STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-3323

)

JOE and LOUISE WOODARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled matter was held before Mary Clark, Hearing Officer of the Division of Administrative Hearings, on January 31, 1986, in Miami, Florida. The parties were represented as follows:

APPEARANCES

For Petitioner: Leonard T. Helfand, Esquire ("HRS") 401 N.W. 2nd Avenue;

Miami, FL 33128

For Respondent: Jesse J. McCrary, Jr., Esquire ("the Woodards") 3050 Biscayne Blvd., Suite 800

Miami, FL 33137-4198 ISSUE AND PROCEDURAL MATTERS

The issue when this case commenced was whether the Respondents' emergency shelter home license (for temporary care of dependent children) should be revoked. During the pendency of the proceeding the license expired and the parties stipulated that the issue was whether HRS must consider a new application, with no prejudice as to the alleged grounds for revocation.

This action arose from HRS' complaint dated May 30, 1985, alleging that the Woodards violated various statutes, rules and the HRS manual 175-10, by:

1. maintaining dangerous pets (pit bulldogs);

2. providing inadequate nourishment;

3. providing inadequate sleeping arrangements;

4. failing to provide appropriate care and supervision: and

5. maintaining outside employment after telling HRS that the employment would discontinue.

A timely request for formal hearing was filed by the Woodards.

At the hearing, HRS presented three exhibits and the testimony of Dale Medina, Nancy Traad, Maxine Standiffer, Jean Majures and Peggy Ann Siegel. Louise Woodard testified on her own behalf and presented no other witnesses or exhibits. By stipulation, the testimony of an additional HRS witness, Alene Scott, was admitted by deposition taken and filed after the hearing. (Order dated February 3, 1986.)

HRS filed proposed findings of fact and conclusions of law. A specific ruling on each proposed finding of fact is found in the Appendix attached to this Recommended Order.

Based upon all of the evidence; the following findings of fact are determined:

FINDINGS OF FACT

1. Joe and Louise Woodard reside at 70 Northwest 69th Street in Miami. They own a vacant home next door at 60 Northwest 69th Street. From the 30th of June 1984, until it automatically expired a year later, the Woodards held Certificate of License No. 684-07-12 for an emergency shelter home at their two homes on 69th Street. The license was limited to a maximum capacity of six children in each home, "in the infant, toddler, pre-school age range." (Petitioner's Exhibit #2)

   
   

2. HRS licenses emergency shelter homes to care for children who have been removed from their homes as a result of suspected abuse, abandonment or other danger. The placements are temporary, as once the children are adjudicated dependent they are placed in the formal custody

   of HRS and are sent to foster homes. (Testimony of Jean Majures)

   
   

3. In recruiting for shelter homes, HRS looks for generally the same qualifications as for other foster homes: people who care about children, some experience with children, a stable family life, good moral character, honesty and openness in dealing with the agency, a safe physical environment, and provisions for each child to have his or her own bed. Around the time that the Woodards were licensed, HRS had a critical need for shelters. The two adjacent homes presented an opportunity to try an innovative approach: the Woodards were licensed for both locations. This dual license and the maximum limit of six children per home made the Woodards unique among shelter homes. (Testimony of Jean Majures and Peggy Ann Siegel)

   
   

4. At the time the license was granted the HRS counselor discussed various arrangements with the Woodards. Mrs. Woodard said she would leave her employment at Jackson Memorial Hospital in order to assure that one parent would be on duty twenty-four hours a day. Mr. Woodard, who owned a paint and body shop, would help with the bookkeeping, but Mrs. Woodard would be primarily responsible for the care of the children. A child care worker was also to be hired to assure the ratio of one adult to six children would be maintained. On the occasion of a visit in May 1984, Mrs. Woodard told the HRS worker that she resigned the job the day before. (Testimony of Jean Majures)

   
   

5. Mrs. Woodard did not resign, and was continuously working at Jackson Memorial Hospital throughout calendar years 1984 and 1985. (Testimony of Maxine Standiffer, payroll supervisor, Petitioner's Exhibit #1)

   
   

6. Another arrangement prior to licensing involved the Woodards' two pit bulldogs. It was agreed that the dogs would be moved from the residence yard to Mr. Woodard's place of business. (Testimony of Jean Majures) The dogs were observed in the fenced yard of one of the two licensed residences in October 1984, when a volunteer worker visited to bring clothes for the children. (Testimony of Nancy Traad) The dogs were still there on December 19, 1984, when two HRS licensing unit workers visited. On that occasion the children were all in one house with a child-care worker. The children were hungry, but the worker said because of the dogs; she was afraid to

   go next door to see if there was food. (Testimony of Jean Majures and Peggy Ann Siegel)

