A hearing was held in this case by video conference hearing, on February 11, 1997, with Administrative Law Judge Arnold H. Pollock sitting in Tallahassee, Florida, and all other parties located in Tampa. The Administrative Law Judge is assigned to the Division of Administrative Hearings.
For Petitioner: Raymond R. Deckert, Esquire
Department of Children and Families 4000 West Dr. Martin Luther
The issue for consideration in this matter is whether Respondent’s license to operate a foster home in Florida should
be disciplined because of the matters alleged in the Administrative Complaint issued herein on October 11, 1996.
By Administrative Complaint dated October 11, 1996, Charles Taylor, the Department’s District Six Administrator, advised Ms. Hadley that the District intended to revoke her license to operate a foster home because she had failed to provide information to and to communicate and work with the Department; refused to discuss the purchase of or purchase a smoke detector for the facility: refused to identify the disaster shelter closest to the facility and failed to have sufficient beds to accommodate foster children in the home. By letter dated October 15, 1996, Ms. Hadley denied the allegations and requested formal hearing, and this hearing ensued.
At the hearing, the Department presented the testimony of Francine McGee, a foster care licensing counselor with the Department, and Linda K. Altman, supervisor for the Department’s foster care licensing unit in Hillsborough County and introduced Petitioner’s Exhibits One through Five. Respondent testified in her own behalf. She did not introduce any exhibits.
A transcript of the proceedings was furnished and subsequent to the receipt thereof, counsel for Petitioner submitted Proposed Findings of Fact which have been carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein, the Department of Children and Families was the state agency responsible for the inspection and licensing of foster homes in this state. Respondent, Blanche Hadley, was issued an initial foster home license, No. 1095-13, for one child, for her residence at 1107 East Humphrey Street in Tampa, on October 21, 1995. The license was to continue in effect for one year, and several months before the license is due to expire, the Department does a study of the licensed home to see if re- licensing is appropriate.
Ms. Hadley filed an application for renewal of her foster home license on July 5, 1996, several months before the license expired. Because the Department did not act in a timely manner to deny the application, it became a license by default.
In the interim, however, on both August 15 and August 20, 1996, Francine McGee, a Department relicensing counselor, called Respondent on the telephone to discuss her relicensing and to schedule the Department’s visit to the home, because the license was due to expire on October 20, 1996. Ms. McGee also wanted to discuss certain items which, in her opinion, had to be corrected.
During the August 15 call, Ms. McGee and Respondent discussed the need for a mandatory check of and re-tagging of the fire extinguishers in the home to insure they were working. This
could be done only by one of several companies licensed to do so, or the fire department. Ms. Hadley did not want to do this, however. She got angry with Ms. McGee and hung up on her. Ms.
McGee called back several days later in a second effort to resolve the fire extinguisher issue and, in addition, to discuss the fact that the home appeared to be overcrowded due to the presence of Ms. Hadley’s two grandchildren who were, purportedly, living there as well. Ms. Hadley again got angry and hung up on Ms. McGee.
That same day, August 20, 1996, Ms. Altman, Ms. McGee’s supervisor, also called Ms. Hadley by phone, but Ms. Hadley hung up on her as well. The following day, Ms. McGee wrote to Ms. Hadley about the fire extinguishers and the two extra children in the home and also asked about the location of the nearest disaster shelters. It appears that in discussions about shelters with Ms. McGee in April, 1996, Ms. Hadley had indicated she did not believe in preparing for disasters, adopting instead the philosophy that, “when it’s your time to go, it’s your time to go.” She also hung up on Ms. McGee during that conversation, though she ultimately complied with the Department’s request and identified the closest shelters of which she knew. Ms. McGee, however, was not satisfied and wanted shelters closer to the house.
Respondent also hung up on Ms. McGee during a telephone conversation held on May 22, 1996 about 5:30 in the evening.
When reached by Ms. McGee, Respondent immediately said she didn’t have time to talk and hung up. This was a routine check call which would have taken no more than five minutes or so.
Ms. Hadley responded to Ms. McGee’s August 20, 1996 letter by her own letter in which she did not address the Department’s concerns. Instead, she indicated that if it had been necessary for her to change any of the conditions existing at her home, she would have been told of the defects in the safety inspections done on it. She claimed she would not be used by the system. Ms. McGee tried to explain to Ms. Hadley that these matters were not an attempt by the Department to use her but merely an attempt to enforce the Department rules which had to be followed.
