STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIE CARLINE ST. FORT,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-0365

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal hearing in the above-styled case on March 14, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: Marie Carline St. Fort, pro se

2800 Rose Boulevard

Orlando, Florida 32839

For Respondent: Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782 STATEMENT OF ISSUE

The issue for disposition in this proceeding is whether Petitioner is entitled to licensure as a family day care home.

PRELIMINARY STATEMENT

On January 21, 2000, the Department of Children and Family Services ("DCFS") notified Petitioner, Marie Carline St. Fort, that her application for a license to operate a family day care home was denied for "incidents of abuse/neglect of children while in your care."

By an undated letter which was received by DCFS on December 19, 2001, Petitioner requested a formal evidentiary hearing and on January 30, 2002, the case was received by the Division of Administrative Hearings. The case was set for final hearing on March 14, 2002, in Orlando, Florida.

At the onset of the hearing DCFS moved ore tenus to dismiss Petitioner's request for formal administrative hearing as the request for hearing appeared to have been filed approximately

22 months late. Ruling on DCFS's motion to dismiss was reserved until the conclusion of testimony.

At the hearing Petitioner testified in her own behalf and presented her daughter, Marie Farah St. Fort, as an additional witness. Petitioner offered no exhibits. DCFS presented the testimony of two employees: Barbara Ivey, Family Services Counselor, and Pat Richardson, Licensing Supervisor. DCFS offered three exhibits which were received into evidence and marked Exhibits A, B, and C.

No transcript was filed. DCFS submitted a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner, Marie Carline St. Fort, resides in Orlando, Orange County, Florida; in November 1999, she applied for a license to operate a family day care home at her residence.

2. In the course of discharging its statutory responsibility of investigating applicants seeking licensure for family day care homes, DCFS discovered three incidents of child abuse/neglect, involving Petitioner's children or children in Petitioner's care, as reported to the Florida Abuse Hotline Information System.

3. Petitioner acknowledged each incident indicating that the alleged abuse/neglect was the result of the actions of either her husband or her mother.

4. One incident involved her husband's imposition of excessive corporal punishment to her daughter/his step-daughter which Petitioner witnessed but in which she failed to intervene.

5. A second incident involved alleged sexual fondling of a male child by the maternal grandmother, which apparently occurred; however, upon investigation by a child protection investigator, this activity was excused and was attributed to "cultural differences" in the Haitian culture. Petitioner is of Haitian heritage.

6. Petitioner testified that after the incident referred to in paragraph 5, supra, an Orange County Juvenile Court Judge allowed her children to return to Petitioner's home after nine days in protective custody conditioned on the grandmother not residing in the home. The grandmother presently resides in the home.

7. In response to each of the alleged incidents of abuse/neglect, Petitioner indicated that the alleged perpetrator was someone other than herself and that she, therefore, should not be disqualified.

8. Based on the three acknowledged incidents of abuse/neglect, DCFS determined that Petitioner's home did not meet the minimum standards required for licensure as a family day care home.

9. DCFS advised Petitioner of her licensure denial by certified mail on January 21, 2000. In this letter Petitioner was advised: "Any party whose substantial interests are affected by this determination has a right to request an administrative proceeding pursuant to Section 120.57, Florida Statutes, and rules promulgated pursuant thereto, [within]

   30 days of receipt of this notice. The request must be in writing, . . .".

10. By an undated letter received by DCFS on December 19, 2001, in which Petitioner acknowledged receipt of DCFS's letter,

    Petitioner asked the "department to reconsider my request and approve my requested license to operate a Family Day Care Home." DCFS interpreted this as a request for an administrative hearing. In the same letter Petitioner indicated, "I had written you a letter before within 30 days as stated in your letter dated January 21, 2000. I have never received any response from your office concerning this matter."

11. Petitioner testified, contradicting her letter received by DCFS on December 19, 2001, that her first letter, which apparently had never been received by DCFS, had not been mailed until approximately 60-90 days after the expiration of the 30- day deadline stated in DCFS's January 21, 2000, letter denying licensure. No relevant excuse was offered for her tardiness.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. Section 402.313, Florida Statutes, authorizes DCFS to license family day care homes and to conduct appropriate background screenings to determine if "child care personnel" meet the requisite qualifications to work with children.

14. Subsection 402.313(3), Florida Statutes, reads as follows:

    (3) Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss. 402.305(2) and 402.3055. For purposes of screening in family day care homes, the term includes any member over the age of 12 years of a family day care home operator's family, or persons over the age of 12 years residing with the operator in the family day care home. Members of the operator's family, or persons residing with the operator, who are between the ages of 12 years and 18 years shall not be required to be fingerprinted, but shall be screened for delinquency records.

    
    

15. Petitioner failed to request an administrative hearing within 30 days as required by the licensure denial letter from DCFS. By Petitioner's own testimony, her initial letter requesting what could have been deemed a request for an administrative hearing was mailed 60-90 days after the expiration of the 30-day period. No relevant excuse was offered for the delay. Based on documentary evidence, the request was

    22 months late. Based on Petitioner's failure to request an administrative hearing within 30 days of her receipt of the licensure denial letter, DCFS's motion to dismiss Petitioner's request for administrative hearing should be granted, and, accordingly, her request for administrative hearing should be dismissed. Mathis v. Florida Department of Corrections, 726 So. 2d 389 (Fla. 1st DCA 1999); Lamar Advertising Co. v. Department

    of Transportation, 523 So. 2d 712 (Fla. 1st DCA 1988).

16. In this case, Petitioner has the ultimate burden of proving her entitlement to the license she seeks; DCFS is required to present evidence supporting its stated reasons that Petitioner's home did not meet the minimum standards for licensure. Department of Banking and Finance, Division of Securities v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

17. DCFS demonstrated, based on the three incidents of abuse/neglect that had occurred in Petitioner's home, and the fact that the perpetrators of the abuse/neglect, her husband and mother, continued to reside in the home, that the home did not meet the minimum standards for licensure.

18. Petitioner did not present any meritorious evidence to establish her entitlement to licensure.

RECOMMENDATION

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

RECOMMENDED that the Department of Children and Family Services enter its final order granting the motion to dismiss Petitioner's request for administrative hearing or, in the alternative, enter its final order denying Petitioner's licensure application for a family day care home license for her failure to present any meritorious evidence of entitlement.

DONE AND ENTERED this 2nd day of May, 2002, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2002.

COPIES FURNISHED:

Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Marie Carline St. Fort 2800 Rose Boulevard

Orlando, Florida 32839

Peggy Sanford, Agency Clerk

Department of Children and Family Services 1317 Winewood Boulevard

Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

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: 02-000365

Orders for Case No: 02-000365