16-000072 Department Of Children And Families vs. Teddy And Kathleen Arias
 Status: Closed
Recommended Order on Friday, June 3, 2016.


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Summary: DCF proved that Respondents violated s. 409.175(9)(b)2., by failing to execute a CAP required by rule. However, DCF failed to prove other allegations. Recommended that DCF place foster care license on provisional status and require execution of CAP.

1Department of Children and Family Services v. S.H . , Case

11No. 07-2327, 2007 Fla. Div. Admin. Hear. LEXIS 548 (Fla .

22DOAH October 3, 2007; Fla. DCFS February 13, 2008) ..

32The Department contends that , although the ALJ was " persuaded " by the

43recommended and final orders rendered in the case of Department of Children and

56Family Services v. S.H. , Case No. 07-2327 , there is no requirement for the Department

70to follow the directives of that prior case, if the Department explains the deviation from

85same in its Final Order. §120.68(7)(e)3 Fla. Stat.

93The Department correctly points out that section 120.57(1 )(I) , Florida Statutes ,

104authorizes the Department to reject or modify the conclusions of law in a recommended

118order if it states with particularity its reasons for rejecting or modifying the conclusions

132of law, and finds that its substituted conclusion of law is as or more reasonable than

148that which was rejected or modified. The Department also points out that section

161120.57(1 )(I) , Florida Statutes, authorizes the Department to reduce or increase a

173recommended penalty if the Department reviews the complete record and states with

185particularity its reasons for the changes in its order by citing to the record. The

200Department's exception is granted.

204Conclusions of Law, Paragraph 52.

209The Department takes exception to Conclusions of Law , paragraph 52 , which

220provides:

22152 . Similarly , in the instant case , given the lengthy

231period of good foster care provided by Mrs. Arias and the

242fact that DCF would have renewed Respondents' foster care

251license had Respondents executed the corrective action

258plan , non-renewal of Respondents ' licensure renewal

265application is not warranted . Rather , based on the totality of

276the circumstances , Respondents ' license should be placed

284on provisional status until Respondents execute the

291corrective action plan . Upon execution of the corrective

300action plan, Respondents' renewal application should be

307granted.

308The Department contends that The ALJ ' s recommendation in paragraph 52 is in

322conflict with Finding of Fact, paragraph 36, and Conclusion of Law, paragraph 46.

335According to the Department, Finding of Fact, paragraph 36, states that: " DCF was

348unable to re-license Respondents because they failed to execute the corrective action

360plan required by rule." The Department argues that such a Finding of Fact supports the

375Petitioner's denial of the re-licensure) . The Department points out that Conclusion of

388Law, paragraph 46, concludes that the Department proved that the Respondents

399violated section 409.175(9)(b )2, Florida Statutes, by failing to execute the corrective

411action plan. The Department states that Finding of Fact, paragraph 36, when coupled

424with Conclusion of Law, paragraph 46, supports the denial of the renewal license and,

438in fact, supports a determination that the Department had no choice other than to deny

453re-licensure. The Department concludes, therefore, that denial of Petitioners ' license

464renewal should have been affirmed , citing Rule 65C-13.034(4)(e) Florida Administrative

474Code. This portion of the Department's exception is well-taken.

483The Department takes further exception to the " Recommendation" in paragraph

49352, that the Department place the "Respondents' license" on provisional status until

"505Respondents execute the corrective action plan." The Department contends that this

516recommendation is in conflict with Finding of Fact paragraph 34, that: "Respondents'

528foster care license was due to expire on October 18, 2015 . " The Department contends

543that, at the time of the hearing and at the time of the Recommended Order ,

558Respondents had no foster care license, as it had expired . The Department contends

572that it does not have the ability to place a non-existent license on provisional status, and

588so that portion of the Conclusion of Law , paragraph 52, and Recommendation is a

602nullity. The Department argues, at best, the Final Order could only allow for the

616Respondents' to submit a renewal application, if they so choose, as contemplated in the

630Final Order in Department of Children and Family Services v. S . H., Case No. 07-2327.

