07-001081 William And Ann Davis vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, May 22, 2007.

Summary: The referral of the request for hearing, received 303 days after the request for hearing did not impair either the fairness of the proceeding or the correctness of the denial of the application. Recommend that Petitioners be denied a license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM AND ANN DAVIS , )

)

Petitioner s , )

)

vs. ) Case No. 07 - 1 0 8 1

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing in this proceeding on behalf of the Division of

Administrative Hearings (DOAH) on April 2 7 , 200 7 , in Clearwater,

Florida .

APPEARANCES

For Petitioners: William Davis , pro se

Ann Davis, pro se

Post Office Box 1722

Dunedin, Florida 34697 - 1722

For Respondent: R aymond R. Deckert , Esquire

Department of Children and

Family Services

Regional Headquarters

9393 North Florida Avenue, Suite 902

Tampa , Florida 33 612

STATEMENT OF THE ISSUE

The issue is whether Respondent should deny Petit ioners'

application to be l icense d as foster parents .

PRELIMINARY STATEMENT

The procedural history of this proceeding is discussed in

detail in the Findings of Fact. In summary, Respondent denied

Petitioner's ap plication to be licensed as foster parents , and

Petitioners timely requested a formal hearing. Respondent

referred the case to DOAH to conduct the hearing.

At the hearing, Petitioner s each testi fied and submitted

four exhibits for admission into evidence. Respondent presented

the testimony of seven witnesses and submitted 11 exhi bits .

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the record of the formal

hearing. Neither party ordered a transcript of the hearing.

Petitioner and Respondent timely f iled their respective P roposed

R ecommended O rder s on May 2 and 7, 2007 .

FINDINGS OF FACT

1. Respondent is the state agency responsible for

licensing and regulating foster parents in the state .

Respondent first licensed Petitioners as foster parents on

June 29, 2003 , and renewed the license on June 29, 2004. The

last license expired on June 28, 2005.

2. Petitioners allowed their license to expire on

June 28, 2005. T hey wanted to make improvements to a new home

they had moved into before b ringing foster children into the

home.

3. Petitioners submitted a completed application for a new

license on March 20, 2006. By letter dated April 27, 2006,

Respondent denied the application for licensure. Petitioners

did not receive the notice of denial until May 3, 2006, because

Respondent sent the notice to the address of record in the old

license application files instead of the correct address in the

application for a new license that is at issue in this

proceeding.

4. The letter denying the application for licensure

incorrectly stated that Respondent intended to revoke

Petitioners ' license. The misstated literal terms of the letter

nevertheless provided Petitioners with adequate notice of the

actual proposed agency action to deny the lic ense application.

5. C ontrary to the literal terms of the letter,

Petitioners understood that the letter constituted notice of

Respondent's proposed denial of their license application.

Petitioners timely requested an administrative hearing by letter

da ted May 7, 2006. The reque st for hearing stated, in relevant

part :

[W]e received notice advising us that

[Respondent] has initiated proceedings to

revoke our foster home license. . . .

Please note that we are not a licensed

foster home at this time. O ur license

expired in June, 2005. So, we are somewhat

confused about proceedings to revoke

something that does not exist. Please be

advised that we did [ sic ] however, complete

an application for a 'new' foster care

license. . . . We were also told that,

[ sic ] our application would be denied and

that we would have the right to request an

administrative hearing to contest the

'denial'. If the letter that we received is

in regard to our application for licensure,

and if that application has been denied,

th en we are requesting an administrative

hearing to contest that decision.

Respondent's Exhibit 1C.

6. Respondent gave the request for hearing to the agency

clerk to forward to DOAH to conduct the hearing. However, the

agency clerk was confused by the literal terms of the denial

letter. When the agency clerk could not ascertain an existing

foster home license to revoke, the agency clerk merely "sat" on

the request for hearing and did not forward it to DOAH.

7. By letter dated November 13 , 2006, Respondent corrected

the literal terms of the previous letter. The letter dated

November 13, 2006, correctly notified Petitioners of

Respondent's proposed denial of the license application.

