

In reviewing our records, we note that the

facility's abortion clinic license expires on

03/21/96.

We are enclosing a copy of Form 3130-1000,

Licensure Application, which should be

completed and returned to this office along

with the appropriate licensure fee of

$250.00, pursuant to Rule 59A-9.020 Florida

Administrative Code, made payable to the

Agency for Health Care Administration.

Incorrect or incomplete information will not

be accepted, and the application will be

returned.

The application must be received on or before

01-21-96, sixty (60) days prior to the

expiration of the current license to comply

with section 390.016(1), Florida Statutes.

Your attention to this request will

facilitate processing your renewal license.

The letter was delivered to Respondent on December 28, 1995.

5. The General Manager of the Coconut Grove Clinic, Carmen

Penaloza, filled out the Licensure Application and gave it to

Respondent's Chief Operating Officer, Dr. Vladimir Rosenthal, for

his signature. After Dr. Rosenthal affixed his signature to the

Licensure Application, he returned the document to Penaloza for

mailing to the Agency.

6. The Licensure Application was completed and signed prior

to January 21, 1996.

7. Some time after January 21, 1996, the Agency notified

Respondent that it had no record of having received a completed

and signed Licensure Application from Respondent. 1

8. Accordingly, Penaloza filled out and Dr. Rosenthal

signed another Licensure Application.

9. This completed and signed Licensure Application was

received by the Agency on April 25, 1996.

10. On or about May 21, 1996, the Agency issued Respondent

License number 0786, authorizing Respondent to operate the

Coconut Grove Clinic for the one-year period beginning March 22,

1996, and ending March 21, 1997.

11. On June 3, 1996, the Department issued an

Administrative Complaint announcing its intention to fine

Respondent $1,000.00 for filing its application to renew its

license to operate the Coconut Grove Clinic "ninety-five (95)

days late."

CONCLUSIONS OF LAW

12. "No abortion clinic [may] operate in this state without

a currently effective license issued by the [A]gency." Section

390.014(1), Florida Statutes.

13. "A separate license [is] required for each clinic

maintained on separate premises, even though it is operated by

the same management as another clinic." Section 390.014(2),

Florida Statutes.

14. "An application for a license to operate an abortion

clinic [must]be made to the [A]gency on a form furnished by it

for that purpose" and the application must "be accompanied by the

. . . license fee" of $250.00. Section 390.014(3), Florida

Statutes; Section 390.015.(1), Florida Statutes;

Rule 59A-9.020(1) and (2), Florida Administrative Code.

15. Section 390.016, Florida Statutes, addresses the

subject of the "expiration" and "renewal" of licenses issued for

the operation of abortion clinics. It provides as follows:

(1) A license issued for the operation of an

abortion clinic, unless sooner suspended or

revoked, shall expire 1 year from the date of

issuance. Sixty days prior to the expiration

date, an application for renewal of such

license shall be submitted to the [A]gency on

a form furnished by the [A]gency. The

license may be renewed if the applicant has

met the requirements of this chapter and of

all rules adopted pursuant to this chapter.

(2) A licensee against which a revocation or

suspension proceeding is pending at the time

of license renewal may be issued a

conditional license which shall be effective

until final disposition of the proceeding by

the [A]gency. If judicial relief is sought

from the order resulting from the revocation

or suspension proceeding, the court having

jurisdiction may order that the conditional

license be continued for the duration of the

judicial proceeding.

16. Pursuant to Section 390.017, Florida Statutes, "[t]he

license of an abortion clinic may be revoked, or may be suspended

for a period not to exceed 2 years, or the [A]gency may refuse to

renew such license, if it is determined in accordance with the

provisions of chapter 120 that the clinic has violated a

provision of this chapter or any rule or lawful order of the

[A]gency."

17. Section 390.018, Florida Statutes, authorizes the

Agency to impose an "[a]dministrative penalty in lieu of

revocation or suspension" of the abortion clinic's license. It

provides as follows:

If the [A]gency finds that one or more

grounds exist for the revocation or

suspension of a license issued to an abortion

clinic, the [A]gency may, in lieu of such

suspension or revocation, impose a fine upon

the clinic in an amount not to exceed $1,000

for each violation. The fine shall be paid

to the [A]gency within 60 days from the date

of entry of the administrative order. If the

licensee fails to pay the fine in its

entirety to the [A]gency within the period

allowed, the license of the licensee shall

stand suspended, revoked, or renewal or

continuation may be refused, as the case may

be, upon expiration of such period and

without any further administrative or

judicial proceedings.

