§ 18-24. Appeal procedures for certificate denial, non-renewal or revocation.

(a)

The department shall provide written notice of a denial of any new or renewal registration certificate specifying in writing the grounds for the denial. The denial notice shall be sent by certified mail or hand delivery to the mailing address set forth on the application for the pain management clinic registration. The applicant whose application has received a denial may request a formal de novo appeal hearing before a hearing officer. All the appeal requirements of section 18-24 are jurisdictional; failure to correctly file an appeal waives the applicant's rights to challenge the department's decision.

(b)

The appeal and request for a de novo appeal hearing must be received by the department within ten (10) business days of the date the denial notice is mailed to the applicant. The applicant must file an appeal on an official appeal application with the department before the appeal deadline. An appeal narrative shall be submitted to support the appeal and shall specify the specific alleged error or errors made by the department citing specific code provisions of this article along with any and all facts and evidence submitted as part of the application that support the applicant's position that the registration certificate was erroneously denied. A copy of the final action by the department shall be attached to the appeal. The appeal shall be signed by the applicant and be accompanied by a one-thousand-dollar deposit toward the estimated costs. The deposit for costs will be returned to the applicant if the applicant prevails in the appeal, otherwise the deposit will be applied to the full costs of the hearing.

(c)

The appeal shall be transmitted to the hearing officer as soon as possible after receipt by the department. The hearing officer shall review the appeal, and may, upon motion of a party or on its own motion, determine if the jurisdictional appeal requirements of this section have been met. If the appeal has not been properly filed, the hearing officer shall make this jurisdictional determination in writing and dismiss the appeal. In this case, the final action of the department shall stand as the final decision of the county.

(d)

If the appeal is properly filed, the hearing officer shall set a hearing date within thirty (30) business days of the receipt of the appeal by the department, unless the parties agree to additional time. The department shall transmit the final written decision together with the department's application file and record of decision to the hearing officer with a copy to the appellant and the county attorney's office.

(e)

The hearing officer shall conduct a hearing in accordance with due process. At a minimum, the following procedures shall be observed:

(1)

The file constituting the record of decision by the department shall be entered into evidence.

(2)

Pre-filed written testimony and evidence is encouraged prior to the hearing date.

(3)

The parties are permitted to present direct testimony and evidence at the hearing. All testimony shall be under oath and shall be recorded.

(4)

The applicant shall be entitled to cross examine county witnesses and the county shall be permitted to cross examine the applicant's witnesses.

(5)

Formal rules of evidence shall not apply unless required by the hearing officer, but fundamental due process shall be observed and shall govern the proceedings.

(6)

The parties may submit proposed recommended orders for consideration of the hearing officer.

(7)

The hearing officer shall produce a written decision including findings of fact and conclusions of law within a reasonable time after conclusion of the hearing but no more than ten (10) business days after the hearing.

(8)

Notwithstanding the above, DOAH hearing procedures shall be followed in the event the matter is referred to DOAH. Local procedures shall be observed but DOAH procedures control in the event of a conflict.

(9)

All hearings and proceedings shall be open to the public.

(10)

The county shall be represented by the county attorney's office.

(11)

If the department prevails and the de novo decision of the hearing officer is consistent with the department's action, the deposit for costs shall be applied to the cost of the hearing officer. If the applicant prevails and the de novo decision of the hearing officer is inconsistent with the department's action, the deposit for costs shall be returned in full to the applicant.

(12)

The decision of the hearing officer shall be the final decision of the county and may only be appealed to Circuit Court in and for Hernando County within thirty (30) days of said decision. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the hearing officer. Any decision of a DOAH administrative law judge shall be appealed as provided for in Florida law.

(f)

Any clinic whose registration certificate is denied, non-renewed (except for an incomplete registration certificate application), or revoked, shall not be eligible to reapply for five (5) years unless the denial, non-renewal or revocation is overturned on appeal. In addition, the owner(s) and the physician(s) listed on the application, regardless of the clinic's name, may not be an applicant for a registration certificate renewal at another clinic for a period of five (5) years, unless the individual was previously the applicant for that clinic, or unless the denial or non-renewal is based solely on an incomplete application.

(Ord. No. 2012-7, § II, 6-12-12)