8. By letter dated November 23, 2006, Petitioners again

requested an administrative hearing to contest the proposed

denial of the license application. In addition, the request for

hearing notified Respondent of Petitioners' intent to rely on

the so - called default license provisions in Subsection

120.60( 1), Florida Statutes (2006). 1

9. Respondent gave the request for hearing to the agency

clerk. This time, the agency clerk referred the matter to DOAH.

However, the agency clerk did not refer the request for hearing

to DOAH within the 15 days mand ated in Subsection 120.569(2)(a).

Rather, DOAH received the referral from the agency clerk on

March 6, 2007; approximately 103 days after the date of the

second request for hearing and approximately 303 days after the

date of the first request for hearing .

10. The delays in referring the requests for hearing to

DOAH did not impair either the fairness of the proceeding or the

correctness of the agency action . It is undisputed that when

Petitioners were previously licensed as foster parents they

repea tedly administered corporal punishment to a foster child

who was approximately four years old at the time. It is also

u ndisputed that Petitioners punished the child by requiring the

child to stand for one hour to one hour and a - half almost daily.

Both ty pes of discipline violate applicable standards for foster

care and evidence Petitioners disqualification to be foster

parents .

11. The parties spent most of the evidentiary hearing on

the issue of whether the four - year - old female suffered from a

conditio n identified in the record as reactive attachment

disorder (RAD) . Howeve r, the trier of fact finds evidence

concerning RAD to be irrelevant and immaterial to the issue of

whether Petitioners are qualified to be foster parents. The

evidence that Petitione rs administered unauthorized discipline

to a four - year - old foster child in their care clearly evidences

their lack of qualification. No medical evidence established a

nexus between th e alleged disorder and illicit discipline of a

young child .

CONCLUSIONS OF LAW

12 . DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57(1).

DOAH provided the parties with adequate notice of the formal

hearing.

13. Petitioners are not entitled to a so - called defaul t

license pursuant to Section 120.60. Respondent issued the first

notice of denial on April 27, 2006, within 90 days of March 20,

2006, when the license application was complete. The misstated

literal terms of the denial letter do not alter the adequacy of

the notice of denial within the 90 - day time limit prescribed in

Section 120.60.

14 . A violation of the time limits prescribed in

Subsection 120.569(2)(a) does not require reversal of the

proposed agency action in the absence of a showing that the

dela y impaired either the fairness of the proceeding or the

correctness of the action. Department of Transportation v.

Courtelis , 436 So. 2d 92 (Fla. 1983); Department of Business

Regulation, Division of Pari - Mutuel Wagering , 417 So. 2d 671

(Fla. 1982); Kasda glis v. Department of Health , 827 So. 2d 328

(Fla. 4th DCA 2002). A preponderance of the evidence does not

support a finding that the violation of Subsection 120.569(2)(a)

impaired either the fairness of the proceeding or the

correctness of the action.

15 . Petitioners must show they are qualified to be

licensed as foster parents. Petitioners must satisfy their

burden of proof by a preponderance of the evidence.

§ 409.175( 2 )(f) and (6)(d)3 . ; Florida Department of

Transportation v. J.W.C. Company , 3 96 So. 2d 778 (Fla. 1st DCA

1981). For reasons stated in the Findings of Fact, Petitioners

did not satisfy their burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Respondent i ssue a f inal o rder denying

Pe titioners' application to be licensed as foster parents .

DONE AND ENTER ED this 2 2nd day of May , 2007 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of May , 200 7 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2006),

unless otherwise stated.

COPIES FURNISHED :

William Davis

Ann Davis

Post Office Box 1722

Dunedin, Florida 34697 - 1722

Raymond R. Deckert , Esquire

Department of Chi ldren and

Family Services

Regional Headquarters

9393 North Florida Avenue, Suite 902

Tampa, Florida 33612

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Copelan, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Robert Butterworth, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

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 shou ld be filed with the agency that

will issue the Final Order in this case.