STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3161

) MR. and MRS. SHERMAN CLARKE, )

)

Respondents. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on September 24, 1996, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings, by means of televideo conference with the Judge in Tallahassee, Florida, and all parties and witnesses in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Catherine Linton, Esquire

Department of Health and Rehabilitative Services

111 Sapodilla Avenue

West Palm Beach, Florida 33401

For Respondent: Mr. and Mrs. Sherman Clarke, pro se

509 44th Street

West Palm Beach, Florida 33407 STATEMENT OF THE ISSUES

This is a proceeding in which the Respondents seek to challenge an agency decision not to renew the Respondents' foster home license. The Petitioner agency contends that its decision is correct on the merits and also asserts that the Respondents have waived their right to challenge the agency decision by failing to make a timely request for hearing.

PRELIMINARY STATEMENT

During the course of the final hearing the Petitioner agency presented the testimony of four witnesses and offered ten exhibits, all of which were received in evidence. Mrs. Sherman Clarke testified on her own behalf and also presented the testimony of three other witnesses. Mr. Sherman Clarke did not testify.

The Respondents did not offer any exhibits.

At the conclusion of the hearing, the parties requested, and were granted, thirty days from the date of the final hearing within which to submit proposed recommended orders. On October 21, 1996, the Respondents filed a short letter setting forth their views on some of the issues related to this case. On

October 22, 1996, the Petitioner agency filed a proposed recommended order containing proposed findings of fact and conclusions of law. The parties' post- hearing submissions have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondents, Mr. and Mrs. Sherman Clarke, previously held a foster home license issued by the Petitioner, Department of Health and Rehabilitative Services ("the Department").

   
   

2. By letter dated August 11, 1995, the Department advised the Respondents that the Department would not be re-licensing their foster home. The letter stated the reasons for the Department's decision not to re-license the Respondent's foster home. The letter also included the following information:

   
   

   You are further advised that within 30 days of receipt of this letter you may contest the decision of this agency by requesting an administrative hearing pursuant to the Administrative Procedure Act, Chapter 120, Florida Statutes. Your request for an administrative hearing should be made by sending a written request to:

   Karen M. Miller District Legal Counsel

   111 South Sapodilla Avenue, Third Floor West Palm Beach, FL 33401

   
   

3. The Department's letter of August 11, 1995, was sent by certified mail, return receipt requested. The letter was received by the Respondents on August 16, 1995.

   
   

4. The Respondents waited until January 18, 1996, to request an administrative hearing. On that date they wrote and mailed a certified letter addressed to Karen M. Miller in which they, for the first time, requested an administrative hearing. The letter of January 18, 1996, was received by the Department a few days after it was mailed.

   
   

5. The record in this case does not contain any explanation as to why the Respondents waited until January 18, 1996, to request an administrative hearing.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. In this case the Department provided the Respondents with a clear point of entry into formal or informal proceedings to contest the Department's decision not to re-license the Respondents' foster home. By failing to timely request a hearing pursuant to Section 120.57, Florida Statutes, the Respondents waived their opportunity to contest the Department's decision and the decision became conclusive. See Environmental Resource Associates of Florida, Inc. v. State, Department of General Services, 624 So.2d 330 (Fla. 1st DCA 1993), and cases cited therein. See also Dickerson, Inc. v. Rose, 398 So.2d 922 (Fla. 1st DCA 1981); City of Punta Gorda v. Public Employees Relations Commission, 358

So.2d 81 (Fla. 1st DCA 1978). There is no evidence in this case sufficient to invoke the doctrine of "equitable tolling." See Environmental Resource Associates of Florida, supra.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order in this case concluding that the Respondents waived their right to contest the Department's decision not to re-license their foster home.

DONE AND ENTERED this 31st day of October, 1996, in Tallahassee, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996.

COPIES FURNISHED:

Catherine Linton, Esquire District 9 Legal Office Department of Health and

Rehabilitative Services

111 Sapodilla Avenue

West Palm Beach, Florida 33401

Mr. and Mrs. Sherman Clarke

509 44th Street

West Palm Beach, Florida 33407

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 2, Room 204-X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003161

Orders for Case No: 96-003161