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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 16 - 0072

TEDDY AND KATHLEEN ARIAS,

Respondents.

_______________________________/

RECOMMENDED ORDER

This case came b efore Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing by video teleconference on March 11 and 30 and April 26,

2016, at sites in Tallahassee and Port St. Lucie, Florida.

APPEARANCES

For Petition er: Laurel Hopper, Esquire

Department of Children and Families

Suite A

337 North U.S. Highway 1

Fort Pierce, Florida 34950

For Respondent: Reginald B. Sessions , Esquire

Sessions Law Office

512 South Second Street

Fort Pierce, Florida 34950

STATEMENT OF THE ISSUE

Whether Respondents Ó renewal foster home licens e application

should be denied based upon allegations that Respondents violated

a foster childÓs safety plan, refused to sign a corrective action

plan, and refused to work in partnership with Petitioner .

PRELIMINARY STATEMENT

By letter titled ÐAdministrative Complaint with Notice of

Intent t o Deny a License,Ñ dated November 12, 2015, Petitioner,

Department of Children and Families (Ð DCF Ñ) , notified Respondents

of the denial of their renewal foster home license application.

Respondents timely filed a request for a formal hearing.

Subsequentl y, on January 8, 2016, DCF referred the matter to the

Division of Administrative Hearings (ÐDOAHÑ) to assign an

Administrative Law Judge to conduct the final hearing. On

January 20, 2016, the undersigned set the final hearing for

March 11, 2016.

The fi nal hearing commenced as scheduled on March 11, 2016.

The hearing recommenced on March 30, 2016 , and concluded on

April 26, 2016. At the hearing, DCF presented the testimony of

Concepcion Robles Alvarado , Anthony Garcia, Linda Green,

Fedsheena Estripl et, T homas Centinaro, Jr., Virginia Ann Snyder,

Rhoda Cantor, Deb orah Soares, Leslie Serena, Veronica Montgomery -

Roper, and Aaron Gentry. DCFÓs Exhibits 1 through 5 , 5A, 6

through 9, 11 , and 12 were received into evidence. Respondents

presented the testi mony of Allissa Neilson, Pat ricia Decombry,

Madge Bra t hwaite, Selma Jerome, Karen Thomas, Kathleen Arias, and

Kenneth Strout. Respondent s did not offer any exhibits into

evidence.

At the final hearing, the undersigned granted DCFÓs

unopposed request for official recognition of sections 120.60 and

409.175 (9)(a) and (b) 1. and 2. , Florida Statutes ; Florida

A dministrative Code chapter 28 - 106 and Florida Administrative

Code Rules 65C - 13.034(4) and 65C - 13.035(4) ; and DCF Operating

Procedure Number 175 - 88. 1/

Two volumes of the final hearing Transcript from the

March 11, 2016, hearing were filed at DOAH on March 30, 2016. A

third volume of the final hearing Transcript from the March 30,

2016, hearing was filed at DOAH on April 13, 2016. The fourth

volume of the final hearing Transcript from the April 26, 2016,

final hearing was filed at DOAH on May 11, 2016 . The parties

timely filed proposed recommended orders, which have been

considered in the preparation of this Recommended Order.

Unless otherwise stat ed, all statutory and rule references

are to the statu t es and rules in effect at the time of the

alleged violations.

FINDING S OF FACT

The Parties

1. DCF is the state agency responsible for licensing foster

care parents and foster home s pursuant to section 409.175,

Florida Statutes. DCF administers foster care programs by

contracting with third - party private entities. In Circuit 19,

which is the geographic area encompassing Port St. Lucie, DCF has

contracted with Devereux Community Ba sed Care (Ð DevereuxÑ) to be

the Ðlead agencyÑ to provide the majority of child services.

Devereux, in turn, has subcontracted with Camelot Community Care

(ÐCamelotÑ), which is licensed as a child placement agency.

2. Respondents, who are husban d and wife, are foster care

parents in a foster care home licensed by DCF .

