STATE OF FLORIDA

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

CLAY AND DIANA MERRITT,

Petitioners, CASE NO. 99-1714

RENDITION NO. DCF-O0-205-FO

v.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES, (DISTRICT 3)

Respondent.

/

FINAL ORDER GRANTING RENEWAL OF FAMILY FOSTER HOME LICENSE

THIS CAUSE is before me as the result of a Recommended Order that was issued by an Administrative Law Judge who had been assigned to hear the case by the Division of Administrative Hearings. The Administrative Law Judge's order recommends that the Department renew the family foster home license of Clay and Diana Merritt. The district office filed exceptions to that recommendation.

On March 4, 1999, the Department, through its district office, notified Clay and Diana Merritt that their family foster home license would not be renewed. In taking this action, the District acted reasonably and responsibly in light of an allegation that it had received regarding the sexual abuse of one of the children who had been placed in the home.

At the hearing, however, the Administrative Law Judge heard evidence from a number of witnesses, including the child. As a result, he became convinced that the allegations were unfounded. His decision in this regard was based, in part, on what he was apparently told by the child's therapist (See paragraphs 10, 11 and 13) whose testimony the district objected to in its exceptions.

But there was other evidence as well to support the Administrative Law Judge's conclusion that the allegations were unfounded. (See paragraphs 14, 15, 20 and 21). Given that the District's exceptions did not challenge that "other evidence," I concur with the Administrative Law Judge's position. The District's exceptions in this case are denied.

I cannot agree, however, with the Administrative Law Judge's Conclusion of Law at paragraph 31, and I hereby reverse it.

In relevant part, Paragraph 31 reads: The Department has the burden of proof in this case."

The Department does not have the burden of proof in licensure renewal cases. A family foster home license is valid only for one year from the date on which it is issued, and the license holder must apply for renewal each year. Section 409.175(5)(i), F.S. Applicants for licensure have the burden of proof, especially in cases involving licensure under Section 409.175, F.S., because licensure under that section is a public trust and a privilege. Section 409.175(1)(f), F.S. It is not an entitlement and it does not create a property right in the recipient.1 Id.

The Recommended Order is attached to and incorporated herein by reference. Except as herein noted, I adopt its findings of fact and conclusions of law.

It is hereby ORDERED that the license is renewed in Case No. 99-1714.

DONE and ORDERED on this 28th day of a June, 2000, in Tallahassee, Leon County, Florida.

KATHLEEN A. KEARNEY, Secretary

Department of Children and Family Services

ENDNOTES

1/ While this case was before the Division of Administrative Hearings, the case file was styled with the Department as the Petitioner and with Clay and Diana Merritt as the Respondents. The styling of the case in this manner suggests that the burden of proof was on the Department. It was not. The style of the case, therefore, is amended to reflect the fact that Clay and Diana Merritt asked for a hearing in this matter. They are, therefore, the Petitioners.

2/ The date of the Rendition of this Final Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date.

Copies of this Final Order are being furnished to:

Stephen F. Dean Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-3060

Richard J. D'Amico, Esquire 619 North Grandview Avenue Daytona Beach, FL 32118

Lucy Goddard, Esquire District 3 Legal Counsel Department of Children and Family Services

1000 N.E. 16th Ave. Box 3

Gainesville, FL 32601

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a Notice of Appeal" with the Agency Clerk. The party seeking judicial review must also file another copy of the Notice of Appeal," accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. The Notices must be filed within thirty (30) days of the rendition of this final order.2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the persons named above on this 29 day of June, 2000.

Virginia Daire, Agency Clerk

Department of Children and Family Services 1317 Winewood Blvd. Bldg. 2, Room 204X Tallahassee, FL 32399-0700

Docket for Case No: 99-001714

Orders for Case No: 99-001714