STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LILLIE SHELLS, d/b/a SHELL'S FAMILY DAY CARE,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-3761

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RECOMMENDED ORDER

Administrative Law Judge, Don W. Davis of the Division of Administrative Hearings, held a final hearing in the

above-styled case on November 14, 2002, in Wildwood, Florida.

APPEARANCES

For Petitioner: Lillie Shells, pro se

Shell's Family Day Care Home 9340 County Road 231

Wildwood, Florida 34785

For Respondent: Edward T. Cox, Jr., Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida

Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon

Petitioner's license.

PRELIMINARY STATEMENT

Petitioner was notified by Administrative Complaint dated September 4, 2002, that Respondent would impose a penalty of

$300 upon Petitioner's day care license as a result of three alleged violations by Petitioner of Section 402.302, Florida Statutes.

Petitioner timely sought an administrative proceeding to contest Respondent's intended decision, and the dispute was transferred to the Division of Administrative Hearings (DOAH).

At the final hearing, Respondent presented one witness and nine exhibits. Petitioner testified in her own behalf, but presented no exhibits.

A Transcript was filed with filed with DOAH on January 6, 2003. The parties requested and were granted leave to file proposed recommended orders 15 days after the filing of the Transcript.

Both parties availed themselves of the opportunity to file post-hearing submissions and those Proposed Recommended Orders have been reviewed and addressed, where, possible by this Recommended Order.

FINDINGS OF FACT

1. On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification.

2. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine.

3. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present.

4. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt.

5. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility.

6. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her

   home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building.

7. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building.

8. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt.

9. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care.

10. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of

    notification that Molly Hilbert had not been background screened.

11. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt.

12. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

14. Respondent possesses a wide array of authority with regard to denial, suspension, revocation, and/or renewal of Petitioner's licensure status. Section 402.305, Florida Statutes, and Chapter 65C-22, Florida Administrative Code.

15. Respondent seeks to impose a penalty of $100 upon Petitioner's license due to the repeated incidents observed by Henning that Petitioner's facility was over ratio, or alternatively stated, contained more children than the ten children Petitioner's license authorized. Section

    402.302 (7)(d), Florida Statutes, requires that Petitioner have

    no more than a maximum of ten children in her care if more than five are preschool age and, of those five, no more than two are under 12 months of age. Henning repeatedly observed more than this number of children at the facility. Petitioner is guilty of this offense.

16. With regard to the matter of background screening of employees, Section 402.302(3), Florida Statutes, states, in pertinent part, that "[f]or purposes of screening, the term shall also include persons who work in child care programs which provide care for children . . . in a family day care home."

17. Petitioner was given prior notice that future violations with regard to unscreened personnel would result in imposition of an administrative fine. Petitioner continued to employ Hilbert as observed by Henning. Petitioner is guilty of this offense.

18. Section 402.302(7), Florida Statutes, requires that Petitioner provide care in her home. Henning observed the

    out-building being used for child care. Petitioner is guilty of this offense.

19. In determining the severity of discipline to be imposed on a licensee where the charges are effectively proven, a review of a portion of Section 402.310, Florida Statutes, is in order and reads as follows:

    402.310 Disciplinary actions; hearings upon denial, suspension, or revocation of license; administrative fines.--

    (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, per day, for the 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.

    (b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:

    1. The severity of the violation, including the probability that death or serious harm to the health or 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.

    2. Actions taken by the licensee to correct the violation or to remedy complaints.

    3. Any previous violations of the licensee.

    
    

20. A review of the factors set forth in Section 402.310, Florida Statutes, above, which must be considered in the determination of discipline to be imposed on a licensee, shows conclusively that Respondent's proposed penalties are appropriate for the infractions committed by Petitioner.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300.

DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 21st day of January, 2003.

COPIES FURNISHED:

Edward T. Cox, Jr., Esquire Department of Children and

Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

Lillie Shells

Shell's Family Day Care Home 9340 County Road 231

Wildwood, Florida 34785

Paul F. Flounlacker, Jr., Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-003761

Orders for Case No: 02-003761