646This portion of the Department's exception is not well-taken, as the passage of

659the expiration date of a license does not necessarily result in expiration of the license.

674Section 120.60( 4 ), Florida Statutes, provides in relevant part:

684When a licensee has made timely and sufficient application

693for the renewal of a license which does not automatically

703expire by statute, the existing license shall not expire until

713the application for renewal has been finally acted upon by

723the agency or, in case the application is denied or the terms

735of the license are limited , until the last day for seeking review

747of the agency order or a later date fixed by order of the

760reviewing court.

762Under the statute, if a license does not automatically expire by statute, it will not expire

778if a timely and sufficient application for renewal has been made . The record is unclear

794in this case , as neither the Department nor the Respondents have taken a position

808regarding whether Respondents' license can avoid expiration by the filing of a timely

821and sufficient application for renewal, or whether a timely and sufficient application as in

835fact submitted. Therefore, it cannot be determined whether Respondents ' license

846expired on its renewal date or remains in effect.

855What is clear, however, is that an application for renewal was filed and remains

869pending . The pendency of Respondents ' application and this proceeding do not vitiate

883that application and require that it be filed anew after a final order is issued in this case.

901This case is about whether Respondents ' pending application for renewal should be

914granted or d e nied. Section 409.175(7)(a), Florida Statutes , p e rmits the Dep a rtm e nt to

933issue a provisional license to an applicant, and makes no reference to renewal or lapse

948of a license . This portion of the Department's exceptions is denied.

960Notably, however, Section 409.175(7)(a), Florida Statutes, makes issuance of a

970provisional license contingent upon the submission to the Department of an acceptable

982written plan to overcome the deficiency by the expiration date of the provisional license.

996Section 409.175(7)(a), Florida Statutes, provides that a provisional license may be

1007issued when the agency has submitted a corrective action plan which is approved by

1021the Department. Here, the agency has submitted the plan, but the applicant has not

1035agreed to the plan. In fact, the applicant has refused to sign the plan. Clearly, the

1051statute assumes that the applicant is agreeable to the agency's plan . Respondents'

1064refusal to sign the plan not only bring into question whether the statute permits issuance

1079of a provisional license, but also brings into question whether it is reasonable to be l ieve

1096that Respondents are able to meet the licensing requirements within the time allowed

1109by the provisional license .

1114The Final Order in Department of Children and Family Services v. S.H., Case

1127No. 07-2327, indicated a willingness to issue a six-month provisional license that would

1140require the licensee to both agree to and complete a specified corrective action plan

1154before the expiration of that six-month period. That case does not support the ALJ's

1168recommendation to merely require agreement to a corrective action plan before the

1180expiration of a provisional license . That case also does not dictate that the Department

1195must issue a provisional license if there is a potential for the applicant to both agree to

1212and complete a corrective action plan before the expiration of the provisional license.

1225The Final Order in Department of Children and Family Services v. S . H., Case No. 07-

12422327, does not serve as persuasive precedent, as it provides for licensure, albeit

1255provisional, in the face of a refusal of a licensee to agree to a corrective action plan.

1272Under such facts, there is little reason to believe that the licensee is able to meet the

1289licensing requirements within the time allowed by the provisional license.

1299Adoption of Findings of Fact

1304There being no exceptions to, and otherwise finding no basis to reject or modify

1318the Findings of Fact in the Recommended Order (paragraphs 1 through 36), the same

1332are approved and adopted herein.

1337Adoption of Conclusions of Law

1342With the exception of paragraphs 48 and 52, which are replaced with paragraphs

135548 and 52 as set forth below, the Conclusions of Law in the Recommended Order are

1371approved and adopted herein. The following modified versions of paragraphs 48 and

138352, which I find are as or more reasonable than those that were modified or replaced

1399are approved and adopted herein.

