09-005614 Randolph And Gail Beasley vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, January 26, 2010.

Summary: Respondent proved that Petitioners could not assure safety of foster children in their care after a serious auto accident caused by foster father's reckless driving and parents' inability to understand the risk that this behavior posed to foster children.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANDOLPH AND GAIL BEASLEY, )

)

Petitioners, )

)

vs. ) Case No. 09-5614

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Fort

Pierce, Florida, on November 20, 2009.

APPEARANCES

For Petitioners: Randolph and Gail Beasley, pro se

805 Highland Drive Southwest

Vero Beach, Florida 32962

For Respondent: Laurel Hopper

Department of Children

and Family Services

337 North Highway 1, Suite A

Fort Pierce, Florida 34950

STATEMENT OF THE ISSUE

The issue is whether Petitioners are entitled to renewal of their foster home license.

PRELIMINARY STATEMENT

By letter dated September 1, 2009, Respondent advised

Petitioners that it was denying their application for renewal of

their foster home license. The letter states that, on

February 22, 2009, Mr. Beasley drove his motor vehicle

recklessly and under the influence of alcohol, resulting in his

arrest and adjudication of guilty of the criminal offense of

reckless driving. The letter states that Mr. Beasley operated

his vehicle at 110-120 miles per hour before losing control of

it and flipping it several times. The letter adds that

Petitioners failed to inform Respondent within 48 hours of the

arrest. The letter concludes that these actions constitute

violations of Section 409.175(5)(a)5. and 11., Florida Statutes,

and Florida Administrative Code Rules 65C-13.023(7) 65C-

a).

Petitioners timely requested a formal hearing.

At the hearing, Petitioner called eight witnesses and

offered into evidence one exhibit: Petitioner Exhibit 1.

Respondent called one witness and offered into evidence three

exhibits: Respondent Exhibits 1-5. All exhibits were admitted

except Petitioner Exhibit 1 and Respondent Exhibits 1 and 3,

which were proffered.

The court reporter filed the Transcript on December 9,

2009. Respondent filed a Proposed Recommended Order on

December 17, 2009.

FINDINGS OF FACT

1. Petitioners have been married 36 years and raised seven

biological and two adopted children. They have been licensed as

foster parents for many years and have cared for several foster

children, evidently without incident.

2. While licensed and caring for a 13-year-old foster

child, Mr. Beasley operated his passenger car at speeds in

excess of 110 miles per hour at about 2:30 a.m. on February 22,

2009. He lost control of the vehicle while in a residential

area, and it rolled at least twice before coming to a stop.

Fortunately, Mr. Beasley was not seriously injured, nor did

anyone else suffer injuries, from the accident, after which the

vehicle was a total loss.

3. The investigating sheriff's deputy administered a field

sobriety test and found Mr. Beasley, who emitted the odor of

alcohol, appeared to be intoxicated, so he placed him under

arrest and transported him to the county jail. Although

Mr. Beasley admitted that he had consumed several alcoholic

beverages earlier in the evening, he had little, if any, alcohol

left in his bloodstream, based on four breathalyzers that were

administered to him at the jail. Irritated at the repeated

breathalyzers, Mr. Beasley refused to submit to a urinalysis,

which, the correctional officer expected would confirm the

source of Mr. Beasley's apparent intoxication.

4. The refusal to submit to a urinalysis resulted in the

suspension of Mr. Beasley's driver license. On May 27, 2009,

Mr. Beasley pleaded guilty to reckless driving. He was

sentenced to six months' probation, attendance at counseling,

and community service, and he had to pay a fine.

5. Respondent claimed that Petitioners did not timely

report the incident to Respondent or its agent responsible for

supervising Petitioners as foster parents. However, Ms. Beasley

timely disclosed the incident. She disclosed it on March 3, and

the licensing agent waited until the expiration of Petitioners'

license, two months later, to remove the child.

6. The more serious issue is the lack of insight of

Ms. Beasley; Mr. Beasley did not testify. Ms. Beasley testified

that Mr. Beasley was "unlucky" to have the accident, and they

were chagrined by the loss of the vehicle. Ms. Beasley had

ample opportunity to explain how Mr. Beasley had taken

responsibility for his behavior that evening and the steps he

had taken to ensure that the behavior would not recur. Instead,

she testified that she felt responsible for the wreck because

she had given her husband five dollars to go purchase cigarettes

just before the accident.

7. Mr. Beasley's primary responsibility in the home is

driving, whether on summer vacations or routine trips in town.

Retired by the time of the accident, Mr. Beasley bore the

responsibility of driving the foster child during the day, as

Ms. Beasley works as a mail carrier for the U.S. Postal Service.

8. Petitioners have provided a safe, loving environment

for many years for many foster children. However, this long

record of good service is overshadowed by Mr. Beasley's role as

the primary driver of the foster child and Petitioners' failure

to appreciate the risks posed to a foster child by Mr. Beasley's

dangerously poor judgment while driving and Mr. Beasley's role

as the primary driver of the foster child. Unless and until

Petitioners display greater insight into these risks and can

provide reasonable assurance that Mr. Beasley's poor judgment

while driving will not be repeated, it is impossible to find

that they can provide a reasonably safe home for foster

children.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

Fla. Stat. (2009).

10. Section 409.175(9)(b)1., Florida Statutes, authorizes

Respondent to deny, suspend, or revoke a license for any

"intentional or negligent act materially affecting the health of

safety of children in the home or agency."

11. In an application case, the agency has the burden of

persuasion as to the reasons for the denial. Comprehensive

Medical Access, Inc. v. Office of Insurance Regulation , 983 So.

2d 45, 46 (Fla. 1st DCA 2008). When dealing with a business

license, there is no difference between the revocation of the

license and the refusal to renew it. Vicbar, Inc. v. Miami , 330

So. 2d 46, 47 (Fla. 3d DCA 1976), cert. denied 344 So. 2d 324

(Fla. 1977). Under either scenario, Respondent has the burden

of proof, which, regardless of the standard of proof, it has met

by showing that the safety of foster children placed in

Petitioners' care cannot be reasonably assured at present.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Family

Services enter a final order denying Petitioners' application to

renew their foster home license.

DONE AND ENTERED this 26th day of January, 2010, in

Tallahassee, Leon County, Florida.

___________________________ ________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 2010.

COPIES FURNISHED:

Gregory Venz, Agency Clerk

Department of Children and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, General Counsel

Department of Children and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

George H. Sehldon, Secretary

Department of Children and Family Services

Building 2, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Laurel Hopper, Esquire

Department of Children and Family Services

337 North U.S. Highway 1, 3rd Floor

Fort Pierce, Florida 34950

Randolph Beasley

Gail Beasley

805 Highland Drive Southwest

Vero Beach, Florida 32962

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.