STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5942

)

JOSE and EMMA PEREZ, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 15, 1996, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Colleen Farnsworth

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128

For Respondents: Joe and Emma Perez, pro se

870 Southeast Fifth Place Hialeah, Florida 33010

STATEMENT OF THE ISSUE

Whether Respondents' application for renewal of their family foster home license should be denied on the grounds set forth in the agency's August 16, 1995, letter to Respondents?

PRELIMINARY STATEMENT

By letter dated August 16, 1995, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department") advised Respondents of its intention to deny their application for renewal of their family foster home license. The letter read as follows::

This letter will serve to inform you that your foster care license will not be renewed due to a proposed confirmed abuse report relating to hazardous conditions which threatens the health and safety of foster children in your home. In

addition, a contributing factor not to renew

your license is possible domestic violence within your home.

As your license is not being renewed, you have the right to request an administrative

hearing. A hearing request must be filed with the Legal Department at 401 Northwest Second Avenue, Suite N-1014, Miami, Florida 33128, within thirty (30) days after receipt of this letter and must conform to the requirements of Section 120.57 and 120.60 Florida Statutes.

If you have any questions, please contact Colleen Farnsworth at the Legal Department at (305)377-5080.

Respondents, by letter dated September 7, 1995, "request[ed] a 120 hearing regarding [their] case." On December 7, 1995, the Department referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Respondents had requested.

During the evidentiary portion of the final hearing in the instant case (which, as noted above, was held on February 15, 1996), the Department presented the testimony of four witnesses: Darlise Baron, a protective investigator with the Department; Fidelis Ezewike, a protective investigator supervisor with the Department; John Gallagher, a senior (foster care) licensing counselor with the Department; and Maria Siervo, a (foster care) licensing counselor with the Department. In addition to the testimony of these four witnesses, the Department offered, and the Hearing Officer received, five exhibits (Petitioner's Exhibits 1 through 5) into evidence. Respondent Emma Perez testified on behalf of Respondents. Respondents presented no other evidence.

At the conclusion of the evidentiary portion of the final hearing, the Hearing Officer, on the record, advised the parties of their right to file post- hearing submittals and established a deadline (March 6, 1996) for the filing of post-hearing submittals. On March 5, 1996, the Department filed a proposed recommended order containing, among other things, proposed findings of fact.

The Hearing Officer has carefully considered the Department's proposed recommended order. The findings of fact the Department has proposed are specifically addressed in the Appendix to this Recommended Order. To date, Respondents have not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The Department is a state government licensing and regulatory agency.

   
   

2. At all times material to the instant case, Respondents Jose and Emma Perez were licensed to operate a family foster home at their residence in Hialeah, Florida (hereinafter after referred to as the "licensed home").

3. Before obtaining their license, Respondents were required by the Department to sign an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement").

   
   

4. Respondents signed the Agreement on or about July 1, 1994.

   
   

5. In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment." 1/

   
   

6. On or about January 13, 1995, Respondent Jose Perez was involved in a physical altercation with his brother-in-law.

   
   

7. The altercation took place in the licensed home. 2/

   
   

8. The brother-in-law was living with Respondents in the licensed home (on a temporary basis) at the time of the incident. 3/

   
   

9. During the altercation, Jose threw a glass object in the direction of his brother-in-law.

   
   

10. The object hit a wall and shattered upon impact.

    
    

11. A piece of flying, shattered glass accidentally struck Respondents' daughter, Jessica, 4/ who was sleeping in her bedroom.

    
    

12. Jessica sustained a cut on her forehead.

    
    

13. Jose was subsequently arrested for aggravated battery by the Hialeah Police Department. 5/

    
    

14. Some time after the incident, the Department placed two foster children, A.A. and H.A., in Respondents' care.

    
    

15. In the summer of 1995, Respondents filed with the Department an application to renew their family foster home license.

    
    

16. The application was ultimately assigned (for review and investigation) to John Gallagher, a senior (foster) licensing counselor with the Department.

    
    

17. On July 19, 1995, Gallagher went to the licensed home.

    
    

18. Outside the home, on the northwest portion of Respondents' property, Gallagher observed a considerable number of, what appeared to be, discarded items.

    
    

19. Inside the home, the floors were dirty and littered with a large amount of trash. On the floor in one of the rooms was dog feces, which Gallagher instructed Respondents to "pick . . . up immediately."

    
    

20. During his visit to the licensed home on July 19, 1995, Gallagher had Respondents sign a "Bilateral Service Agreement," which was similar, but not identical, to the Agreement that Respondents had signed the year before.

