STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOLANDA CHEESMON, )

)

Petitioner, )

)

vs. ) Case No. 99-3501

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 5, 1999, in Blountstown, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Yolanda Cheesmon, pro se

1012A Yates Avenue Blountstown, Florida 32424

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for a license to operate a family day care home should be granted.

PRELIMINARY STATEMENT

This matter began on July 2, 1999, when Respondent, Department of Children and Family Services, issued a letter

advising Petitioner, Yolanda Cheesmon, that her application for a license to operate a family day care home had been denied on the grounds she had been previously denied a license; she had operated a facility without being properly registered; she had operated a facility without a telephone; and she had provided the agency with false information and a forged letter. By letter dated July 23, 1999, Petitioner requested a formal hearing under Section 120.569, Florida Statutes, to contest the proposed action.

The matter was referred by Respondent to the Division of Administrative Hearings on August 18, 1999, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated August 27, 1999, a final hearing was scheduled on October 5, 1999, in Blountstown, Florida.

At the final hearing, Petitioner testified on her own behalf. Respondent offered Respondent's Exhibits 1-5, which were received in evidence. Exhibit 5 is the transcript of the final hearing in Case No. 98-5593, which involved a prior application by Petitioner.

There is no transcript of the hearing. At the request of the parties, this cause was temporarily abated pending the issuance of a final order in Case No. 98-5593, in which a Recommended Order was entered on June 14, 1999. A Final Order in that case was eventually filed on December 27, 1999, and the

undersigned became aware of its rendition on January 14, 2000. Thereafter, Proposed Findings of Fact and Conclusions of Law were filed by Respondent on January 20, 2000, and they have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. This licensure proceeding involves a request by Petitioner, Yolanda Cheesmon, for a license to operate a family day care home at 1012 Yates Avenue, Blountstown, Florida. On July 2, 1999, Respondent, Department of Children and Family Services (Department), denied the application on the grounds that Petitioner was "previously denied an application to operate a Licensed Day Care Home"; that she had begun "operating at a Day Care Home at 920 Thomas Avenue without being properly registered"; that she had operated for "an unknown period of time" without a telephone, "which is a requirement"; and that she had "requested to become a licensed home and provided [the Department] with false information and a forged letter." The denial of the application prompted Petitioner to request a hearing.

2. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed family day care facility, a licensed family day care home, and a registered family day care center. While the

   first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator undergo background screening, complete a training course, and provide to the Department certain paperwork, including shot records of the children, in order to secure the registration.

3. On August 19, 1998, Petitioner filed the necessary paperwork to operate a registered family day care center at 1012 Yates Avenue, Blountstown, Florida. She received a

   registration the same month. In its post-hearing submission, the Department represents that the registration was subsequently "terminated." As noted above, a registered home is the least restrictive type of day care facility, and it only required that Petitioner file an application with the Department, undergo background screening, and provide the Department with certain paperwork. Petitioner was, however, required to conform with certain Department "standards," one of which required that she have a working telephone on the premises of the facility, so that Department personnel could always contact her, if necessary.

   Whether this requirement is based upon a rule or an informal regulation was not disclosed.

4. In September 1998, a Department licensing counselor, Michelle Barsanti (Barsanti), attempted to contact Petitioner by

   telephone and learned that the telephone had been disconnected, which violated the unidentified Department requirement. Barsanti then sent a registered letter to Petitioner on October 7, 1998, advising that Petitioner must provide a telephone number.

5. By letter dated October 12, 1998, Petitioner advised Barsanti that after she had received her registration from the Department, she had moved the day care center to 920 Thomas Avenue, Blountstown, Florida, and that she had a new telephone number. This move was made because Petitioner says the Yates property "wasn't properly fixed up and all to pass for the inspection." However, an operator must re-register each time the facility is moved; by operating at the new location without a valid registration, Petitioner contravened a statute which prohibits any person from operating a registered family day care center without a registration. It is fair to infer from the evidence that Petitioner was unaware of this requirement and that the violation was unintentional.

6. On October 23, 1998, Barsanti met with Petitioner to assist her in obtaining a registration for the new location. During that meeting, Barsanti learned that Petitioner now desired to operate a licensed, as opposed to a registered, family day care home at her new address, and that Petitioner leased the property from Judy A. Davis (Davis), an absentee landlord who resided in Riviera Beach, Florida. At some point during this process, Petitioner was also advised that she must close her day

   care center at 920 Thomas Avenue until she obtained the appropriate license.

7. Rule 65C-20.009(1)(a), Florida Administrative Code, provides that if the operator leases the property on which the facility will be located, "[w]ritten approval from the owner of the property must be secured prior to issuance of the license." Accordingly, Petitioner was required to comply with this requirement since she intended to lease the Davis property.

8. In response to the foregoing requirement, Petitioner provided Barsanti with a letter dated October 7, 1998, purportedly written by Davis, and which stated that Davis "[gave] Yolanda Cheesmon permission to operate a Daycare at my appointed residence."

