01-001810 Department Of Children And Family Services vs. Troy And Rebecca Allen Status: Closed Recommended Order on Monday, September 24, 2001.

Summary: There was sufficient evidence presented to establish facts to show the alleged violations occurred; relicensure denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 01-1810

)

TROY AND REBECCA ALLEN, )

)

Respondents. )

)

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 28, 2001, Lakeland, Florida.

APPEARANCES

For Petitioner : Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent : Troy and Rebecca Allen, pro se

4514 Scottswood Drive

Lakeland, Florida 33813

STATEMENT OF THE ISSUE

Should Respondents' application for annual renewal of their

foster care license be denied?

PRELIMINARY STATEMENT

By letter dated February 20, 2001, the Department of

Children and Family Services (Department) advised Respondents

that their Application to Renew Foster Care License had been

denied. As grounds therefor, the Department alleges that: (a)

Respondents were in violation of Rule 65C-13.001(1)(a), Florida

Administrative Code, in that the number of children in the home,

which included both foster children and Respondent's children,

was in excess of five children; (b) Respondents had failed to

submit a report of an approved sanitation inspection from the

Polk County Health Department in violation of Rule 65C-

13.006(1), Florida Administrative Code; (c) Respondents failed

to keep their yard free from objects, materials, and conditions

which would constitute a danger to the children in violation of

Rule 65C-13.00(11)(b), Florida Administrative Code; (d)

Respondent Troy Allen had used corporal punishment on a foster

child as a means of discipline in violation of Rule 65C-

13.010(1)(f), Florida Administrative Code; (e) Respondents had

allowed the foster children in the home to have contact with a

126 pound Rottweiler dog in violation of Rule 65C-13.011(14)(e),

Florida Administrative Code; and (f) Respondents had failed to

provide a proper barrier to the in-ground swimming pool located

in Respondent's backyard in violation of Rule 65C-13.011(12)(b),

Florida Administrative Code. By letter dated March 4, 2001,

Respondents requested a hearing on the denial of their renewal

application. On April 2, 2001, the Department issued a Notice

of Department's Intention to Dismiss Respondents' Request for

Hearing Unless Additional Information is filed by Respondents'

Within Twenty One Days. By letter dated April 6, 2001,

Respondents furnished the additional information required by the

Notice. By Notice dated May 8, 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, the Department presented the testimony of

Cheryl Dishong, Vicki Sweet, and Mazen Omari. The Department’s

Exhibits 1, 2, and 3 were admitted in evidence. Respondents

presented the testimony of Troy Allen and Marla Sale.

Respondents Exhibits 1 through 10, a series of photographs taken

in Respondents' home on June 27, 2001, were admitted in

evidence. Section 409.175(8), Florida Statutes, and Rules 65C-

13.001(1)(a), 65C-13.006, 65C-13.010, and 65C-13.011, Florida

Administrative Code, were officially recognized.

A Transcript of this proceeding was filed with the Division

on July 5, 2001. The Department timely filed its Proposed

Recommended Order. Respondents 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. Respondents were first licensed as a foster home by the

Department in February 1999.

3. At the time of the initial licensure in February 1999 ,

the Department was aware that Respondents owned a large

Rottweiler dog. However, the issue of the dog was resolved, and

the Department issued Respondents their initial license and

renewed their license in February 2000.

4. At the time of the initial licensure in February 1999,

and the renewal in February 2000, Respondents had an in-ground

swimming pool located in their backyard. Apparently, the lack

of a proper barrier around the pool, as required by the

Department rule, was not an issue since the Department issued

the initial license in February 1999, and renewed that license

in February 2000.

5. On November 6, 2000, Respondents filed an application

with the Department for renewal of their foster home license.

6. On November 6, 2000, Cheryl Dishong, the Department's

foster care licensing worker, visited Respondents' home and

determined that Respondents were caring for nine children in

their home which included: (a) four foster children placed in

Respondents' home by the Department; (b) Respondents' two

natural children; (c) Respondents' two adopted children; and

(d) one child, no relation to Respondents, which they were

caring for due to the child's mother having been incarcerated.

However, this child is no longer in the home except for

visiting.

7. Respondents never attempted to a seek waiver to exceed

the "rule of five" set out in Rule 65C-13.001(a), Florida

Administrative Code, for good cause as provided for in

Rule 65C-13.011(1)(b), Florida Administrative Code.

