STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY LUZ DEJESUS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5626

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 11, 1996, in Largo, Florida, before Carolyn S. Holifield, a duly designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Frank H. Nagatani, Esquire

Department of Health and Rehabilitative Services

11351 Ulmerton Road

Largo, Florida 34648 STATEMENT OF THE ISSUE

Whether Petitioner's application for a foster care license should be granted.

PRELIMINARY STATEMENT

By letter dated July 14, 1995, Respondent, the Department of Health and Rehabilitative Services, denied Petitioner, Mary Luz Dejesus', application for a foster care license. Respondent indicated that the denial was based on the following: (1) submission of false information regarding persons living in Petitioner's home; (2) insufficient income in relation to monthly expenses; and

1. improperly insured vehicles in which to transport children. On or about August 1, 1996, Petitioner appealed the decision of Respondent. The letter was initially deemed to be a request for an informal hearing, but Respondent later determined that there were disputed issues of material fact. Thereafter, on November 17, 1995, the case was forwarded to the Division of Administrative of Administrative Hearings for assignment to a hearing officer.

   
   

   Petitioner failed to appear at the hearing, and no evidence was presented on her behalf. At hearing, Respondent made an ore tenus motion for a recommended order of dismissal. The proceeding was recorded but not transcribed. Neither party filed posthearing proposals.

   FINDINGS OF FACT

   
   

   1. By letter dated July 14, 1995, Respondent denied Petitioner's application for a foster care license. According to the letter, the denial was based on noncompliance with Section 409.175, Florida Statutes, and Rule 10M- 6.025, Florida Administrative Code. Specifically, it was noted that Petitioner had (1) submitted false information to Respondent regarding persons living in her home; (2) insufficient income in relation to monthly expenses; and (3) improperly insured motor vehicles in which to transport children.

      
      

   2. Petitioner timely requested a hearing, after which Respondent referred the matter to the Division of Administrative Hearings. The undersigned noticed the matter for hearing upon the issue of whether Petitioner's application for a foster care license should be denied.

      
      

   3. Petitioner failed to appear at the formal hearing, and no evidence was presented on her behalf.

4 The Notice of Hearing, mailed to both parties in this case, provided that failure to appear at this hearing shall be grounds for entry of a recommended order of dismissal.

CONCLUSIONS OF LAW

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

   
   

2. Respondent is charged with the administration and enforcement of Section 409.175, Florida Statutes. Pursuant subsection 8 of that provision, Respondent is empowered to deny, suspend, or revoke a foster care licenses for noncompliance with or violation of any of the pertinent provisions of this section or of licensing rules promulgated thereunder.

   
   

3. Section 409.175, Florida Statutes, provides in relevant part the following:

   
   

   (1)(a) The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes, residential child-caring agencies, and child-placing agencies by providing for the establishment of licensing requirements for such homes and

   agencies and providing procedures to determine adherence to these requirements.

   * * *

   (4)(a) The department shall adopt and amend licensing rules for family foster homes, residential child-caring agencies, and child- placing agencies. . . . The requirements for licensure and operation of foster homes, residential child-caring agencies shall include:

   * * *

4. Satisfactory evidence of financial ability to provide care for the children in compliance with licensing requirements.

* * *

11. The transportation safety of children served.

* * *

1. Pursuant to its statutory authority, Respondent promulgated Rule 10M- 6.025, Florida Administrative Code, which sets forth minimum standards for licensure of family foster homes. The rule provisions relevant in this case are the following:

   
   

   (5) Income. Substitute care parents must have sufficient income to assure their stability and the security of their own family without relying on the board payment. The substitute family must have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received.

   * * *

   (15) Foster Home Safety.

   * * *

   (f) Transportation and access to a telephone must be immediately available for use in emergencies.

   * * * (17 Transportation Safety.

   * * *

   (b) The substitute care parents must have transportation available 24 hours a day. All vehicles used to transport children must be in safe condition, in compliance with applicable motor vehicle laws of the state, and equipped with seat belts and approved car

   seats for children under the age of four years.

   
   

2. Section 409.175(11)(a)2., Florida Statutes, makes it unlawful for any person to make a willful or intentional misstatement on any license application or other document required to be filed in connection with an application for license. Any applicant who makes such willful or intentional misstatements will have his or her license denied or revoked.

   
   

3. Petitioner has the burden of proof in this proceeding to show that she has met all of the requirements for foster home licensure and that she deserves the privilege of becoming a foster parent. Department of Transportation v.

   J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

4. Petitioner has not carried her burden of proof in this case. Petitioner failed to appear at the hearing and presented no evidence to demonstrate that she meets the requirements for foster care licensure. The facts asserted by Respondent as the basis for denial of Petitioner's foster home license were uncontroverted, and, consequently are accepted as true.

   
   

5. In accordance with Rule 60Q-2.022, Florida Administrative Code, Petitioner's failure to appear at the final hearing is grounds for entry of a recommended order of dismissal.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the petition of Mary

Luz DeJesus, and denying her application for a foster care license.

DONE and ENTERED this 27th day of March, 1996, in Tallahassee, Leon County, Florida.

CARLOYN S. HOLIFIELD, 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 27th day of March, 1996.

COPIES FURNISHED:

Frank H. Nagatani, Esquire Department of Health and

Rehabilitative Services 11351 Ulmerton Road

Largo, Florida 34648

Mary Luz DeJesus, Pro Se 7600 71st Avenue, North Pinellas Park, Florida 34665

Richard Doran, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sandy Coulter Acting Agency Clerk

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 the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 95-005626

Orders for Case No: 95-005626