STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION HANES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5134

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, on February 4, 1993, in Pensacola, Florida.

APPEARANCES

For Petitioner: Marion Hanes, pro se

1015 Edison Drive

Pensacola, Florida 32505

For Respondent: Christopher R. Hunt

Assistant District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 8420 Pensacola, Florida 32505

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a Foster Home License.

PRELIMINARY STATEMENT

By letter dated July 20, 1992, Respondent, the Department of Health and Rehabilitative Services, informed Petitioner, Marion Hanes, that it was denying her application for licensure of her home as a foster home. The denial was based on Petitioner's home not meeting certain life safety code requirements which the Department claims are required to be met before a home may be licensed as a foster home.

Petitioner disagreed with Respondent's denial and requested a formal administrative hearing. Petitioner's request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and offered the testimony of one witness. Additionally, Petitioner introduced nine exhibits

into evidence. Respondent offered the testimony of two witnesses but did not introduce any exhibits into evidence.

Petitioner filed a Proposed Recommended Order on April 5, 1993. Respondent filed a letter constituting a Proposed Recommended Order on April 6, 1993. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate.

Specific rulings on the parties' proposed findings of fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Marion Hanes, had for a number of years been granted custody of two very troubled female foster children by a Pennsylvania court.

   Ms. Hanes grew to care a great deal for these two foster children and while they were in her custody helped the two children feel loved and cared for. When Ms. Hanes and her husband moved to Florida, she asked the court to grant her permission to take the girls to Florida to live with her and her husband.

   Because of Ms. Hanes' good care of these children and the desires of Ms. Hanes, the children, the Pennsylvania social service agency and the Pennsylvania court, in order to maintain a consistent environment for these children, the court granted Ms. Hanes permission for the girls to live with her in Florida.

   
   

2. After arriving in Florida, Petitioner discovered that the girls' Pennsylvania Medicaid cards would not be accepted by Florida Medicaid providers. Therefore, in order to obtain school and medical services for her foster children in Florida, Ms. Hanes had to obtain Florida Medicaid cards for her charges. In pursuit of the Medicaid cards, Ms. Hanes was informed that she would have to have a foster home license for the home in which the girls would be living.

   
   

3. Ms. Hanes made application to the Department of Health and Rehabilitative Services for a Foster Home License for her residential home located at 1015 Edison Drive, Pensacola, Florida. The home is located in a middle-income residential area and is an ordinary brick house resembling the other homes in the neighborhood. The front bedroom windows in the house measure

   15 inches in height and 34 inches in width. The bottom of the windows are approximately 46 inches off the ground. The children in Ms. Hanes' care would occupy one of the bedrooms with the 15 by 34 inch windows.

   
   

4. On June 24, 1991, Robert Herron, Fire Prevention Specialist and licensed Fire Inspector inspected the Petitioner's home located at 1015 Edison Drive. The purpose of the inspection was to determine whether the residential home met fire safety requirements applicable to houses which will serve as foster homes. The Fire Inspector testified that the Department's long-standing, statewide policy was to require that foster homes meet Chapter 22 of the NFPA

   101 Life Safety Code. The NFPA 101 Life Safety Code, Chapter 22-2.21(b), requires that windows in a residential home have a clear opening of not less than twenty-four (24) inches in height and twenty (20) inches in width, with the bottom of the opening not less than forty-four (44) inches above the floor. Mr. Herron further testified that exceptions for good cause had been granted to the window size requirement, but only when a window's dimension varied by one or two inches. The Hanes' windows were denied an exception. The Life Safety requirement has not been adopted by HRS as a rule. Nor has the Life Safety requirement been adopted as a rule applicable to residential or foster homes by the State Fire Marshals office. Additionally, the evidence did not show that

   the Life Safety requirement has been adopted by any local building authority which would have code authority over the Hanes' home. The agency did not put on any evidence which would demonstrate the reasoning behind this unadopted rule requirement.

   
   

5. Mr. Herron's inspection of the Hanes's home revealed that the bedroom windows in the Hanes' home did not meet the NFPA 101 Life Safety Code standards. Specifically, the fifteen (15) inch height of the windows was short by nine inches from the NFPA Life Safety Code's standard. Importantly, the evidence did not show that the Hanes' home was unsafe. In fact, the better evidence in this case demonstrates that the Hanes' home presents a safe and secure environment for the Hanes and the foster children and the windows in their present condition appear to be big enough to allow passage in an emergency.

   
   

6. As of the date of the hearing, the Hanes had not increased the size of the bedroom windows to twenty-four (24) inches. Mr. Hanes stated the reason these windows had not been enlarged following Mr. Herron's inspection was because other neighborhood houses were similar in style to the Hanes' house and the esthetic changes were undesirable to the Hanes.

