Judges: DANIEL M. KILBRIDE
Agency: Agency for Health Care Administration
Latest Update: May 18, 1989
Summary: Whether the after school child care program operated by the YMCA on the campus of Keeth Elementary School under a contract approved by the Seminole County School District, exclusively for children ages 5 Kindergarten and older, is required to be licensed as a child care facility, pursuant to the provisions of Sections 402.301-402.319, FLORIDA STATUTES(1988 SUPP.).YMCA after school program at public school not required to be licensed by HRS.
88-6071STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
YMCA-KEETH SCHOOL AGE )
CHILD CARE, )
)
Petitioner, )
)
vs. ) CASE NO. 88-6071
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing officer, Daniel M. Kilbride, on February 28, 1989 in Orlando, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: William E. Ruffier, Esquire
108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753
For Respondent: James A Sawyer, Jr., Esquire
Department of Health and Rehabilitative Services
District 7 Legal Office
400 West Robinson, Suite 911 Orlando, Florida 32801
STATEMENT OF THE ISSUES
Whether the after school child care program operated by the YMCA on the campus of Keeth Elementary School under a contract approved by the Seminole County School District, exclusively for children ages 5 Kindergarten and older, is required to be licensed as a child care facility, pursuant to the provisions of Sections 402.301-402.319, FLORIDA STATUTES(1988 SUPP.).
PRELIMINARY STATEMENT
By letter dated September 22, 1988, Respondent advised Petitioner that its application for relicensure was denied based on an inspection of the facility on August 22, 1988. In the letter, Respondent alleged that the inspection revealed that the facility failed to substantially comply with the requirements of Chapter 10M-12, Florida Administrative Code, as well as numerous safety violations. By letter dated November 23, 1988, through its attorney, Petitioner requested a formal hearing, pursuant to Chapter 120, Florida Statutes (1987).
Subsequently this matter was assigned to the current Hearing Officer and after notice, the final hearing was conducted on February 28, 1989. At the hearing, the parties stipulated to the basic facts on the record. Petitioner offered no evidence. Respondent offered two exhibits in evidence which were admitted without objection. Each party presented legal argument on the applicability of the 1988 Amendments to Sections 402.301-402.319, Florida Statutes(1987) as they applied to Petitioner.
A transcript of the hearing was filed on April 19, 1989. Petitioner filed its proposed recommended order on March 6, 1989. Respondent did not file a proposed recommended order.
Based upon all of the stipulated evidence, the following findings of fact are determined:
FINDINGS OF FACT
Respondent, Department of Health and Rehabilitative Services, is charged with the responsibility to enforce the statewide minimum standards for the care and protection of children in child care facilities, as set forth in Secticns 402.301-402.319, Florida Statutes (1987).
Petitioner, YMCA of Central Florida, Inc. (YMCA), is a not-for-profit corporation licensed in Florida.
The YMCA is a local membership organization affiliated with the national YMCA whose primary purpose is to provide activities that contribute to the development of good character and good sportsmanship of children and other family members in Seminole County.
For several years, the YMCA has operated an after school child-care program for children five years old and older on the campus of Keeth Elementary School. The program is staffed by a YMCA counselor who participates in the program as the child-care counselor.
The program was licensed as a child day care facility under the name YMCA/Keeth School Age Child Care by HRS, License Number 987-1. Their current license to operate this facility expired in 1988.
Keeth Elementary School is a public elementary school owned and operated by the Seminole County School District.
The YMCA operates the program under an oral year-to-year agreement with the School Board of the Seminole County School District.
On August 22, 1988, an inspection of the facility (the buildings and grounds of the Keeth Elementary School) by an HRS inspector revealed that the facility failed to substantially comply with the requirements of Chapter 10M-12, Florida Administrative Code, which would be sufficient to sustain the denial of the license renewal.
By letter dated September 12, 1988, Respondent advised the Petitioner that their application for relicensure was denied. Petitioner was directed to cease operation within 15 days of receipt of this letter unless the cited deficiencies were corrected and Petitioner re-applied for a license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsections 120.60(6) and 120.57(1), Florida Statutes(1987).
