The Issue The issues are whether Petitioner William Howard Solomon and Intervenor Mandarin Community Club have standing to challenge Respondent Florida Communities Trust's decision to approve an amendment to the management plan for a historical park, owned and operated by the Intervenor City of Jacksonville, and if so, whether Respondent Florida Communities Trust properly exercised its discretion to approve that decision.
Findings Of Fact In 1993, the City applied to FCT for grant monies to acquire approximately 10 acres of land for the Park, which is located on the St. Johns River in a suburb of the City commonly known as "Mandarin." This project was assigned FCT Project No. 93-006-P3A. The original management plan for the Park stated that the City was acquiring the Park for the purposes of: (a) preserving and protecting natural vegetation; (b) providing environmental and historical education; and (c) providing passive resource-based outdoor recreation. On or about September 28, 1994, FCT approved the City's original management plan for the Park, which states as follows in part: Introduction This site is located on County Dock Road, accessible from Mandarin Road in the area of Jacksonville known as Mandarin. Submitted as County Dock Historical Park, the park will be officially known as Walter Jones Park. The main purpose for the acquisition of this site is to preserve the historic home. This home was built around 1875 and includes contributing structures on the site such as the cypress barn, dated 1876, and outbuildings. . . . The intent of the City is to provide a one- day tour in the Mandarin area which will include historic sites and structures along Mandarin Road. The focus of the tours will be on the interpretation of the park in relation to the history of the Mandarin area. * * * Currently located on the project site are three houses. The house which fronts Mandarin Road [hereafter referred to as the 1939 house] is appropriate housing for a security person. The second house is in disrepair and will need to be demolished. The third house is the historic Major William Webb home. The management of the project will center around the Webb home and historical aspects of the Mandarin area. * * * The City will request written approval from the Florida Communities Trust before undertaking any site alterations or physical improvements that are not addressed in the original approved management plan. * * * . . . The City is proposing a contractual agreement with the Museum of Science and History for the management of this site. . . . * * * . . . Security will be provided by an on- site manager located at the entrance of the project site. Security personnel generally consist of police officers which would provide on-site security and in turn, reside at the site [in the 1939 house]. The overall goal of the historic education is to teach the historical aspects of the site as well as the Mandarin area in general. The historic home was built circa 1875 and subsequently, a citrus operation and pier for loading crops on barges was in use. . . . It is anticipated that as an interpretive site, this project may be phased to include first an outdoor passive interpretation and, at a later date, active interpretation if deemed appropriate based on the first year assessments. These first year assessments will determine specific historic education programs based on the time period selected for interpretation. The long-term objective is to provide outdoor passive interpretation which would be coordinated with other historic sites in Mandarin. . . . . . . This project is the site of the historic Major William Webb home, along with several remaining outbuildings. . . . The significance of this site is not only in the home, but also in the presence of the contributing structures and the relationship to the Mandarin community of the 1880's. . . . . . . The Museum of Science and History is interested in a satellite facility to their downtown Jacksonville location. Management of the site would be coordinated with the Museum, acting as the managing entity for the physical maintenance and as coordinators of the education programs and volunteer staff. Several community groups are available and willing to assist in the project; Mandarin Community Club, Mandarin Women's Club, Mandarin Garden Club, and Mandarin Historical Society. In November 1994, the City's Planning and Development Department, together with the Honorable Dick Kravitz, Councilman, filed an application for designation of the Park as a landmark or landmark site with the Jacksonville Historic Preservation Commission (hereafter referred to as JHPC). This application indicates that the "period of significance" for the Park is 1875 through 1945. The application describes the 1939 house, also known as the Mandarin Road House, as follows in part: Located near the northwest corner of Mandarin Road and County Dock Road is a one and one half story wood frame house with horizontal wood siding. Facing Mandarin Road, this house features a small gable stoop porch, two gable dormers, and a porte cochere on the east side. . . . The actual construction date of this bungalow with Colonial Revival influences has not been determined. However, in 1933, eight lots were platted along Mandarin Road, and filed as the Edith Jones Subdivision. The house, based on its style, material and method of construction, was probably constructed in the 1930's. . . . Around 1995, the City contracted with the University of Florida, College of Architecture, to document and research the various buildings located at the Park. Hershel Shepard, an architect and professor at the University of Florida, participated in the study and assisted in the preparation of a report, detailing the historical research of the extant structures at the Park. The report did not reference the 1939 house as a structure needing preservation. Professor Shepard and his associates did not perform any formal study or cost benefit analysis regarding the possibility of the City building a museum behind the 1939 house. On or about August 27, 1998, FCT approved a revised management plan for