Ms. Hadley, as early as February 27, 1996, was asked by Ms. McGee to purchase an additional smoke detector to supplement those already there. One existing detector was located between the bedrooms occupied by Respondent and her brother, who lives with her, and the second is located in the family room near the foster child’s bedroom, which was not occupied at the time. Ms. McGee claims she merely suggested the placement of a third detector near the kitchen to give quicker notice of kitchen fires. This was not a requirement by the Department rules, but Respondent still resisted compliance.
Though Respondent now denies any of her grandchildren live with her, Ms. McGee recalls a conversation she had with
Respondent on August 15, 1996, when Respondent indicated she had two grandchildren living in the home with her. This, if true, constituted overcrowding since with the two adults, (Ms. Hadley and her brother) and the two grandchildren, and only four beds in the house, there would have been no room for any foster child.
Ms. Hadley had initially indicated the children only came for dinner from time to time, and this was acceptable, but, allegedly, she later changed her story to indicate they did live there. Ms. Hadley denies having said this. When Ms. McGee raised the issue with Respondent, Respondent allegedly claimed the grandchildren slept with her, and when Ms. McGee indicated that was too crowded, Respondent hung up on her and on Ms. Altman who called later in the day. In light of the obvious mutual animosity between Ms. Hadley and Ms. McGee, it is clear there was a miscommunication on this issue, and in the absence of some independent evidence of the fact that the grandchildren resided at the house, it is found they did not.
Department records indicate no foster children have ever been placed in Respondent’s facility. Whenever she was called to take children, she would not accept them. A foster home has to be prepared to receive foster children, and the deficiencies identified by Ms. McGee, if accurate, would disqualify this home. Based on the above, and due to a continuing lack of ability to communicate with the Respondent,
Ms. McGee recommends that Respondent’s license to operate a foster home be disciplined.
Ms. Hadley tells a somewhat different version of Ms. McGee’s story. She contends that when Ms. McGee came to her home for the first time, somewhat after a letter had been sent to her, she received McGee warmly. From the very first, however, Ms. Hadley was put off by what she described as Ms. McGee’s “snotty” attitude. Respondent claims that she went to classes to learn what she had to do as the operator of a foster home and did it.
In addition, Ms. Hadley claims she followed to the letter the dictates imposed as a result of the safety inspections her facility underwent, though she admits she was resistant to
re-tagging the fire extinguisher because it had never been used. She didn’t want to pay $16.00 to have it re-tagged if it was not a bona-fide requirement. Unfortunately for her, fire requirements mandate a yearly check and re-certification whether the unit is used in the interim or not.
As for the allegations that she hung up on Ms. McGee and Ms. Altman, Ms. Hadley claims she asked Ms. McGee not to call her at work but to call at home. When McGee called her at home and got “hostile”, Hadley admits to hanging up on her. With regard to the call from Ms. Altman, when that call was made, Ms Hadley was still at work and Hadley merely indicated that she could not talk with Altman at the time. She denies hanging up on a Department representative more than one time, and claims she
did it that time only from work when the party calling her continued to talk after she advised she could not take calls at her work place.
Ms. Hadley works from 8 to 5 each day and goes home for lunch from 12:05 to 12:45. She requested that Ms. McGee call her at home during that period. McGee admits to this, but claims her schedule did not always allow her to make calls at that time. When she called and Respondent was not at home, she would leave a message on the answering machine and called at work when those messages went unanswered. Ms. McGee stays at her office until 6:30 PM most days, and could see no reason why Respondent could not return her calls after she got home from work at 5:30. McGee tries to convenience foster parents in the matter of phone calls and visits, and she admits that often Respondent did return calls left on the answering machine during the lunch hour, but by that time, McGee was again out of the office. Hanging up on a Department representative is unacceptable without justification. It is clear Ms. Hadley did so, but the question of how often she did so is not resolved by the evidence. Most likely, from the obvious hostility indicated, it was more than once.