3 . At all times material hereto, Mr. and M rs. Arias ha ve

fostered children at their home in Port St. Lucie.

4 . Respondent, Kathleen Arias ( Ð Mrs. AriasÑ), does not work

outsid e the foster home. She is a Ðstay - at - homeÑ foster mom.

Over the past 16 years, Mrs. Arias has fostered many children.

Mrs. Arias is very loving to the foster children in her care, and

she has provid ed a great benefit to th e foster children in her

care. 2 /

Kenneth Strout Ós Prior History of Sexually Inappropriate

Behaviors

5 . Kenneth Strout (ÐKennethÑ) , who recently turned 18 years

old, was placed into RespondentsÓ foster home in 201 3 .

6 . Prior to his placement in RespondentsÓ home, Kenneth

engaged in inappropriate sexual behavior s . As a therapeutic

foster child in RespondentsÓ home, Kenneth received therapeutic

services, including therapy, psychiatric services, support, and

therapeutic parenting by a trained therapeutic foster parent ,

Mrs. Arias .

7 . Despite receiving therapeutic services, Kenneth

continued to engage in inappropriate sexual behavior s while

living in RespondentsÓ home. During the time in which Kenneth

lived in the home, he had a history of sexually touching others,

exposing him self, and masturbating in close proximity to others.

8 . On one particular occasion on September 17, 2014,

Kenneth was sitting on the couch watching television , and

Mrs. AriasÓ sister walked in the room . While she had her back to

Kenneth , he dropped h is pants, exposed himself to her , and

pressed his penis against her buttocks.

The Applicable Safety Plan Requirement s

9. As a result of this incident, a n updated safety plan was

developed. 3 /

10. The safety plan was signed by Mrs. Arias on October 8,

2014 . Mrs. Arias reviewed the safety plan and is aware of the

requirements of the safety plan. Specifically, the safety plan

requires , in pertinent part : ÐClient needs to be within eyesight

and earshot of a responsible adult, who is aware of and will

en force the safety plan at all times.Ñ

The May 28, 2015, Incident at LA Fitness and its Aftermath

1 1 . Against this backdrop, on May 28, 2015, at

approximately 8:00 p.m., Mrs. Arias took Kenneth, who was 17

years old at the time, to LA Fitness, a gym facili ty in Port

St. Lucie. Mrs. Arias had a membership at LA Fitness and

frequented the facility on a regular basis .

1 2 . Despite Ms. AriasÓ knowledge of KennethÓs inappropriate

sexual propensities, Kenneth often accompanied

Mrs. Arias to the facility , whe re he would play basketball on an

indoor basketball court, while Mrs. Arias exercised in another

area at the facility .

1 3 . During the evening of May 28, 2015, Kenneth had been

playing basketball on the indoor basketball court. He left the

basketball co urt and approached Mrs. Arias and told her that he

needed to use the bathroom. Mrs. Arias gave Kenneth permission

to go to the bathroom.

1 4 . The menÓs restroom is located in side the menÓs locker

room. At this point, Kenneth w alked toward the menÓs loc ker

room , and entered the menÓs locker room through the door leading

from a hallway into the menÓs locker room.

1 5 . Mrs. Arias did not go into the menÓs locker room with

Kenneth , nor was Kenneth accompanied by an a dult when he entered

the menÓs locker r oom .

1 6 . Once Kenneth entered the menÓs locker room, he walk ed

t o the other end of the locker room to another door, which led to

the Jacuzzi area.

1 7 . Kenneth then opened the door from the menÓs locker room

leading to the Jacuzzi area. At this point , Kenneth o bserved a

female , Conc epcion Alvarado, sitting alone in the Jacuzzi .

Ms. Alvarado was in her swimsuit .