140448. Turning to whether Respondents' foster care license should be

1414renewed, the ALJ was persuaded by the recommended and final orders

1425rendered in the case of Department of Children and Family Services v.

1437S.H., Case No. 07-2327, 2007 Fla. Div. Admin. Hear. LEXIS 548 (Fla.

1449DOAH October 3, 2007; Fla. DCFS February 13, 2008).

1458* * *

146152. However, the final order in Department of Children and Family

1472Services v. S.H., Case No. 07-2327, 2007 Fla. Div. Admin. Hear, does not

1485support the ALJ's recommendation in this case. In S.H., the Department

1496permitted the licensee to apply for a six-month provisional license, during

1507which time the applicant would both agree to and complete a specified

1519corrective action plan. Here, the ALJ is recommending that the

1529Respondents merely agree to the corrective action plan by the end of a

1542provisional license. Further, it is concluded that the S.H. case is not

1554appropriate precedent in light of the language of section 409 . 175(7),

1566Florida Statutes, which clearly contemplates a situation where an agreed

1576corrective action plan would exist before a provisional license is issued.

1587Here, it is not apparent that there is any agreement to any corrective

1600action plan. Absent Respondents ' agreement to the corrective action plan

1611on this record, there is little reason to believe that they are able to meet

1626the licensing requirements within the time allowed by the provisional

1636license .

1638Rejection of the Recommendation

1642After a review of the complete record, including the Department Exhibits 1

1654through 12 and the testimony of Rhoda Cantor (TR, Pp.130-162), Leslie Serena (TR,

1667Pp . 184-194 ), Veronica Montgomery-Roper (TR, Pp. 195-204) and Aaron Gentry (TR,

1680Pp . 205-212), it is concluded that the ALJ ' s recommendation to issue a six-month

1696provisional license to Respondents, during which time they would execute a corrective

1708action plan , is inappropriate. The ALJ found that the Respondents refused to execute a

1722corrective action plan. The ALJ made no finding that there was reason to believe that

1737they would do so and also satisfactorily complete that corrective action plan within the

1751proposed six-month provisional license period. Issuance of a provisional license under

1762these circumstances is not consistent with the intent of section 409.175(7), Florida

1774Statutes. The ALJ's recommendation is rejected. Denial of Respondents' renewal

1784application is appropriate under the circumstances.

1790Accordingly, the Recommended Order is approved and adopted as modified

1800above. Respondent's application for renewal of their foster care license is DENIED.

1812DONE AND ORDERED at Tallahassee, Leon County, Florida, this fi day of

1824NOTICE OF RIGHT TO APPEAL

1829THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY

1840A PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES

18509.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE . SUCH APPEAL

1861IS INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE

1874AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES, AT 1317

1885WINEWOOD BOULEVARD, BUILDING 2, ROOM 204, TALLAHASSEE, FLORIDA

189332399-0700, AND A SECOI\\ID COPY ALONG WITH FILING FEE AS PRESCRIBED

1904BY LAW, IN THE DISTRICT COURT OF APPEAL WHERE THE PARTY RESIDES OR

1917IN THE FIRST DISTRICT COURT OF APPEAL. THE NOTICE OF APPEAL 1 MUST BE

1931FILED (RECEIVED) WITHIN 30 DAYS OF RENDITION OF THIS ORDER.