8. On December 8, 2000, Mazen Omari, sanitation inspector

with the Polk County Heath Department, inspected Respondents'

home and found the following: (a) the carpet in the living room

and the bedrooms needed cleaning and the kitchen needed cleaning

( there were dirty dishes in kitchen sink); (b) the children's

bedrooms needed cleaning and their clothes needed to be put in a

proper place; and (c) the fire extinguisher needed an up-to-date

inspection tag.

9. Respondents did not advise the Polk County Heath

Department that the violations noted by Omari on

December 8, 2000, had been corrected. Therefore, the Polk

County Health Department did not provide the Department with an

approved Sanitation Report.

10. On January 3, 2001, Cheryl Dishong visited

Respondents' home. During this visit, Dishong determined that

Respondents had not corrected the sanitary violations cited by

Omari on December 8, 2000. Dishong found that Respondents' fire

extinguisher had been used but had not been recharged. Dishong

observed: (a) dirt, dirty handprints, and crayon markings on

the walls throughout the house; (b) dirty carpet throughout the

house; and (c) general clutter, with piles of clothes on the

floor in the laundry room.

11. Cheryl Dishong visited Respondents' home again on

January 12, 2001, and observed that not all of the sanitary

violations cited by Omari on December 8, 2000, had been

corrected. Dishong also observed: (a) the house being in

"general disarray;" (b) a bed frame in one of the rooms which

needed to be stored where it would not constitute a danger to

the children's safety; (c) zippy cups and clothing strewn about;

and (d) debris, including chair cushions and "other things"

scattered all over the yard, which could be considered as

constituting a danger to the children's safety.

12. Dishong visited Respondents' home again on

January 22, 2001, and observed that not all of the sanitary

violations cited by Omari on December 8, 2000, had been

corrected. Dishong also observed some hazardous household

cleaning chemicals that were not locked up to prevent access by

the children. However, Respondents had purchased a lock, and it

appeared that they were in the process of installing the lock on

the cabinet door to prevent access to the chemicals by the

children. In the front yard, Dishong observed: (a) a garden

hose lying across the walkway in two places; (b) a metal

rectangular bar lying across the walkway which two of the boys

were throwing back and forth; (c) a toy lawnmower under the

family van; and (d) garbage items such as open bean cans and

pieces of cement scattered "all about.” In the backyard,

Dishong observed: (a) a trampoline beside the swimming pool;

(b) items scattered throughout the backyard, including chair

cushions; (c) that there was no barrier around the swimming pool

as required by Department rule; (d) and that the pool was

covered by green algae. All of the things observed by Dishong

at Respondents' home on January 22, 2001, could be considered as

constituting a danger to the children's safety.

13. Respondent Troy Allen testified that there was a fence

installed on three sides of the swimming pool and that the house

served as a barrier on the fourth side. However, there were no

safety features, such as those listed in Rule 65C-13.01(12)(c),

Florida Administrative Code, installed on the exits from the

house to the swimming pool to prevent the children from having

access to the swimming pool only when supervised. Therefore the

swimming pool was readily accessible to the children from the

house when unsupervised.

14. Respondents own a Rottweiler dog, and had owned such a

dog from the beginning of their licensure in February 1999. The

dog was present at Respondents home on each occasion that

Dishong visited Respondents' home. An earlier safety plan,

agreed to by Respondents, required that the dog be kept outside,

or restricted from the children, unless supervised while in the

presence of the children. There was no evidence that this

agreement had been violated by Respondents. This dog might be

what Dishong considers to be a "large pet." However, other than

Dishong's description of the dog as being a "large dog" and

estimating its weight to be 125 pounds, there was no evidence

that the dog met the definition of "large" as anticipated by the

Department's rule. Likewise, there was no evidence to show that

this particular dog was potentially dangerous.

15. Shortly before the hearing, Respondents had new carpet

installed through out the house where appropriate, the walls

stripped and painted, tile installed in areas where carpet was

not appropriate, and some new furniture installed, which

included a replacement for the bed frame that was noted as a

violation.

16. By letter dated February 20, 2001, the Department

notified Respondents that their application for renewal of their

foster home licensure had been denied.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

18. 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, Section 120.57(1)(h),

Florida Statutes, and Section 409.175(1)(f), Florida Statutes.