the Park. Under the revised plan, the City identified the 1939 house as being appropriate for possible future use as a museum and visitor center operated by the Mandarin Museum and Historical Society (hereafter referred as MMHS). The revised plan stated the City's intention to obtain a satisfactory historic house to be moved to the project site to house security personnel. The City intended to locate the additional historic home facing County Dock Road, on or near the location of the demolished John Woolfe house, otherwise known as the "Butterfly House." The placement of the security residence on the site of the demolished John Woolfe house would provide closer protection for the historic Walter Jones farm structures located near the river and the county dock on the river. Moreover, placement of the security residence at the proposed site did not interfere with the final park design that restricts the location of park amenities relating to identified wetlands and a conservation easement resulting from mitigation of wetlands impacted by a proposed pedestrian trail and boardwalks. The City was unable to locate a suitable home that it could move to the proposed site to serve as a security residence. Additionally, low overhanging live oaks on Mandarin Road made a move to the proposed site by land impossible, and the water depth at the county dock would not allow access by barge. In the meantime MMHS found the 1939 house to be unsuitable for use as a museum and visitor center for the following reasons: (a) the rooms of the house are very small; the front door cannot be opened fully because of the placement of the stairs; (c) there is no handicapped accessibility; and (d) the structure basically would have to be gutted for use as a public building. Consequently, MMHS proposed that the 1939 house, which was already located on the site and being used as the residence of the security officer, be moved approximately 250 feet to the approved site for the security residence. MMHS also suggested that the City construct a new, site-specific structure for the museum and visitor center. The City's Department of Parks, Recreation and Entertainment (hereafter referred to as the Parks Department) sought the approval of JHPC in Certificate of Appropriateness (COA) No. 99-17 to relocate the 1939 house to the vacant site of the demolished John Woolfe house facing County Dock Road. The City's Planning and Development Department prepared a staff report dated January 27, 1999, recommending that JHPC approve COA-99-17. The report states as follows in part: Although constructed during the period of significance (1875-1945) identified in the Landmark and Landmark Site designation of the Major William W. Webb Farm, A/K/A, the Walter Jones Farm . . . the c. 1939 house was built on one of the eight lots along Mandarin Road subdivided by Edith Jones in 1933. Because of its age, style, and materials, the c. 1939 house is distinctive architecturally and historically from the pre-1900 farm buildings. Therefore it is the opinion of the Planning and Development Department that the c. 1939 house could be relocated to face County Dock Road without significantly impacting the remaining historic buildings located at the park. JHPC subsequently considered COA-99-17, decided not to approve relocation of the house, then rescinded its decision and tabled COA-99-17 as an agenda item. Early in February 1998, Jerry Spinks, as Chairman of JHPC, contacted Leslie Keys, Historical Resources Administrator in the St. Augustine Regional Office of the Department of State, Division of Historical Resources (hereafter referred to as DHR). Mr. Spinks asked Ms. Keys to review the JHPC's tabled agenda item, COA-99-17, including the Planning and Development Department's staff report. In a letter dated February 8, 1999, Ms. Keys stated as follows in part: . . . While this building has merit as an example of 1930s frame vernacular building construction, it is outside the period of significance for the farm. In other words, this building does not assist in the understanding and portraying [of] the 19th century farm complex--which is the unique and important aspect of the property. * * * The city is to be commended for preserving the building and reusing it. The relocation recognizes that a building of another historic period, the early 20th century, can contribute to the site in a secondary capacity. On or about May 12, 1999, the City's Parks Department filed new applications with JHPC for COAs, seeking the following: (a) in COA-99-159, to relocate the 1939 house to the vacant site of the demolished John Woolfe house facing County Dock Road within the boundaries of the Park; and (b) in COA-99- 160, to construct a museum/education center within the Park. The application for COA-99-159 included cost comparisons for the following: (a) in Option 1, renovation of the 1939 house for use as a museum and educational center and building a new house for a security residence; and (b) in Option 2, moving the 1939 house for continued use as a security residence and building a new use appropriate museum and education facility. The total cost for Option 1 was $291,126. The total cost for Option 2 was $266,000. A report from Historic Property Associates, Inc. was attached to the application for COA-99-159 as Exhibit A. This report supported the City's position that relocation of the 1939 house would not impact any properties listed or eligible for listing on the National Register of Historic Places. The City's Planning and Development Department issued a staff report dated May 26, 1999. This report recommended that the JHPC approve COA-99-159. On June 23, 1999, the JHPC conducted a public hearing on the Parks Department applications. During this quasi- judicial proceeding, numerous persons testified for and against the proposed relocation of the 1939 house. At the close of the hearing, the JHPC voted to approve the COAs. Mr. Solomon appealed the JHPC's decision to the City's Urban Affairs and Planning Committee (hereafter referred to as UAPC). On September 21, the UAPC conducted a public hearing to review the JHPC's approval of COA-99-159 