STATE OF FLORIDA

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner, CASE NO. 99-0962

RENDITION NO. DCF-00-102-FO

v. DOAH CASE NO. 98-5171

MICHAEL AND LATONYA BALDWIN

Respondents.

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FINAL ORDER REVOKING LICENSE TO PROVIDE FOSTER CARE

THIS CAUSE is before me for entry of a Final Order based on a Recommended Order issued by an Administrative Law Judge assigned by the Division of Administrative Hearings. The Administrative Law Judged concluded that the foster father "engage(d) in the conduct complained of by the agency. "

Nonetheless, he recommended that ". . . Licensure be continued but placed in a probationary status." With regard for the safety of foster children, I cannot agree. The license is revoked not only because Mr. Baldwin applied corporal punishment to the children in his care, but also because he transported the children in his vehicle after consuming alcohol.

The Administrative Law Judge excused the latter behavior because Mr. Baldwin said he did not know that he would be required to transport the children before consuming the alcohol. I cannot acquiesce in allowing this excuse to overcome the risk of exposing children to people who would drink and then, for whatever reason, drive with the children in the car. Meanwhile, the application of corporal punishment is contrary to Department rule and has resulted in the revocation of licensure in other cases. See, Department of Children and Family Services v. Mr. and Mrs. Rudolph Parkinson, Case No. 99-0962.

I will now address the Exceptions filed by both the Petitioner and the Respondent.

Respondent's Exception #1 complains that the Administrative Law Judge relied on hearsay when he considered the out-of-court statements made by the foster children regarding the corporal punishment they received. I find, however, that the Administrative Law Judge merely relied on the children's hearsay

statements to the extent that they corroborated Ms. Wilson's in- court testimony that Mr. Baldwin admitted to her that he had engaged in corporal punishment.

At hearing, Mr. Baldwin denied the admission, and his first exception would require me to substitute his denial for the accepted testimony of Ms. Wilson to the contrary. I will not make this substitution. Ms. Wilson's testimony at TR 77 constituted competent and substantial evidence that the admission occurred.

Meanwhile, as the Petitioner asserts in its own Exception #1, there is no competent substantial evidence to support the Administrative Law Judge's finding at paragraph #4 that Ms.

Wilson's testimony showed that corporal punishment occurred only "on one occasion." I accept Petitioner's Exception #1. Corporal punishment occurred on more than one occasion.

I reject Petitioner's second, third and fourth exceptions.

Like Respondent's Exception #1, Petitioner's Exception #3 addresses the credibility of the witnesses. Meanwhile, Petitioner's Exceptions #2 and #4 challenge the existence of competent substantial evidence to support findings in paragraph 7 and 12, concerning whether any staff member prevented Mr. Baldwin from driving away from the visitation site with the children after different staff members smelled alcohol on him.

Clearly, different staff members were concerned about the fact that Mr. Baldwin smelled of alcohol upon his arrival at the visitation site with the children, and clearly each staff member looked to another staff member to prevent Mr. Baldwin from leaving the same way. It is not clear, however, whether any staff member actually prevented Mr. Baldwin from doing so, and one staff member recollects that Mr. Baldwin did leave with the children in the truck on that day. (TR 59.)

Respondent's Exceptions #2 and #3 are also rejected. In Exception #2, Respondent argues that his action in transporting the children while under the influence of alcohol did not rise to the level of a "negligent act" as defined in Section 409.175(8)(a), Florida Statutes, because it did not "materially affect the health or safety of the children." In support of this argument, Respondent relies on the Administrative Law Judge's conclusion, at paragraph 19, that ". . . the transporting of children under the influence of alcohol is a 'negligent act' that could have materially affect(ed) the health or safety of the children." (Emphasis supplied by Respondent in his Exceptions).

That the children were not physically harmed as a result of riding in a vehicle with Mr. Baldwin after he had been drinking,

however, is a blessing that I cannot allow to inure to Mr. Baldwin's benefit at the risk of continuing to place foster children in his care. Also, contrary to Respondent's Exception #3, there is ample competent substantial evidence to show that Mr. Baldwin committed the violations with which he was charged.

I must disagree with the Administrative Law Judge's conclusion that Mr. Baldwin's offenses were not sufficiently severe to revoke the foster care license in this case. As noted, corporal punishment occurred on more than one occasion, and Mr.

Baldwin's alcohol consumption is severe enough that a urine analysis on September 2, 1998, revealed a .124 blood count after he had driven himself to the substance abuse assessment site.

Consistent with Section 490.175(2)(0, F.S., a license to operate a foster care home is not a property right, and the standard of proof to revoke the license does not rise to the level of clear and convincing. See. Department of Banking and Finance. Division of Securities and Investor Protection v. Osborn Stem and Co., 657 So. 2d 245 (Fla. 1st DCA 1994), approved in relevant part, 670 So.2d 932 (Fla. 1996). See also. Children and Families v. Farmer, 20 FLAR 3489 (1998). In this case, for the safety of foster children in its charge, the Department exercises its discretion to revoke the license. See. Phillips v.

Department of Juvenile Justice, 736 So.2d 118 (Fla. 4th DCA 1999), citing Thomas v. Department of Juvenile Justice, 730 So.2d 809 (Fla. 3d DCA 1999).

It is hereby ORDERED that Respondents' foster home license is revoked.

DONE and ORDERED this 13th day of March, 2000, in Tallahassee, Leon County, Florida.

KATHLEEN A. KEARNEY, Secretary

Department of Children and Family 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 THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 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 4 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 to:

P. Michael Ruff Administrative Law Judge

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, FL 32399-3060

Paul Flounlacker, Esquire

c/o Katie George, District Legal Counsel District 1 Legal Office

Department of Children and Family Services

160 Governmental Center Suite 601 Pensacola, FL 32501

R. John Westberry, Esquire 1108-A North 1 2U' Avenue Pensacola, FL 32501

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 20, day of March, 2000.

Virginia Daire, Agency Clerk Department of Children

and Family Services

1317 Winewood Blvd. Bldg. 2 Room 204X Tallahassee, FL 32399-0700

(850) 488-2381

Docket for Case No: 98-005171

Orders for Case No: 98-005171