STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2049

)

PAUL and MERIDA JOLLY, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and on June 27, 1996, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Gainesville, Florida.

Charles C. Adams was the hearing officer.

APPEARANCES

For Petitioner: Lucy Goddard, Esquire

Department of Health and Rehabilitative Services

1000 Northeast 16th Avenue, Box 3

Gainesville, Florida 32601

For Respondent: Anita Belle, Esquire

The Justice Clinic Post Office Box 873

Gainesville, Florida 32602

STATEMENT OF THE ISSUES

Should Respondents have their family foster home license renewed?

PRELIMINARY STATEMENT

On March 25, 1996, Petitioner informed Respondents that their family foster home license would not be renewed. That notice apprised Respondents that they could contest the preliminary agency decision to deny license renewal. On April 23, 1996, Respondents contested the denial of the license renewal. On May 3, 1996, the Division of Administrative Hearings received a request from Petitioner to conduct a formal hearing to consider the issues in dispute. That hearing was held on the aforementioned date.

At hearing, Petitioner presented the testimony of Annette Bridwell and the deposition testimony of Dr. Samuel E. Mathews and Craig Knoblock. Respondents testified on their own behalf and presented Dr. Kathleen Ann Ryan-Poirer, Scott

Alan Dryer, Julie MacNamara, Kathleen Mary McGlone, and R.D.J. Petitioner's Exhibits 1-9 were admitted into evidence, other than two.

A hearing transcript was filed on August 26, 1996. Petitioner has submitted a proposed recommended order. The fact finding in that proposal is addressed in an Appendix attached to this recommended order.

FINDINGS OF FACT

1. Petitioner issued Family Foster Home License No. 059527 to Respondents for the period of May 25, 1995 until April 25, 1996. That license allowed Respondents to care for the foster children, D.W., D.G. and T.G. Respondents wish to renew the license.

   
   

2. Petitioner has denied the renewal based upon an allegation that Respondents tested positive for marijuana use. Respondents had been reported through the "abuse hotline" for alleged drug usage. This led Petitioner to request Respondents to submit to urinalysis to detect possible drug usage. Respondents voluntarily submitted to the test, which results led to the allegation.

   
   

3. Petitioner, in accordance with law, insists that foster children shall be provided for in a safe environment where drugs are not abused, thus, the decision to deny the license renewal.

   
   

4. D.W. is five and one-half years old. He has severe physical and developmental problems. He suffers from AIDS. For that reason, he has had frequent hospitalization. D.W. has cerebral palsy and cannot walk. He has neuropathy of the brain, failing kidneys, problems with infection, and nose bleeds. As described, D.W.'s care involves complex medical needs. He must be closely observed. He receives numerous medications. His care involves tube feeding. Respondents have cared for D.W. since he was six months old.

   
   

5. D.G. is four years old. T.G. is two years old. Respondents have cared for those children for approximately two years. D.G. and T.G. are also developmentally-delayed children.

   
   

6. T.G. has difficulty eating. It takes approximately one hour for her to eat. T.G. does not talk. She receives therapy in the home.

   
   

7. D.G. attends a special school.

   
   

8. Health care professionals Scott Dryer, Julie MacNamara and Kathleen McGlone have assisted Respondents in carrying for the foster children in the home. During their visits to the home those individuals have been positively impressed with Respondents' demeanor and cooperation in meeting the needs of the children. Likewise Dr. Kathleen Ann Ryan-Poirer who treated D.W. in the hospital was positively impressed with Mr. Jolly's attention to D.W. while the child was hospitalized.

   
   

9. R.D.J. is Respondents' adult son. He is HIV positive, having been diagnosed seven to eight years ago. He does not take medication for his condition. Instead, he smokes as many as 12 marijuana cigarettes per day to help stimulate his appetite in confronting his HIV condition. He is a frequent visitor to his parents' foster care home. He visits approximately every weekend. On the visits, he smokes marijuana in the presence of his parents, but not in the presence of the foster children.

10. On February 15, 1996, Respondents went to visit R.D.J. at his work at a local nightclub. R.D.J. and two friends went into the parking lot and entered a van. With Respondents in attendance, for a period of 30-45 minutes in the closed vehicle, R.D.J. and his friends smoked two to four marijuana cigarettes for recreational purposes. The conduct by Respondents in being in a van where marijuana was being used for recreational purposes was inappropriate, notwithstanding their efforts to visit their son.

    
    

11. On February 16, 1996, Guy Bardell, a protective investigator for the Petitioner, visited Respondents in their home concerning the allegation that Respondents had used marijuana. At that time, Respondents were requested to take a drug test to address the allegation.

    
    

12. On February 17, 1996, Respondent, Paul Jolly, and his son, R.D.J., went on an automobile trip that lasted for approximately two hours. During the trip, R.D.J. smoked three marijuana cigarettes in the closed vehicle.

    
    

13. On February 19, 1996, Respondents submitted to a urinalysis to determine whether they were using marijuana.

    
    

14. In appropriately-administered tests to confirm the presence or absence of marijuana through gas chromatography mass spectrometry (GS/MS), a scientifically-dependable test method used as evidence in court proceedings, marijuana metabolite was detected in samples provided by both Respondents. This GS/MS test method was designed to detect the metabolite for confirmation at 15 nanograms per mill (ng/mL). The results in the Paul Jolly test were 32 ng/mL. The results for Merida Jolly were 23 ng/mL. Both amounts exceeded the expected levels for individuals passively exposed to the sidestream smoke of persons actively smoking marijuana. Therefore, the assertion by Respondents that they had only been passively involved with marijuana use on the occasions described fails to explain the levels of marijuana metabolite in their systems. This creates the inference that Respondents had exposure to marijuana other than by passive means. This finding is arrived at in reliance upon the deposition testimony by Dr. Samuel E. Mathews, who holds a Ph.D. in analytical chemistry. No other explanations were made which would explain the levels of metabolite found in the samples produced by the Respondents which would lead one to conclude that those amounts were solely the product of passive inhalation of marijuana smoke.