19. Rule 65C-13.001(1)(a), Florida Administrative Code,

limits the number of children in a family foster home to five,

including the family's own children. However, Rule 65C-

011(1(b), Florida Administrative Code, provides an exception to

that rule as follows:

(1 ) Family Composition

* * *

(b ) Generally there should be no more

than five children in a home, including the

substitute care parents' own children. This

criteria may be waived for good clause and

with written approval of the Family Safety

and Preservation program office. If a

family has emotional and physical capacity

to nurture more than five children, it is

not against policy to establish a capacity

above the rule of five . (Emphasis

furnished.)

Respondents clearly exceeded the "rule of five" children

allowed in a family foster home. However, Respondents did not

have written approval of the Family Safety and Preservation

program office to exceed the "rule of five" as required by

Department rule.

20. Rule 65C-13.006(1)(9), Florida Administrative Code,

provides as follows:

(1 ) The department must receive the

report of an approved sanitation inspection

from the local health program office.

* * *

(9 ) At least two weeks prior to the date

for relicensure copies of all forms,

including the sanitation inspection , must be

submitted to the district office with a

request for the issuance of a new license.

In accordance with Rule 65C-13.01l(11)(c), Florida

Administrative Code, Respondents' home was inspected by the Polk

County Health Department on December 8, 2000, and Respondents

were given a copy of the Inspection Report prepared by Omari

listing the violations found by Omari. It was Respondents'

responsibility to advise the Polk County Health Department that

the violations noted in the December 8, 2000, Inspection Report

had been corrected in order for the Polk County Health Department

to furnish the Department with an "approved sanitation report."

Respondents failed to notify the Polk County Health Department

that the violations had been corrected. Therefore, the

Department did not receive an "approved sanitation inspection" as

required by the Department rule.

21. Rule 65C-13.010(1)(b )5.f., Florida Administrative Code,

provides:

(1 ) Responsibilities of the Substitute

Parent to the Child.

* * *

(b ) Family Care Activities.

* * *

5. Discipline.

* * *

(f ) The substitute care parents must not

use corporal punishment of any kind.

Respondent Troy Allen admitted to having used corporal

punishment on one of the foster children under Respondents' care,

notwithstanding that he was aware of the Department's policy

prohibiting the use of corporal punishment on any foster child,

for any reason. Other than this incident of the use of corporal

punishment by Respondent Troy Allen, there is no evidence that

Respondents engaged in the use corporal punishment on any of the

foster children under their care.

22. Rule 65C-13.011(11)(b), 12(c) 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.

* * *

(12 ) Play Area and Equipment.

* * *

(c ) Swimming pools must have a barrier on

all four sides of at least four feet. The

barrier may consist of a house plus a fence

on the three remaining sides or a four-sided

fence. All access through the barrier must

have one of the following safety features :

alarm, key lock, self-locking doors or a

bolt lock that is not accessible to

children. . . .

* * *

(14 ) Foster Home Safety.

* * *

(e ) The substitute care parents must have

a method to restrict children's access to

large pets or potentially dangerous animals.

23. On the occasions of all visits by Dishong,

there were objects and conditions existing in

Respondents' home and yard that constituted a danger

to the children's safety.

24. Respondent Troy Allen testified that a fence

surrounded the swimming pool on three sides and that the house

served as the fourth side of the barrier as allowed by rule.

However, the swimming pool was readily accessible to the

children from the house due to the lack of one of those safety

features listed in Rule 65C-13.011(12)(c), Florida

Administrative Code.

25. The Department has shown that there was a Rottweiler

dog in and around Respondents' home that the children played

with from time to time. However, the Department has failed to

prove that the dog was what the rule considered to be a large

dog or was potentially dangerous.

26. Respondents made an appropriate attempt to correct the

problems existing in the home with new carpet, new tile, painted

walls, and some new furniture. This attempt to correct the

existing problems was "too Little, too late." It appears that

Respondents were simply unable, both physically and financially,

to take care of the number of children for which they were

responsible.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

denying Respondents application for the annual renewal of their

foster care license.

DONE AND ENTERED this 24th 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 24th day of September, 2001.

COPIES FURNISHED :

Troy Allen

Rebecca Allen

4514 Scottswood Drive

Lakeland, Florida 33813

Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

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

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.