12-000480 Latonya Holton vs. Department Of Children And Families Status: Closed Recommended Order on Wednesday, May 16, 2012.

Summary: Petitioner did not prove that she had achieved the purpose of the underlying statute or that the application of the rule would create a substantial hardship.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATONYA HOLTON , )

)

Petitioner, )

)

vs. ) Case No. 12 - 0 480

)

DEPARTMENT OF CHILDREN )

AND FAMILIES , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuan t to notice, a formal hearing was conducted in this

case via video tele conference with sites in Tallahassee and

Jacksonville, Florida, on April 5, 2012 , before Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPE ARANCES

For Petitioner: La T onya Roshelle Holton , pro se

136 Perth Road

Jacksonville, Florida 32221

For Respondent: David G. Tucker , Esquire

Department of Children

and Families

5920 Arlington Expressway

Jacksonville , Florida 3 2211

STATEMENT OF THE ISSUE

The issue is whether Petitioner 's request for a variance or

waiver of Florida Administrative Code Rule 65C - 14 .055 pursuant

to s ection 120 . 542 , Florida Statutes , should b e granted or

denied .

PRELIMINARY STATEMENT

By Order dated Decem ber 8 , 20 1 1 , Respondent, Department of

Children and Families (Department) , deni ed the request of

Pe titioner, LaTonya Holton , for a waiver of Florida

Administrative Code Rule 65C - 14.055(1) . Petitioner disputed the

Respondent's decision and requested a hearing.

Respondent referred the case to the Division of

Administrative Hearings on or about Februa ry 2 , 20 1 2 .

The undersigned issued a Notice of Hearing by Video

Teleconference on February 15 , 20 1 2 . The notice scheduled the

hearing for April 5 , 20 1 2 , and the case was heard as scheduled.

At hearing, Petitioner testified on h er own behalf and did

not offer any exhibits into evidence . Respondent presen ted the

testimony of S tacey Cleveland . Respondent's Exhibits letter ed A

and B were admitted into evidence.

A one - volume Transcript was filed on April 2 7, 201 2 .

Respondent timely filed a Proposed Recommended Order , and

Petitioner filed a post - hearing submission, which ha ve been

considered in the preparation of this Recommended Order. A ll

references to the Florida Statutes are to the 20 1 1 codification

unless otherwise indicated.

FINDINGS OF FACT

1 . Petitioner , LaTonya Holton, is seeking a waiver from

Florida Administrative Code Rule 65C - 14.055(1) because s he

desires to open and operate a licensed residential child - caring

agency (RCA) , which house s dependent youth .

2. Ms. Holton proposes to open a residential facility for

foster children called House of Judah, with Ms. Holton serving

as executive director. House of Judah would be a "transitional

housing program" for up to eight neglected, abandoned, or abused

girls ages 12 through 17.

3 . Stacey Cleveland is a statewide licensing specialist

with the Department. She has been in that position for about

seven years and has worked for the Department approximately 23

years , approximately 15 of which have been in licensing .

4 . One of Ms. Cleveland's responsibilities is to review

all of the waiver and variance requests and make a

recommend ation to agency leadership as to whether or not the

request should be granted or denied.

5 . Ms. Cleveland reviewed Petitioner's application for

waiver. The app lication includes a business plan and position

descriptions. It also included a description of Ms. Holton's

prior experiences pertinent to the position for which the waiver

is sought.

6 . Ms. Cleveland reviewed the application package in

evaluating whethe r Ms. Holton met the requirements to be the

Executive Director. After reviewing the application,

Ms. Cleveland concluded that Ms. Holton did not have the

required education or the required experience in management or

supervision.

7 . The applicat ion pac ket included a statement that

Ms . Holton was enrolled to complete an associate of science

degree by the summer of 2010, and then enter a program to earn a

bachelor's degree in business administration. However,

Ms. Holton did not complete the associate deg ree program and

currently does not possess a college degree of any kind . She is

no longer in a program to earn a degree.

8 . Ms. Holton has worked as an administrative assistant

with increasing responsibility for major corporations. She was

the executive assistant to the p resident at GE Aviation, and

assisted seven vice - presidents. She currently is a quality

administrator with GE Aviation. In this position, Ms. Holton

has the authority to go into an assembly area and shut down a

production line if she d etermines that the workers are

performing a procedure that is not according to the work

instruction. She also oversees investigations concerning

quality assurance. She has worked closely with the FAA ensuring

that when a new guideline comes out, it is "b rought to the

forefront of GE" and to ensure that the company's procedures are

updated.

9 . However, Ms. Holton is not a manager, and does not have

the authority to hire or fire employees. She does not have

experience with fundraising for private donati ons, although that

is included in the position description for executive director.

