STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 80-475

)

PHILPOT SHELTER HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 8 October 1980 at Miami, Florida

APPEARANCES

For Petitioner: Martha Barrera, Esquire

Department of Health and Rehabilitative Services

401 North West Second Avenue, Suite 1040 Miami, Florida 33128

For Respondent: Steven Gary, Esquire

303 Washington Federal Tower 633 North East 167th Street

North Miami Beach, Florida 33162

By letter dated February 12, 1980, Hazel Philpot, d/b/a Philpot Shelter Home, Respondent, by and through her attorney, requested an administrative hearing on the rescission of Respondent's license to operate a shelter home by the Department of Health and Rehabilitative Services (DHRS), Petitioner. This case was noticed for hearing with the parties reversed from the style above; however, during the proceedings DHRS was treated as Petitioner and Hazel Philpot was treated as Respondent. This hearing was for the purpose of determining the legality and appropriateness of DHRS rescinding the license of Mrs. Philpot to operate a shelter home. Accordingly, DHRS is the true Petitioner in this case and Philpot is the true Respondent. The above style of this case reflects the proper status of the parties.

At the commencement of the hearing Respondent's attorney contested the change of hearing officers in this case without notice to him. Respondent's oral motion to continue these proceedings until Hearing Officer Bradwell could reschedule the case for hearing was denied. The file discloses that this case was originally scheduled to be heard on May 23, 1980. That hearing was continued until July 17, 1980 because the hearing site was damaged during riots in Miami. The July hearing date was continued until 8 October 1980 at the

request of Petitioner for the reason that Petitioner's principal witness was near the termination of her pregnancy and under doctor's orders not to travel. Further delay of these proceedings, despite the motion by Respondent, was not deemed appropriate, and the motion was denied. Thereafter, four witnesses were called by Petitioner, two witnesses were called by Respondent, one of whom had been previously called by Petitioner, and five exhibits were offered into evidence. Exhibit 3 was withdrawn when objection was made to its admissibility. The other four exhibits were admitted.

At the conclusion of Petitioner's case, Respondent moved for a directed verdict. This motion was denied on grounds that: (1) the Hearing Officer is not authorized to enter a final order which such ruling would entail; and (2) exhibits admitted into evidence had not been studied and the Hearing Officer was not ready at that stage of the proceedings to state he would enter an order in favor of the Respondent. Proposed findings submitted by the parties and not included below were not supported by competent evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. The home of Hazel Philpot was licensed as a Shelter Home on 2 October 1979 for a maximum of seven children ages 2 through 12 (Exhibit 1). This license was to expire 6/15/80. to coincide with Sanitation Report

   
   

2. On 21 November 1979, the day before Thanksgiving, a 6-months old girl (Melanie) was delivered to Mrs. Brenda Moore, a foster mother licensed by Petitioner. No records accompanied this child, who appeared to be in some discomfort.

   
   

3. The baby was accompanied by a bottle full of whole milk with a nipple that had been previously used by an older baby and which did not appear sterile. Mrs. Moore called to find out what formula Melanie was on and was advised to call Respondent's home. Moore then called Philpot. During this phone conversation Mrs. Moore was told that Melanie did not sleep well but would eat anything put before her; that whole milk with vitamins was given to Melanie; that Mrs. Philpot didn't always have money for baby foods and fed mashed table scraps; and, regarding poor sleepers, that a little bit of booze sometimes worked wonders.

   
   

4. When questioned about this conversation by a Single Intake Counsellor from Respondent, Mrs. Philpot denied the incident and stated she does not use home remedies (Exhibit 5).

   
   

5. Melanie continued to cry all hours of the day and night over Thanksgiving and the weekend following. On Thanksgiving eve, Mrs. Moore called the pediatrician assigned for the children in her foster hone, but he would not come and told her to watch over Melanie and if she got worse to take her to the Emergency Room at the hospital. Melanie had no Medicaid card which would have allowed Mrs. Moore to take her to the clinic which was otherwise available. During this period Mrs. Moore found Melanie very constipated and after she did have a bowel movement her stool indicated unmashed food had been fed to her. When Barbara Rittner, Direct Services Supervisor for HRS, visited the Moore home on Monday, 26 September 1979, to check on the two children assigned to her and living at the Moore home, she found Mrs. Moore exhausted from lack of sleep caused by Melanie's crying for four days, and upset by the situation. Mrs. Moore reported what she knew and what she had been told to Mrs. Rittner, who submitted an Unusual Incident report (Exhibit 2) containing the information

   regarding Melanie and Mrs. Philpot's comments which had been told to her by Mrs. Moore.

