01-001761 Charlie And Elizabeth Hankerson vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, September 27, 2001.

Summary: The Department presented sufficient evidence to establish facts to show a violation of the licensing standards and thereby was authorized to deny relicensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE AND ELIZABETH )

HANKERSON, )

)

Petitioners, )

)

vs. ) Case No. 01-1761

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on June 27, 2001, in Sebring, Florida.

APPEARANCES

For Petitioner : Charlie and Elizabeth Hankerson, pro se

1240 Grand Avenue

Sebring, Florida 33870

For Respondent : Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

STATEMENT OF THE ISSUE

Should Petitioners' application for annual renewal of their

foster care license be denied?

PRELIMINARY STATEMENT

By letter dated March 20, 2001, the Department of Children

and Family Services (Department) advised Petitioners that their

Application to Renew Foster Care License had been denied. As

grounds therefor, the Department alleges that Petitioners failed

to abide by the Partnership Agreement signed by Petitioner

Elizabeth Hankerson on March 19, 1998, and the Partnership

Agreement signed by Elizabeth Hankerson and Charlie Hankerson on

May 19, 1999, in that: (a) during a relicensure inspection on

February 7, 2001, several unsafe and unsanitary conditions in

Petitioners' home were noted in violation of Rule 65C-

13.011(11)(b), Florida Administrative Code; (b) during a

relicensure inspection on February 7, 2001, several unsafe and

unsanitary conditions were noted in Petitioners' yard in

violation of Rule 65C-13.011(11)(b), Florida Administrative

Code; (c) during a relicensure inspection on February 8, 2001,

the licensing counselor noted several objects, materials, and

conditions in the home which constituted a danger to children in

violation of Rule 65C-13.011(11)(b), Florida Administrative

Code; (d) during a relicensure inspection on February 8, 2001,

the licensing counselor noted several containers of medicine and

of chemicals that were not stored in a locked container in

violation of Rule 65C-13.011(14)(a), Florida Administrative

Code; (e) during a relicensure inspection on February 9, 2001,

the licensing counselor noted that the unsafe conditions noted

during the February 7 and 8, 2001, inspections had not been

corrected in violation of Rule 65C-13.011(11)(b) and (12)(a),

Florida Administrative Code; and (d) during a follow-up visit on

February 19, 2001, many conditions and situations unsafe for

children were observed in the home and the yard as previously

noted in violation of Rule 65C-13.011(11)(b) and (12)(a),

Florida Administrative Code. By an undated letter received by

the Department on April 10, 2001, Petitioners requested a

hearing on the denial of their renewal application. By Notice

dated May 4, 2001, the Department referred this matter to the

Division of Administrative Hearings (Division) for the

assignment of an Administrative Law Judge and for the conduct of

a formal hearing.

At the hearing, Petitioners presented the testimony of

Elizabeth Hankerson, Deloris Cox, Maggie T. Walker, and Linda

Faye Wynn. Petitioners' Exhibits 1 through 5 were admitted in

evidence. The Department presented the testimony of Faye Olds,

Karen Luther, Shawna Vest, and Evelyn Alvarado. The

Department’s Exhibits 1 through 14 were admitted in evidence.

Rule 65C-13.011(11)(b) ,(12)(a), and (14)(a), Florida

Administrative Code, was officially recognized.

A Transcript of this proceeding was filed with the Division

on July 11, 2001. The Department timely filed its Proposed

Recommended Order. Petitioners elected not to file a proposed

recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. The Department is the agency of the State of Florida

charged with the responsibility of licensing family foster

homes.

2. Petitioners were first licensed as a foster home by the

Department in March 1996.

3. On March 19, 1998, Petitioner Elizabeth Hankerson

entered into a Partnership Agreement with the Department, which

in pertinent part provides:

Partnership Agreement

* * *

In Re : Lack of supervision/Consistency to

keep home within foster care licensing

standards/Disciplinary methods:

This partnership agreement has the intention

to address two safety issues that were

reported in this home. The first one refers

to the lack of adult supervision for the

foster children when the foster mother, Mrs.

Hankerson, is working in her beauty salon.

The other issue is related to the lack of

consistency in keeping the foster home

within standards that will assure that

children are free of hazards.

(Emphasis furnished.)

