BEACH CLUB ADULT CENTER, LLC ("BEACH CLUB")

v.

AGENCY FOR HEALTH CARE ADMINISTRATION

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-1931 _____________________________

BEACH CLUB ADULT CENTER, LLC (“BEACH CLUB”),

Appellant,

v.

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Appellee. _____________________________

On appeal from an order of the Agency for Health Care Administration.

June 28, 2018

PER CURIAM.

ORDER ON MOTION FOR STAY

Appellant files a motion to stay an administrative order issued by the Agency for Health Care Administration (“AHCA”). We find that the order on appeal is not one that “has the effect of suspending or revoking a license,” therefore, Appellant is not entitled to rely on the presumptive stay set forth in Florida Rule of Appellate Procedure 9.190(e)(2)(C) and section 120.68(3), Florida Statutes.

2

Appellant held a standard adult daycare center license from November 24, 2015, through November 23, 2017. In October 2017, AHCA received an application for the renewal of the license. AHCA determined that the application was incomplete and sent an omissions notice on October 31, 2017. On December 18, 2017, AHCA sent a notice of intent to deem renewal application incomplete and withdrawn from further consideration. On April 9, 2018, AHCA rendered a final order that upheld the notice of intent and deemed the application withdrawn.

Appellant filed a motion for stay of the final order in this Court citing rule 9.190(e)(2)(C) and section 120.68(3). Appellant asserted that pursuant to those authorities, if the Agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the Agency petitions the Court and the Court then determines that supersedeas would constitute a probable danger to the health, safety or welfare of the state.

Appellant is not entitled to a stay under section 120.68(3) and rule 9.190(e)(2)(C) because the final order does not revoke Appellant’s license. Instead, the final order deemed the application withdrawn. Section 120.68(3) and rule 9.190(e)(2)(C) only apply “if the agency decision has the effect of suspending or revoking a license.” In Terrell Oil Company v. Department of Transportation, 541 So. 2d 713 (Fla. 1st DCA 1989), this Court held that section 120.68(3) did not apply to stay a final order denying an application for recertification as a disadvantaged business enterprise because it did not meet the statutory criteria for recertification. This Court stated that there is a qualitative difference between the type of order that denies renewal of a license that has expired or is about to expire and one that suspends or revokes an active license. Cf. Silver Show, Inc. v. Dep’t of Bus. & Prof’l Regulation, 763 So. 2d 348 (Fla. 4th DCA 1998) (holding that an agency’s decision to deny a license application is regulatory in nature, not a sanction; thus, a denial of a license application is not equivalent to a license revocation for purposes of section 120.68(3)).

3

Accordingly, Appellant’s motion for stay is denied.

ROWE, KELSEY, and WINOKUR, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

John E. Terrel of John E. Terrel, P.A., Tallahassee, for Appellant.

Tracy Lee Cooper George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.