   
   

7. More importantly, the evidence demonstrated that removing these foster children from Ms. Hanes' care would not be in their best interest and could cause more harm than good. Put simply, the needs of these children for a consistent and loving environment outweigh the need for strict compliance with an unadopted safety standard given the fact that the home is safe. Therefore, Ms. Hanes is entitled to a foster home license for her home located at 1015 Edison Drive, Pensacola, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Chapter 409, Florida Statutes, governs the licensure of foster homes and requires a foster home to be fire safe before it can be licensed. Section 409.175(4)(a)3, Florida Statutes, states, in pertinent part:

   
   

   * * *

   The requirements for licensure and operation of family foster homes, residential child- care agencies, and child-placing agencies shall include:

   * * *

   3. The appropriateness, safety, cleanliness, and general adequacy of the premises includ- ingfire prevention and health standards to pro- vide for the physical comfort, care, and

   well-being of the children served.

   
   

10. Chapter 10M-6, Florida Administrative Code, is the rule implementing Chapter 409, Florida Statutes, as it relates to the licensure of foster homes. The rule states in pertinent part:

    
    

    10M-6.012 Implementation of Statute and Rules. Section 409.175, F.S., mandates that the department establish minimum standards, or

    rules for the types of care defined in the statute. These standards, once promulgated, have the full force and effect of law. The licensing rules specify a level of care below which programs will not be able to operate.

    The level of care embodied in the rule is the most that the department can demand of a person or program in order for it to keep its license. Licensing rules detail the specific requirements placed on persons who are sub- ject to the rules.

    
    

    10M-6.025 Minimum Standards for Licensure of Family Foster Homes, Family Emergency Shelter Homes and Family Group Homes.

    * * *

    12. Physical Environment

    1. The home must be comparable to other homes in the neighborhood in which it is located.

    2. The home and premises must be free from object, materials, and conditions which con- stitute a danger to children.

    3. The home must be inspected and approved by a representative of the local health pro- gram office prior to licensing and annually thereafter. Inspections cover sanitation, health, fire prevention and safety.

    * * *

    14. Interior Environment.

    * * *

    (g) The home must be clean and free of haz- ards to the health and physical well-being of the family.

    * * *

    16. Fire Safety.

    1. The home must be safe from fire hazards. All combustible items must be stored away from sources of heat.

    2. The home must not be heated by unvented gas heaters.

    3. The substitute care parents must have an evacuation plan posted in a conspicuous place and must share it with each child.

    4. All fireplaces, space heaters, steam radiators, and hot surfaces must be shielded against accidental contact.

    5. Bedrooms in basement and above the second floor must have either a window or door with approved means of exit.

    6. The home should be equipped with the following:

       1. Operating smoke alarm in each sleeping area;

       2. Operating heat detection alarm in the area of the furnace or main heating source; and

       3. Portable chemical fire extinguisher in the kitchen size 2A10BC.

       4. If the home is equipped with burglar bars, the caregiver must demonstrate that:

          1. The burglar bars can be released to allow exit; or

          2. That other means of exit are readily available from each sleeping area.

       * * *

    7. The approval of mobile homes is depen- dent upon the regulations of the local health program office.

    * * *

    10M-6.032 Interstate Compact. If a state sends a child to Florida through the Inter- state Compact and requests licensure of a home, that home must meet all of the licen- sing requirements of Florida. Exceptions to the the standards are cited in section 10M-6.025 of this rule and must have the approval of the CYF program office.

    
    

11. Additionally, the above requirements may be waived for good cause. Rule 10M-6.025, Florida Administrative Code.

    
    

12. Since Petitioner is the applicant, she has the burden of establishing by a preponderance of the evidence that her home is entitled to be licensed as a foster home.

    
    

13. No where does chapter 10M-6 mention that a foster home must comply with the NFPA 101 Life Safety Code, Chapter 22-2, Florida Administrative Code. The evidence clearly showed that compliance with the Life Safety Code had been a policy of the agency for a considerable length of time. The conclusion can only be that this requirement is an unpromulgated rule in violation of Section 120.535(1), Florida Statutes. However, short of reaching the above conclusion, the agency rules which are promulgated on foster home licensing indicate that they are the only standards which the department may require. These rules do not include Chapter 22-2 0f the NFPA Life safety Code. Therefore the standards of the code cannot be required by HRS as the sole reason for denying a foster home license for fire safety reasons. In this case, the evidence demonstrated that the Hanes' home was safe and that it otherwise complied with the Department's requirements in Rule 10M-6.025, Florida Administrative Code. Additionally, the evidence demonstrated that there is good cause for waiving application of the Life Safety Code in order to maintain a consistent and loving environment for these children. Given these facts, Ms. Hanes is entitled to have a Foster Home license for her house located at 1015 Edison Drive, Pensacola, Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED:

that the Petitioner's application for licensure as foster parents be granted.

ENTERED this 9th day of August, 1993, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5134

1. The facts contained in paragraphs 1, 5 and 6 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material.

2. The facts contained in paragraphs 2, 3, 4 and 7 of Respondent's Proposed Findings of Fact are subordinate.

4. The facts contained in Petitioner's letter dated April 4, 1993, are adopted in substance, insofar as material. The characterization of Respondent's Proposed Recommended Order and testimony at the hearing are not ruled upon since no factual matters are involved.

COPIES FURNISHED:

Marion Hanes

1015 Edison Drive

Pensacola, FL 32505

Christopher R. Hunt

Assistant District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 8420 Pensacola, FL 32505

Robert L. Powell, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700

John Slye General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 92-005134

Orders for Case No: 92-005134