1 8 . At this point, Ms. Alvarado was relaxing in the Jacuzzi

with her eyes closed . After observing Ms. Alvarado for a moment ,

Kenneth str ip ped down to his boxer shorts, entered the Jacuzzi,

and inappropriately touched Ms. Alvarado on her leg . Upon

realizing that somebody touched her leg, Ms. Alvarado opened her

eyes , saw Kenneth in front of her , and s aid to him : ÐWhat are

you doing , littl e boy ?Ñ ÐJust get out of my way, or do your own

stuff.Ñ

1 9 . Kenneth then touched Ms. Alvarado on her shoulder . At

this point, Ms. Alvarado became very angry and said to Kenneth:

Ð Why are you touching me? YouÓre not supposed to do that.Ñ

ÐJust get ou t.Ñ Kenneth smiled at Ms. Alvarado as Ms. Alvar a do

exited the Jacuzzi . Ms. Alvarado then entered the nearby pool .

Kenneth followed Ms. Alvarado and jumped in the pool as well .

20 . Ms. Alvarado recognized Kenneth because he had engaged

in similar inap propriate sexual behavior a week earlier. On the

prior occasion, Kenneth and Ms. Alvarado were in the Jacuzzi when

Kenneth t ried to kiss her and touched her leg . Ms. Alvarado did

not report the prior incident.

2 1 . However, Ms. Alvarado reported the May 28, 2015,

incident to an LA Fitness employee. Shortly thereafter, law

enforcement officers arrived at the facility a nd arrested

Kenneth. Kenneth was taken to a juvenile detention facility

where he spent the night .

2 2 . Kenn eth was not within eyesho t or ears hot of Mrs. Arias

or another responsible adult once he entered the menÓs locker

room on May 28, 2015 . Kenneth was not within eyeshot or earshot

of Mrs. Arias or another responsible adult when the inappropriate

physical contact perpetrated by Kenn eth against Ms. Alvarado in

the Jacuzzi on May 28, 2015, occurred .

2 3 . The persuasive and credible evidence adduced at hearing

establishes that Respondents violated the October 2014 safety

plan by failing to ensure that Kenneth was within earshot and

ey eshot of a responsible adult at all times when he was at LA

Fitness . Had Kenneth been within eyeshot and earshot of a

responsible adult at all times on May 28, 2015, while he was at

LA Fitness, the incident in the Jacuzzi with Ms. Alvarado would

not have occurred. 4 /

24. Notably, given KennethÓs history of sexually

inappropriate behaviors, Mrs. Arias knew that she was taking a

risk to the public in brin g ing K enneth to LA fitness because it

was an environment that could be problematic for him .

2 5 . At hearing, Ms. Linda Green , a licensed clinical social

worker formerly employed by Camelot , persuasively and credibly

explained the difficulties she and Mrs. Arias faced in the ir

efforts to deal with Kenneth Ós sexually inappropriate behaviors .

According to Ms. Green , a true bond developed between Mrs. Arias

and Kenneth . Kenneth referred to Mrs. Arias as Ðmom,Ñ and he

felt like she was his mother.

2 6 . In an attempt to keep the family unit intact , Ms. Green

wanted significant Ðclient - directed therapy Ñ and Ð advocation

because the client should have the right to control their life.Ñ

On the other hand, Ms. Green was concerned about keeping society

safe from Kenneth. In hindsight, Ms. Green candidly admitted at

hearing that Kenneth Ðprobably needed institutio naliz ation

sooner.Ñ

2 7 . Mrs. Arias recognized her inability to control

KennethÓs sexually inappropriate behaviors and the danger he

posed to society prior to the May 28, 2015, incident. Prior to

the May 28, 2015, incident, Mrs. Arias requested that Ken neth be

placed on a Ð30 - Day Notice.Ñ Kenneth was on a Ð30 - Day NoticeÑ

when the incident at the gym on May 28, 2015, occurred.

N evertheless, Kenneth remained in the RespondentsÓ home as of the

May 28, 2015, incident at the gym because Devereux was having

difficulty finding a new placement, and Mrs. Arias agreed to keep

Kenneth in the home until after the end of the school year . The

school year ended the first week of June .

