STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GWEN McCLAIN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4055

)

DEPARTMENT OF HEALTH AND )

REHABILITATION SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 18, 1992, in Jasper, Florida.

APPEARANCES

For Petitioner: Gwen McClain, pro se

Post Office Box 314 Jennings, Florida 32055

For Respondent: Ralph McMurphy

Assistant Legal Counsel District 3 Legal Office Department of Health

and Rehabilitative Services 1000 N.E. 16th Avenue Gainesville, Florida 32609

STATEMENT OF THE ISSUES

Whether the Petitioner, Gwen McClain, meets the requirements of the Respondent, the Department of Health and Rehabilitative Services, for relicensure as an adult foster home sponsor.

PRELIMINARY STATEMENT

On or about April 1, 1992, Ms. McClain filed an Adult Foster Home Annual Renewal Application with the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"). By letter dated June 5, 1992, the Department informed Ms. McClain that her application for relicensure was being denied. In a letter received by the Department on June 26, 1992, Ms.

McClain requested a formal administrative hearing to contest the Department's decision.

By Notice entered July 2, 1992, the Department referred this case to the Division of Administrative Hearings. By Notice of Hearing entered August 5, 1992, the final hearing was scheduled for September 18, 1992.

At the final hearing the Department agreed to present its case first. The Department presented the testimony of Carter Bass, Gwen Howell, Irma Medina, James Godwin and Ms. McClain. The Department also offered three exhibits. The Department's exhibits were accepted into evidence.

Ms. McClain testified on her own behalf and presented the testimony of Karen McNally, Joan Sue Johns and Joyce Horn. Ms. McClain offered no exhibits.

At the request of the undersigned, the Department provided a copy of HRSM 140-11, 5-5d, Adult Foster Home Qualifications, which Ms. McClain had been informed by the Department formed the basis for the denial of her renewal application. The copy provided to the undersigned has been marked as File exhibit 1.

Subsequent to the final hearing, Ms. McClain requested by telephone to be allowed to file a document late. It was suggested that Ms. McClain seek agreement from the Department to file the document. Ms. McClain was also told that, should the Department not agree to the filing of the document, she would have to file a request in writing with the undersigned seeking permission to file the document. Ms. McClain has not informed the undersigned of any agreement with the Department and has not filed any request in writing to accept the document.

No transcript of the proceeding was filed by the parties. The Department filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Ms. McClain did not file a proposed recommended order.

FINDINGS OF FACT

1. Ms. McClain's home has been licensed as an adult foster home by the Department for approximately one year prior to April, 1992. Ms. McClain's husband, Jay McClain, resides with her.

   
   

2. At the time of the final hearing of this matter, Ms. McClain provided a home for three adults who were mentally retarded or developmentally disabled.

   
   

3. On or about October 31, 1991, Ms. McClain, her husband and a neighbor drove a man from Ms. McClain's home to Georgia. The man was not a family member or even a close friend of Ms. McClain. During the final hearing Ms. McClain described the man as someone her husband worked with. Ms. McClain's neighbor drove the vehicle in which the man was taken to Georgia. Ms. McClain and her husband were passengers. Ms. McClain was aware at the time that she rode to Georgia that the man had shot and wounded another man earlier that evening. Although the man that was shot ultimately died, Ms. McClain was not aware of his death at the time she accompanied the man to Georgia.

   
   

4. Ms. McClain and her husband were eventually charged with criminal conduct as a result of the incident described in finding of fact 3. The evidence, however, failed to prove when she or her husband were charged or what she or her husband were charged with.

   
   

5. The evidence failed to prove that the Department has adopted any rule which required that Ms. McClain disclose to the Department that she or her

   husband had been involved in the incident described in finding of fact 3 or that she or her husband had been charged with a crime as a result of the incident.

   
   

6. At some time prior to April 1, 1992, probably in February, 1992, Ms. Gwen Howell, a Human Services' Counselor III for the Department, read an article in the Jasper News reporting the incident described in finding of fact 3.

   
   

7. Ms. Howell had been at Ms. McClain's home at least once between October, 1991, and the date when Ms. Howell read about the incident in the newspaper. Ms. McClain had not mentioned the incident to Ms. Howell.

   
   

8. Ms. Howell confronted Ms. McClain about the incident described in finding of fact 3 sometime shortly after reading the newspaper article. Ms. McClain, when asked about the incident, responded "how did you know?" The weight of the evidence failed to prove, however, what Ms. McClain may have meant by this statement. It is not, therefore, apparent whether Ms. McClain made the comment because she was merely curious where Ms. Howell had heard about the incident, because she had been hoping that Ms. Howell would not find out about the incident or for some other reason.

   
   

9. When confronted by Ms. Howell, Ms. McClain admitted her involvement in the incident described in finding of fact 3. Ms. McClain also admitted her involvement in the incident to Carter Bass, Ms. Howell's immediate supervisor at some time before April, 1992. Ms. McClain was remorseful for her involvement, admitted she had exercised poor judgement and admitted that she had not thought of the consequences of what she had done.

