License/Zoning Compliance Update – Sanctions

Many of you are aware that the statutes (Ch. 397, Fla. Stat.) and regulations (Ch. 65D-30, FAC) governing substance abuse treatment facilities require zoning confirmation from the relevant local government as a condition of licensure.

While the laws and rules do not require this “zoning confirmation” to be in any particular format, the Department has prepared a proposed form (attached) to be used so that there can be no question that the local government understands the modality/component that it is approving. Stated otherwise, a generalized letter from a local government saying something to the effect of “the property is question is zoned ‘Medical’ is not in and of itself sufficient, since Use definitions as to what is a “permitted use” or “conditional use” vary across jurisdictions.

It has come to our attention that a similar DCF zoning verification form was submitted to a local municipality, identifying the specific component seeking approval.

After the form was retrieved from the city, the applicant purportedly checked off additional boxes on the form, without the local government’s knowledge or consent.

Aside from being overwhelmingly unethical, this action could be a violation of s. 397.415, Florida Statutes, subjecting the parties to significant sanctions.

More specifically, the statute provides:

397.415 Denial, suspension, and revocation; other remedies.—

(1) If the department determines that an applicant or licensed service provider or licensed service component thereof is not in compliance with all statutory and regulatory requirements, the department may deny, suspend, revoke, or impose reasonable restrictions or penalties on the license or any portion of the license. In such case, the department:

(a) May impose a moratorium on admissions to any service component of a licensed service provider if the department determines that conditions are a threat to the public health or safety.

(b) May impose an administrative penalty of up to $500 per day against a licensed service provider operating in violation of any fire-related, safety-related, or health-related statutory or regulatory requirement. Fines collected under this paragraph must be deposited in the Operations and Maintenance Trust Fund.

(c) May suspend or revoke the license of a service provider or may suspend or revoke the license as to the operation of any service component or location identified on the license if, after notice, the department determines that a service provider has failed to correct the substantial or chronic violation of any statutory or regulatory requirement that impacts the quality of care.

(2) If a provider’s license is revoked, the service provider is barred from submitting any application for licensure of the affected facility or service component to the department for a period of 1 year after the revocation. If the provider’s license is revoked as to any service component or location identified on the license, the provider is barred from applying for licensure of the affected service component or location for 1 year after the revocation.

(3) Proceedings for the denial, suspension, or revocation of a service provider’s license must be conducted in accordance with chapter 120.

(4) The department may maintain an action in court to enjoin the operation of any licensed or unlicensed provider, service component, or location in violation of this chapter or the rules adopted under this chapter.

In addition, and of greater concern, perhaps, are the criminal penalties for participating in the felony of a scheme to defraud, in violation of s. 817.034, Fla. Stat. and Mail/Wire Fraud (both a state and federal crime) pursuant to 18 U.S.C.A. § 1341.

This type of behavior should not be tolerated and, if true, is another unfortunate chapter in the otherwise poorly regulated world of substance abuse treatment providers and those who facilitate the obtaining of licenses for such providers.

About Jeffrey Lynne

Jeffrey C. Lynne is a South Florida native, representing individuals and business entities relating to licensing, accreditation, regulatory compliance, business structure, marketing, real estate, zoning and litigation pertaining to substance abuse treatment facilities and sober living residences. Mr. Lynne has been recognized across the region as a leader in progressive public dialogue about the role that substance abuse treatment has within our communities and the fundamental need and right to provide safe and affordable housing for those who are both in treatment for addiction and alcoholism as well as those who are established in their recovery.

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