    
    

21. All of the necessary paperwork, however, was not completed during the visit. Upon leaving the home, Gallagher told Respondents that he would stop by again at the end of the day or on the following day to finish the paperwork.

22. At 9:00 a.m. the next day, July 20, 1995, Gallagher returned to the licensed home. He was accompanied on this visit by Maria Siervo, another (foster care) licensing counselor with the Department.

    
    

23. The conditions both outside and inside the home were not materially better than they had been the day before when Gallagher had paid his first visit to the home.

    
    

24. In the clutter outside the home on the northwest portion of the property was a bucket (with no top or covering) that contained broken glass and a discarded baby diaper.

    
    

25. On a table outside the home was a baby bottle containing congealed milk.

    
    

26. Both the bucket and the bottle were readily accessible to A.A., the older of the two foster children in the licensed home. (A.A. was approximately two years of age.)

    
    

27. Inside the home, the floors were still covered with a considerable amount of dirt and trash. They obviously had not been swept or mopped. A.A. was walking around on these floors without any shoes or socks on in her bare feet.

    
    

28. There was a freestanding fan in the bedroom that A.A. and H.A. shared that did not have a protective covering. When Gallagher was in the bedroom, he saw the fan operating and A.A.'s fingers come within a few inches of the fan's exposed, moving blades. Gallagher instructed Respondents to either obtain a protective covering for the fan or remove it from the home.

    
    

29. There were no screens on the windows of the home to keep insects out of the living area. 6/ In addition, two doors to the home were "wide open" throughout Gallagher's and Siervo's visit.

    
    

30. H.A. was in a playpen that was old and dirty. In Gallagher's presence, a cat with sharp claws (which was not Respondents') started climbing up the side of the playpen. The cat was removed from the premises, however, before it was able to join H.A. in the playpen.

    
    

31. The cat was not the only animal in the home on July 20, 1995. Gallagher also discovered newborn puppies underneath a bed in the home.

    
    

32. Gallagher and Siervo spoke with Respondents during their July 20, 1995, visit about the unclean, unhealthy and hazardous conditions that existed in the licensed home.

    
    

33. They asked both Respondents why the home was not clean. Jose responded by stating that he worked all day and that it was his wife's responsibility to clean the home. Emma stated that she was planning on cleaning the home, but that she was "lazy" and had not yet gotten around to it.

    
    

34. Later that same day, after he and Siervo had left the licensed home, Gallagher reported what he had observed on his two visits to the home to the Department's abuse hotline. Two additional reports, both alleging that there was violence in the home, were subsequently made to the abuse hotline.

35. All three reports were assigned to Darlise Baron, a protective investigator with the Department, for investigation.

    
    

36. As part of her investigation, which began on March 20, 1995, Baron visited the licensed home.

    
    

37. Conditions had improved since Gallagher's and Siervo's visit to the home on July 20, 1995. As Baron stated in her investigative report:

    
    

    Upon PI['s] arrival at address . . ., PI did not see any immediate danger for the children.

    The family had clean[ed] up the house. The floor was swept, kitchen was clean, no dirty dishes in the sink or around kitchen, the bathrooms were clean, the children's room was clean, the beds [were] made w/clean sheets. Mom['s] room had clean clothes on the bed being folded to be put away. There was dog feces seen on the floors.

    The large bags of garbage w[ere] placed on the curb, which was fil[l]ed w/clothes and grass. The fan w/out cover was placed in mom's room w/door close[d] to be thrown away. The dirty baby's bottle was not seen. . . .

    
    

38. Nonetheless, in view of the information that she had concerning the conditions that had previously existed in the home and the incident that had occurred in the home involving Jose and his brother-in-law, 7/ Baron determined that the reports that were the subject of her investigation should be classified as proposed confirmed and she so indicated in her investigative report. 8/

    
    

    CONCLUSIONS OF LAW

    
    

39. With certain exceptions not applicable to the instant case, "a . . . family foster home . . . shall not receive a child for continuing full-time care or custody unless such . . . home . . . has first procured a license from the [D]epartment to provide such care." Section 409.175(3)(a), Fla. Stat.

    
    

40. The Department may deny an application for an initial or renewal family foster home license, or it may suspend or revoke a family foster home license it has already issued, if the applicant or licensee has committed "[a] violation of [Section 409.175, Florida Statutes] or of the licensing rules promulgated pursuant to this section." Section 409.175(8)(b), Fla. Stat.

