STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NINA M. DIAMOND, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2035

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on October 4, 1993. Respondent filed proposed findings of fact and conclusions of law on October 18, 1993, and petitioner's proposed recommended order was filed on October 19, 1993. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Marc E. Tapps, Esquire

Legal Services of North Florida, Inc.

2119 Delta Boulevard

Tallahassee, Florida 32303-4220

For Respondent: Charles A. Finkle, Esquire

District Legal Counsel 2639 North Monroe Street

Tallahassee, Florida 32399-2949 STATEMENT OF THE ISSUES

Whether respondent should grant petitioner's application for relicensure as an emergency shelter family home, or deny the same for the reasons set out in Jane W. Smith's letter to petitioner of March 8, 1993?

PRELIMINARY STATEMENT

In her letter of March 8, 1993, Jane W. Smith wrote petitioner Nina Diamond on behalf of the Department of Health and Rehabilitative Services (HRS) alleging that petitioner was "in direct violation of the Licensing Standards for emergency shelter homes . . . [because] Thomas Mash ha[d] continued to reside with [her] at 2139 Faulk Drive . . . [in violation of] Florida Statutes 409.175(8)(a) and (b)(3) and (4) and 409.175(11)(b)." Outlining HRS' proposed action in response, the letter informed petitioner, "[Y]ou will not be issued a license as a Children and Families Emergency Shelter Home and your application for relicensure is hereby denied."

FINDINGS OF FACT

1. Respondent Nina Diamond has taken care of other people's children at least since 1961. As long as the law has required such registration, her residences have been registered as home day care centers. In addition, she has taken care of more than 150 foster children.

   
   

2. Five or six years ago she obtained an emergency shelter family home license for the first time. After routine annual renewals, the question arose whether one Thomas Floyd Mash was sharing the licensed premises, a house at 2139 Faulk Drive in Tallahassee, with her. Mr. Mash, who was convicted in 1987 of armed robbery and kidnapping, Respondent's Exhibits Nos. 7, 8 and 9, spent time in prison and is now on probation.

   
   

3. On March 29, 1991 Mr. Mash and Ms. Diamond purchased the house at 2139 Faulk Drive, taking title and giving a mortgage together in both their names. Respondent's Exhibits Nos. 5 and 6. Ms. Diamond and her family furnished the down payment, but her income was (and remains) too low to borrow the money secured by the mortgage by herself. At least until November of 1991, Mr. Mash helped with mortgage payments.

   
   

4. When they bought the house, Mr. Mash, Ms. Diamond and her son, a middle schooler, moved in. In late November of 1991, Mr. Mash rented a room in Beth Edwards' home, and Ms. Diamond told HRS personnel that he had moved out. Until recently, petitioner told probation officers that Mr. Mash, who receives his mail at 2139 Faulk Drive, lived with her, while assuring HRS that he did not.

   
   

5. Since November of 1991, Cathy Asbell has seen Mr. Mash at 2139 Faulk Drive with some frequency, including on or about September 4, 1993, in the late afternoon. Martha Salas assumed he lived there, so often did she see him when she dropped off three-year-old Esmerelda between eight and ten o'clock evenings, on her way to work. She last saw him at the house two to three weeks before the hearing. Ms. Diamond herself testified that he was wont to come for one- to three-hour visits afternoons, straight from driving the dump truck he is hired to operate.

   
   

6. HRS counsellors Rosina Roberts Butler and Irene Ruth Adams (who has since taken other employment) saw Mr. Mash at 2139 Faulk Drive toward the end of 1991 and the beginning of 1992. He was at the house every Saturday morning Ms. Adams came by. Mid-day January 28, 1993, Ms. Butler saw Mr. Mash enter the house and make sandwiches for five or six children Ms. Diamond was caring for at the time.

   
   

7. Among Mr. Mash's obligations as a probationer has been a duty to keep the authorities apprised of a current address. He has consistently given 2139 Faulk Drive as his address, before and after December 9, 1991, the only pertinent date on which he gave any other address. Probation officers found him at the house on several occasions. On July 22, 1993, a probation officer saw him driving away from the house at quarter past six o'clock in the morning.

   
   

   CONCLUSIONS OF LAW

   
   

8. Since HRS referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1993), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1993).

9. Although previously licensed as an emergency shelter family home at the Faulk Drive address, petitioner is entitled to renewal of the license only upon certain showings. Sections 409.175(5)(c), (g) 4. and (k), Florida Statutes (1993). Renewal of such licenses is no mere ministerial duty.

   
   

10. Emergency shelter family homes like those whose license petitioner seeks to renew are defined to be "family foster homes." Section 409.175(2)(e), Florida Statutes (1993). "A licensed family foster home . . . which applies for renewal of its license shall submit to the department a list of personnel . .

    . [and t]he department shall review the records of the personnel at the applicant family foster home . . . with respect to the crimes contained in paragraph (4)(a)," Section 409.175(5)(c)1., Florida Statutes (1993), among which are "Section 787.01, relating to kidnapping . . . [and] Section 812.13, relating to robbery." Section 409.175(4)(a)(b)(k) and (q), Florida Statutes (1993).

    
    

11. Respondent is authorized to deny applications for (re)licensure of family foster homes for "[n]oncompliance with the requirements for good moral character as specified in paragraph (4)(a)," Section 409.175(8)(b)3., Florida Statutes (1993) and for "[f]ailure to dismiss personnel found in noncompliance with the requirements for good moral character." Section 409.175(8)(b)4., Florida Statutes (1993). "At a minimum, screening shall ensure that no personnel at a . . . family foster home . . . have been found guilty of," Section 409.175(4)(a)b., Florida Statutes (1993), among other things, armed robbery or kidnapping.

    
    

12. For purposes of the statute, "personnel" is defined broadly to include most "owners, operators, employees and volunteers." The statute specifically provides that, "[f]or purposes of screening, the term shall include . . . any person other than a client, over the age of 12 years, residing with the owner or operator if the . . . family foster home is located in . . . the home of the owner or operator . . . ." Section 409.175(2)(h), Florida Statutes (1993). Petitioner's entitlement to relicensure thus boils down to the question whether petitioner has proven that Mr. Mash, whose criminal convictions confer a disqualifying status, no longer resides with her. Petitioner has not carried her burden of proof in this regard.

    
    

13. The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage,

347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That HRS deny petitioner's application for relicensure as an emergency shelter family home.

DONE AND ENTERED this 6th day of December, 1993, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 6th day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2035

Petitioner's proposed finding of fact No. 1 has been adopted, in substance, insofar as material.

With respect to petitioner's proposed findings of fact Nos. 2 and 3, it was not clear how long the room was rented for or that Mr. Mash ceased to reside at 2139 Faulk Drive while the room was rented.

Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 6 and 8 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 5, it was not proven that petitioner represented herself as Mr. Mash's wife.

Respondent's proposed finding of fact No. 7 pertains to a subordinate matter.

With respect to respondent's proposed finding of fact No. 10, it was not clear how long the room was rented for or that Mr. Mash ceased to reside at 2139 Faulk Drive while the room was rented.

COPIES FURNISHED:

Marc E. Tapps, Esquire Legal Services of North

Florida, Inc.

2119 Delta Boulevard

Tallahassee, Florida 32303-4220

Charles A. Finkle, Esquire District Legal Counsel 2639 North Monroe Street

Tallahassee, Florida 32399-2949

Robert Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

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.

Docket for Case No: 93-002035

Orders for Case No: 93-002035