STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALETA M. DAOUST, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1308

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on July 23, 1985, at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Aleta M. Daoust, pro se

412 9th Street

West Palm Beach, Florida 33401

For Respondent: K. C. Collette, Esq.

Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401 ISSUE

The issue raised by this proceeding is whether Petitioner, Aleta M. Daoust, should be licensed to operate an Emergency Shelter Home.

PRELIMINARY STATEMENT

At final hearing Petitioner testified on her own behalf, and called John Daoust, as a witness. Petitioner offered Exhibits 1-4, and they were received into evidence. Respondent,

Department of Health and Rehabilitative Services (DHRS), called Judith Hill and Cynthia Lawlor, as witnesses. Respondent offered Exhibit 1, and it was received into evidence.

Respondent has submitted proposed findings of fact and conclusions of law. No proposed findings of fact and conclusions of law have been filed on behalf of Petitioner. Respondent's proposed findings have been reviewed and considered. To the extent Respondent's findings of fact were consistent with the greater weight of the evidence, or could be modified to conform to the greater weight of the evidence, they have been adopted in this Recommended Order. To the extent the Respondent's findings of fact could not be modified to conform to the greater weight of the evidence, or were subordinate, cumulative, immaterial or unnecessary, they have been rejected.

FINDINGS OF FACT

1. Petitioner, Aleta M. Daoust, seeks licensure of her residence as an Emergency Shelter Home (ESH). Petitioner resides in a 5-bedroom, 2-story wood-frame house, at 412 9th Street, West Palm Beach, Florida, with her husband and 4-5 of her own children.

   
   

2. Petitioner has been licensed to operate an ESH, at her residence, since 1982. However, in March 1985 DHRS denied Petitioner's application for renewal of her license predicated on the assertion that her home had not received a satisfactory inspection report, that the quality of care previously provided to dependent children was inadequate, and that Petitioner has failed to provide evidence of financial ability adequate to provide appropriate care for dependent children.

   
   

3. Petitioner's home was inspected by DHRS on September 5, 1984, and found satisfactory in all respects, except for the lack of an approved heating system. The home is heated by a wood burning fireplace. DHRS concedes that, except for the lack of an approved heating system, Petitioner's home is satisfactory for licensure, but that Petitioner's home could only be licensed from mid-March to mid-November.

   
   

4. The gravamen of DHRS's denial is Petitioner's failure to demonstrate the financial ability to care for dependent children, and the adverse impact her lack of financial resources has had on the quality of care previously afforded dependent children.

5. DHRS pays licensed ESH's a stipend of $50.00 a month for each bed reserved, and $8.00 per diem for children under 12 years of age, or $9.80 per diem for children over 12 years of age, for their food and other necessities. The ESH program is a reimbursement program, with payment made after the services are performed. Because of the nature of the program, reimbursement often takes up to 30 days. Consequently, the operator of an ESH must possess sufficient financial resources to maintain the home independent of DHRS support.

   
   

6. The evidence is clear that Petitioner was always ready, willing and able to admit and care for dependent children. However, the evidence is also clear that operation of her home as an ESH placed a severe financial burden on Petitioner, which adversely impacted the quality of care she afforded dependent children. Petitioner's lack of financial ability was objectively demonstrated by her inability to provide diapers, or sanitary napkins, in sufficient quantity to satisfy the sanitary needs of her wards, and by her refusal to permit her wards daily baths.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Section 409.175(4)(a), Florida Statutes, provides:

The department shall promulgate and amend licensing rules for family foster homes, residential child-caring agencies, and child-placing agencies. The requirements for licensure and operation shall include:

* * *

2. The provision of food, clothing, educational opportunities, services, equipment, and individual supplies to assure the healthy physical, emotional and mental development of the children served.

* * *

7. Satisfactory evidence of financial ability to provide care for the children in

compliance with licensing requirements. Accord: Chapter 10C-15, F.A.C., and HRSM 175-10.

3. The ultimate burden of persuasion rested upon Petitioner to establish her entitlement to licensure. Rule 28- 6.08(3), F.A.C.; Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). Since Petitioner lacks the financial ability to provide the care for her wards, mandated by Section 409.175(4)(a), Florida Statutes, she has failed to establish her entitlement to licensure.

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order denying Petitioner's application for licensure as an Emergency Shelter Home.

DONE AND ENTERED this 16th day of August, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 16th day of August, 1985.

COPIES FURNISHED:

Mrs. Aleta M. Daoust

412 9th Street

West Palm Beach, Florida 33401

K. C. Collette, Esq. Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 85-001308

Orders for Case No: 85-001308