Ms. Hadley candidly admits to resisting making additional changes to her home which were not called for either in the training classes she took or the pre-licensure inspection made of the home. She agrees to have the fire extinguisher check and recharged if that is a requirement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
The Department seeks to discipline Respondent’s license to operate a foster care home alleging she has failed to provide certain required information to the Department and to work in partnership with it in the operation of the home by buying a smoke detector and identifying the disaster shelter closest to the home. The Department also contends that Respondent did not have enough beds in the home to accommodate foster children.
Sections 409.175(8)(a) and (b), Florida Statutes, permit the Department to discipline a foster home license for, inter alia a violation of any of the provisions of Section
409.175 Florida Statutes, or for a violation of the Department’s licensing rules. When the Department seeks to discipline a license, it has the burden to establish the misconduct alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Department Rule 10M-6.024(4)(b) requires the operators of licensed foster homes to participate with the Department in re-licensing studies and in ongoing monitoring of the licensed premises, and to provide sufficient information for the Department to verify compliance with all its rules and
regulations. Foster parents are required to communicate effectively with and work in partnership with the Department.
The evidence of record clearly reveals a failure of communication between the foster parent, Ms. Hadley, and the Department. It is understandable that Ms. Hadley would prefer not to conduct foster home business at her workplace, and, in fact, she requested that Department representatives not call her there. However, even when Department representatives, in their effort to communicate with Ms. Hadley about her foster home, attempted to contact her at home after work, she frequently refused to return their calls and, when reached, at times hung up on them.
Ms. Hadley contends that initially she was cooperative with the Department personnel and that it was the dictatorial approach by Ms. McGee which prompted her attitude of reluctance. Be that as it may, the onus of responsibility rests with the operator of the licensed property to provide that information reasonably requested by the Department, and a lack of tact or diplomacy in the demeanor of the Department’s representative, while inappropriate and unfortunate, does not excuse or justify the operator’s failure to provide the information sought or comply with the Department’s legitimate requests.
The Department contends that even though a third smoke detector was not required by the rules, Respondent’s failure to provide one at the request of the Department representative was
evidence of a lack of cooperation supporting discipline. This is not so. While it is recognized that the Department representatives have some expertise in the field of foster home evaluation, technical safety requirements, such as the number of smoke detectors required or the requirement for periodic charging and re-certification of fire extinguishers, are set by rule. If pertinent rules do not require an operator to provide a particular item, her failure to provide it does not constitute a lack of cooperation. In the instant case, the failure to add a third smoke detector is not a basis for discipline, but the refusal to have the existing fire extinguishers checked and recharged, if necessary, is.
Respondent’s initial refusal to identify the nearest disaster shelter would be a violation of the Department’s safety rule and would, if persisted in, justify imposition of discipline. However, Respondent ultimately complied, and it is clear that her reluctance in this regard was primarily as a result of her resistance to what she perceived as the overbearing attitude of the Department’s representative. Again, she does not have the option to refuse to cooperate in compliance with the Department’s safety rules because of an antipathy toward the Department’s representative. However, in light of her ultimate compliance, this should not be the basis for discipline.
Petitioner also alleges as a basis for discipline that Respondent had insufficient beds, (four), to accommodate a foster
child when she, her brother, and two grandchildren occupied the house, as claimed by the Department. It has been found that the grandchildren did not occupy the home, and it is concluded, therefore, that sufficient beds existed to accommodate at least the one child for which the residence is licensed. In any event, the evidence has demonstrated that no foster child has ever resided in the licensed home since the license was issued, and that Respondent has declined to accept several children over the period of the license.
Taken together, the evidence has clearly shown that Respondent initially failed to have the fire extinguishers checked and charged as required, and her attitude toward the Department staff in their attempt to perform their legitimate duties was less than supportive and cooperative. While some corrective action is necessary, outright revocation is not justified. In light of the situation described herein, and the fact that Respondent has provided no foster care in the licensed facility since the license was issued, suspension of the license is more appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order suspending the license for the foster home operated by Blanche Hadley at 1107 East Humphrey Street, in Tampa, pending compliance with all legitimate safety and operating requirements and a
demonstration by the Respondent of a more cooperative attitude toward the Department staff.
Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1997.
Raymond R. Deckert, Esquire Department of Children and Families
4000 West Dr. Martin Luther King Jr. Boulevard Tampa, Florida 33614
Richard A. Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard
Gregory D. Venz, Agency Clerk Department of Children and Families Building Two, Room 204
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.