and COA-99-160. During the quasi-judicial proceeding, the UAPC considered the record made before the JHPC and heard additional testimony for and against the relocation of the 1939 house from many witnesses. The testimony included the reading of portions of the February 8, 1999, letter written by Ms. Keys. At the conclusion of the hearing, the UAPC voted to affirm the JHPC's decision to relocate the 1939 house. The UAPC 's decision was thereafter appealed to the full Jacksonville City Council, which heard the matter on September 28, 1999. The City Council voted to affirm the decisions of the JHPC and UAPC. The City Council adopted Resolution 1999-880-A, which constituted final agency action approving COA-99-159 and COA-99-160. Ms. Karen Jones-Roumillat is the great-granddaughter of Walter Jones. By letter dated September 28, 1999, Janet Matthews, Chief of the Bureau of Historic Preservation, DHR, and State Historic Preservation Officer, replied as follows, in part, to an inquiry from Ms. Jones-Roumillat: Thank you for your letter regarding the relocation of the 1939 House within the Walter Jones Historical Park, which incorporates the Major William W. Webb Farm that dates from the 1870s. . . . The information available to this office indicates that the period of significance for the Major William W. Webb Farm identified in the local designation report is 1875 to 1945. Given the construction date with the period of significance and the apparent high degree of physical integrity of the 1939 House, it must be considered to contribute to the significance of the property. On that basis, the 1939 House is potentially eligible for the National Register as a contributing building in that historic complex. According to the National Register criteria for evaluation, historic significance is embodied in location and setting as well as in the individual buildings and structures that contribute to it. The National Park Service advised that relocation of an historic property may adversely affect its historic significance, often rendering it ineligible for listing on the National Register. Because the 1939 House is considered to be a significant element of the historic development of this site, its relocation must be considered to have an adverse effect on the overall significance of the property. For this reason, as well as best preservation practice advice, the 1939 House should be retained on its original site. It is acknowledged, however, that the focus of the "archaeological and historical resource" component of the approved County Dock Road Historical Park Management Plan (Now Walter Jones Historical Park) involves the preservation and interpretation of the nineteenth century Webb Farm site, including the 1870s house, barn and other associated structures. The plan further indicates that the 1939 House may be used as a security residence. Thus, in the context of the currently approved plan, the 1939 House is of subordinate significance to the buildings and structures related to the Webb period of development of the site. If, on this basis, the City of Jacksonville determines that relocation of the 1939 House is necessary to the development of the Walter Jones Historical Park, it is the opinion of this office that the following conditions should be met: . . . . On or about October 28, 1999, Mr. Solomon filed a Petition for Writ of Certiorari in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 99- 6403, to challenge the City Council's decision. By order dated November 3, 1999, the petition was dismissed without prejudice. On or about November 23, 1999, Mr. Solomon filed an Amended Petition for Writ of Certiorari in Case No. 99-6403. The Circuit Court Judge subsequently entered a Final Order Denying Amended Petition for Writ of Certiorari. However, Mr. Solomon filed a motion for reconsideration, resulting in an Order Vacating Final Order Denying Amended Petition for Writ of Certiorari dated April 27, 2000. On or about May 12, 2000, Mr. Solomon filed a Second Amended Petition for Writ of Certiorari. This petition raised due process issues. It also raised questions regarding the merits of the City's decision, including, but not limited to: whether the City relied on incorrect information concerning the Park's period of significance as set forth in the February 8, 1999, letter from Ms. Keys; and (b) whether the City erroneously relied on the Keys letter as evidence that DHR supported the relocation of the 1939 house. Mr. Solomon included the September 28, 1999, letter from Ms. Matthews in the appendix to the Second Amended Petitioner for Writ of Certiorari On July 7, 2000, the Circuit Court entered a Final Order Affirming Administrative Order in Circuit Court Case No. 99-6403. On October 26, 2000, the District Court of Appeal, First District, filed a per curiam opinion in Case No. 1D00- 3258, denying Mr. Solomon's Petition for Writ of Certiorari. In the meantime, the City had to obtain FCT's approval to modify the Park's management plan. By letter dated October 7, 1999, the City requested that FCT approve the relocation of the 1939 house for use as a security residence. FCT's staff reviews all proposed management plans and all proposed revisions to those plans. FCT's staff also solicits comments, advisory in nature, from outside agencies with expertise in technical matters such as historic resources. In this case, FCT's staff sought DHR's opinion regarding the relocation of the 1939 house. In a letter dated November 5, 1999, Ms. Matthews responded to FCT's request for comments. The letter states in part as follows: . . . [I]t is our opinion that the 1939 House is potentially eligible for listing in the National Register of Historic Places as a contributing structure to a historic district encompassing the entire 10.3 acres of the site. This opinion is based on the following factors: The building's age clearly falls within the established period of significance for the site: 1875-1945. The building reflects a continuum of site development, a later period of the historic development of the property by the Webb and Jones families. In this regard, subdivision of the