2 8 . Kenneth never returned to RespondentsÓ home after the

May 28, 2015, incident a t LA Fitness. Instead, Kenneth was

discharged from the foster care program, and placed in a group

facility where he has resided ever since. I t is anticipated that

Kenneth will remain in the group facility until he is 23 years

old.

2 9 . Following the incident at the LA Fitness gym on May 28,

2015, DCF undertook an investigation. As a result of its

investigation, DCF concluded that the safety plan was violated

because Kenneth was not within earshot or eyeshot of a

responsible adult when the inciden t at the gym on May 28, 2015 ,

occurred . DCFÓs investigation resulted in a verified finding of

abuse against Respondents based on inadequate supervision.

30. Based on DCFÓs verified f inding of abuse based on

inadequate supervision, a corrective action pl an was required by

administrative rule and prepared for Respondents to execute.

3 1 . A corrective action plan is a document which identifies

issues of concern to DCF and how DCF, as an agency, can work

together with the foster parent to improve the foste r parentÓs

performance . A corrective action plan serves as a supportive

intervention and is not punitive in nature. R espondents refused

to execute the corrective action plan because they were concerned

that , in doing so , they would admit DCFÓs investigat ive finding

of abuse based on inadequate supervision .

3 2 . The persuasive and credible evidence adduced at hearing

establishes that Respondents refused to execute the corrective

action plan.

3 3 . The persuasive and credible evidence adduced at heari ng

fails to establish that Respondents failed to work in partnership

with DCF. 5 /

3 4 . RespondentsÓ foster care license was due to expire on

October 18, 2015.

3 5 . After the May 28, 2015, incident occurred, DCF placed

another child under RespondentsÓ c are .

3 6 . Regardless of the incident at LA Fitness on May 28,

2015, DCF intended to re - license Respondents. DCF intended to

renew RespondentsÓ foster care license after the May 28, 2015,

incident despite the verified finding of inadequate supervision.

DCF was unable to re - license Respondents because they failed to

execute the corrective action plan required by rule. Had

Respondents executed the correct ive action plan required by DCF ,

RespondentsÓ f oster care license would have been renewed .

CONCLUSIONS OF LAW

3 7 . DOAH has jurisdiction over the subject matter and

parties pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2015).

38. In the instant case, Respondents have applied for the

renewal of their foster care license and challenge DCFÓs decision

to deny the renewal license application .

39. A license to operate a foster home is Ðissued to a

family foster home or other facility and is not a professional

license to an individual.Ñ § 409.175(2)(f), Fla. Stat. A foster

home license Ðdoes n ot create a property right in the recipient.Ñ

Id. A foster home license is Ða public trust and a privilege,

and is not an entitlement.Ñ Id.

40 . Generally, the applicant for licensure has the burden

of proof to demonstrate, by a preponderance of the evidence, that

it satisfies the requirements for licensure and is entitled to

receive the license. DepÓt of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932, 934 (Fla. 1996) ; M.H. v. DepÓt of Child. &

Fam. Servs. , 977 So. 2d 755, 762 (Fla. 2d DCA 20 08) .

4 1 . However, in the instant case, it is undisputed that DCF

did not base its licensing decision on anything having to do with

the renewal application itself. Rather, DCF based its licensing

decision on specific instances of alleged wrongdoing by

Res pondents. Accordingly, the burden in this particular

proceeding belongs to DCF to establish, by a preponderance of the

evidence , that Respondents committed the acts upon which it

relies for its decision to deny the renewal license. Osborne ,

670 2d at 934 ; M.H. , 981 So. 2d at 762. 6 /

42. DCFÓs denial of RespondentsÓ renewal license is based

on section 40 9.175(9) , Florida Statutes. Section 409.175(9)

provides , in pertinent part, as follows:

(9) (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:

1. An intentional or negligent act

materially affecting the health or safety of

children in the home or agency.

2. A violation of the provisions of this

section or of licensing rules promulgated

pursuant to this section.

43. Florida Administrative Code R ule 65C - 13.034 is titled

Foster Care Referrals and Investigations . Rule 65C - 13.034(4)

provides as follo ws:

(4) Investigations. When the supervising

agency or regional licensing authority is

notified of an investigation a staffing shall

be coordinated according to local protocol.

