14 Fla. L. Weekly Supp. 1140a
Insurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered treatment — Lack of county occupational license does not render treatment unlawful — Even if lack of license rendered treatment unlawful, tax collector’s acceptance of payment for all due occupational taxes after date of service cured any illegality back to date taxes were due
FLORIDA WELLNESS & REHAB CTR., INC., A/A/O DENNIS LLAMA, Plaintiff, vs. UNITED AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 06-15503 CC 05 (06). June 29, 2007. Bronwyn C. Miller, Judge. Counsel: Stuart Yanofsky. John Gioannetti.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the Court on June 25, 2007 upon Defendant’s Motion for Final Summary Judgment and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby DENIES Defendant’s motion on the following grounds:
Background:
1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits. The action arises out of an automobile accident that occurred on May 16, 2006. Following the accident, DENNIS LLAMA sought treatment from Plaintiff, FLORIDA WELLNESS & REHABILITATION CENTER, INC. Plaintiff accepted an assignment of PIP benefits from DENNIS LLAMA in exchange for providing medical services.
2. Plaintiff alleges DENNIS LLAMA (hereinafter “claimant”) was covered by a policy of insurance issued by Defendant, UNITED AUTOMOBILE INSURANCE CO., at the time of said automobile accident.
3. FLORIDA WELLNESS & REHABILITATION CENTER, INC. billed UNITED AUTOMOBILE INSURANCE COMPANY for services rendered between May 18, 2006 and August 2, 2006.
4. UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “Defendant”) did not render payment to FLORIDA WELLNESS & REHABILITATION CENTER, INC. for these bills and Plaintiff filed suit for breach of the insurance contract.
5. At the time FLORIDA WELLNESS & REHABILITATION CENTER, INC. (hereinafter “Plaintiff”) provided services to the claimant, it did not possess a valid occupational license, as required pursuant to §8A-171, Article IX, Miami-Dade County Code.1 However, on August 28, 2006, Plaintiff obtained a valid occupational license for three tax years, 2004-05, 2005-06, and 2006-07. See, Affidavit of Jurgen Teintze, Chief of the Local Business Tax Section, Miami-Dade County Tax Collector.
6. Payment of the 2004-05 and 2005-06 tax periods was due immediately (August 28, 2006). Id.
Conclusions of Law:
Summary Judgment Standard
It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). UNITED AUTOMOBILE INSURANCE COMPANY has moved for summary judgment, alleging treatment was not lawfully rendered pursuant to §627.736(5)(a) and (d), Fla. Stat. (2003).
Occupational License Requirement
Defendant contends that Plaintiff did not possess an occupational license during the dates of service relevant to the case sub judice. However, immediately subsequent to the dates of service at issue, the Miami-Dade County Tax Collector accepted payment from Plaintiff for all years due and owing. The affidavit of the Chief of the Local Business Tax Section of the Miami-Dade County Tax Collector does not state that said payments were late; rather, he states that said taxes were “due immediately (August 28, 2006).” (emphasis added).
§627.736(5)(a) Florida Statutes (2003)
Defendant relies upon State Farm Fire & Cas. Co. v. West Dixie Rehab & Medical Center, 11 Fla. L. Weekly Supp. 788b (11th Jud. Cir. App. 2004). In West Dixie, the Court addressed the issue of whether a personal injury protection insurer can be liable to an assignee medical provider which does not have either an occupational or a medical license, even though it employs licensed medical professionals who provide treatment to an insured. The Court found that based on Ortega v. United Automobile Ins. Co., 847 So. 2d 994 (Fla. 3d DCA 2003), the provider could not have lawfully rendered treatment without a valid massage establishment and occupational license.
The Court reasoned that the entity is required to meet all applicable standards, including “. . . rules governing the operation of [the] establishments and their facilities, personnel, safety and sanitary requirements, financial responsibility, insurance coverage, and the license application and granting process.” It further specified:
State Farm also argues that West Dixie lacked an occupational license rendering the treatment unlawful. While West Dixie failed to pay its occupational license tax, this failure does not trigger the same policy implications as failing to have a massage establishment license because the Miami-Dade County Code’s requirement is a means to generate revenue — not a measure to protect the public. However, §8A-171, Article IX, Miami-Dade County Code does require payment of the occupational license tax, and §8A-172 makes it a misdemeanor to operate such a facility without an occupational license. As such, we find that the failure to pay the occupational tax also renders West Dixie’s treatment unlawful.
Plaintiff contends that West Dixie may be distinguished from the case sub judice, as the West Dixie decision was based upon the 2001 version of §627.736 and §627.732 that did not contain an explicit definition for “lawfully” or “lawful.” The Court agrees.2 West Dixie specifies: “. . . because her treatment was not lawfully rendered pursuant to §627.736(5)(a), Fla. Stat. (2001).” The definitions section contained within §627.732(11) was added by the Legislature in 2003.
§627.736(5)(a), Fla. Stat. (2003) states in pertinent part:
. . . (5)(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person. . .may charge only a reasonable amount for the services . . . rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment . . . (emphasis added).