41. Rule 10M-6.025(12)(b) and Rule 10M-6.025(14)(g), Florida Administrative Code, which provide as follows, are among the "licensing rules promulgated pursuant to [Section 409.175, Florida Statutes,]" the violation of which is a ground for denial, suspension, or revocation of a family foster home license:

Rule 10M-6.025(12)(b)- The [licensed] home and premises must be free from objects, materials and conditions which constitute a danger to children.

Rule 10M-6.025(14)(g)- The [licensed] home must be clean and free of hazards to the health and physical well-being of the family.

1. In those application for licensure cases where the applicant disputes the Department's announced intention to find that a statutory or rule violation warranting denial of the application has occurred 9/ and the applicant requests a formal hearing on the matter, the Department may take final action to deny the application pursuant Section 409.175(8)(b), Florida Statutes, only if the applicant's guilt of the alleged violation 10/ is established by clear and convincing evidence at the requested formal hearing. See Osborne Stern and Company v. Department of Banking and Finance, Division of Securities and Investor Protection, 647 So.2d 245, 249 (Fla. 1st DCA 1994). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

   
   

2. In the instant case, Respondents are seeking the renewal of their family foster home license.

   
   

3. The Department has preliminarily determined to deny Respondents' application for renewal. In its notice of proposed denial, the Department has alleged that the denial of the application is warranted because of "conditions [that existed in the licensed home] threatening the health and safefy of foster children placed in [the] home."

   
   

4. At the formal hearing that was held in this case at Respondents' request, the Department proved by clear and convincing evidence that, at least when Gallagher visited the licensed home on July 19, 1995, and when he returned the following day with Siervo, there existed "conditions threatening the health and safety of foster children placed in [the] home."

   
   

5. The existence of these conditions in the licensed home constituted violations of Rule 10M-6.025(12)(b) and Rule 10M-6.025(14)(g), Florida Administrative Code.

   
   

6. These violations of "licensing rules promulgated [by the Department] pursuant to [Section 409.175, Florida Statutes,]" were sufficiently serious to warrant the denial, pursuant to Section 409.175(8)(b), Florida Statutes, of Respondents' application for the renewal of their license. 11/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order denying Respondents' application for the renewal of their family foster home license, without prejudice to Respondents applying for a new license after July 31, 1996. 12/

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of March, 1996.

STUART M. LERNER, 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 18th day of March, 1996.

ENDNOTES

1/ Among the other things that they agreed to do under the terms of the Agreement was to "notify the [D]epartment immediately of any change in [their] address, employment, living arrangements, family composition, or law enforcement involvement."

2/ There were no foster children in the home at the time of the altercation.

3/ Respondents had not reported to the Department that the brother-in-law had become a member of their household.

4/ Respondents, in addition to Jessica, have two other children of their own. 5/ Respondents never notified the Department of Jose's arrest.

6/ The home was not fully air-conditioned.

7/ The brother-in-law no longer lives with Respondents.

8/ The record does not reveal whether Respondents ever attempted to contest this determination pursuant to the then-existing provisions of Section 415.504, Florida Statutes, (which have since been repealed) granting "the alleged perpetrator of a proposed confirmed report . . . the right to an administrative hearing pursuant to chapter 120 to contest whether the record of the report should be amended or expunged."

9/ The Department is required by Section 120.60(3), Florida Statutes, to give an applicant "written notice either personally or by mail" of the Department's intention to deny the applicant's application (hereinafter referred to as a "notice of proposed denial") before the Department may enter a final order denying the application.

10/ The Department may not take final action to deny an application for licensure based upon a violation not alleged in either the Department's written notice of proposed denial or a timely filed amendment to said notice. See Klein

v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State,

501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional

Regulation, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of

Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

11/ Gallagher, who has been with the Department since December of 1993, testified that he had never seen a home with such poor "health and safety" conditions.

12/ If Respondents submit such an application, they must be prepared to demonstrate, to the Department's satisfaction, that their home "meets the licensing requirements established by the [D]epartment." Section 409.175(5)(b), Fla. Stat.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-5942

The following are the Hearing Officer's specific rulings on the findings of facts proposed by the Department in its proposed recommended order:

1. First sentence: Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order; Second sentence: To the extent that this proposed finding states that "Respondents' license expired on July 31, 1995," it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that the Department preliminarily determined to deny Respondents' application for the renewal of their license "due to hazardous conditions and violence in the home," it is accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. To the extent that this proposed finding states that on July 1, 1994, Respondents signed an "Agreement to Provide Substitute Care for Dependent Children," through which they agreed to, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment" and "notify the [D]epartment immediately of any change in [their] address, employment, living arrangements, family composition, or law enforcement involvement," it has been accepted and incorporated in substance. To the extent that it states that they also agreed, through the Agreement, to be "fully and directly responsible to the [D]epartment for the care of the child," it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that it states that the Agreement contained a provision indicating that Respondents "underst[ood] that any breach of the Agreement may result in the immediate removal of the child(ren) and revocation of the license," it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that on July 19, 1995, Respondents signed another "Agreement to Provide Substitute Care for Dependent Children" (as opposed to a "Bilateral Service Agreement," that was similar, but not identical, to the Agreement that Respondents had signed on July 1, 1994), it has also been rejected because it lacks sufficient evidentiary/record support.