If licensing violations are found which do

not pose an immediate threat to the health,

safety or well - being of the child, the

supervising agency shall prepare a written

corrective action plan to correct the

deficiencies. The plan shall be developed by

the supervising agency in conjunction with

the licensed out - of - home caregivers and shall

be approved by the Regional Licensing

Authority.

44. Rule 65C - 13.035(4) further provides as follows:

(4) Administrative Action for Existing

Family Foster Homes.

* * *

( b) If licensing violations are found which

do not pose an immediate threat to the

health, safety or welfare of the children,

the supervising agency shall prepare a

written corrective action plan to correct the

defici en cies. The plan shall be developed by

the supervising agency in conjunction with

the licensed ou t - of - home caregivers and shall

be approved by the Regional Licensing

Authority.

(c) Written notification shall be sent to

the licensed out - of - home caregiver that

specifies the deficiency, expected corrective

action, time frame for completion, and that

f ailure to comply within the time frame

specified shall result in the license being

suspended, denied, or revoked. The approved

corrective action plan shall be put in

writing by the supervising agency and signed

by the licensed out - of - home caregiver .

* * *

( e) Failure of the licensed out - of - home

caregiver to timely comply with the

corrective action plan may result in

suspension, denial of re - licensure, or

revocation of the license.

* * *

( g) If the lic en sed out - of - home caregiver

dis agrees with the supervising agencyÓs

recommendations, he or she may still request

renewal of the license. The supervising

agency shall accept the application and refer

the licensed out - of - home caregiverÓs file to

the Regional Licensing Authority with a

re commendation for denial.

45. As detailed above, Respondents violated the safety plan

by failing to supervise Kenneth at LA Fitness on May 2 8, 2015.

However, a violation of the safety plan is not a violation of an

agency rule or statute. Moreo ver, DCF failed to prove that

RespondentsÓ violation of the safety plan on May 28, 2015, was an

i ntentional or negligent act materially affecting the health or

safety of children in the home or agency. Accordingly, DCF

failed to prove, by a preponderance of the evidence, that

Respondents violated section s 409.175(9) (b) 1. and 2. with respect

to their violation of the safety plan.

46. As detailed above, Respondents violated an agency rule

by refusing to execute the corrective action plan , which was

required by law to be executed by Respondents because of the

verified finding of abuse based on negligent supervision.

Accordingly, DCF proved, by a preponderance of the evidence, that

Respondent s violated section 409.175(9) (b)2. by failing to

execute the corrective action plan. However, DCF failed to

prove, by a preponderance of the evidence, that Respondent s

violated section 409.175(9) (b)1., by failing to execute the

corrective action plan.

47. As detailed above, DCF failed to prove , by a

preponderance of the evidence, that Respondents failed to work in

partnership with DCF.

48 . Turning to whether RespondentsÓ foster care license

should be renewed, the undersigned is persuaded by the

recommended and final orders rendered in the case o f Departmen t

of Child ren and Family Services v. S.H. , Case No. 07 - 2327 , 2007

Fla. Div. Admin. Hear. LEXIS 548 (Fla. DOAH October 3, 2007 ; Fla.

DCFS F ebruary 13, 2008 ) .

49 . In S.H. , there was a verified abuse report indicating

that the Respondent ha d struck a child with a hand or belt when

the child had a bowel movement on the floor during attempted

potty training , and subjected the child to mental harm by calling

the child derogatory names . Based on the verified abuse report,

t he Boys Home Associa tion and DCF recommended that the Respondent

execute a corrective action plan involving training in

appropriate parenting and discipline skills. The Respondent

refused to execute the corrective action plan , believing that it

would be an admission of guilt . DCF then sought to revoke the

foster care license because the Respondent failed to execute the

corrective action plan.