9. Shortly thereafter, Barsanti received an anonymous letter which caused her to question the authenticity of the Davis letter. After Barsanti contacted Petitioner and requested the address and telephone number of Petitioner's landlord, on

   October 29, 1998, Petitioner sent Barsanti a letter stating in part as follows:

   I regret to have to tell you that I lied about the letter. I'm very sorry but I was desperate to go ahead without any delay to be licensed so that I can get the insurance policy that my landlord needs.

   . . . Please forgive me and I hope this doesn't affect my case in any way. And

   again, I'm very sorry that I thought I had to lie to you.

10. The foregoing admission confirms the Department's allegation that Petitioner provided the Department "with false information and a forged letter," as charged in the letter of denial.

11. Notwithstanding the foregoing admission, Petitioner pursued her application for a license at the Davis property. The application was preliminarily denied on the ground that Petitioner had provided the Department with a forged document. Petitioner requested a formal hearing, and the matter was assigned Case No. 98-5593.

12. After a formal hearing was conducted on April 22, 1999, Administrative Law Judge Steven F. Dean issued a Recommended Order on June 14, 1999, in which he recommended that Petitioner's application be denied, not on the ground that she had made a false statement as alleged by the Department, but rather because the application was moot by virtue of "the passage of time" since Petitioner had by then moved back to her former residence at

    1012 Yates Avenue and desired to operate her facility from that location. In addition, at the conclusion of the evidentiary hearing, Judge Dean advised Petitioner to file a new application for licensure using her most current address. Based on that advice, Petitioner filed the instant application. As noted in Finding of Fact 1, the Department has preliminarily denied the second application on numerous grounds.

13. In a Final Order Reversing Recommended Order and Denying Application for Licensure filed on December 27, 1999, the Department rejected the conclusion that the application was moot and instead denied the application on the ground that Petitioner had failed to "meet all of the Department's requirements for licensure." Therefore, Petitioner has had a prior application denied, as alleged in the Department's letter denying her application.

14. In summary, the foregoing facts establish the Department's contentions that Petitioner operated for a short period of time as a family day care home without an appropriate registration; that she operated without a telephone on the registered premises; that she gave false information to the Department when attempting to secure a license; and that she has had a prior application for licensure denied.

15. At the hearing, Petitioner again apologized for filing a forged document; stated it was based on "bad judgment"; argued that the forged document alone is not a sufficient basis to disqualify her from licensure;, and established that she sincerely desires to engage in the day care business. Petitioner has requested that if the license is denied, that she be allowed to retain her registration previously issued in August 1998.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57 and 120.569, Florida Statutes (1999).

17. Section 402.305, Florida Statutes (1999), sets forth the licensing standards for child care facilities. Among other things, paragraph (1)(c) authorizes the Department to adopt by rule the minimum standards for licensure. In addition,

    Section 402.310(1)(a), Florida Statutes (1999), provides that the Department may deny a license "for the violation of any provision of ss.402.301-402.319 or rules adopted thereunder."

18. In its proposed agency action dated July 2, 1999, the Department proposes to deny the application on four grounds. It does not, however, cite the corresponding source of authority (statute, rule, or informal regulation) for those grounds. During the course of the hearing, Rule 65C-20.009(1)(a), Florida Administrative Code, was cited as being the basis for the requirement that the operator of a licensed family day care center who leases property secure the approval of the owner of the property prior to the issuance of a license. That ground, however, pertains to Case No. 98-5593, and not this case. No other sources of authority have been cited.

19. A less than exhaustive examination of governing statutes and agency rules reveals that Section 402.312(1)(c), Florida Statutes (1999), makes it unlawful to "[o]perate or

    attempt to operate a family cay care home without a license or without registering with the department," while Section 402.319(1)(a), Florida Statutes (1999), makes it unlawful for any person to knowingly "fail, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose in an application . . . for licensure regulated under ss. 402.301-

    402.318 all information required under those sections." The undersigned is unaware, however, of any rule or statute which authorizes the Department to deny an application on the ground that the applicant has previously had one denied. While this ground may be used to deny other types of licenses, see, for example, Section 400.314(3), Florida Statutes (1999), pertaining to assisted living facilities, it does not appear in Chapter 402, Florida Statutes (1999). At the same time, there is no cited source of authority for the requirement that an operator have a telephone on the registered premises. Therefore, the latter two grounds have been disregarded.

20. The evidence clearly shows that Petitioner operated a facility without properly registering with the Department, although this violation was probably unintentional, and on a prior application she made a false statement regarding certain information required by an agency rule. The latter violation is especially important here since it bears on the issue of whether the Department should entrust children to an operator who has made a false statement in seeking to secure a license. Under

    these circumstances, the application for licensure should be denied.

21. Finally, Petitioner has asked that she be allowed to continue using the registration which she obtained in August 1998 for 1012 Yates Avenue, Blountstown, Florida. According to the Department, however, this registration has been "terminated," and assuming Petitioner can meet all criteria, she must file another application.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for a license to operate a family day care center at 1012 Yates Avenue, Blountstown, Florida.

DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 26th day of January, 2000.

COPIES FURNISHED:

Virginia Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Yolanda Cheesmon 1012A Yates Avenue

Blountstown, Florida 32424

John R. Perry, Esquire Department of Children and

Family Services

2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-003501

Orders for Case No: 99-003501