property in 1933 and construction of the 1939 House are representative of a significant change in the development history of the Mandarin community from farming to residential related to the 1921 completion of the Acosta Bridge and the economic conditions of the time. The building has not been significantly altered since its construction in 1939. * * * It is our further opinion that relocation of the 1939 House would have an adverse affect on the historic integrity of the individual structure, as well as that of the 10.3-acre property. In addition, the proposed relocation would further erode the historic character of Mandarin Road, removing one of the few remaining historic structure from this scenic corridor. [sic] * * * . . . While the applicant has presented an argument for the need of relocating the 1939 House, it is the opinion of this office that at least one prudent and feasible alternative to relocation is possible. Our architectural staff believes it possible to successfully integrate the 1939 House into a new museum compound by: Rehabilitating the 1939 House . . . to provide: (1) a series of museum galleries to present the history of the site and its relationship to the development of the region, and (2) an administrative office for the Mandarin Historical Society; Constructing a classroom and environmental education building to the north of the 1939 House, providing an opportunity for broad vista of the wetlands to the west; Incorporating the necessary accessibility ramp into the design of the new structure; and Linking the historic building and the new classroom by an open covered connector at the elevation of their common finished floor elevation. Further, it is our opinion that a modest residence can be constructed for the on-site security officer off of County Dock Road (on, or near, the site of the demolished "Butterfly House") without adversely affecting the historic integrity of the property. . . . It is the opinion of this agency that the development approach described above offers a feasible alternative to the adverse effects associated with the proposed amended Management Plan. We strongly recommend that the proposed amendment be modified to retain the 1939 House on its original site. FCT's staff completed its review of the City's proposed amendment to the management plan. The staff prepared a memorandum for FCT's Governing Board, including a recommendation that FCT deny the proposed modification to the management plan. Approximately a week prior to the January 26, 2000, meeting of FCT's Governing Board, the members were given an agenda packet containing the staff's memorandum/recommendation, project summary and supporting materials. The supporting materials included twenty-seven letters received by FCT in support of the relocation of the 1939 house and two letters in opposition to the relocation of the 1939 house. The agenda packet included two letters written by Mr. Solomon. These letters summarized Mr. Solomon's historic preservation and Chapter 267, Florida Statues, arguments for the FCT Governing Board. Also included in the packet was a letter dated November 29, 1999, from John Delaney, the City's Mayor. This letter stated in part as follows: For several months, the City has been pursuing approval to relocate a newer house that is also located on the property closer to the farm for use as a security residence. This relocation is a key element in the development of the park. * * * Originally, a letter of support was obtained in February from Leslee Keys, Historical Resources Administrator for the St. Augustine Regional Preservation Office. This was followed by several letters in March and September from the Bureau of Historic Preservation in Tallahassee, which offered several opinions and suggestions. The March letter concluded that the relocation of the house was a local matter. We have always recognized the importance of DHR comments and incorporated the four recommendations found in the September 28th letter. This commitment was reflected in the October 7th letter to Ralph Cantral that accompanied our requested revisions to the Management Plan. We were surprised that following final local approval, including support from this office, a letter was sent to FCT in November from Janet Snyder Matthews, new Chief of the Bureau of Historic Preservation opposing the house move. One of the letters in the agenda packet was from Ms. Jones-Roumillat. The letter dated November 8, 1999, indicated her support for the relocation of the 1939 house. Mr. Solomon received notice of the FCT Governing Board meeting scheduled for January 26, 2000. However, he was unable to attend the meeting. At the meeting on January 26, 2000, several persons spoke for and against the request to relocate the 1939 house. The following persons spoke in favor of the relocation: Shorty Merrit (City Planner); Beth Meyer (MMHS); Jim Towart (MMHS); Susan Ford (MMHS); Karen Jones-Roumillat (MMHS and descendant of Walter Jones); and Karl Sanders (Assistant City Attorney). The following persons spoke against relocation of the house: Herschel Shepard (Architectural Consultant and former University of Florida Professor); Emily Lisska (Jacksonville Historical Society); William Jeter, Jr. (MCC); Ruth Daniels (MCC); Deanne Clark (MCC); David Ferro (DHR); Jan Matel (DHR); Barbara Mattick (DHR); and Frederick Gaske (DHR). At the January 26, 2000, meeting, FCT's Governing Board heard conflicting opinions regarding the relocation of the 1939 house. These opinions were very similar to the testimony considered by the City's JHPC and UAPC when they voted to approve relocation of the house. Moreover, the FCT Governing Board was fully apprised of DHR's opposition to the relocation of the house. The Governing Board was aware of DHR's position in the February 8, 1999, Keys letter, the September 28, 1999, DHR letter, and the November 5, 1999, DHR letter. All persons speaking before FCT's Governing Board were treated courteously. The Governing Board gave everyone an opportunity to make his or her presentation in full. Petitioners do not allege any procedural due process violations by FCT. After approximately one and one-half hours of public comment and deliberation, FCT's Governing Board voted 4-0 to approve the requested modification to the management plan. It is not unusual for FCT's Governing Board to disagree with its staff recommendation on any given matter. Mr. Solomon filed a timely administrative petition, challenging the Governing Board's action. MCC intervened thereafter. MCC was founded in 1923. Its first president was Walter Jones. MCC states its purpose as follows: The mission of the Mandarin Community Club is to promote and insure the preservation, beautification, and environmental well-being of Mandarin; to provide educational programs and meetings for the club's membership and the community; to enhance the cultural and recreational life of the citizens of Mandarin; and to maintain the historic structures and property owned by the club.