VERNETTA A. ROSSI,
vs.
Respondent.
) Case No. 02-0930
Pursuant to notice, a final hearing was held on May 15, 2002, by videoconference, at sites in Tampa and Tallahassee, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Vernetta A. Rossi, pro se
For Respondent: Raymond R. Deckert, Esquire
The issue for determination is whether Respondent properly denied Petitioner's application for renewal of her family child care home license.
By letter dated January 9, 2001, Respondent, the Department of Children and Family Services (Department), advised Petitioner, Vernetta Rossi (Petitioner), that her application for renewal of her family child care home license was denied.
According to the letter, the decision was based on “the fact that abuse report 2001-194692 indicates [Petitioner has] a verified report of child neglect for inadequate supervision- caretaker present.”
Petitioner timely requested an administrative hearing to challenge the Department’s decision not to renew her family child care home license. On March 4, 2002, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge and for the conduct of a formal hearing.
At the final hearing, the Department presented the testimony of Donna Richey, a family services counselor; Rashi Arya Blankenship, a child protective investigator; David Wilson, a child protective investigator/supervisor; Mary McKendree, a family services counselor; and Laura Winfrey, a family services
supervisor. The Department’s Exhibits One and Two were received into evidence, and the Department’s Exhibits Three through Seven were proffered. Petitioner testified on her own behalf and presented the testimony of Kevin Walsh, Rachael Walsh, Keith Delafield, Valera Senden, and Diann Myrick. Petitioner presented photographs and a layout of her house during the hearing, but did not offer these documents into evidence. On May 15, 2002, after the hearing, Petitioner filed, with the Division, the photographs, the layout of her house, and nine letters of support. Upon being advised that the aforementioned documents had not been offered or received into evidence, Petitioner sought to have the documents received into evidence. With the exception of one letter that was not signed or notarized, the Department did not object to the admission of the exhibits offered by Petitioner. Accordingly, the photographs, the layout of Petitioner's house, and the eight letters of support are received into evidence as Petitioner's Composite Exhibit 1, Exhibit 2, and Composite Exhibit 3, respectively, and deemed a part of the record in this proceeding.
No transcript of the proceeding was provided. Both parties filed Proposed Recommended Orders, which have been reviewed and considered in the preparation of this Recommended Order.
Respondent, the Department of Children and Family Services (Department), issued a family child care home license to Vernetta Rossi (Petitioner) on January 15, 2001. The license was effective for a year, and automatically expired one year later.
The maximum number of children for which Petitioner was licensed was ten.
On or about November 11, 2001, Petitioner submitted an application for renewal of her family child care home license.
On December 4, 2001, Donna Richey, an inspector with the Department went to Petitioner's home to conduct a re- licensing inspection. The purpose of the inspection was to determine if Petitioner was complying with the licensing rules and to make a recommendation on Petitioner’s application for renewal.
Ms. Richey arrived at Petitioner’s house at about 1:30 p.m. Through a pane glass window, Ms. Richey observed a child sleeping on a mat in the dining room hall area. She also heard a child whimpering. Because Ms. Richey knew that there were children in the house and it was naptime, she knocked softly on the door for a few minutes. After getting no answer, Ms. Richey rang the doorbell twice, but still received no answer.
After there was no response to Ms. Richey’s knocking on the door and ringing the doorbell, she walked to the back of Petitioner’s house, thinking that Petitioner may have been out in the back of the house. Finding no one there, Ms. Richey then returned to the front of the house and rang the doorbell again.
When Ms. Richey returned to the front of the house, she observed that the child on a mat in the dining room hall area was still asleep.
Upon returning to the front of the house, Ms. Richey tried the front door handle and discovered that it was unlocked. Ms. Richey then entered the house where she observed Petitioner asleep on the couch in the family room. Ms. Richey then called Petitioner, who woke up and appeared startled. Petitioner had dozed off and advised Ms. Richey that the reason she may not have heard the doorbell ring or the knock on the door was that she had a hearing loss and was lying on her “good” ear.
Ms. Richey and Petitioner then toured the areas of Petitioner’s house where the five children, in Petitioner's care that day, were down for their naps. At the time of the tour, all five of the children, who were ages three and four, were in their designated napping areas and on their mats. One child was asleep on a mat in the dining room hall area; two children were on separate mats in one bedroom; one child was on a mat in the hallway; and another child was sleeping in the classroom area.
During the time Ms. Richey was at Petitioner’s house for the re-licensure inspection, none of the children were crying, all the children were clean, and Petitioner’s house was neat and clean.
