STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 78-1685

) MR. and MRS. VINCENT A. MORRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its undersigned Hearing Officer, held a public hearing in this case on January 23, 1979.

APPEARANCES

For Petitioner: Barbara Ann Dell McPherson, Esquire

Deparment of Health and Rehabilitative Services

Post Office Box 5046 Clearwater, Florida 33518

For Respondents: Morris W. Milton, Esquire

Post Office Pox 13517

St. Petersburg, Florida 33733 ISSUE

Whether or not Subsection 10C-10.29(7), Florida Administrative Code, authorizes the Petitioner, State of Florida, Deparment of Health and Rehabilitative Services, to revoke the Respondents' foster home license based on knowledge that the Respondent, Esther V. Morris, was convicted of a felony as an adult.

FINDINGS OF FACT

1. On or about December 5, 1977, the Respondents, Mr. and Mrs. Vincent A. Morris, filed an application for licensure to operate a foster home in District V of the Department of Health and Rehabilitative Services.

   
   

2. Carol Parks, a Social Worker employed by the Petitioner and who is in charge of licensing in the Foster Care Section of District V, testified as to the procedures utilized in considering applications for foster home licensure. Ms. Parks testified that once an applicant files, she visits the applicant and goes through the orientation session, familiarizing the applicant with the forms, procedures and in a general manner outlining the standards necessary to

   obtain a foster home license. Ms. Parks ascertained that the Morrises were married and she additionally checked with the Sheriff's Department and other local law enforcement agencies to determine whether or not the Respondents had been convicted of a felony as an adult. 1/

   
   

3. Based on this search with the various local law enforcement agencies, Ms. Parks found no evidence of a conviction of the Respondents. As stated, the Respondents filed the application on or about December 5, 1977, and a license was granted them during April, 1978. On cross-examination, Ms. Parks failed to recall whether or not she asked the Respondents whether or not there were any outstanding felony convictions against them. She testified that she was satisfied with the manner in which the Respondents operated their facility and confirmed the fact that the Respondents were permitted to adopt a sixth foster child during January of 1979.

   
   

4. Esther Morris testified that during the orientation session, Ms. Parks never inquired of her if she had been convicted of a crime. Mrs. Morris inquired of Ms. Parks and other agency personnel of the Department of Health and Rehabilitative Services whether or not she could begin to remodel her home when she initially filed her application. She was advised by Ms. Parks and others that she should defer any remodeling until they advised her to proceed. The Morrises later obtained approval from that Department to commence the remodeling of her home, which she did, and expended funds totaling approximately $22,000.00 for preparation of this facility as a foster home facility. Presently, she has six foster children, the last of which was adopted during January, 1979. She testified that Ms. Parks asked her whether or not she or her husband had been to jail and she replied that she had not.

   
   

5. Petitioner's Exhibit No. 1 is a certified copy of a judgment and sentence indicating that on or about August 11, 1975, Respondent, Esther V. Morris, was convicted of welfare fraud, for which she was fined $500.00.

   
   

6. Chapter 10C-10.29(7), Florida Administrative Cede, provides in pertinent part that:

   
   

   "No applicant can be considered who, as an adult, has been convicted of a crime."

   
   

7. It is based on this rule that the Petitioner is here seeking to revoke the foster hose license of the Respondents. Inasmuch as the above-mentioned rule makes no mention of or provides any procedure for revocation of a license which has been granted, the undersigned is of the considered opinion that such rule provides no basis upon which the Petitioner can revoke the Respondents' license. Particular note was made of the fact that the Respondents credibly testified that they, at no time, misrepresented to the Department of Health and Rehabilitative Services that they were convicted of a crime as an adult. While it is true that the cited rule indicates that no person can be considered who, as an adult, has been convicted of a crime, a different issue is here posed inasmuch as the Respondents are now possessed with a license, a right to which certain due process procedures must be complied with prior to revocation. With these facts in mind, the undersigned is not prepared to read into the above- quoted rule authority which is not contained in said rule. Accordingly, I shall recommend that the Administrative Complaint filed herein be dismissed.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

9. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. Upon a full consideration of the facts herein, it is concluded as a matter of law that Chapter 10C-10.29(7), Florida Administrative Code, provides no basis or authority upon which the Department may revoke a foster hose license issued without misrepresentation by the licensee.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be DISMISSED.

ENTERED this 15th day of March, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

101 Collins Building

MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ Ms. Parks first learned of this conviction subsequent to the granting of the license to the Morrises. The conviction is not in dispute.

COPIES FURNISHED:

Barbara Ann Dell McPherson, Esquire Department of Health and Rehabilitative Services

Post Office Box 5046 Clearwater, Florida 33518

Morris W. Milton, Esquire Post Office Box 13517

St. Petersburg, Florida 33733

Docket for Case No: 78-001685

Orders for Case No: 78-001685