02-001601 Matthew Lavertu And Linda Lavertu vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, October 31, 2002.

Summary: The disqualifying offense occurred prior to October 1, 1995, which, under the terms of Chapter 95-228, Laws of Florida, limited Chapter 435, Florida Statutes, to acts occurring on or after that date.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTHEW LAVERTU AND )

LINDA LAVERTU, )

)

Petitioners, )

) Case No. 02 - 1601

vs. )

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECO MMENDED ORDER

A formal hearing was held pursuant to notice in the above -

styled case by Stephen F. Dean, assigned Administrative Law

Judge of the Division of Administrative Hearings, on July 9,

2002, in Ocala, Florida.

APPEARANCES

For Petitioner: Ma tthew Lavertu, pro se

Linda Lavertu, pro se

1216 - A Parkside Avenue

Inverness, Florida 34450

For Respondent: Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atl antic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISSUE

Whether Petitioners should be licensed as a foster home?

PRELIMINARY STATEMENT

At hearing, Respondent presented Exhibits numbered 1

through 3. Neither party submitted proposed find ings.

FINDINGS OF FACT

1. Petitioners applied for licensure of their home as a

foster home. Their application was denied by the Department

because Matthew Lavertu was convicted of aggravated assault.

See Respondent's Exhibit numbered 2, the Departm ent's denial

letter.

2. At hearing, the Department introduced a record from the

Florida Department of Law Enforcement (FDLE) which reflects that

Mathew Lavertu was arrested May 5, 1991, for burglary,

aggravated assault and kidnapping. This FDLE report re flects

that Matthew Lavertu was found guilty of these offenses.

3. The record of conviction that was introduced was

confirmed by Mr. Lavertu. 1/

4. The Lavertus had previously revealed Mr. Lavertu's

conviction to employees of the Foster Care program an d they were

told they could qualify for an exemption. Based upon these

representations, they took courses to qualify and spent money on

required improvements to their home to meet Departmental

approval. Having made these efforts they were then denied.

5. There was no other derogatory material presented by the

Department in support of its denial of Petitioner's application.

The denial was solely based upon the conviction revealed by the

screening pursuant to Chapter 435, Florida Statutes.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties in this case.

7. The Department asserts jurisdiction to license pursuant

to Section 409.175, Florida Statutes. Section 409.175(1)(k),

Florida Statute s, provides that screening will be pursuant to

Chapter 435, Florida Statutes. Section 409.175(4)(a)(5),

Florida Statutes, provides that the requirements for licensure

shall include the good character based upon screening,

education, training, and experien ce requirements for personnel.

Section 409.175(5)(a), Florida Statutes, provides that the

department shall make a determination as to good moral character

of the applicant base upon screening. Section 409.175(5)(d)3.,

Florida Statutes, provides that proc edures for hearing under

Chapter 120 shall be available to the applicant in order to

present evidence relating either the accuracy of the basis for

exclusion or the denial of an exemption from disqualification.

Section 409.175(5)(h), Florida Statutes, pro vides that upon a

determination that the applicant meets the state minimum

licensing standard, the department shall issue a license to a

specific person or agency at a specific location. A license may

not be issued or renewed if any person at the home has failed

the required screening.

8. Chapter 435, Florida Statutes, was created by the Laws

of Florida 95 - 228, which provided that the law would become

effective on October 1, 1995, and apply to offenses committed on

that date or there after. In Guest v. D epartment of Juvenile

Justice , 786 So. 2d 677 (Fla. 1st DCA 2001), the court held that

Mr. Guest had no standing to challenge the constitutionality of

the statute because the offense he had committed was prior to

the effective date of Chapter 435, Florida Statutes, October 1,

1995.

9. In this case, the disqualifying offense revealed in

screening upon which the Department has denied the license is

Mr. Lavertu's conviction for aggravated assault in 1991. This

offense would not be disqualifying under the t erms of the

screening statute because it occurred in 1991.

10. Further, the Petitioners presented evidence that they

had revealed Mr. Lavertu's conviction when they first inquired

about becoming foster parents. They were told that the offense

was over three years old, and they could obtain an exemption.

The Petitioners expended time taking courses to qualify for

licensure and expended funds to meet physical licensing

criteria, including fencing their yard, only to be told that

they did not meet screeni ng criteria. 2/

11. Foster care licensure is dependent upon an applicant's

good moral character, and it could be argued that pre - 1995

offenses committed by an applicant reflect adversely upon an

applicant's character, and the applicant must show some indi cia

of rehabilitation to show they are currently possessed of good

character. However, that is not the case in this instance. The

applicant was denied solely because of the screening which

reveals a 1991 conviction which the Department determined was

dis qualifying.

12. As stated above, the screening "disqualification" is

limited to offenses committed on or after October 1, 1995.

Mr. Lavertu's 1991 conviction would not be disqualifying. The

agency has presented no other basis for disqualification.

The refore, because the screening provision is not by its terms

disqualifying, the subject license should be granted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED:

That the Department grant the subject l icense.

DONE AND ENTERED this 31st day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October, 2002.

ENDNOTES

1/ Th is is important because the record is insufficient to prove

the conviction in the absence of Mr. Lavertu's admission. This

is a potential problems for the Department because it was

unprepared to prove the conviction.

2/ It was developed that there is a shortage of qualified foster

parents. Given the ill - will that is generated when applicants'

expend time and money to become licensed foster parents, only to

be denied because of screening, the Department would be well

served by screening and considerin g personal qualifications prior

to reviewing the applicant's home for approval of facilities.

COPIES FURNISHED :

Matthew Lavertu

Linda Lavertu

1216 - A Parkside Avenue

Inverness, Florida 34450

Ralph J. McMurphy, Esquire

Depar tment of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children

and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children

and Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin

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.