   
   

6. Shelter homes take children on an emergency basis while the child's situation is determined. Abused children are those normally placed in a shelter home, pending a judicial determination if the child is to be returned to its parents or placed elsewhere. Normally, children stay in a shelter home less than one month.

   
   

7. Foster mothers take children and act as sub-parents until the child can be returned to its home or placed for adoption. Petitioner looks for similar qualities in the operators of both shelter and foster homes.

   
   

8. Shelter homes are supervised by Single Intake and are licensed by Social and Economic Services, both units of DHRS. Normally, incidents involving shelter homes are investigated by Single Intake. The Unusual Incident report was referred to Single Intake but no written report of an investigation was submitted or presented at this hearing. The Unusual Incident follow-up report (Exhibit 5) appears based entirely on hearsay and no witness corroborated any information contained therein. Specifically, this follow-up report stated that Melanie had been fed hard liquor by Mrs. Philpot and the only evidence to support that conclusion is the information Moore received from the Philpot Home as noted above.

   
   

9. Prior to the issuance of Mrs. Philpot's current license (Exhibit 1) her home had been licensed for several years as a shelter home, however, in 1978 it appears her relicensing was delayed because of a drinking problem of Mr. Philpot. He moved to North Carolina to live with a son and upon the condition that he not be allowed to return to live at the home Mrs. Philpot's license was renewed to certify her home as a shelter home for up to seven children, ages two through twelve.

   
   

10. Prior to rescinding Mrs. Philpot's license information was received by HRS (Exhibit 3--not admitted) that Mr. Philpot had been observed at the home at Christmastime. No evidence in this regard was presented at the hearing and this incident was not given as a reason for rescinding the license in the January 18, 1980 letter (Exhibit 1). Those grounds are only that Respondent failed to provide proper nourishment to shelter children in her home.

    
    

11. The only evidence respecting the nourishment provided children in the Philpot Shelter Home is the testimony of Mrs. Moore above noted. Most of Mrs. Moore's conclusions were obtained from a telephone conversation she had with the Philpot home and a person she assumed to be Mrs. Philpot. She did not say she knew Mrs. Philpot or had previously talked to her on the telephone. No evidence was presented that the bottle accompanying Melanie when she was deposited at the Moore home came from the Philpot home. If an effort was made to verify the information contained in the Unusual Incident Report, no competent evidence wad presented in this regard, nor was any corroborating evidence presented to verify the information contained in the Unusual Incident report other than the testimony of Mrs. Moore, the source of that information.

    
    

12. There was only one shelter home in the Miami specifically approved to take babies in 1979. This home was frequently full and children under two years of age were routinely placed in shelter homes not licensed for them such as the Philpot home.

13. Relicensing Summary (Exhibit 4) submitted on Philpot home prior to the issuance of this current license shows the home fully qualified for licensure as a shelter home.

    
    

14. Respondent's objection to hearsay evidence was overruled subject to the caveat that no finding would or could be based upon such evidence not corroborated by competent evidence.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

16. Section 409.165, Florida Statutes, provides in pertinent part:

    
    

    1. Within funds appropriated, the department shall establish and supervise a program of emergency shelters, foster homes, group homes, and other appropriate facilities to provide shelter and care for dependent children who must be placed away from their families.

       
       

17. Section 409.175, Florida Statutes, provides in pertinent part:

    
    

    1. The department may, by rule, set minimum standards for the care of dependent children away from their own homes, and for dependent children in the care of child-placing agencies, and shall prescribe, amend, or alter such

       rules as may be necessary for the care and supervision of such children.

    2. No person other than a relative, a person who is considering the adoption of a child in the manner provided for by law, or, when limited to temporary emergency situations, a responsible adult approved by the court and no institution, society, or association, may receive a dependent child for boarding or custody unless such person, society, association, or institution shall first have procured a license from the department empowering or authorizing such person, association, institution, or society to care for, receive, or board a child or children.

    3. Application for license shall be made on blanks provided by the department. The application may be approved by the department only after inspection of health and sanitary conditions. copy of the license so issued, which shall be provided by the department without charge, shall be on the approved form established by the department and shall be kept readily available by the licensee. Such license shall be valid for not more than 1 year after the date of issue, but may be renewed or extended as provided for by the rules of the department.