§627.732(11) Fla. Stat. (2003) defines “lawful” or “lawfully” as: “. . . in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment.” Id. (emphasis added).
If the language of a statute is clear and unambiguous, the legislative intent must be derived from the words used without involving construction or speculating as to what the legislature intended. Moreover, if the statute is clear and unambiguous, the Court is not free to add words to steer it to a meaning which its plain wording does not supply. Nationwide Mutual Fire Insurance Company v. Southeast Diagnostics, Inc., 766 So. 2d 229 (Fla. 4th DCA 2000). The primary source for determining legislative intent when construing a statute is the language chosen by the legislature to express its intent. Donato v. American Telephone and Telegraph Co., 767 So. 2d 1146, 1150 (Fla. 2000). Where the wording of the law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law. United Auto Ins. Co. v. Rodriguez, 808 So.2d 82 (Fla. 2002).
The Miami-Dade occupational license is not a “law related to the provision of medical services or treatment.” §627.732(11) Fla. Stat. (2003). The occupational license is required of over one hundred non-medical businesses, including, astrologers, antique dealers, illustrators, miners, and interior designers. §8A-223.1, Article IX, Miami-Dade County Code. Thus, the requirement is not specific to providers of medical services. Therefore, the Court declines to expand upon the requirement contained within §627.732(11), Fla. Stat. (2003) and finds that Plaintiff was “in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment.” Id.
§627.736(5)(d) Florida Statutes (2003)
Defendant further contends summary judgment is appropriate pursuant to §627.736(5)(d), Fla. Stat. (2003). Said statute states, in relevant part:
. . . No statement of medical services may include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer shall not be considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph . . . (emphasis added).
§627.736(5)(d) refers specifically to “valid licenses required to perform such services.” §8A-171, Article IX, Miami-Dade County Code requires payment of a fee for an occupational license.3 The purpose in enacting §8A-171 is to generate revenue for “economic growth.” Id. at Editor’s Note. In fact, §8A-171 specifies: “For purposes of this chapter the issuance of a license or licenses to a business or professional shall not be deemed to constitute evidence of the business’ (sic) or the professional’s entitlement to conduct its activities pursuant to other provisions of applicable law.” Id.
“Where a license fee is exacted solely for revenue purposes and its payment gives the right to carry on the business without any further conditions, it is a tax.” Petroleum Carrier Corp. v. Silco Petroleum Carrier, Inc., 312 So.2d 457, 459 (Fla. 5th DCA 1975), citing, 21 Fla. Jur., Licenses and License Taxes, s 9. Thus, the “occupational license” is a revenue generating measure that does not fall under the purview of the statutorily imposed “licenses required to perform such services” requirement.
Acceptance by Tax Collector of Occupational License Fees
Furthermore, even if Defendant’s statutory interpretations were correct, in the case sub judice, the Miami-Dade County Office of the Tax Collector accepted payment from Plaintiff for all due occupational taxes on August 28, 2006. The representative from said office declined to state that said taxes were paid late in the affidavit submitted by Defendant. Neither counsel was able to provide the Court with the authority upon which the Tax Collector accepted the payments for the preceding years; however, there was no contention that the acceptance was improper or not in compliance with the law. There is no case law on this specific issue. However, the acceptance of payment for the license for preceding years is analogous to reinstatement of a corporation following administrative dissolution, as set forth in §607.1422 Fla. Stat.:
607.1422 Reinstatement following administrative dissolution —
(1) A corporation administratively dissolved under s. 607.1421 may apply to the Department of State for reinstatement at any time after the effective date of dissolution. The corporation must submit a reinstatement form prescribed and furnished by the Department of State or a current uniform business report signed by the registered agent and an officer or director and all fees then owed by the corporation, computed at the rate provided by law at the time the corporation applies for reinstatement.
(2) If the Department of State determines that the application contains the information required by subsection (1) and that the information is correct, it shall reinstate the corporation.
(3) When the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.
(4) The name of the dissolved corporation shall not be available for assumption or use by another corporation until 1 year after the effective date of dissolution unless the dissolved corporation provides the Department of State with an affidavit executed as required by s. 607.0120 permitting the immediate assumption or use of the name by another corporation.
(5) If the name of the dissolved corporation has been lawfully assumed in this state by another corporation, the Department of State shall require the dissolved corporation to amend its articles of incorporation to change its name before accepting its application for reinstatement. (emphasis added).
A reinstatement due to the satisfaction of a payment previously due relates back to the date of dissolution. Thus, the acceptance of the Tax Collector of payment previously due cured any illegality back to the date said payment was due. Thus, the Court concludes in the case sub judice that the acceptance by the Tax Collector of monies relating to all preceding years of the occupational license permitted legal compliance with the dates for which the fees were paid.
Conclusion:
For the aforementioned reasons, Defendant’s Motion for Summary Judgment is hereby DENIED.
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1There is no indication from the record that the insured was aware of this deficiency at the time of treatment.
2The Court further notes that the West Dixie record is devoid of any indication that the provider subsequently paid its required occupational license fee.
3Said occupational license requirement was amended effective December 19, 2006 to substitute the term “occupational license” for the term “local business tax.”
