STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN A. SCHICK, )

)

Petitioner, )

)

vs. ) Case No. 01-0221

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-appointed Administrative Law Judge, Fred

1. Buckine, held a formal hearing in this case on April 3, 2001, in Largo, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Nicholas L. Ottaviano, Esquire

   Sharp, Ottaviano, & Barnes 24701 U.S. 19 North, Suite 104

   Clearwater, Florida 33763

   
   

   For Respondent: Keith J. Ganobsik, Esquire

   Department of Children and Family Services

   11351 Ulmerton Road, Suite 100

   Largo, Florida 33778-1630

   STATEMENT OF THE ISSUE

   
   

   The issue is whether revocation of the foster home care license of Petitioner was properly based upon his abuse of a child in his care.

   PRELIMINARY STATEMENT

   
   

   By letter dated October 18, 2000, Petitioner was notified by Respondent that, based on Abuse Report #2000-003014, his foster home license would be revoked. The allegation contained in the notice was that Petitioner had abused a child in his care. Petitioner challenged this revocation and timely filed a request for formal administrative hearing. On January 16, 2000, the Department referred the case to the Division of Administrative Hearings for assignment to an administrative law judge to resolve disputed facts.

   At the final hearing, Respondent presented the testimony of Carolyn Olson, Acting Foster Care Licensing Supervisor; Deputy Bradford Seltmen, Pasco County Sheriff's Department; Don Coger, Department of Children and Family Services protective investigator; and Christopher E. Brown. Respondent's exhibits (R1-5), including abuse report #2000-3014, were received into evidence. Petitioner testified in his own behalf. Petitioner's exhibits (P1-4), including the depositions of Carolyn Olson, James Johnson, Don Coger, and Deputy Brad Seltman, were received into evidence.

   FINDINGS OF FACT

   
   

   1. Under Sections 409.175(3)(a) and 409.175(4)(a), Florida Statutes, the Department of Children and Family Services is the state agency responsible for licensing and monitoring foster care homes. Under Section 409.175(8), Florida Statutes, the Department has authority to deny, suspend, or revoke a foster home license.

   2. At all times material to this case, Petitioner, Steven A. Schick, was a licensed foster care parent in Pasco County, Florida.

   3. C. B., a 13-year-old male, was a foster child in Petitioner's care from late November 1999 until his removal from Petitioner's foster care home on or about January 6, 2000, by the Department of Children and Family Services.

   4. At the final hearing, and after questioning,

      
      

      C. B. was found competent to testify. On more than one occasion, usually late at night, Petitioner entered C. B.'s room and fondled his genitals. On at least one of these late night visits, C. B. felt what he believed to be Petitioner's mouth touching his genitals.

   5. C. B. explained that initially he was afraid to report these incidents to adults for fear that they would not believe him. He did not report these incidents to the Department because he feared a return to the Personal Enrichment through

      the Mental Health Services (PEMHS) program facility. C. B. is presently taking Aderol, a depression medicine, and he was taking his medication during the late night visits to his room by Petitioner.

   6. C. B. told his friend, A. B., and A. B.'s mother about Petitioner's late night visits on or about January 6, 2000. An abuse report was called into the Department, who called the police. The police arrived at Petitioner's residence approximately 11:00 p.m. on January 6, 2000, interviewed C. B.,

      A. B., A. B.'s mother, and the Petitioner.

      
      

   7. C. B.'s testimony did not vary significantly from the testimony of Deputy Bradford Seltman, the first police officer on the scene, or from the allegations contained in the Abuse Report #2000-3014.

   8. Petitioner denied the allegations made by C. B. during

      
      

      C. B.'s seven-week stay in Petitioner's home as a foster child.

      
      

   9. Petitioner offered uncorroborated speculation on C. B.'s motive in making the abuse allegations, to wit:

      C. B. became resentful after he became aware that Petitioner was going to adopt another boy; C. B. had a fight at school resulting in an in-school suspension; C. B. and A. B. having been caught viewing an internet sex site and ordered by Petitioner to stop and go to bed; C. B. wanted to spend the night at A. B.'s house and when ordered by Petitioner to come

      home he became angry, and C. B., having many opportunities, did not mention those allegations to any adults prior to January 6, 2000.

   10. C. B., in his testimony, admitted the truth of the several incidents testified to by Petitioner. C. B. refuted, however, Petitioner's assertion that those incidents were the reason he told A. B. and A. B.'s mother of the sexual encounters that had occurred over the seven-week period of time he was in Petitioner's care.

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.569 and Section 120.57(1), Florida Statutes.

   12. Section 409.175(2)(f), Florida Statutes, provides in pertinent part:

       "License" means "license" as defined in S.120.52(9). A license under this section is issued to a family foster home or other facility and is not a professional license of any individual. Receipt of a license under this section shall not create a property right in the recipient. A license under this act is a public trust and a privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.

   13. By this definition, the Legislature has clearly indicated its intent that the "clear and convincing" standard of proof made applicable in Ferris v. Turlington, 510 So. 2d 292,

       294 (Fla. 1987), to the revocation of professional license is inapplicable to the revocation of a family foster home license. Accordingly, the Department is required to prove the allegations in this case by a preponderance of the evidence. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974).

   14. Section 409.175(8), Florida Statutes, reads:

       
       

       (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.

       2. A violation of the provisions of this Section or of licensing rules promulgated pursuant to this section.

       3. Noncompliance with the requirements for good moral character as specified in paragraph (4)(a).

       4. Failure to dismiss personnel found in noncompliance with requirements for good moral character.

       
       

   15. Section 39.01(63), Florida Statutes, reads as follows:

       
       

       (63) "Sexual abuse of a child" means one or more of the following acts:

       
       

       1. Any penetration, however slight, of the vagina or anal opening of one person by

          the penis or another person, whether or not there is the emission of semen.

       2. Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.

       3. Any intrusion by one person into the genitals or anal opening of another persons, including the use of any object for this purpose, except that this does not include any act intended for a valid medical purpose.

       4. The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator, except that this does not include:

          1. Any act which may reasonably be construed to be a normal caregiver responsibility, any interaction with, or affection for a child; or

          2. Any act intended for a valid medical purpose.

          
          

       5. The intentional masturbation of the perpetrator's genitals in the presence of a child.

       6. The intentional exposure of the perpetrator's genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose.

       
       

   16. C. B.'s testimony was explicit and consistent and is credited.

   17. Facts established are that, on more than one occasion, the Petitioner engaged in intentional conduct designed to sexually abuse C. B. during the seven-week time period C. B was in Petitioner's care as a foster child.

   18. By a preponderance of the evidence, Respondent has established that Petitioner touched and/or fondled C. B.'s genitals while C. B. was in Petitioner's care as a foster child.

   19. Petitioner's speculations on C. B.'s motive to lie about these incidents out of anger toward Petitioner and/or resentment at the potential adoption of another child were uncorroborated and are, therefore, without merit.

   20. In view of the nature of the violations described in the findings of fact, the Petitioner is not an appropriate person to be trusted with the care of foster children, and his license should be revoked.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services, enter a Final Order revoking the foster care license of Petitioner, Steven A. Schick.

DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2001.

COPIES FURNISHED:

Keith J. Ganobsik, Esquire Department of Children and

Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

Nicholas L. Ottaviano, Esquire Sharp, Ottaviano, & Barnes

24710 U.S. Highway 19 North, Suite 104

Clearwater, Florida 33763

Virginia A. Daire, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-000221

Orders for Case No: 01-000221