10. Ms. Holton has, through volunteering, worked with

troubled youth and has a genuine passion for helping troubled

children. She has helped numerous youth through her church and

in the community. She does not, however, have formal working

experience in child welfare.

11. Ms. Cleveland determined that Ms . Holton does not have

the required management or supervisory experience to be an

Executive Director, and had n ot demonstrated that the purpose of

the underlying statute had been achieved . She based this

determination on a review of the application package and on the

agency's interpretation of the term "management or supervisory . "

That is, the agency looks for su pervision, knowledge, skills and

actual hands - on work in child welfare services, specifically

with D epartment youth housed in a facility. The agency also

interprets the term "management or supervision" as including

experience supervising employees in area s such as hiring and

firing, final budget decisions, and final decision making in

matters relating to the management of the facility. The agency

views the purpose of the underlying statute to require final

decision - making responsibility in all areas relat ed to the

operation of an RCA.

12. M s . Holton did not present any evidence of any

economic, technical, or legal hardship if she did not receive

the wa iver. Ms. Holton is sincerely disappointed in not

receiving the waiver due to her strong convictions a nd passion

to help troubled youth.

13. Ms. Cleveland recommended to the agency that it deny

the waiver request. On December 8, 2011, the D epartment issued

an Order on Waiver Request to Ms. Holton, denying her request,

which gave rise to this proceeding.

CONCLUSIONS OF LAW

1 4 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to s ections 120.569, 120.57(1), and

120 . 542 ( 8 ), Florida Statutes.

1 5 . Section 120 . 542 , states in perti nent part as follows:

120 . 542 Variances and waivers . --

(2) Variances and waivers shall be granted

when the person subject to the rule

demonstrates that the purpose of the

underlying statute will or has been achieved

by other means by the person and whe n

application of a rule would create a

substantial hardship or would violate

principles of fairness. For purposes of

this section, "substantial hardship" means a

demonstrated economic, technological, legal,

or other type of hardship to the person

requesti ng the variance or waiver. For

purposes of this section, "principles of

fairness" are violated when the literal

application of a rule affects a particular

person significantly different from the way

it affects other similarly situated persons

who are subj ect to the rule.

* * *

( 8 ) . . . The agency's decision to grant or

deny the petition shall be supported by

competent substantial evidence and is

subject to ss. 120.569 and 120.57. Any

proceeding pursuan t to ss. 120.569 and

120.57 in regard to a vari a nce or waiver

shall be limited to the agency action on the

request for the vari a nce or waiver, except

that a proceeding in regard to a variance or

waiver may be consolidated with any other

proceeding authoriz ed by this chapter.

16 . Section 409.175(2)(j ), Florida Statutes, defines RCAs ,

which are residential facilities that house dependent youth.

S ection 409.175 (1) states that the purpose of the statute is to

provide licensing requirements to "protect the he alth, safety,

and well - being of all children in the state who are cared for by

family foster homes, residential child - caring agencies , and

child - placing agencies."

17 . Florida Administrative Code Chapter 65C - 14 implements

section 409.175.

1 8 . Rule 65 C - 14.055 states in pertinent part as follows :

65C - 14.055 Job Functions and Staff

Qualifications.

The facility shall employ staff to perform

administrative, supervisory, service, and

care functions. These personnel shall have

the following qualifications:

(1) Executive directors hired after the

date that this rule becomes effective shall

have a bachelor's degree from a college or

university and at least 3 years of

experience in management or supervision.

19 . Ms. Holton doe s not meet the requirements of r ule 65C -

14.055. That is, she does not have a college degree or at least

three years of experience in management or supervision , both of

which are required . Despite her excellent intentions , her

passion , and her belief in the proposed fa cility, the evidence

does not establish that Ms. Holton has achieved the purpose of

the underlying statute by other means. Moreover, t he evidence

does not establish that the application of the rule would create

a substantial hardship as contemplated by se ction 120.542.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Depar tment of Children and Famil ies enter a final

order denyin g Petitioner's request for a waiver from r ule 65C -

14.055 .

DONE AND EN TERED this 1 6 t h day of May , 20 1 2 , in

Tallahassee, Leon County, Florida.

S

__________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 t h day of May , 20 1 2 .

COPIES FURNISHED :

LaTonya Roschell Holton

136 Perth Road

Jacksonville, Florida 32221

David G. Tucker , Esquire

Department of Children

and Families

5920 Arlington Expressway

Post Office Box 2417

Jacksonville , Florida 3 2211

Gregory Venz, Agency Clerk

Department of Children

and Families

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Marion Drew Parker , General Counsel

Department of Children

and Famil ies

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Dav id Wilkins , Secretary

Department of Children

and Families

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 exceptio ns 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.