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCT enter a final order dismissing the Petition for Administrative Proceedings. DONE AND ENTERED this 14th day of November, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 14th day of November, 2000. COPIES FURNISHED: William Howard Solomon, Esquire 1625 Emerson Street Jacksonville, Florida 32207 Geoffrey T. Kirk, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Karl J. Sanders, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether Petitioner is entitled to have her home licensed and registered as a family day care home under the provision of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On October 17, 2001, Petitioner, Betty Baumstark, submitted an application for a license to operate a family day care home at her residence. On November 29, 2001, the Department conducted an institutional staffing meeting to consider Petitioner's application. During the institutional staffing, the staff recommended that Petitioner's application for a license to operate a family day care home at her residence be denied. Although the institutional staffing committee made a recommendation regarding Petitioner's application, the Department's licensing specialist and supervisor made the final decision regarding the family day care home license. More than two months after the Department's institutional staffing, on February 8, 2002, the Department notified Petitioner by letter that her application to operate a family day care home was denied. The denial letter advised Petitioner that the family day care home license was denied based on the following grounds: (a) Abuse Report 2000-045218 indicated that Petitioner gave temporary custody of her son to friends on or about August 8, 1999, and that Petitioner's friends stated that they asked for the child because Petitioner "could not and would not care" for him; (b) Abuse Report 1999-095828 was closed with some indicators of inadequate supervision with caretaker present; (c) a domestic violence injunction was issued in 1997 against Petitioner's fiancé, Michael Canty; and (d) Petitioner had stated that she had experimented with drugs. The Department does not allege any other basis for denial of the license. Accordingly, it is found that, except for any requirements and minimum standards covered by those allegations, Petitioner met all the requirements and minimum standards necessary for licensure as a family day care home. With regard to the allegations in the 2000 Abuse Report, Petitioner did, in fact, give temporary custody of her son to Greg Davis in August 1999, while she was pregnant with her second child. The reason Petitioner gave Mr. Davis temporary custody was because her son acted out his hostility and became unmanageable. Concerned about her son, Petitioner actively sought assistance from various community resources to help her son, but was unsuccessful in doing so. After becoming aware of the situation with Petitioner's son, Mr. Davis, a friend of Petitioner and Michael Canty, offered to allow Petitioner’s son to live with him in an effort to improve the boy’s behavior and performance is school. Because Petitioner had been unsuccessful in obtaining any assistance to address her son's problems, she agreed to allow him to stay with Mr. Davis because she believed it was in her son’s best interests. In fact, during the time Petitioner’s son has lived with Mr. Davis, there has been a significant and positive improvement in the boy’s behavior and his grades in school. Petitioner's son is still living with Mr. Davis and has continued to do well in that setting. Given her son's progress and improvement, Petitioner has allowed him to remain with Mr. Davis. However, Petitioner has not abandoned her son and is still very involved in his life. Petitioner has a good relationship with her son and has maintained contact with him through regular visits and telephone conversations. Petitioner never stated that she could not and would not care for her son. The 1999 Abuse Report of inadequate supervision is based on a limited portion of the investigation which reported that Petitioner was called to pick up her son from a treatment facility and that she failed to pick up her child. This report makes no claim that anyone from the Department or the treatment facility ever spoke to Petitioner and told her to pick up her son from the treatment facility. Moreover, the credible testimony of Petitioner is that she was never contacted and told her that her son was being discharged from the facility and needed to be picked up. During the time period covered in the 1999 Abuse Report, as noted in that report, Petitioner’s son was in the custody of his father and stepmother and not in the custody of Petitioner. The domestic violence injunction referenced in the denial letter names Michael Canty as a party in that proceeding. Mr. Canty was Petitioner’s fiancé at the time of the hearing and, in the event the license was issued, Mr. Canty, who lived with Petitioner, was listed as the person who would be present at the family day care home to assist in Petitioner’s absence. As alleged in the denial letter, a domestic injunction was issued against Mr. Canty in 1997. However, there is no indication of the underlying factual basis