There was a fence around the children’s playground in Petitioner's backyard. The fence had been approved by the Department as part of the licensure process. Also, there was a lock on the back door of Petitioner's house that was placed at a height that was not within the children's reach.
There was a canal behind Petitioner’s house, which was about 60 yards from the house. In addition there was a five- foot high chain link fence that extended across the back of Petitioner’s property that served as a barrier between Petitioner’s yard and the canal. The fence provided a barrier that made it impossible for the children to easily access the canal. However, the Department determined that the canal was a potential hazard for the children in Petitioner’s care, when she was asleep and the front door of the house was unlocked.
There was a main road within the subdivision in which Petitioner's house was located that was about 100 yards from her house. The Department was concerned that because Petitioner’s front door was unlocked and Petitioner had dozed off, the main road could have been a possible hazard to the pre-school children.
During the approximately ten minutes that Petitioner was asleep, the children in her care were not being supervised. The Department requires that individuals licensed to provide child care supervise the children in their care.
Following the Department’s re-licensing inspection on December 4, 2001, a report of neglect was made and an investigation was conducted. The results of that investigation and the findings and conclusions thereof are summarized in Abuse Report 2001-194692 (abuse report), which was completed on or about December 21, 2001.
The abuse report found that on December 4, 2001, Petitioner fell asleep for a few minutes after she had put the five children in her care down for their afternoon nap and that during the time Petitioner was asleep, the children were not supervised. With regard to observations of Petitioner's “day care center,” the investigator noted in the abuse report that Petitioner’s home was “very clean and well kept” and “hazard free” and that there were no hazards observed in the home. Based on the findings of the investigator, relative to Petitioner’s falling asleep, the case was “closed with verified findings of neglect due to inadequate supervision with caretaker present.” The abuse report notes that officials closed Petitioner's facility on or about December 5, 2001.
In addition to the incident that occurred on
December 4, 2001, the abuse report referred to alleged incidents that took place prior to Petitioner’s being licensed in January 2001. These alleged incidents are not relevant or material to this proceeding in that they were not stated in the January 9, 2001, denial letter to Petitioner as the basis for the Department’s decision to deny Petitioner’s application for renewal of her family child care home license.1
The Department’s January 9, 2002, letter denying Petitioner’s application for renewal of her family child care home license stated in relevant part the following:
This letter is to advise you that your application to renew your family day care license, dated November 11, 2001, is denied. In accordance with Section 402.310(10)(a), Florida Statutes, the department may deny a license for the violation of any provision of Sections 402.301-402.319, Florida Statutes, or rules adopted thereunder. The decision is based on the fact that abuse report number 2001-194692 indicates you have a verified report of child neglect for inadequate supervision-caretaker present.
On December 4, 2001, during a re-licensing inspection, you were found to be asleep while five children ages, 3 years to 4 years, were in your care. This is in violation of Section 65C-20.009(3)(a), Supervision by Staff, Florida Administrative Code. This states[,] “At all times which includes when children are sleeping, the operator shall remain responsible for the supervision of children in care and capable
of responding to the emergencies and needs of children. During the daytime hours of operation, children shall have adult supervision which means watching and directing children’s activities, both indoors and outdoors, and responding to each child’s needs.” Additionally, your actions were in violation of Section 402.301, Florida Statutes, which express [sic] the intent of the Florida Legislature to protect the health, safety, and well being of the children of the state and to promote their emotional and intellectual development and care.
Petitioner does not dispute that she dozed off a few minutes on December 4, 2001, but testified credibily that this was an isolated incident. This is substantiated in a letter of support from Cynthia Ray, a former employee of Petitioner who worked at the center. Ms. Ray also served as a substitute for Petitioner and was listed on Petitioner's family child care home license as such.
The letter from Ms. Cheryl Ray states that Petitioner has a high energy level, seldom sits down for any length of time, and is always "preparing, cleaning, organizing and doing book work." According to Ms. Ray's letter, it "was out of character for [Petitioner] to fall asleep" while the children were napping or at the center.
With regard to the front door being unlocked, Petitioner explained that over the years, the policy or practice of the Department has changed. Petitioner was aware that at one
time, the Department required that the door of a child care facility be unlocked so that parents could come in unannounced. Apparently, the Department’s current policy or procedures require that the doors of a child care facility be locked. In light of the policy, Petitioner stated that she would ensure that the doors of her family child care home would be locked.
Petitioner has a combined 30 years of experience as a teacher and a principal in Montessori schools. At the time she was licensed by the Department, Petitioner used the Montessori method of instruction and had her home set up consistent with this approach.