Chapter 402, Florida Statutes, provides for licensing of child care facilities by the Department of Health and Renabilitative Services (hereinafter HRS). It mandates minimum standards for personnel, physical facilities, sanitation and safety, nutritional practices, admissions and record keeping, transportation safety, child discipline, and plans of activities.
Chapter 402, Florida Statutes, was originally enacted in 1974 to provide minimum standards for the growing number of commercial day care facilities. In the definitions section of that Chapter, the Legislature defined "child care fci1ity" and further specified those programs and facilities exempted from the child care facility licensing laws. Section 402.302(4), Florida statutes, originally read, in pertinent part, as follows:
"Child care facility"... The following are not included: public schools and non-public schools which are in compliance with the Compulsory School Attendance Law, Chapter 232;..."
The licensing law was amended in 1984 and again in 1985. Specifically, the 1985 amendment sought to clarify the exclusion of schools provision in the definition of "Child care facility" contained in Section 402.302(4), Florida Statutes. As amended in 1985, the pertinent part reads as follows:
"Child care facility"...The following are not included: public schools and non-public schools *and their integral
programs..."* (emphasis supplied between *) Section 402.302(4), Florida Statutes (1985).
The Senate Staff Analysis and Economic Impact Statement regarding the amendment of this section of Chapter 402 indicated that this change is a "Technical amendment which clarifies that public and non-public school programs are not subject to licensure as child care facilities."
In a lengthy analysis of the statutory exclusion of schools from the child care facility licensing requirements, the Attorney General agreed that the exemptions under Section 402.302(4), as amended, apply to public and non-public schools which offer school age child care services before and after school hours. Opinion of the Attorney General 85-74(1985). HRS determined that the exclusion of schools from child care facility licensing requirements was inconsistent with the legislative intent of protecting children. Thereafter, HRS drafted an amendment to Rule 10M-12.001, Florida Administrative Code, with the express purpose of requiring public and non-public schools to license their infant and preschool programs, as well as their before and after school programs for school age children. In the case challenging these rules, it was held that this constituted an invalid exercise of delegated legislative authority.
Florida Association of Academic Nonpublic Schools, et. al., vs. Department of Health and Rehabilitative Services, 8 FALR 5321 (DOAH CASE No. 86-2272R 1986).
In upholding the Hearing Officer's decision, the District Court of Appeal held that the exclusion from the licensure requirement could not be limited by HRS based on the age of the children attending the program, unless the Legislature specifically authorized that agency to do so. Therefore, under the provisions of Section 402.302(4), FLA. STAT., as amended in 1985, HRS had no authority to regulate child care programs in public schools and non-public schools.
Department of Health and Rehabilitative Services vs. Florida Association of Academic Nonpublic Schools, 510 So.2d 1028 (Fla 1st DCA 1987).
In 1988, the Legislature further amended Section 402.302(4)in Section
2 of Chapter 88-391, Laws of Florida (1988) by providing in pertinent part:
"Child care facility" include any child care center. The following are not included:
Public schools and non-public schools and their integral programs, *except as provided
in s. 402.3025..."* (emphasis added between *).
Section 3 of Chapter 88-391 created Section 402.3025, Florida Statutes (1988 Supp.), which deals specifically with public and non-public schools and their child care programs. The House Final Staff Analysis and Economic Impact statement, dated July 11, 1988, indicated that the purpose of this section of the bill was to clarify "what programs in public and nonpublic schools are not subject to licensure under ss. 402.301-402.319, F.S." Under the provisions of Section 402.3025, Florida Statutes (1988 Supp.), HRS now has the authority to regulate some programs for pre-school age children in the schools. However, the section of this statute which addresses the particular type of program operated by Petitioner reads as follows:
"402.3025 Public and nonpublic schools.-For the purposes of ss402.301-402.319, the following shall apply:
PUBLIC SCHOOLS.-
(a) The following programs for children shall not be deemed to be child care and shall not be subject to the provisions of ss. 402.301-402.319:
1. Programs for children in 5-year-old kindergarten and grades one or above..."
Section 402.3025, Florida Statutes (1988 Supp.).