for issuance of that injunction. Nothing in the domestic violence injunction, dated November 6, 1997, mentions that any violence had occurred or that the interests of the children in question had been harmed. Moreover, in a subsequently issued order in that case, it is noted that Mr. Canty's ex-fiancée, the person who initiated the injunction proceedings, withdrew her supporting affidavit. According to the credible testimony of Mr. Canty, his ex-fiancée obtained an injunction so that she could take the couple’s children to another city and not because he had committed an act of violence against her. During the years Mr. Canty and his ex-fiancée lived together, there were never any complaints filed with the police that indicate that Mr. Canty engaged in conduct that constitutes domestic violence nor were the police ever called to their home. The Department presented no evidence to the contrary. At some point during one of the investigations, there was an accusation that Petitioner used drugs. In response to a question from someone from "HRS" who talked to her, Petitioner told the person that she had experimented with drugs. Petitioner's experimentation with drugs was limited to smoking marijuana when she was fourteen years old, twelve or thirteen years prior to the hearing in this proceeding. Since that time, Petitioner has not experimented with or used illegal drugs. In 1999, Petitioner submitted to drug testing as a condition of employment with the YMCA and both of the tests were negative. The Department’s notification of denial of Petitioner’s application was more than ninety (90) days from the date the Department received Petitioner's application. The Department made no written request to Petitioner for any additional information concerning her application, but claims that the request for additional information was made by a Department employee during a conversation that employee had with Petitioner. However, the Department employee who allegedly requested that Petitioner provide additional information on the domestic violence injunction involving Mr. Canty did not testify at hearing. Moreover, the Department employees who testified at hearing had not requested any additional information from Petitioner and did not know whether any other Department employee had requested such information from Petitioner. Contrary to the Department's claim, the credible testimony of Petitioner was that the Department never requested or asked her to provide additional information to supplement her application. The Department failed to act on Petitioner’s application within ninety days of receiving it. This statutory time period was not extended because the Department did not request that Petitioner provide additional information regarding her application. Having failed to timely act on Petitioner’s application, the Department is required to grant a family day care home license to Petitioner. Even if the Department had timely acted on Petitioner's application, the substantive bases upon which it seeks to deny the family day care home have not been established in this record.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order granting Petitioner a license to operate a family day care home. DONE AND ENTERED this 30th day of August, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 30th day of August, 2002. COPIES FURNISHED: David P. Rankin, Esquire 14502 North Dale Mabry Boulevard Suite 300 Tampa, Florida 33618 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Paul F. Flounlacker, Jr., 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 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the application filed by Jerika Casado (Petitioner) for licensure to operate a Registered Family Day Care Home should be approved.
Findings Of Fact On May 22, 2006, the Petitioner filed an application for licensure to operate a Registered Family Day Care Home. The Respondent reviewed the application and conducted a background screening as required by statute. By certified letter, dated August 17, 2006, the Respondent denied the Petitioner's application. As identified in the letter, the grounds for the denial were as follows: District Screening Coordinator has notified us that you have been disqualified from working as a caretaker for children. The letter provided no further information specifying the reason for the disqualification. At the hearing, the Respondent's witness testified that an incident of felony theft by shoplifting was the disqualifying offense. During the screening process, the Respondent obtained criminal records stating that the Petitioner had been arrested on April 17, 2003, and charged with a battery in Seminole County, Florida. The records also stated that the Respondent had been arrested on November 26, 2004 and charged with a third- degree count of felony grand theft in Orange County, Florida. The Petitioner was born on August 18, 1987. Petitioner was 15 years old at the time of the battery and 17 years old at the time of the theft. The Petitioner completed a pre-trial diversionary program and the battery charge was not prosecuted. According to the police report, which the Petitioner did not dispute at the hearing, the grand theft arrest was for shoplifting. The total retail value of the items shoplifted was $360.86, which constituted a third-degree felony pursuant to Subsection 812.014(2)(c)1., Florida Statutes. On June 6, 2005, the Petitioner was placed on probation for a period of six months for the theft, and supervisory responsibility was assigned to her mother, with whom the Petitioner resided. There is no evidence that the Petitioner did not comply with the terms of her probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure to operate a Registered Family Day Care Home be denied. DONE AND ENTERED this 14th day of December, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 14th of December, 2006. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Jerika Casado 525 Monica Rose Drive, No. 632 Apopka, Florida 32703 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent's registration to operate a family day care home should be revoked.
