BROOKWOOD EXTENDED CARE CENTERS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, APPELLEE

Fla. 1st DCA | 1984-07-24
No. AV-443
ERVIN, C.J., and BOOTH, J., concur.
453 So. 2d 865 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 2 cases

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Synopsis

Brookwood Extended Care Centers challenged HRS's denial of its timely hearing request for revocation of its Certificate of Need for a nursing home. The Florida First DCA reversed, holding that HRS erred by denying the hearing as untimely when the notice of revocation was materially deficient and the certified letter was unclaimed, and further erred by resolving disputed factual issues without a hearing.


Holding

HRS erred in denying the hearing request as untimely because the published notice was materially deficient in failing to inform Brookwood of its right to request a hearing and applicable time limits, which precluded dismissal based on untimeliness. HRS also erred by making disputed evidentiary determinations regarding whether the certified letter was properly mailed without affording Brookwood an opportunity to address these material facts at a hearing.


Headnotes

[1] A published notice is deficient if it fails to inform a party of the right to request a hearing and the applicable time limits.

[2] A party's allegation of non-receipt of a certified letter, when disputed by an agency, creates a disputed issue of material fact requiring a hearing.

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Key Quotes

“HRS erred by resolving disputed issues of material fact without affording appellant a hearing with regard thereto”

Establishes the core holding that HRS violated procedural requirements by making factual determinations without a hearing

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Facts & Procedural History

HRS issued Brookwood a Certificate of Need for nursing home construction, then determined the Certificate should be revoked. HRS attempted to notify B…

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Opinion of the Court
WENTWORTH, Judge.

WENTWORTH, Judge.

Appellant seeks review of an administrative order by which its petition for a § 120.57(1), Florida Statutes, hearing was denied. We find that appellee Department of Health and Rehabilitative Services (HRS) erred by resolving disputed issues of material fact without affording appellant a hearing with regard thereto, and we therefore reverse the order appealed.

Appellant was issued a Certificate of Need by HRS for the construction of a nursing home. HRS subsequently determined that appellant’s Certificate should be revoked, and purported to so advise appellant by both certified letter and published notice.1 However, the certified letter was returned unclaimed and appellant did not request a revocation hearing until after further communications ensued several months later. HRS then denied appellant’s request for a hearing as untimely filed.

The published notice was deficient in that it failed to inform appellant of the right to request a hearing and the time limits applicable thereto, and it did not otherwise provide a “clear point of entry” into the administrative process; this oversight is a material error which precludes dismissal of a hearing request for untimeliness predicated upon such notice. See Sterman v. Florida State University, 414 So. 2d 1102 (Fla. 1st DCA 1982); also see Henry v. State Department of Administration, 431 So. 2d 677 (Fla. 1st DCA 1983); Wahlquist v. School Board of Liberty County, 423 So. 2d 471 (Fla. 1st DCA 1982).

And while the order denying appellant’s request for a hearing states that the unclaimed certified letter was properly mailed to appellant’s authorized representative, in requesting a hearing appellant alleged that the letter was never received. Appellant further alleged that the letter had been mailed to an incorrect address and that appellant’s proper address was in the possession of HRS and on file with the Secretary of State. In rejecting these allegations and finding to the contrary HRS made a disputed evidentiary determination for which a hearing should have been held. See Sterman, supra. HRS thereby erred in rendering a decision without affording appellant an opportunity to address the disputed material allegations of fact in a limited § 120.57(1) hearing.

The order appealed is reversed and the cause remanded for a § 120.57(1) hearing as above indicated, and thereafter for such further proceedings as may be necessary.

ERVIN, C.J., and BOOTH, J., concur. . HRS published a notice of revocation in the Florida Administrative Law Weekly.

Appellant argues that the revocation of a Certificate of Need is a licensing proceeding and therefore governed by the provisions of § 120.60(6), Florida Statutes. HRS acknowledges that § 120.-60(6) does not authorize the chosen method of publication, but contends that the present case does not involve licensing and that the published notice is authorized by Rule 10-5.10(8), Florida Administrative Code, relating to "the issuance or denial” of a Certificate of Need. But since even under Rule 10-5.10(8) the published notice is facially deficient the present case does not require a determination as to whether the proceeding below involved licensing. But see generally Westchester General Hospital v. State Department of Health and Rehabilitative Services, 419 So. 2d 705 (Fla. 1st DCA 1982); cf., Capeletti Bros. v. State Department of Transportation, 362 So. 2d 346 (Fla. 1st DCA 1978).


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Citator

Cited By

  • Symons v. State, 490 So. 2d 1322 (Fla. 1st DCA 1986)
    …thority to receive it constitutes implied actual notice, but that based on the facts adduced at trial, the court could have found that the employee therein had such authority. Finally, this court held in Brookwood Extended Care Centers, Inc. v. HRS, 453 So. 2d 865 (Fla. 1st DCA 1984), that when a notice is sent certified mail and the applicant alleges that he never received notice, the agency’s rejection of that allegation and finding to the contrary constituted determination of a disputed issue of fact witho…

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