   
   

10. On or about March 31, 1992, Ms. McClain signed an Adult Foster Home Annual Renewal Application (hereinafter referred to as the "Renewal Application"). DHRS exhibit #1. The Renewal Application was received by the Department on or about April 1, 1992.

    
    

11. The evidence failed to prove that Ms. McClain did not accurately provide all information requested on the Renewal Application.

    
    

12. No where on the Renewal Application was Ms. McClain asked any question concerning whether she or her husband had been charged with any crime or whether she or her husband had been involved in any incident similar to the one described in finding of fact 3. Nor has the Department cited any rule which required that Ms. McClain make such a disclosure on the Renewal Application.

    
    

13. At the time that Ms. McClain filed the Renewal Application she had admitted her involvement in the incident to Ms. Howell, the Department's employee responsible for investigating and making the initial recommendation concerning the Renewal Application, and Mr. Bass, the Department's employee responsible for recommending to the Department's district office whether the Renewal Application had been approved. The Department was, therefore, on notice of the incident when Ms. McClain filed the Renewal Application. Ms. McClain and her husband had not been adjudicated guilty of any crime at the time the Renewal Application was filed.

    
    

14. On April 20, 1992, Ms. McClain plead, and was adjudicated, guilty of the crime of obstructing an officer without violence as a result of the incident described in finding of fact 3. Ms. McClain was sentenced to one year of supervised probation. The weight of the evidence failed to prove that the crime for which Ms. McClain was adjudicated guilty involved "harm to others."

15. Also on April 20, 1992, Ms. McClain's husband plead, and was adjudicated, guilty of the crime of accessory after the fact to second degree murder as a result of the incident described in finding of fact 3. Ms. McClain's husband was also sentenced to one year of supervised probation. The weight of the evidence failed to prove that the crime for which Ms. McClain's husband was adjudicated guilty involved "harm to others."

    
    

16. At some time prior to June 5, 1992, Mr. Bass recommended to James Godwin, a program administrator in the Department's district office, that the Renewal Application not be approved. Mr. Godwin exercised his authority to deny the Renewal Application and instructed Mr. Bass to so inform Ms. McClain.

    
    

17. By letter dated June 5, 1992, the Department notified Ms. McClain that the Renewal Application was being denied for the following reason:

    
    

    Your application for relicensure as an Adult Foster Home Sponsor has not been recommended for approval at this time for the following reason:

    1. You do not meet the Adult Foster Home Sponsor Qualifications as per HRS

       Manual 140-11, Page 5-12, Paragraph 5-5d. A foster home sponsor should be free of confirmed reports of abuse, neglect or exploitation or any crime involving harm to others.

       
       

18. At the final hearing the Department stipulated that Ms. McClain, except as set out in the Department's letter of June 5, 1992, meet the other requirements for relicensure.

    
    

19. HRS Manual 140-11, Page 5-12, Paragraph 5-5d, provides the following requirement for licensure as an adult family home sponsor:

    
    

    d. a foster home sponsor should be free of confirmed reports of abuse, neglect, or

    exploitation or any crime involving harm to others.

    
    

20. At the final hearing, the Department also suggested that the Renewal Application was properly denied because Ms. McClain had shown a lack of judgement. The Department, therefore, suggested that Ms. McClain did not meet the requirements of HRS Manual 140-11, Page 5-12, Paragraph 5-5c, which provides:

    
    

    c. A foster home sponsor should be of suitable physical and mental ability, to the extent that he is able to provide care and supervision appropriate for the clients he serves; be capable of handling an emergency situation promptly and intelligently; and

    be willing to cooperate with the department staff.

    
    

21. Although the Department had not previously informed Ms. McClain that paragraph 5-5c also formed part of the reason for denying the Renewal Application, Ms. McClain raised no objection to the evidence concerning this

    issue presented by the Department. More importantly, it does not appear that Ms. McClain was prejudiced in any way by not being informed of the issue prior to the final hearing.

    
    

22. Based upon the weight of the evidence, Ms. McClain's actions during the incident described in finding of fact 3 evidenced a lack of ability to react to a unusual and surprising situation in a calm and rational manner and to make an appropriate decision as to how to respond to the situation. Ms. McClain's actions, therefore, evidence a lack of ability to handle an emergency situation promptly and intelligently.

    
    

23. Based upon the testimony of the mothers of two of the adults currently under Ms. McClain's care and four of the six Department employees who testified in this proceeding, Ms. McClain has provided good care to the adults residing in her home.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).

    
    

25. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977). In this proceeding it is the Department that is asserting the affirmative: that Ms. McClain should not be allowed to continue as a licensed adult foster home care provider. The undersigned mistakenly stated at the commencement of the final hearing of this case that the burden of proof was on Ms. McClain. That statement was based upon the misconception of the undersigned that this case involved an initial application and not a renewal. Because this case involves the denial of the continued licensure of an existing adult foster home, the burden of proof was on the Department.