50 . Following the formal administrative hearing, the

Honorable P. Michael Ruff found that there was evidence of abuse

with re gard to the child at issue . Id. at *8. However, given

the lengthy period of good foster care provided by the Respondent

and DCFÓs position that re vocation would not be indicated if the

corrective action plan was executed by the Respondent, Judge Ruff

fou nd that revocation of the RespondentÓs license was not

warranted. Id. Instead, Judge Ruff recommended that, based on

the tota lity of the circumstances, a final order be issued by DCF

placing the RespondentÓs foster care license in probationary

status, co ntingent on the Respondent completing a corrective

action plan , which embodies classes or education in proper

parenting skills and the appropriate discipline of children of

all relevant ages. Id. at *8 - 10.

51 . DCF, in its Final Order, stated the fol lowing:

The license that is the subject of this

proceeding either has, or shortly will,

expire as a result of the passage of time

while this proceeding has been pending. If

respondent desires to continue as a licensed

foster parent, she should submit a renewal

application. The Department shall evaluate

the renewal application and shall not rely on

the events described in this proceeding as a

basis for denying the license. If respondent

is otherwise qualified, the Department shall

issue a provisional li cense for six months,

during which time respondent shall, in

cooperation with the community - based care

foster care agency, agree to and complete a

corrective action plan as described in

paragraph five of the Recommended Order. If

respondent declines to pa rticipate in such an

arrangement, or fails to complete the plan

requirements, the provisional license shall

not be replaced with a regular license or

renewed.

5 2 . Similarly, in the instant case, given the lengthy

period of good foster care provid ed by Mrs. Arias and the fact

that DCF would have renewed RespondentsÓ foster care license had

Respondents executed the corrective action plan, non - renewal of

RespondentsÓ licensure renewal application is not warranted.

Rather, based on the totality of th e circumstances , RespondentsÓ

license should be placed on provisional status until Respondents

execute the corrective action plan. Upon execution of the

corrective action plan, RespondentsÓ renewal application should

be granted.

RECOMMENDATION

Based on th e foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be issued by the

Department of Children and Families placing RespondentsÓ foster

care license in provisional status for six months , during which

time Respondents shal l execut e the corrective action plan. If

Respondents decline to execute the corrective action plan within

six months , the provisional license will not be replaced with a

regular license or renewed. 7/

DONE AND ENTERED this 3 rd day of June , 2016 , in Talla hassee,

Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of June , 2016 .

ENDNOTE S

1/ O perating Pr ocedure 175 - 88 was filed at DOAH on March 10,

2016 .

2 / During the week, Respondent, Teddy Ari a s (ÐMr. AriasÑ) works

and lives in Broward County, Florida. Mr. and Mrs. Arias see

each other only on the weekends.

3 / A safety plan is a document that provides guidelines for

keeping the client safe. In the instant case, the document was

created to requi re a certain level of supervision over Kenneth in

an effort to keep society safe from Kenneth.

4 / Although DCF presented persuasive and credible evidence that

Respondents violated the safety plan by failing to ensure that

Kenneth was within earshot and e yeshot of a responsible adult at

all times when he was at LA Fitness, DCF failed to present

persuasive and credible evidence that RespondentsÓ violation of

the safety plan was an intentional or negligent act materially

affecting the health or safety of chi ldren in the home or agency.

5 / DCF relies on a Partnership Plan in support of its contention

that Respondents failed to work in partnership with DCF. On

August 24, 2013, Respondents executed a Partnership Plan for

Children in Out - of - Home Care. The P artnership Plan is not an

agency rule. Rather, it is a document setting forth general

aspirational goals of the community - based care agency and the

foster parents. I n its proposed recommended order, DCF relies on

section 4 of the Partnership Plan . Altho ugh section 4 of the

Partnership Plan requires that caregivers provide Ðappropriate

supervisionÑ to children in their care , the precepts set forth in

the Partnership Plan are so general and obviously aspirational as

to be of little practical use in definin g the parameters of what

could constitute inappropriate supervision.