Findings Of Fact At all times material to the allegations of this case, Respondent, Kathy Stone, d/b/a Stone Family Day Care, was registered by the Department to operate a day care facility in her home located at 272 Southwest Fairchild Avenue, Port St. Lucie, Florida. As part of the registration for such day care home, Respondent was required to complete forms on which Respondent was to identify all members of the household residing at the registered location. Specifically, Respondent was to disclose any person over twelve years of age residing at the home. None of the registration forms completed by Respondent disclosed that an individual named Kevin Schaffer resided at the registered home. On more than one occasion law enforcement authorities were called to Respondent's residence in order to intervene in domestic disputes between Respondent and an individual named Kevin Schaffer. On all such occasions, Mr. Schaffer listed his residence as that of the Respondent's day care home. Mr. Schaffer is a convicted felon. Respondent failed to disclose that Mr. Schaffer was a resident over the age of twelve years residing at the registered day care facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order revoking Respondent's registration as a home day care facility. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sydney L. Schwartz, Esquire Department of Children and Family Services 1436-C Old Dixie Highway Vero Beach, Florida 32960 Katherine Stone, pro se 272 Southwest Fairchild Avenue Port St. Lucie, Florida 34984
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Home Health Care Agency, Inc. (Home Health Care) was licensed as a home health agency by the Agency for Health Care Administration (AHCA), having been issued license number 20481-95 NC. The license was valid for one year from the date of issuance, which was January 1, 1996. The license expired on December 31, 1996, and the license bore such expiration date. On September 9, 1996, AHCA conducted an on-site inspection of Home Health Care. No deficiencies were found. On October 21, 1996, AHCA mailed a blank license renewal application to Home Health Care’s administrator. Accompanying the blank application was a letter also dated October 21, 1996, and addressed to Home Health Care’s administrator. The letter stated, among other things, that Home Health Care's license was expiring on December 31, 1996; that 60 days prior to the expiration date of the license, the application, all required documentation, and the license fee must be received by or postmarked to AHCA; and that a fine may be imposed for failure to timely submit the documents. October 31, 1996, was the deadline for Home Health Care to timely submit the license renewal application to AHCA. On December 3, 1996, Home Health Care’s completed license renewal application was executed. On December 3, 1996, via UPS Next Day Air, Home Health Care shipped its completed license renewal application to AHCA. The next day, on December 4, 1996, AHCA received Home Health Care's completed license renewal application. Home Health Care failed to timely submit its completed license renewal application to AHCA, but submitted the license renewal application 34 days late to AHCA. On or about February 22, 1997, AHCA issued a renewal license to Home Health Care for the 1997 licensure period. Prior to the expiration date of the licenses for home health agencies, as a courtesy, AHCA attempts to mail-out blank license renewal applications to home health agencies. The timing of the mailings varies and is dependent upon when AHCA’s computer system is able to generate the letters to the home health agencies, which accompany the blank license renewal applications. AHCA does not consider its act of courtesy to relieve the home health agency of the responsibility to submit the license renewal application within the required time frames. A home health agency which wishes to renew its license can request a blank license renewal application from AHCA at any time. AHCA receives numerous requests for blank renewal applications, as well as other documents required to be submitted by a home health agency. AHCA can fax, and has faxed, a blank renewal application to a home health agency on the same day that the application is requested. In the previous year, 1995, AHCA mailed a blank license renewal application for the 1996 licensure year to Home Health Care's administrator. Accompanying the blank license renewal application was a letter, dated June 22, 1995, to Home Health Care's administrator, which contained the same information and language as the letter of October 21, 1996, except for the expiration date of the license and the name of the author of the letter. Home Health Care’s administrator prepared and submitted a completed license renewal application for the 1996 licensure year. The blank license renewal applications for 1995 (the 1996 licensure year) and 1996 (the 1997 licensure year) did not change and were identical.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Finding that Home Health Care Agency, Inc. violated Subsection 400.471(5), Florida Statutes (1995), and Rule 59A- 8.003(4), Florida Administrative Code. Imposing an administrative fine of $3,400. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998.
The Issue The issue is whether the renewal application for a family day care home license filed by Petitioner should be denied based upon alleged violations of Florida Administrative Code Rule 65C-20.10(1)(f), stated in Respondent's letter of proposed denial dated August 3, 2005.