    
    

26. HRS Manual 140-11, Page 5-12, Paragraph 5-5, provides certain qualifications for an adult foster home sponsor.

    
    

27. The Department agreed that Ms. McClain met all the qualifications for sponsorship except paragraphs 5-5c and 5-5d.

    
    

28. The evidence failed to prove that Ms. McClain has been convicted of, or involved in, "any crime involving harm to others." Although Ms. McClain assisted someone who was involved in such a crime, Ms. McClain was not. The only crime Ms. McClain was adjudicated guilty of was obstructing an officer without violence. This offense does not involve "harm to others." See Chapter 843, Florida Statutes.

    
    

29. The evidence proved that Ms. McClain does not meet the requirements of HRS Manual 140-11, Page 5-12, Paragraph 5c. An "emergency" is defined as "an unforeseen combination of circumstances or the resulting state that calls for immediate action." Webster's Ninth New Collegiate Dictionary 1984. The incident described in finding of fact 3 constituted an emergency. Ms. McClain, by her own admission, failed to exercise good judgment in responding to that emergency. The immediate actions she took in response to the incident were, again by her own admission, taken without regard to the consequences of her

    actions. Ms. McClain has, therefore, failed to handle an emergency situation "intelligently" as required by paragraph 5-5c.

    
    

30. The evidence failed to prove that Ms. McClain acted contrary to any rule of the Department when she did not disclose the charges against her prior to being confronted by Ms. Howell. If the Department wishes for persons who are existing adult foster home sponsors to report charges brought against them, then the Department should adopt such a requirement as a rule.

    
    

31. The evidence also failed to prove that Ms. McClain acted improperly by not disclosing the charges against her when she filed the Renewal Application. No where on the Renewal Application was Ms. McClain requested to provide such information. More importantly, the Department was already aware of the incident at the time the Renewal Application was filed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a final order denying Ms. McClain's

Renewal Application and dismissing, with prejudice, Ms. McClain's petition in this case.

DONE and ENTERED this 9th day of October, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1992.

APPENDIX

The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. McClain did not file a proposed recommended order.

The Department's Proposed Findings of Fact

1. Findings of fact 1 and 10.

2. Finding of fact 12. The last sentence is not relevant. See findings of fact 11 and 13.

3. Not relevant. See findings of fact 11 and 13.

4. Findings of fact 14 and 15.

5. See finding of fact 3. The evidence failed to prove

   that the man was taken to Texas. The only testimony concerning where the man was taken after he was taken to Georgia was hearsay.

6. Findings of fact 6-9. The fact that Ms. McClain had not voluntarily disclosed the charges against her is irrelevant. The Department has failed to cite any authority which requires that she make such a disclosure. The only rule referred to by the Department during the hearing required disclosure after a conviction. The Department was fully aware of the charges and the incident prior to any adjudication of guilt in this case.

7. See finding of fact 8.

8. Finding of fact 9.

9. Finding of fact 23.

10. Hereby accepted.

11. Findings of fact 9 and 16.

12. Finding of fact 16.

COPIES FURNISHED TO:

Gwen McClain

Post Office Box 314 Jennings, Florida 32053

Ralph McMurphy Assistant Legal Counsel District 3 Legal Office Department of Health

and Rehabilitative Services 1000 N.E. 16th Avenue Gainesville, Florida 32609

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

John Slye

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

GWEN McCLAIN,

Petitioner,

CASE NO.: 92-4055

vs. RENDITION NO.: HRS-92-478-F0F

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). The Recommended Order entered October 9, 1992, by Hearing Officer Larry J. Sartin is incorporated by reference.

RULINGS ON EXCEPTIONS

Counsel for the department excepts to the Hearing Officer's conclusion that the burden of proof was on the department to establish the basis for denial of Petitioner's application for license renewal. There is case law to the effect that revocation and denial of renewal of a license for cause are similar procedurally and that the burden of proof is on the agency. Dubin vs.

Department of Business Regulation, 262 So2d 273 (Fla. 1st DCA 1972), an agency has the burden of proof to sustain the denial of an application to renew a license; See City of Tampa vs. Islands Four, 364 So2d 738 (Fla. 2nd DCA 1978), an agency's power to revoke has as a corollary the implied power to refuse to renew for the same reasons; See Section 28-6.009(4), Florida Administrative Code, the burden of proof is on the agency which seeks to suspend, revoke, annul, or withdraw a license.

In this case, the department prevailed before the Hearing Officer; thus, it is not necessary to resolve the question raised by counsel at this time. A more in depth briefing of this issue can be done in a future case.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except that the department reserves the right to reconsider the issue raised by counsel in a future case.

Based upon the foregoing, it is

ADJUDGED, that the application of Gwen McClain for renewal of her license as an adult foster home sponsor be DENIED.

DONE and ORDERED this 27th day of October 1992, in Tallahassee, Florida.

Robert B. Williams Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Human Services

COPIES FURNISHED:

Gwen McClain

Post Office Box 314 Jennings, Florida 32055

Ralph McMurphy, Esquire District 3 Legal Office 1000 NE 16th Avenue Gainesville, Florida 32609

Larry Sartin, Hearing Officer DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U.S. Mail this 29th day of October, 1992.

R.S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 (904)488-2381

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-004055

Orders for Case No: 92-004055