Parents of children who have been cared for by Petitioner expressed satisfaction, trust, and confidence in Petitioner’s ability to care for their children. They also believe that she has had a positive influence on the children's intellectual and emotional well-being.
Many of the parents who testified had several years of experience working with Petitioner as the child care provider for their children. The parents believe that the educational program provided to their children while they were in Petitioner’s care is exceptional. Those parents whose children have left Petitioner’s program to attend kindergarten believe that the educational program provided by Petitioner prepared the
children for kindergarten and made the transition to school easier for them.
Parents who have had children in Petitioner’s care over the years and up until December 2001, have “dropped in” Petitioner’s home during the day when children were in her care and have never seen anything “amiss” or of concern to them. Parents who have had children in Petitioner's care testified credibly that Petitioner never neglected their children and that they felt their children were safe at Petitioner’s home and not in any danger.
Despite the incident that occurred on December 4, 2001, the parents who testified at hearing continue to trust Petitioner to care for their children.
The four-year-old daughter of Kevin and Rachel Walsh attended Petitioner's center from the time she was four weeks old, until the center closed in December 2001. The Walshes also have an older son who attended Petitioner's center for four years. During the time Petitioner has been caregiver for their children, the Walshes have been very pleased and satisfied with the care and the education that Petitioner provided to the children. For the past six years, Mrs. Walsh has dropped in unannounced at Petitioner's center and has been satisfied with what she has observed. According the to the Walshes, when in Petitioner's care, their children were in a "clean, safe, happy
and learning environment" and learned "not only reading, writing, and math, but also manners and respect." The Walshes indicated that "those qualities make it comfortable for us to relax at our jobs knowing our kids are comfortable and happy."
The Walshes live in the same neighborhood as Petitioner and, like Petitioner, they also have a canal behind their house. Because there is a fence which serves as a barrier between Petitioner's yard and the canal, the Walshes do not believe the canal was a hazard for children at Petitioner's center on December 4, 2001, or at any other time.
On the day of the re-licensure inspection, the Walsh's daughter was not at the center. Nonetheless, the Walshes expressed utmost confidence in Petitioner to care for their daughter. Since Petitioner's center has been closed, the Walshes have not placed their daughter in another center. It is their desire to return their daughter to the care of Petitioner.
Keith and Sharon Delafield's daughter was in the care of Petitioner on the day of the re-licensure inspection and had been in Petitioner's care for about three years. Mr. Delafield testified that during the time that his daughter attended the center, he visited the center, was satisfied with the care his daughter received, and always found the home to be neat and clean.
Mr. Delafield believes that his daughter was the child who was whimpering on the day of the re-licensure inspection because she does not like to take naps. However, Mr. Delafield does not believe that she would have gone out of the house without permission of Petitioner. Moreover, despite the events of December 4, 2001, the Delafields trust Petitioner "whole heartedly" with the care of their daughter. According to the Delafields, during the time that their daughter was in the care of Petitioner, there was not a day that she "came home unfed, unclean, untaught, or unloved." Mr. and Mrs. Delafield, are planning to have another child and when they do, it is their desire to place the child with Petitioner.
Valerie Senden has had two children attend Petitioner's center even though it is a 30 to 40 minute drive from her house. Ms. Senden's decision to place her children with Petitioner was made after she visited six other centers, all of which she found unsatisfactory. The basis of her dissatisfaction was her observation of the way that children were treated at those centers. During the time that
Ms. Senden's children attended Petitioner's center, Ms. Senden made unannounced visits to the center and also spent the day and various parts of the day at the center helping Petitioner.
During these visits, Ms. Senden never saw anything that caused her to be concerned about Petitioner's care of the children.
Had Ms. Senden seen anything she didn't like or that she believed to be improper, she would have "pulled her children out of the center." Since Petitioner's center was closed,
Ms. Senden has not placed her children in another center.
Diann Myrick has a son who attended Petitioner's center from about August 2001 until it was closed in
December 2001. Ms. Myrick does not believe that her child was ever neglected by Petitioner and is completely satisfied with the care that he has received from her. Moreover, Ms. Myrick testified that every time that she has come to the center to pick up her son, the door is always locked. According to Ms. Myrick, with Petitioner's guidance, her son is learning discipline as well as receiving an education. Ms. Myrick believes that these are things that she has been unable to find in private day care centers. With regard to Petitioner,
Ms. Myrick testified that Petitioner is a good caregiver, and that both the children and the parents love Petitioner.
Ms. Myrick testified that she wants to put her son in Petitioner's center when and if it is re-opened.