18. Because they are penal in nature, the provisions of

Sections 390.017 and 390.018, Florida Statutes, "must be strictly

construed and no conduct is to be regarded as included within

[them] that is not reasonably proscribed by [them]. Furthermore,

if there are any ambiguities included such must be construed in

favor of the . . . licensee." Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

19. The Agency may revoke or suspend an abortion clinic's

license pursuant to Section 390.017, Florida Statutes, or impose

a fine upon the licensee pursuant to Section 390.018, Florida

Statutes (in lieu of revocation or suspension) only if the

grounds for such action are established by clear and convincing

evidence. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996)("[A]n administrative fine

deprives the person fined of substantial rights in property.

Administrative fines . . . are generally punitive in

nature. . . . Because the imposition of administrative

fines . . . are penal in nature and implicate significant

property rights, the extension of the clear and convincing

evidence standard to justify the imposition of such a fine is

warranted."); Pic N' Save v. Department of Business Regulation ,

601 So. 2d 245, 249 (Fla. 1st DCA 1992)("It is now settled in

Florida that a business license, whether held by an individual or

a corporate entity, is subject to suspension or revocation only

upon proof by clear and convincing evidence of the alleged

violations."); Section 120.57(1)(h), Florida Statutes ("Findings

of fact shall be based on a preponderance of the evidence, except

in penal or licensure disciplinary proceedings or except as

otherwise provided by statute.").

20. "'[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 a firm

belief or conviction, without hesitancy, as to the truth of the

allegations sought to be established.'" In re Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

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

21. The Agency, through service of its Administrative

Complaint, has notified Respondent of its intent to impose a

$1,000.00 fine upon Respondent "for filing late the application

for renewal of [its] license [to operate the Coconut Grove

Clinic]." The Agency has alleged in the Administrative Complaint

that Respondent's late filing of its renewal application

"constitutes grounds to levy this administrative fine pursuant to

Section 390.018, Florida Statutes."

22. At the Section 120.57(1) hearing held in the instant

case (at Respondent's request), clear and convincing evidence was

presented establishing that Respondent failed to file its

application to renew its license to operate the Coconut Grove

Clinic 60 days before the expiration date of the license, as

required by Section 390.16(1), Florida Statutes.

23. The lateness of Respondent's renewal application may

have provided the Agency with a basis upon which to refuse to

renew Respondent's license, 2 but it did not constitute grounds

for revocation or suspension of the license. Cf . Terrell Oil

Company v. Department of Transportation , 541 So. 2d 713, 715

(Fla. 1st DCA 1989)("[W]e do not find that the order appealed

[denying the Appellant's application for renewal of its DBE

certification] is one that 'has the effect of suspending or

revoking a license.' Indeed, it is clear under the applicable

statute and the rules implementing it that a DBE certification is

of finite duration and that the enterprise must submit a complete

updated application in order to remain certified. . . . We find

a qualitative difference between the type of order appealed here

that denies renewal of a license that has expired or is about to

expire and one which suspends or revokes an active license.").

24. Section 390.018, Florida Statutes, authorizes the

Agency to impose a fine "in lieu of [license] suspension or

revocation." It does not give the Agency the authority to fine a

licensee as an alternative to denying license renewal. See City

of Cape Coral v. GAC Utilities, Inc., of Florida , 281 So. 2d 493,

495-96 (Fla. 1973)("All administrative bodies created by the

Legislature are not constitutional bodies, but, rather, simply

mere creatures of statutes. This, of course, includes the Public

Service Commission. . . As such, the Commission's powers, duties

and authority are those and only those that are conferred

expressly or impliedly by statute of the State. . . . Any

reasonable doubt as to the lawful existence of a particular power

that is being exercised by the Commission must be resolved

against the exercise thereof, . . . the further exercise of the

power should be arrested."); State Department of Environmental

Regulation v. Puckett Oil Company , 577 So. 2d 988, 992 (Fla. 1st

DCA 1991)("Article I, Section 18, of the Florida Constitution

prohibits an administrative agency from imposing a sentence of

imprisonment or any other penalties except as provided by law.