6 / Whether the burden of proof in a licensure renewal proceeding

is clear and convincing or a preponderance of the evidence is

unsettled in court and DOAH decisions . See Coke v. D epÓt of

Child. & Fam Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998) (affirming

final order rendered by DCF denying an application for renewal of

a family day care license. DCF agreed that it had the burden of

proving the ap plicantÓs lack of entitlement to rene wal of the

family day care license by clear and convincing evidence , where

the denial was based on an injury to a child in the day care

center. ); Kirk Ziadie v. DepÓt of Bus. & ProfÓl Reg. , Case No.

15 - 5037 , 2015 Fla. Div. Adm. Hear. LEXIS 471 (Fla. DOAH N ov. 25,

2015); Ag. f or Pers. With Disab. v. Daniel Madistin, LLC #1 , Case

No. 15 - 2422FL , 2015 Fla. Div. Adm. Hear. LEXIS 468 (Fla. DOAH

Nov. 25, 2015).

Notably, in the instant case, neither party raised the issue

of whether the appropriate bur den of proof is on DCF to establish

the alleged conduct by clear and convincing evidence. In fact,

in their pre - hearing stipulation filed on February 29, 2016 , the

parties stipulated that DCF has the burden to prove the alleged

conduct by a preponderance of the evidence.

The undersigned is not bound by the partiesÓ pre - hearing

stipulation on an issue of law. Moreover, the question of the

appropriate burden of proof is not an issue within the agencyÓs

area of expertise.

Upon receipt of the partiesÓ pre - hearing stipulation, the

undersigned scheduled a t elephone status conference with counsel

for the parties. The status conference was held on March 9,

2016, with counsel for both parties participating in the

conference. During the status con ference , the undersigned

indicated the unsettled area of the law pertaining to the

appropriate burden of proof and invited the parties to address

the issue in their proposed recommended orders. In their

proposed recommended orders, the parties agree that the

appropriate burden is by a preponderance of the evidence.

Notably, in M.H. , the court did not have an occasion to

specifically address whether the stricter clear and convincing

evidence burden applied to the denial of a renewal license based

o n specific instances of misconduct. Rather, because the day

care facility prevailed before the ALJ in that case and no issue

was raised as to whether the burden was clear and convincing, the

court needed only to address that the correct standard is no les s

than preponderance of the evidence.

The undersign edÓs conclusion that DCF bears the burden of

proof, in the instant case, to establish the alleged conduct by a

preponderance of the evidence, should not be read as a definitive

ruling that in all n on - renewal licensure cases, the preponderance

of the evidence standard applies.

Indeed, the timing of the Administrative Complaint with

Notice of Intent to Deny a License could militate in favor of a

clear and convincing standard. DCF waited until after

RespondentsÓ license expired to issue the Administrative

Complaint with Notice of Intent to Deny a License . The

Administrative Complaint with Notice of Intent to Deny a License

seeks to impose the ultimate penalty of non - renewal, only,

although the events giving rise to the Administrative Complaint

with Notice of Intent to Deny occurred many months earlier while

Respondents were duly licensed and acting in their capacity as a

licensee. Had DCF not waited until after the expiration of the

license to take action, and instead, filed an administrative

complaint seeking either the penalty of a fine or revocation,

there would be no question that the burden of proof on DCF in

such a proceeding would be by clear and convincing evidence.

Nevertheless, whether the burden in this case is by a

preponderance of the evidence or clear and convincing evidence is

of no consequence because the outcome would be the same.

7/ The corrective action plan planned completion dates will, of

course, need to be ext ended in light of the period of time which

h as elapsed since Respondents refused to execute the plan.

COPIES FURNISHED:

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 3239 9 - 0700

(eServed)

Laurel Hopper, Esquire

Department of Children and Families

Suite A

337 North U.S. Highway 1

Fort Pierce, Florida 34950

(eServed)

Reginald B. Sessions, Esquire

Sessions Law Office

512 South Second Street

Fort Pierce, Florida 34950

(eSer ved)

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Wi newood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

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 s hould be filed with the agency that

will issue the Final Order in this case.