Invoking Fifth Amendment by Applicant’s Personnel May Result in Denial of Their Application for a License

The foregoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter

FACTS: The Agency for Health Care Administration (“AHCA”) denied Avalon Assisted Living III’s (“Avalon III”) application for licensure of an assisted living facility in Orlando. Avalon III challenged the denial, and the case was referred to DOAH for a formal hearing. During AHCA’s attempts to obtain discovery, two people closely associated with Avalon III (Mr. Robert Walker and Mrs. Chiqquittia Carter-Walker) invoked their Fifth Amendment privilege against selfincrimination in response to questions regarding the grounds stated by AHCA in its initial decision to deny the license. These areas of inquiry included alleged unlicensed activity, the ownership and control of Avalon III, and Avalon III’s lease on the facility sought to be licensed. Based on Avalon III’s failure to provide any relevant information during three discovery depositions, AHCA filed a Motion to Dismiss on September 16, 2013. In an Order issued on September 27, 2013, the ALJ stated that dismissal of Avalon III’s petition and denial of its licensure application would be an appropriate sanction. However, in an abundance of caution, the ALJ gave Avalon III one more chance to have the Walkers answer deposition questions without invoking the Fifth Amendment. Avalon III responded to the Order by filing a notice that the Walkers would answer deposition questions regarding ownership and the lease without invoking the Fifth Amendment. Conspicuously absent from the notice was any assurance the Walkers would answer questions about the alleged unlicensed activity.

OUTCOME: The ALJ issued an Order recommending that AHCA deny Avalon III’s application. In contrast to licensure disciplinary cases in which the agency has the burden of proof, Avalon III had the burden of proving entitlement to licensure, and the Walkers were the only people with knowledge of the relevant issues. Accordingly, their refusal to answer deposition questions left Avalon III “in an untenable position,” preventing Avalon III from proving its entitlement to licensure.

Source:

Avalon’s Assisted Living III, LLC v. Agency for Health Care Administration, DOAH Case No. 09-6342 (Recommended Order Oct. 9, 2013).

About the Author: The foregoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative law Section of The Florida Bar.

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