Findings Of Fact Based upon the observation of and the demeanor of the witnesses while testifying, documentary materials in evidence, stipulations of the parties, and evidentiary rulings during the hearing, the following relevant, material, and substantial facts are determined: Petitioner was initially granted her first family day care home license to operate a family day care home at 2829 Kathryn Drive, Lakeland, Florida 33805, on August 3, 2003, and her family day care home license was renewed by Respondent for operation at the above address for one additional year on August 3, 2004. At the time of the 2004 family day care home license renewal, Petitioner was in compliance, with no noncompliant items noted in her record from 2003 through 2004 that would have justified denial of the license renewal. On an unspecified date prior to August 3, 2005, Petitioner made an application to renew her family day care home license. On August 3, 2005, Respondent notified Petitioner by letter of the proposal to deny her application for renewal of her family day care home license. Petitioner contested the proposed denial resulting in this administrative hearing on November 7, 2005. The denial letter of Respondent indicated that the decision was based upon, "[y]our inability to ensure the safety of children in your care." The letter continued stating: "Your Family Day Care Home was found to be out of compliance in regards to the fencing requirements as stated in 65C-20.10(1)(f), Florida Administrative Code (F.A.C.), on 07/28/03, 03/22/04, 01/12/05, 01/20/05, and 06/10/05." Petitioner acknowledged that the fence was missing a few boards during the above period. It is undisputed that the January 12, 2005, inspection by Timothy Graddy, child care licensing inspector, found numerous violations. Upon reinspection by Mr. Graddy on January 20, 2005, the violations noted during his January 12, 2005, inspection were corrected, but for repair of the fence around the home and the undated fire extinguisher inspection certification. Mr. Graddy was not called to testify regarding the severity of the noncompliance violations, the probability of harm to health or safety of the children nor actions taken by Petitioner to correct the cited violations. No other witness testified regarding these mandatory items. It is likewise undisputed that Respondent imposed an administrative fine on Petitioner for noncompliance items identified during an undated inspection in 2004. Petitioner, without requesting a Chapter 120, Florida Statutes, hearing, paid the administrative fine of $100 on December 9, 2004, for violations noted in compliance inspections that occurred between January and December of 2004. It is likewise undisputed that the Department imposed a second administrative fine on Petitioner for those violations noted from inspections that occurred between January 1, 2005, and June 21, 2005. Again, and without requesting a Chapter 120, Florida Statutes, hearing, Petitioner paid the administrative fine of $250 on June 1, 2005. William Wright, child care licensing inspector and a member of the license application review committee, reviewed the relicensing application filed by Petitioner, voiced as his primary concern a July 2005 central abuse hotline report of an incident that occurred July 11, 2005. In the abuse report, a two-year-old male child was reported to have had bruises on both facial cheeks. The allegations narrative reflected the child received the bruises by falling/tripping over his shoes. Petitioner called the father of the child, who came by, observed the bruise on his child's cheeks, signed an incident statement prepared by Petitioner, and took his child home. The father did not return his child to Petitioner's family day care home. During the subsequent investigation of the abuse incident, bruises were found on the child's thigh(s). Two or three days after the July 11, 2005, incident report, a subsequent investigation by local law enforcement and follow-up investigation by Respondent's personnel resulted in conflicting and unresolved accounts of how the child received the bruises, where the child received the bruises, and who was at fault for the bruises. It was unclear to the investigators where and how the child received the bruises on his thighs. What is clear is that the child did not receive thigh bruises while in Petitioner's family day care home. Respondent closed the abuse report with "[S]ome indicator of bruises, welts and marks. No intervention services were needed." There is insufficient evidence to conclude, infer or establish that while in Petitioner's care the child sustained bruises on his thighs that were discovered several days after the July 11, 2005, abuse report and, thus, to conclude the child's safety was at risk while in Petitioner's family day care home. Another review committee member, Patricia Hamilton, child care licensing supervisor, opined the proposed denial was based upon "the Department's belief" that Petitioner was not able to operate a day care without violating one or more Florida Administrative Code rules. It is her belief that children in Petitioner's family day care home would not be safe because the historical inspection record compiled by Respondent, in her opinion, demonstrated Petitioner could not consistently comply with the rules of operating a safe family day care home. This is a reasonable inference drawn from a historical review of Petitioner's family day care home inspection record. Petitioner, as of November 28, 2005, filed a Notice of Change of Address. Petitioner now resides at 7354 Beaumont Drive, Lakeland, Florida. By moving to a new residence, Petitioner effectively withdrew the family day care home license application for license of the residence at 2829 Kathryn Avenue, Lakeland, Florida 33805, the subject of this case.
Recommendation Based upon the foregoing findings of fact and conclusions of law hereinabove, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the petition filed by Tarsha Seay, d/b/a Seay Family Day Care Home. DONE AND ENTERED this 24th day of February, 2006, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 24th day of February, 2006.