Parents' tasks:

* * *

4. The foster mother will keep scissors,

razors, electric equipment and chemicals

used in her beauty salon out of the reach of

children and locked in a cabinet. The

foster mother will keep the key on her at

all times.

* * *

6. The foster mother will keep the home

sanitized to the best of her abilities to

avoid risk of allergies and infections in

the foster children.

7. The foster mother will keep laundry

clothes in a closet or place else than the

floor thus avoiding a fire hazard that could

put the whole family at risk.

8. The foster home must be maintained to

such extent that sanitation inspection may

be passed at any time with a satisfactory

rating.

4. On May 19, 1999, Elizabeth Hankerson and Charlie

Hankerson entered into a Partnership Agreement with the

Department, which in pertinent part provides:

Partnership Agreement

* * *

In Re : Lack of supervision/Consistency to

keep home within the foster care licensing

standards/Disciplinary methods:

This partnership agreement has the intention

to address two safety issues that were

reported in this home. The first one refers

to the lack of adult supervision for the

foster children when the foster mother, Mrs.

Hankerson, is working in her beauty salon.

The other issue is related to the lack of

consistency in keeping the foster home

within standards that will assure that

children are free of hazards.

(Emphasis furnished.)

* * *

Parents' tasks:

* * *

4. The foster mother will keep scissors,

razors, electric equipment, and chemicals

used in her beauty salon out of the reach of

children and locked in a cabinet. The

foster mother will keep the key on her at

all times.

* * *

6. The foster parents will keep the home

sanitized to the best of her abilities to

avoid risk of allergies and infections in

the foster children.

* * *

7. The foster parents will keep laundry

clothes in a closet or place else than the

floor thus avoiding a fire hazard that could

put the whole family at risk.

8. The foster home must be maintained to

such extent that a sanitation inspection may

be passed at any time with a satisfactory

rating.

5. On February 7, 2001, Karen Luther (Luther), a licensing

counselor with the Department, visited Petitioners' home in

anticipation of Petitioners filing their application for the

annual renewal of their foster care license. At the time of

this visit, Petitioners were caring for two foster children in

their home, ages 3 years and 15 years.

6. During her visit on February 7, 2001, Luther observed

conditions in Petitioners' home that she considered to be

unsanitary or unsafe for children. Those conditions were: (a)

exposed light bulbs in a ceiling fixture; (b) a light switch

taped over to prevent the switch from being used; (c) missing

wall tiles in the main bathroom; (d) black mold growing on the

lower bathroom tiles and on the front and back of the bathtub in

the main bathroom; (e) a half-bath filled with debris and stored

objects stacked approximately six feet high; (f) kitchen

cabinets that could not be closed exposing the contents to the

children; and (g) a cabinet in the utility room with a severely

bent door, which made cleaning chemicals that were stored in the

cabinet accessible to the children.

7. During her visit on February 7, 2001, Luther also

observed conditions in Petitioners' yard which she considered

constituted a danger to the children. Those conditions were:

(a) rebar (metal rods) sticking out of a foundation used as an

outdoor patio; (b) large amounts of broken glass; (c) a curtain

rod; (d) a large pile of rusty nails; (e) a part of a burned

storage shed filled with debris; (f) auto hub caps and tires;

(g) high weeds; (h) machinery and truck parts, including a

transmission; (i) a rusted gasoline can, many metal objects,

pieces of a broken storm window, cans, broken pottery, stuffed

toys, screwdrivers, large rolls of fencing, fence posts, an

unlicensed van filled with clothing; and an abandoned boat.

8. On February 8, 2001, Shawna Vest (Vest), child

protective investigator, visited Petitioners' home for the

purpose of investigating a Florida Abuse Hotline Report alleging

conditions hazardous to the two foster children residing in the

home. While in the home, Vest observed: (a) a knife and a

bottle of Mylanta on the kitchen counter within reach of the

three-year old child; (b) containers of barbecue sauce, mustard,

salt and seasonings that were opened and within reach of the

three-year child; (c) scum building up on the outside of the

girl's bathroom, a curling iron exposed, and cleaning materials

not locked in a cabinet; (d) missing tile from the wall and mold

along the edges in the boys' bathroom; (e) a container of Hot

Shot insecticide out in the open in Elizabeth Hankerson's

bathroom, which was accessible to the children; and (d) some

children's medicine and aerosols out in the open accessible to

the children in Elizabeth Hankerson's bedroom.