    4. Any such license may be revoked by order of the department for violation of the regulations of the department governing the activities of the licensee.

       
       

18. Standards for emergency shelter homes are established in Rule 10C- 10.41, Florida Administrative Code, which include:

    
    

    1. Availability on a 24 hour basis, seven days a week.

    2. Acceptance and provision of care for any child in need of placement which includes compliance with the Civil Rights Act.

    3. Absence of detrimental influences in the neighborhood or home environment or physical hazards to the safety of children in placement.

    4. Acceptance and provision of care for children who may exhibit extreme behavior or who are sick or injured.

    5. Adequate living and sleeping arrangements for the number of children for which it is licensed.

    6. Presence of an adult member of the shelter home family or suitable substitute on a 24

       hour basis to care for the children.

    7. Notification to Department staff by the shelter parents, as soon as possible, of illness or run-aways and the release of children only to authorized Department staff.

    8. Income in sufficient quantity to absorb the first month's cost of care since the subsidy and per diem payments are paid after each month of service rendered.

    9. Statement from a physician, for each member of shelter home family who will provide emergency shelter care, attesting to the individual's health and freedom from communicable diseases based on complete examinations including chest x-rays and other tests necessary for needed verification.

       
       

19. No evidence was presented that Respondent violated any of the above quoted standards. To the contrary, Exhibit 4, which was completed before the home was licensed, shows Respondents home to be in compliance with those standards.

    
    

20. The burden is on Petitioner to establish by a preponderance of the evidence that Respondent's license should be revoked. Gans v. Florida Department of Professional and Occupational Regulation, Case No. 79-186 (Fla. 3rd DCA April 20, 1980); Florida Department of Health and Rehabilitative Services v. Career Services Commission, 289 So.2d 412 (Fla. 4th DCA 1974).

    
    

21. Although the ability to provide proper nourishment is not one of the standards listed in Rule 10C-10.41, Florida Administrative Code, above quoted, such a requirement may properly be inferred from the requirement that the home be financially able to provide for children placed in the home for one month before payment is received.

22. The evidence upon which the action of Petitioner in rescinding Respondent's license can be sustained consists of hearsay statements attributable to Respondent, the bottle of whole milk accompanying Melanie when she arrived at Mrs. Moore's foster home, and the evidence of adult food in Melanie's stool.

    
    

23. While admissions against interest are an exception to the hearsay rule and as such admissible in evidence over objection, here these admissions were received over the telephone from someone who apparently identified herself as Respondent. No evidence corroborating theme "admissions" was presented. Nor was evidence presented that the bottle accompanying Melanie came from Respondent's home or even that Melanie was transported directly from Respondent's home to Mrs. Moore's home. Presumably, these facts are to be assumed as true because that appears likely. But no evidence that in fact happened was presented.

    
    

24. License revocation proceedings are penal in nature, Buchman v. State Board of Accounting, 300 So.2d 671 (Fla. 1974), and a license is a valuable right that cannot be taken away absent competent evidence that the licensee has violated the conditions under which the license was issued or failed to comply with the requirements for the license. Where a statute provides grounds for the revocation of licenses, those provisions must be strictly construed and strictly followed. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979).

    
    

25. The power to revoke a license should be exercised with no less careful circumspect ion than the original granting of it, and the penal sanctions should be directed only towards those who by their conduct have forfeited their right to the privilege. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966).

    
    

26. From the foregoing it is concluded that Petitioner failed to show by a preponderance of the evidence that Respondent violated the standards for shelter homes or that Respondent failed to provide proper nourishment for shelter children as alleged. It is therefore

RECOMMENDED that the rescission of Respondent's license be vacated and that Respondent be compensated at the monthly stipend of $310 for the period commencing with the rescission of Respondent's license and continuing until this license is restored.

Entered this 29th day of October, 1980.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1980.

COPIES FURNISHED:

Martha Barrera, Esquire Department of Health and

Rehabilitative Services

401 North West Second Avenue, Suite 1040

Miami, Florida 33128

Steven Gary, Esquire

303 Washington Federal Tower 633 North East 167th Street

North Miami Beach, Florida 33162

Docket for Case No: 80-000475

Orders for Case No: 80-000475