4-5. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that the kitten in the home "had not been vaccinated," it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

2. To the extent that this proposed finding states that the altercation occurred "in the presence of the foster children," it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

3. Accepted and incorporated in substance.

9-13. Rejected as findings of fact because they are more in the nature of conclusions of law than findings of fact.

COPIES FURNISHED:

Colleen Farnsworth

Assistant District Legal Counsel Department of Health and

Rehabilitative Services

401 Northwest Second Avenue Suite N-1014

Miami, Florida 33128

Joe and Emma Perez

870 Southeast Fifth Place Hialeah, Florida 33010

Richard Doran, General Counsel 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 this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

JOSE and EMMA PEREZ,

Petitioners, CASE NO. 95-5942

RENDITION NO. HRS-96-265-FOF-OLC

v.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

THIS CAUSE is before me for entry of a Final Order.

Although the Division of Administrative Hearings has denominated the department as petitioner, Jose and Emma Perez filed the license application that is the subject of this proceeding, and are, therefore, the petitioners. All pleadings and papers are hereby amended to reflect the appropriate style of this cause.

The March 18, 1996, Recommended Order concludes that the department did not err in denying petitioners' application to renew their foster home license pursuant to section 409.175, Florida Statutes. The hearing officer concluded that there was clear and convincing evidence to support the department's determination that conditions existed in petitioners' home that threatened the health and safety of foster children placed in the home.

The department approves and adopts the Recommended Order except for paragraph 42 which is rejected as an erroneous conclusion of law. The learned hearing officer, relying on Osborne Stern and Co. v. Depart. of Banking and Finance, Div. of Securities and Investor Protection, 647 So.2d 249 (Fla. 1st DCA 1994), concluded that the department could deny petitioners' application for a renewal of their foster home license only if clear and convincing evidence supported the denial. Just 10 days after the Recommended Order in this case was entered, however, the Florida Supreme Court partially overturned the First District's Osborne Stern decision in Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So.2d 932 (Fla. 1996), which held that the applicant for a license bears the ultimate burden of demonstrating fitness, and that the agency denying a license application need not demonstrate unfitness by clear and convincing evidence.

The hearing officer's application of professional licensing cases to the instant case is also rejected on the basis that foster home licenses are not professional licenses and thus are not governed by the standard described in Osborne. Heightened procedural and evidentiary standards apply in professional

licensing cases because significant property interests of the licensee are implicated. See Osborne, 670 So.2d at 933. Conversely, a foster home licensee does not have a property interest in the license. Foster homes are licensed, not to protect the general public from the actions of unqualified professional parents, but rather as a means of protecting the children to be placed in foster care. See s 409.175, Fla. Stat. (1995); Department of Health and Rehabilitative Services v. Ntl. Adoption Counseling Serv., Inc., 498 So.2d 888 (Fla.

1985)(BOYD, J. Dissenting). Foster parents receive reimbursement for the expenses of caring for foster children, but not compensation for their parenting services. Lacking a property interest, there is no basis for application of the procedures described in Osborne and prior cases relating to agency action against a professional license or licensee.

Accordingly, it is ORDERED that petitioners' application for renewal of their foster home license be and hereby is DENIED.

DONE and ORDERED this 26th day of July, 1996, in Tallahassee, Leon County, Florida.

EDWARD A. FEAVER, Secretary Department of Health and

Rehabilitative Services

By: CHARLES KIMBER

Deputy Secretary for Human Services

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Stuart M. Lerner, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Colleen Farnsworth, Esquire District 11 Legal Office Department of Health and

Rehabilitative Services

401 Northwest 2nd Ave., Suite N1014 Miami, Florida 33128

Imran Ali, District Program Manager Department of Health and

Rehabilitative Services

401 Northwest 2nd Ave. Miami, Florida 33128

Jose & Emma Perez

870 Southeast 5th Place Hialeah, Florida 33010

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the, foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the above-named persons this 5th, day of August,1996.

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

(904) 488-2381

Docket for Case No: 95-005942

Orders for Case No: 95-005942