9. On February 8, 2001, while visiting Petitioners' home,

Vest observed a partially burned shed, broken glass, broken

machinery, tires, hubcaps, an abandoned van, an abandoned boat,

and generally, a junk area. Vest closed the Florida Abuse

Hotline Report as verified.

10. On February 9, 2001, Petitioners filed an application

with the Department for renewal of their foster care license.

11. On February 14, 2001, Elizabeth Hankerson visited with

Luther in her office. Luther advised Elizabeth Hankerson that

Petitioners' home did not meet the requirements of the relevant

administrative rules and that Petitioners would have to clean

the house and remove all safety hazards from the house and yard

in order to meet the requirements for licensure renewal.

12. On February 19, 2001, Luther visited Petitioners' home

and observed that Petitioners had made some effort to bring the

house and yard into compliance in that Petitioners had removed

the stored objects from the half bathroom. However, Luther also

observed: (a) bare light bulbs still in the boys' bedroom; (b)

kitchen cabinets that still did not close properly so as to deny

the children access; (c) the doors of the cabinet in the utility

room were still bent allowing the children access. Luther

observed that although some of the safety hazards had been

removed from the backyard, most of them remained, including the

partially burnt shed, which had burned in April 1999. Luther

also observed that the debris, which had been removed from the

yard, had been placed in a watermelon truck on the edge of

property and was still accessible to the children.

13. Evelyn Alvarado (Alvarado), supervisor of licensing

for the Department's Sebring office, was present during the time

Luther visited Petitioners' home on February 7 and 19, 2001.

Alvarado observed the same unsafe conditions as Luther observed

on those dates.

14. On February 26, 2001, Alvarado advised Petitioners

that their home, including the yard, was not safe for children

in that conditions still remained in the home and the yard which

constituted a danger to the children. Thereafter, on March 20,

2001, the Department advised Petitioners that their application

for the annual renewal of their foster care license had been

denied.

15. Based on the testimonies of Luther, Vest, and

Alvarado, which I find to be credible, there is sufficient

evidence to establish facts to show that a number of conditions

existed in the home and the yard which constituted a danger to

the foster children living in the home, notwithstanding any

testimony of Elizabeth Hankerson to the contrary, which I find

lacks credibility.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

17. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). The Department has the

burden of proof in this proceeding. To meet its burden, the

Department must establish facts upon which its allegations are

based by a preponderance of the evidence. Department of Banking

and Finance, Division of Securities and Investor Protection v.

Osborne Stern Company , 670 So. 2d 932 (Fla. 1996), Section

120.57(1)(j), Florida Statutes, and Section 409.175(2)(f),

Florida Statutes.

18. Section 409.175(8)(a)(b )2., provides as follows:

(8)(a ) The department may deny, suspend,

or revoke a license.

(b ) Any of the following actions by a

home or agency or its personnel is a ground

for denial, suspension, or revocation of a

license.

* * *

2. A violation of the provisions of this

section or of licensing rules promulgated

pursuant to this section.

19. Rule 65C-13.011(11)(b), 12(a), and (14)(e), Florida

Administrative Code, sets forth certain minimum standards for

licensure of family foster homes as follows:

(11 ) Physical Environment.

* * *

(b ) The home and premises must be free

from objects, materials, and conditions

which constitute a danger to children.

(Emphasis furnished.)

* * *

(12 ) Play Area and Equipment.

* * *

(a ) The home must have a safe outdoor

play area as part of the property or within

reasonable walking distance.

* * *

(14 ) Foster Home Safety.

* * *

(a ) All medications, poisonous chemicals,

and cleaning materials must be in a locked

place and inaccessible to children.

20. Clearly, Petitioners violated the Partnership

Agreements by failing to keep their home within the foster care

licensing standards. However, the Partnership Agreements

notwithstanding, the Department has met its burden to show that

Petitioners violated the above-cited licensing standards for

foster homes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department enter a final order

denying Petitioners' application for the annual renewal of their

foster care license.

DONE AND ENTERED this 27th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of September, 2001.

COPIES FURNISHED:

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

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

Charlie and Elizabeth Hankerson

1240 Grand Avenue

Sebring, Florida 33870

Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.