   
   

7. The children were not provided adequate care. An infant was observed to have a mucous-filled ear infection. The children complained about being hungry. On one occasion there was no food available because the refrigerator was broken. On another occasion an infant was found with foul-smelling curdled milk. At least ten children were supervised by only one worker in one of the two licensed residences and there was evidence (a mattress and a mat on the floor) that children were sleeping on the floor. (Testimony of Jean Majures, Peggy Ann Siegel and Nancy Traad) The observations of the HRS volunteer and licensing unit workers were further supported by the observations of the foster home parents who received the children after they were removed from the Woodards' home: the children were ravenously hungry, dirty and inappropriately dressed. Several children had no shoes or socks and one little boy was wearing girl's panties. (Testimony of Dale Medina and Alene Scott)

   
   

8. Mrs. Woodard generally denied the allegations of the complaint. On one occasion when confronted with the question of her employment she told the worker she was on a leave of absence, and that is why the hospital still had her employment records. On another occasion she told a worker that she had a twin sister working there.

   (Testimony of Jean Majures and Peggy Ann Siegel) At the hearing her testimony was wholly self-serving and lacking in candor. She agreed that she was working, but said that HRS knew or should have known that fact since she would often come in wearing her uniform. She did not deny the pit bulldogs were in the yard, but said they were not accessible to the children; that one was an old, female dog with no teeth and the other, a male dog, was mostly at her husband's place. She said the curdled milk was really an oatmeal mixture and the infant was a relative of hers.

   This latter assertion regarding relationship was addressed on rebuttal by Peggy Ann Siegel who insisted that, whatever the relationship, the child was a ward of HRS and she personally carried him to the van when the children were all removed from the Woodards' home in December 1984.

   
   

9. Mrs. Woodard denied that she and her husband received any training or instructions on HRS requirements, but she likewise admitted that they went to HRS' night

   classes prior to being licensed and were told what to expect and what facilities, including beds were required.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

    
    

11. Emergency shelter family homes are included in the definition of "family foster home" found at Subsection 409.175(2)(e), Florida Statutes:

    
    

    "(e) 'Family foster home' means a private residence in which children who are unattended by a parent or legal guardians are provided 24-hour care.

    Such homes include emergency shelter family homes, family foster group homes, and specialized foster homes for children with special needs . . ." (emphasis added)

    
    

    Family foster homes must procure a license from the Department of Health and Rehabilitative Services prior to receiving children for care and custody. Subsection 409.175(3)(a), Florida Statutes. Those licenses expire automatically one year from the date of issuance unless they are sooner suspended, revoked, voluntarily returned or renewed. Subsection 409.175(5)(d), Florida Statutes.

    
    

12. Subsections 409.175(3)(a) and (b), Florida Statutes, provide:

    
    

    "(8)(a) The Department may deny, suspend, or revoke a license.

    
    

    (b) Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:

    
    

    1. An intentional or negligent act materially affecting the health or safety of children in the home or agency.

13. By credible competent substantial evidence, the department has met its burden of proving the Woodards intentionally or negligently materially affected the health and safety of children entrusted to their care.

It is therefore:

RECOMMENDED:

That based upon the foregoing, a final order be entered finding that good and sufficient cause existed to revoke the Woodards' license, had it not already expired, and that such could be taken into consideration in reviewing a subsequent application for license.

DONE and ORDERED this 6th day of May, 1986, in Tallahassee, Florida.

MARY W. CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1986.

COPIES FURNISHED:

Leonard T. Helfand, Esquire

401 N.W. 2nd Avenue Miami, Florida 33128

Jesse J. McCrary, Jr., Esquire 3050 Biscayne Blvd. Suite 800

Miami, Florida 33137-4198

William J. Page, Jr., Secretary Department of HRS

1323 Winewood Blvd.

Tallahassee, Florida 32301

Steve Huss, Esquire 1323 Winewood Blvd.

Tallahassee, Florida 32301

APPENDIX

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

1. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER

   
   

   1. Adopted in substance in paragraph 7.

   2. Adopted in part in paragraphs 6 and 7; otherwise rejected as unnecessary.

   3. Adopted in substance in paragraph 4.

   4. Adopted in substance in paragraph 7. Mrs. Woodard did not admit that the children were sleeping on pads on the floor.

   5. Adopted in substance in paragraph 7 and 8.

   6. Adopted in substance in paragraph 7.

   7. Adopted in paragraph 4.

   
   

2. NO PROPOSED FINDINGS OF FACT WERE SUBMITTED BY THE RESPONDENTS

Docket for Case No: 85-003323

Orders for Case No: 85-003323