A complete reading of Section 402.3025 shows that the Legislature removed the exemption from licensure provision granted to the public schools only under limited circumstances for children under 5 years of age, and only if certain specified conditions were present, e.g. "Programs for children who are under 5 years of age when the programs are not operated and staffed directly by the schools." Section 402.3025(1)(b)1., Florida Statutes (1988 Supp.). No such limitation provision is contained in the language that applies to programs for children in 5-year-old kindergarten and grades one and above. Therefore, the plain meaning of the language of the statute is clear and unambiguous that programs for children in 5-year-old kindergarten and above continue to be excluded from the licensure provisions of 55.402.301-402.319.
The goal or purpose of statutory construction is to ascertain, so as to give effect to, legislative intent. Satellite Television Enineering, Inc. vs. Department of General Services, 522 So.2d 440(Fla 1st DCA 1988). That
intent is to be gleaned primarily from the language of the statute. Department of Legal Affairs vs. Sanford-Orlando Kennel Club, Inc., 434 So.2d 879 (Fla 1983). When the language of a statute is plain and its meaning clear, resort to rules of statutory construction are unnecessary. Kimbrell vs. Great American Insurance Co., 420 So.2d 1086, 1088 (Fla 1982). The legislature is presumed to know the meaning of the words it utilizes and to convey its intent by use of specific terms. If they are unambiguous, the plain meaning of those words must be applied. Caloosa Property Owners Association, Inc., vs. Palm Beach County Board of County Commissioners, 429 So.2d 1260 (Fla 1st DCA 1983).
The undisputed facts in this case are that Petitioner operates an after school program at the Keeth Elementary School, under an oral year-to-year contract with the school board. (Joint Stipulation of Facts) It is only available to children who attend that school and are in 5-year-old kindergarten or above. There is no provision in the pertinent section of the statute that requires such a program to be operated and staffed directly by the schools. Therefore, Section 402.3025(1)(a), Florida Statutes (1988 Supp.) applies and this program "shall not be deemed to be child care and shall not be subject to the provisions of ss. 402.301-402.319."
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's after school child-care program continue to
operate without the requirement of a license from HRS, so long as they continue under contract with the School Board with the same terms and conditions as presently exist.
DONE AND ENTERED this 18th day of May, 1989, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989.
APPENDIX
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the Petitioner.
Petitioner's Proposed Recommended Order does not contain specific findings of fact but consists primarily of legal argument which has been adopted in substance.
COPIES FURNISHED:
William E. Ruffier, Esquire
Sanders, McEwan, Mims and Martinez, P.A. Attorneys at Law
108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753
James A Sawyer, Jr., Esquire Department of Health and
Rehabilitative Services District 7 Legal Office
400 West Robinson, Suite 911 Orlando, Florida 32801
Sam Power Clerk
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller General Counsel
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
YMCA-KEETH SCHOOL ARE CHILD CARE,
Petitioner,
vs. CASE NO.: 88-6071
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
FINDINGS OF FACT
The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The department's non-rule interpretation Chapter 402, Florida Statutes (1987) was not established pursuant to McDonald vs. Department of Banking and Finance, 346 So2d 569 (Fla. 1st DCA 1977). Therefore, this Final Order accepts the recommendation of the Hearing Officer, but not his conclusions of law.
Based upon the foregoing, it is
ADJUDGED, that petitioner's after school child care program be allowed to continue for 12 months from the date of rendition of this Final order without the requirement of a license. The issue of whether petitioner is exempt from licensure shall be reconsidered at the end of 12 months from the date of rendition of this Final Order.
DONE and ORDERED this 30th day of June, 1989, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Deputy Secretary for Operations
COPIES FURNISHED:
James Sawyer, Jr., Esquire District 7 Legal Office
400 West Robinson, Suite 701 Orlando, Florida 32801
Daniel M. Kilbride Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
William E. Ruffier, Esquire
108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a Copy of the foregoing was sent to the above-named people by Mail this 3rd day of July, 1989.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700 904/488-2381
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
Docket for Case No: 88-006071
Orders for Case No: 88-006071