Pertinent case law reveals that an agency possesses no inherent

power to impose sanctions, and that any such power must be

expressly delegated by statute."); Willner v. Department of

Professional Regulation, Board of Medicine , 563 So. 2d 805, 806

(Fla. 1st DCA 1990)("We agree that the $60,000 payment is a

penalty. As a penalty, it can only be upheld if the legislative

authority relied upon by the agency is sufficiently specific to

indicate a clear legislative intent that the agency have

authority to exact the penalty prescribed.").

25. Because the Agency lacks statutory authority to impose

a monetary penalty for the late filing of an application to renew

an abortion clinic license, 3 the Administrative Complaint filed

against Respondent proposing the assessment of such a penalty

must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency issue a final order dismissing

the Administrative Complaint against Respondent.

DONE AND ENTERED this 10th day of October, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of October, 1997.

ENDNOTES

1 The record evidence is insufficient to support a finding that

the Licensure Application was actually mailed to and received by

the Agency after it was signed by Dr. Rosenthal. Dr. Rosenthal's

testimony that Penaloza (who was out of the country and did not

testify at the final hearing) told him that she had mailed the

completed and signed Licensure Application to the Agency

constitutes hearsay evidence that would not be admissible over

objection in a civil proceeding. In a Section 120.57(1) hearing,

"[h]earsay evidence may be used for the purpose of supplementing

or explaining other evidence, but it shall not be sufficient in

itself to support a finding unless it would be admissible over

objection in civil actions." Section 120.569(1)(c), Florida

Statutes.

2 See Vantage Healthcare Corporation v. Agency for Health Care

Administration , 687 So. 2d 306 (Fla. 1st DCA 1997)(Agency erred

in accepting late-filed letter of intent from health care

provider; doctrine of equitable tolling may not be applied to

extend time for filing certificate of need application ).

3 Had the Legislature intended to authorize the Agency to impose

such a monetary penalty, it could have, for instance, used

language similar to that found in Section 479.07(8), Florida

Statutes (which deals with the expiration and renewal of sign

permits issued by the Department of Transportation), to clearly

express such intent. The absence of such a clear expression of

legislative intent is fatal to the Agency's efforts to exact a

late-filing fee from Respondent as a penalty for failing to

timely renew its abortion clinic license for the North Miami

Clinic.

COPIES FURNISHED:

Jean Claude Dugue, Esquire

Agency for Health Care Administration

8355 Northwest 53rd Street

Miami, Florida 33166

Rafael A. Centurion, Esquire

2515 West Flagler Street

Miami, Florida 33135

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 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.

1 The record evidence is insufficient to support a finding that

the Licensure Application was actually mailed to and received by

the Agency after it was signed by Dr. Rosenthal. Dr. Rosenthal's

testimony that Penaloza (who was out of the country and did not

testify at the final hearing) told him that she had mailed the

completed and signed Licensure Application to the Agency

constitutes hearsay evidence that would not be admissible over

objection in a civil proceeding. In a Section 120.57(1) hearing,

"[h]earsay evidence may be used for the purpose of supplementing

or explaining other evidence, but it shall not be sufficient in

itself to support a finding unless it would be admissible over

objection in civil actions." Section 120.569(1)(c), Florida

Statutes.

2 See Vantage Healthcare Corporation v. Agency for Health Care

Administration , 687 So. 2d 306 (Fla. 1st DCA 1997)(Agency erred

in accepting late-filed letter of intent from health care

provider; doctrine of equitable tolling may not be applied to

extend time for filing certificate of need application ).

3 Had the Legislature intended to authorize the Agency to impose

such a monetary penalty, it could have, for instance, used

language similar to that found in Section 479.07(8), Florida

Statutes, (which deals with the expiration and renewal of sign

permits issued by the Department of Transportation), to clearly

express such intent. The absence of such a clear expression of

legislative intent is fatal to the Agency's efforts to exact a

late-filing fee from Respondent as a penalty for failing to

timely renew its abortion clinic license for the Coconut Grove

Clinic.