    
    

15. Based upon the results of the drug tests, Respondents were orally informed, on February 27, 1996, that their family foster care license would not be renewed. Further notification was provided on March 25, 1996 by correspondence.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes.

    
    

17. In dealing with the allegations concerning Respondents' conduct, the foster children may not be identified by name, in that records generated as a result of the report to the "abuse hotline" concerning alleged abuse are maintained as confidential information. Section 415.51(1)(a), Florida Statutes.

    
    

18. A license issued to a family foster home operator(s) expires automatically within one year from the date of issuance. Section 409.175(5)(i),

    Florida Statutes. To renew the license, the operator(s) must reapply and meet the requirements of law. In seeking a renewal, the operator(s) may be denied a renewed license based upon "an intentional or negligent act materially affecting the health or safety of children in a home . . ." Section 409.175(8)(a) and (b)1, Florida Statutes.

    
    

19. By proving, through clear and convincing evidence, that Respondents have been involved with marijuana in a manner not satisfactorily explained, Respondents have been shown to have acted in an intentional manner which materially affects the health or safety of the children, especially given the nature of the problems confronting the foster children in their care. This constitutes sufficient reason to deny the license renewal.

    
    

    RECOMMENDATION

    Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which denies renewal of

    Respondents' family foster home license.

    
    

    DONE AND ENTERED this 9th day of September, 1996, in Tallahassee, Florida.

    
    

    
    

    CHARLES C. ADAMS, 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 September, 1996.

    
    

    APPENDIX TO RECOMMENDED ORDER CASE NO. 96-2049

    
    

    Petitioner's Findings:

    
    

    1-7. Subordinate to facts found.

    8-9. Not necessary to the resolution of the dispute. 10-19. Subordinate to facts found.

20. The first two sentences are not necessary to the resolution of the dispute. The remaining sentences are subordinate to facts found.

21-24. Subordinate to facts found.

COPIES FURNISHED:

Lucy Goddard, Esquire Department of Health and

Rehabilitative Services

1000 Northeast 16th Avenue, Box 3

Gainesville, Florida 32601

Anita Belle, Esquire The Justice Clinic Post Office Box 873

Gainesville, Florida 32602

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services

1317 Winewood Blvd., Ste. 204-X Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1317 Winewood Blvd., Ste. 204

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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

PAUL and MERIDA JOLLY

Petitioners, CASE NO. 96-2049

RENDITION NO. HRS-96-360-FOF-OLC

v.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for entry of a Final Order.

Although the Division of Administrative Hearings has denominated the department as petitioner, Paul and Merida Jolly filed the license application that is the subject of this proceeding, and are, therefore, the petitioners. All pleadings and papers are hereby amended to reflect the appropriate style of this cause.

The Recommended Order concludes that the department did not err in denying petitioners' application to renew their foster home license pursuant to section 409.15, Florida Statutes. The hearing officer concluded that there was clear and convincing evidence to support the department's determination that petitioners "have acted in an intentional manner which materially affects the health and safety the children" placed in their care.

The department approves and adopts the Recommended Order except for paragraph 19, to the extent it suggests that the department could deny petitioners' application for a renewal of their foster home license only if clear and convincing evidence supported the denial. Foster home licenses are not occupational or professional licenses. See Ch. 96-402 s 6, Laws of Fla. Heightened procedural and evidentiary standards apply in professional licensing cases because significant property interests of the licensee are implicated.

See Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So.2d 932 (Fla. 1996). Conversely, a foster home licensee does not have a property interest in the license. Ch. 96-

402 s 6, Laws of Fla. Foster homes are licensed, not to protect the general public from the actions of unqualified professional parents, but rather as a means of protecting the children to be placed in foster care. See s 409.175, Fla. Stat. (1995); Department of Health and Rehabilitative Services v. Ntl. Adoption Counseling Serv., Inc., 498 So.2d 888 (Fla. 1985)(BOYD, J. Dissenting) Foster parents receive reimbursement for the expenses of caring for foster children, but not compensation for their parenting services. Lacking a property interest, there is no basis for application of the procedures described in Osborne and prior cases relating to agency action against a professional license or licensee.

Assuming, arguendo, the applicability of professional and occupational licensing evidentiary standards, the department still would not in this case be required to meet that burden. The Florida Supreme Court, in Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So.2d 932 (Fla. 1996), recently held that an applicant for a license bears the ultimate burden of demonstrating fitness, and that an agency denying a license application need not demonstrate unfitness by clear and convincing evidence. Petitioners, as applicants for a license, should have been assigned the burden of proving their fitness for licensure under section 409.175, Florida Statutes.

Accordingly, it is ORDERED that petitioners' application for renewal of their foster home license be and hereby is DENIED.

DONE and ORDERED this 6th day of November, 1996, in Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Health and

Rehabilitative Services

By: SAMARA NAVARRO

Deputy Secretary

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.

COPIES FURNISHED:

Charles C. Adams, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Lucy Goddard, Esquire District 3 Legal Office Department of Health and

Rehabilitative Services 1000 Northeast 16th Avenue Box 3

Gainesville, Florida 32601

Anita Belle, Esquire The Justice Clinic Post Office Box 873

Gainesville, Florida 32602

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the above-named persons this 8th, day of November, 1996.

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32399-000

(904) 488-2381

Docket for Case No: 96-002049

Orders for Case No: 96-002049