Eight letters of support for Petitioner substantiate the testimony at hearing. In these letters, parents whose children have been in the care of Petitioner describe her as "a wonderful teacher and caregiver," an individual who is "honest, competent, and genuine," and a "teacher with compassion, care,
and respect for others." Petitioner's center is described as being "not just clean, but immaculate." The parents expressed satisfaction with the education and care that Petitioner provided to their children; indicated that they trust Petitioner to care for their children; and believe it would be a disservice to the children, the parents, and the community to refuse to allow Petitioner to re-open her center.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Subsection 120.57(1), Florida Statutes.
Section 402.310, Florida Statutes, authorizes the Department to deny a license for the violation of any provision of Section 402.301 through 402.319, Florida Statutes, or any rules promulgated thereunder.
Petitioner was licensed pursuant to Section 402.313, Florida Statutes, and, as such, was required to comply with the provisions of Sections 402.301 through 402.319, Florida Statutes, and rules promulgated thereunder.
The Department seeks to deny Petitioner’s application for renewal of her family child care home license due to her failure to supervise the children in her care on December 4, 2001, during the time she was asleep. It is alleged that this conduct by Petitioner is a violation of Rule 65C-20.009(3),
Florida Administrative Code, which provides in relevant part the following:
(3) Supervision by Staff.
At all times, which includes when the children are sleeping, the operator shall remain responsible for the supervision of the children in care and capable of responding to the emergencies and needs of the children. During the daytime hours of operation, children shall have adult supervision which means watching and directing children’s activities, both indoors and outdoors, and responding to each child’s needs.
The burden of proof is on the Department to adduce evidence to support the denial of the renewal of Petitioner’s application for re-licensure. Dubin v. Department of Business Regulation, 262 So. 2d 273 (Fla. 1st DCA 1972). To meet its burden, Respondent must establish facts upon which its allegations are based by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932, 933 (Fla. 1996); Coke v. Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998); and Subsection 120.57(1)(j), Florida Statutes.
The Department has met its burden of proof in this case.
The evidence established that Petitioner violated Rule 65C-20.009(3)(a), Florida Administrative Code, as alleged.
Petitioner acknowledged that on December 4, 2001, she fell asleep, for approximately ten minutes, after she put the five children in her care down for their afternoon nap.
Additionally, the undisputed evidence established that at the time Petitioner was asleep, the front door to Petitioner’s house was unlocked. Clearly, during the time Petitioner was asleep, she could not supervise the children in her care and was not capable of responding to the emergencies and needs of the children.
Once a violation of Sections 402.301-402.319, Florida Statutes, is established, the Department possesses a wide array of authority with regard to denial, suspension, revocation and/or renewal of licenses which it is authorized to issue. Section 402.310, Florida Statutes.
Section 402.310, Florida Statutes, states in part the following:
(1)(a) The department or local licensing agency may deny, suspend or revoke a license or impose an administrative fine not to exceed $100 per violation of any provision of ss. 402.301-402.319 or rules adopted thereunder. However, where the violation could or does cause death or serious harm, the department or local licensing agency may impose an administrative fine, not to exceed
$500 per violation per day.
In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:
The severity of the violation, including the probability that death or serious harm to the health and safety of any person will result or has resulted, the severity of the actual or potential harm and the extent to which the provisions of ss. 402.301-402.319 have been violated.
Actions taken by the licensee to correct the violation or to remedy complaints.
Any previous violations of the licensee.
In determining the appropriate action to take with respect to Petitioner's application for renewal of her family child care home license, the Department concluded that the severity of the violation of Rule 65C-20.009(3), Florida Administrative Code, warranted denial of the application.
Pursuant to Subsection 402.310(1)(b)2., Florida Statutes, the Department is authorized to consider actions taken by the licensee to correct the violation. However, in the instant case, there is no evidence that the Department either considered any actions proposed by Petitioner to correct the violation or prevent it from recurring or recommended any such action.
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 that denies Petitioner's
application for renewal of her family child care home license without prejudice to her right to re-apply for such license in the future.
DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002.
1/ The Department argued that it denied Petitioner's application for re-licensure for violations other than those stated in the letter of denial. That argument is rejected. While, pursuant to Subsection 120.57(1)(k), Florida Statutes, this is a de novo proceeding, the parameters thereof are limited to the reasons for denial that are stated in the document giving Petitioner notice of the intended agency action.
Raymond R. Deckert, Esquire Department of Children and
Vernetta A. Rossi 22126 Shoreside Drive
Paul F. Flounlacker, Jr., Agency Clerk Department of Children and
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.
