STATE OF FLORIDA

AGENCY FOR PERSONS WITH DISABILITIES

DARLENE ALLEN FOSTER HOME,

Petitioner,

v. DOAH Case No.: 20-3309FL

AGENCY FOR PERSONS WITH DISABILITIES,

Respondent.

_ /

F INAL ORDER

This case is before the Agency for Persons with Disabilities (“Agency”) for entry of a Final Order concerning the Agency’s denial of Darlene Allen Foster Home’s (“Petitioner”) application for licensure as a foster home facility.

FACTUAL BACKGROUND

1. On September 24, 2020, an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings (“DOAH”) conducted an administrative hearing with both parties and their witnesses attending via video teleconference. The ALJ issued a Recommended Order on October 26, 2020 recommending the Agency enter a Final Order granting the Petitioner’s application for licensure. A copy of the Recommended Order is attached to this Final Order. Neither party filed exceptions

   to the Recommended Order.

   APD – Darlene Allen Foster Home FO Page 1 of 6

   
   

   Filed January 21, 2021 12:51 PM Division of Administrative Hearings

   
   

2. As explained in the Recommended Order, the ALJ found that as part of the Agency’s review of Petitioner’s application for licensure as a foster home residential facility, the Agency conducted a background search of Ms. Allen utilizing the Department of Children and Families’ (“DCF”) network data base. Recommended Order at ¶ 2. Said search revealed an inadequate supervision verified finding on or about May 2, 2012 by DCF on Ms. Allen in Manatee County. Id. at ¶ 5, 8. Both parties entered the DCF Confidential Investigation Summary (“CIS”) containing the verified finding as an exhibit, which were admitted as Petitioner’s Exhibit F and Respondent’s Exhibit 3, respectively.

3. The ALJ described the CIS as “suspect at best and completely unworthy of any credence at worst” due to “multiple instances of inconsistencies, miscalculations, and errors.” Id. at ¶ 9. The ALJ then outlined each instance where the CIS contained an inconsistency, miscalculation, or error.

4. Although the CIS names Ms. Allen as a caregiver responsible with a verified finding of inadequate supervision, the ALJ indicated that the CIS does not provide clear or concise documentation of the person or persons responsible for the inadequate supervision, as the CIS investigation was directed towards the group home and not specifically Ms. Allen. Id. at ¶ 10-11. The ALJ found that the CIS was of no value to the Agency to make the determination of licensure. Id. at ¶ 11.

   
   

5. The ALJ ultimately found that “Petitioner has established by a preponderance of the evidence that the foster home license should be approved.” Id. at ¶ 28.

   LEGAL STANDARD FOR RECOMMENDED ORDERS

   
   

6. An Agency has limited authority to overturn or modify an ALJ’s findings of fact. See, e.g., Heifetz v. Dep’t of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985) (reasoning that “[i]t is the hearing officer's [or ALJ’s] function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.”); see also Gross v. Dep't of Health, 819 So. 2d 997, 1000–01 (Fla. 5th DCA 2002); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 3rd DCA 1985). The Agency is not authorized to “weigh the evidence presented, judge the credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.” Bridlewood Group Home v. Agency for Persons with Disabilities 136 So. 3d 652, 658 (Fla. 1st DCA 2013) (quoting Heifetz, 475 So. 2d at 1281). In addition, it is not proper for the Agency to make supplemental findings of fact on an issue about which the ALJ made no finding. See Florida Power & Light Co. v. State of Florida, Siting Board, et al., 693 So. 2d 1025, 1026 (Fla. 1st DCA 1997).

   
   

7. Section 120.57(1)(l), Florida Statutes provides the following with respect to modifying findings of fact and conclusions of law in a Recommended Order issued by an ALJ:

   (l) The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.

   
   

   (Emphasis added).

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 393.0673(2), Florida Statutes, provides in pertinent part:

   
   

   (2) The agency may deny an application for licensure submitted under s. 393.067 if:

   . . .

   (b) The Department of Children and Families has verified that the applicant is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult.

   
   

9. A plain reading of the statute supports a denial of Ms. Allen’s application for licensure as a foster home residential facility. See supra ¶ 2. However, applying the statute to the ALJ’s findings, the Agency concludes that a reasonable interpretation would be not to deny Ms. Allen’s application solely based on the verified finding, as the DCF documentation fails to establish Ms. Allen was the alleged perpetrator of the neglect found.

CONCLUSION

There being no basis to reject the findings of fact and conclusions of law of the ALJ, the Recommended Order is approved and adopted in toto. Accordingly, Petitioner’s application for licensure as a group home facility is hereby GRANTED. DONE AND ORDERED in Tallahassee, Leon County, Florida, on January

21, 2021.

_ Clarence Lewis

Deputy Director of Operations Agency for Persons with Disabilities

N OTICE 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.1

Copies furnished to:

Trevor Suter, Esq. Darleen Marie Allen Agency for Persons with Disabilities 208-A 42nd Avenue East 4030 Esplanade Way, Suite 315C Bradenton, Florida 34208 Tallahassee, FL 32399-0950

T revor.Suter@apdcares.org

DOAH Michael Taylor

1230 Apalachee Parkway Regional Operations Manager

Tallahassee, FL 32399-3060 APD Suncoast Region

Filed via e-ALJ

I HEREBY CERTIFY that a copy of this Final Order was provided by regular US or electronic mail to the above individuals at the addresses listed on January 21, 2021.

/ s/ Danielle Thompson_ Danielle Thompson, Esq.

Agency Clerk

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309

Tallahassee, FL 32399-0950 Apd.agencyclerk@apdcares.org

1 The date of “rendition” of this Final Order is the date that the Agency Clerk certified it was sent to the named individuals.

Docket for Case No: 20-003309FL

Orders for Case No: 20-003309FL