19411 The date of the "rendition" of this Order is the date that is stamped on its first page.

1960Copies furnished to the following via U.S. Mail on date of Rendition of this Order. 2

1976Laurel Hopper Reginald B. Sessions, Esquire

1982Assistant General Counsel Sessions Law Office

1988Department of Children and Families 512 South Second Street

1997337 North U.S . Highway 1, 3rd Floor Fort Pierce, Florida 34950

2009Fort Pierce, Florida 34950

2013Claudia Llado, Clerk

2016Division of Administrative Hearings

2020Thee DeSoto Building

20231230 Apalachee Pkwy

2026Tallahassee, FL 32399-3060

20292 The date of the " rendition " of this Order is the date that is stamp e d on its fir s t page .

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PDF
Date
Proceedings
PDF:
Date: 07/28/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 07/14/2016
Proceedings: Agency Final Order
PDF:
Date: 06/27/2016
Proceedings: Respondents' Response to Petitioner Department of Children and Families filed.
PDF:
Date: 06/17/2016
Proceedings: Petitioner, Department of Children and Families' Exceptions to the Recommended Order filed.
PDF:
Date: 06/15/2016
Proceedings: Transmittal letter from Claudia Llado forwarding Respondent's Exhibits numbered 1-2, which was not received in evidence to Respondent.
PDF:
Date: 06/15/2016
Proceedings: Transmittal letter from Claudia Llado forwarding Department's Exhibit no. 10 to Petitioner.
PDF:
Date: 06/03/2016
Proceedings: Recommended Order
PDF:
Date: 06/03/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/03/2016
Proceedings: Recommended Order (hearing held March 11, 30 & April 26, 2016). CASE CLOSED.
PDF:
Date: 05/20/2016
Proceedings: Petitioners' Proposed Recommended Order filed.
PDF:
Date: 05/20/2016
Proceedings: (Respondent's Proposed) Recommended Order filed.
Date: 05/11/2016
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 04/26/2016
Proceedings: CASE STATUS: Hearing Held.
Date: 04/13/2016
Proceedings: Transcript of Proceedings; Volume 3 (not available for viewing) filed.
PDF:
Date: 03/30/2016
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 26, 2016; 9:00 a.m.; Port St. Lucie and Tallahassee, FL).
Date: 03/30/2016
Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
Date: 03/30/2016
Proceedings: Transcript of Proceedings; Volumes I and II (not available for viewing) filed.
PDF:
Date: 03/14/2016
Proceedings: Notice of Hearing by Video Teleconference (hearing set for March 30, 2016; 9:00 a.m.; Port St. Lucie and Tallahassee, FL).
Date: 03/11/2016
Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
PDF:
Date: 03/11/2016
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 03/11/2016
Proceedings: Department of Children and Families CF Operating Procedure 175-88 filed.
Date: 03/09/2016
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 03/07/2016
Proceedings: Motion for Hearing Management Conference filed.
Date: 03/07/2016
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 03/04/2016
Proceedings: Respondent's Proposed Exhibits filed.
PDF:
Date: 03/04/2016
Proceedings: Notice of Filing filed.
PDF:
Date: 03/03/2016
Proceedings: (Petitioner's) Notice of Filing Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 03/02/2016
Proceedings: Petitioner's Proposed Exhibit List filed.
PDF:
Date: 03/02/2016
Proceedings: Notice of Filing filed.
PDF:
Date: 02/29/2016
Proceedings: Joint Pre-Trial Hearing Stipulation filed.
PDF:
Date: 01/20/2016
Proceedings: Notice of Hearing by Video Teleconference (hearing set for March 11, 2016; 9:00 a.m.; Port St. Lucie and Tallahassee, FL).
PDF:
Date: 01/20/2016
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 01/19/2016
Proceedings: Joint Response to Initial Order Prepared by the Department of Children and Families filed.
PDF:
Date: 01/11/2016
Proceedings: Initial Order.
PDF:
Date: 01/08/2016
Proceedings: Administrative Complaint with Notice of Intent to Deny a License filed.
PDF:
Date: 01/08/2016
Proceedings: Response to Administrative Complaint filed.
PDF:
Date: 01/08/2016
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
DARREN A. SCHWARTZ
Date Filed:
01/08/2016
Date Assignment:
01/11/2016
Last Docket Entry:
07/28/2016
Location:
Port St. Lucie, Florida
District:
Southern
Agency:
DOAH Order Rejected
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (5):

Related Florida Rule(s) (1):