STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASSANDRA NAPIER,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 03-4751

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal hearing in the above-styled case on February 13, 2004, in Lakeland, Florida.

APPEARANCES

For Petitioner: Cassandra Napier, pro se

1535 Peavy Court

Lakeland, Florida 33801

For Respondent: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUE

The issue for disposition in this proceeding is whether Petitioner is entitled to licensure as a family day care home.

PRELIMINARY STATEMENT

On October 24, 2003, Respondent, Department of Children and Family Services, notified Petitioner, Cassandra Napier, that her application for a license to operate a family day care home was denied for "apparent inability to adequately supervise children in [her] care, and [her] failure to insure that the children's substitute caretaker was adequately screened." In addition, the denial letter indicated that Petitioner was operating a family day care home without being licensed, a prohibited activity.

By a letter dated November 17, 2003, Petitioner requested a formal evidentiary hearing, and on December 17, 2003, the case was received by the Division of Administrative Hearings. An Initial Order was sent to both parties on December 17, 2003. On January 7, 2004, the case was set for final hearing on

February 13, 2004, in Lakeland, Florida.

At the hearing, Petitioner testified in her own behalf.

Petitioner offered no exhibits. Respondent presented the testimony of two witnesses: Gloria Mathews, child care licensing inspector, and Francis Williams, an employee of Youth and Family Alternatives. Respondent offered four exhibits, which were received into evidence and marked Respondent's Exhibits 1 through 4.

No transcript was filed. Respondent submitted a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner resides in Lakeland, Florida. In the fall of 2002, she applied for a license to operate a family day care home in her residence.

2. In the course of discharging its statutory responsibility of investigating applicants seeking licensure for family day care homes, a representative of Respondent, Gloria Mathews, an experienced child care licensing inspector, visited Petitioner's residence and discovered numerous instances of non- compliance with requirements of Sections 402.301 through 402.319, Florida Statutes (2002), and Florida Administrative Code Chapter 65C-20.

3. Ms. Mathews talked with Petitioner, pointed out the various instances of non-compliance, and made suggestions regarding correcting the various instances of non-compliance. Ms. Mathews anticipated that upon Petitioner’s correcting the areas of non-compliance, Petitioner would notify her and request a re-inspection. She was not contacted by Petitioner for several months.

4. On May 20, 2003, Francis Williams, an employee of Youth and Family Alternatives, a private, not-for-profit agency that contracts with Respondent to provide assistance to individuals seeking family day care licensure, went to Petitioner's home to

   provide guidance and assistance to Petitioner in her effort to obtain licensure.

5. Ms. Williams determined that several instances of non- compliance continued. In addition, Ms. Williams noted that Petitioner was caring for five non-related children without being licensed and later discovered that a sixth child had gone unsupervised for more that 15 minutes while Petitioner,

   Ms. Williams, and five children were in the yard noting various non-compliant conditions and discussing required improvements.

6. On July 28, 2003, Ms. Williams again visited Petitioner's home, found discrepancies, noted that Petitioner was caring for non-related children, and, in Petitioner's absence, discovered a substitute caregiver who had not been screened.

7. On August 27, 2003, Ms. Mathews revisited Petitioner's home and discovered that she was not in compliance; she did not have health examination forms for all of the children.

8. Ms. Mathews and Ms. Williams, both having extensive experience in family day care facilities, testified that they did not believe that Petitioner should be licensed based on her continuing disregard for the rules provided for the safety and protection of children.

9. Petitioner had little to offer regarding the failure of her home to qualify due to the various instances of non-

   compliance and her violation of the prohibition of caring for non-related children without being licensed.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

11. The Florida Legislature has provided laws that establish statewide standards for the care and protection of children in child care facilities. §§ 402.301 through 402.319, Fla. Stat. (2002).

12. Section 402.313, Florida Statutes, authorizes Respondent to license family day care homes and to conduct inspections to determine if the proposed facility meets the requisite qualifications to provide a safe environment for children.

13. Subsection 402.310(1)(a), Florida Statutes (2002), provides, in pertinent part, as follows:

    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.

    
    

14. Subsection 402.312(1), Florida Statutes (2002), reads, in pertinent part, as follows:

    The operation of a child care facility without a license is prohibited.

15. Florida Administrative Code Rule 65C-22.001(5)(a) reads, in pertinent part:

    Direct supervision means watching and directing children’s activities within the same room or designated outdoor play area and responding to each child’s need. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times.

    
    

16. In this case, Petitioner has the ultimate burden of proving her entitlement to the license she seeks; Respondent is required to present evidence supporting its stated reasons that Petitioner's home did not meet the minimum standards for licensure. Department of Banking and Finance, Division of Securities v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

17. Respondent demonstrated, based on the repeated instances of non-compliance with rules promulgated to provide for the safety and welfare of children in child care facilities, Petitioner's operation of a non-licensed child care facility, her failure to properly supervise a child in her care, and failure to provide an appropriate substitute supervisor, that the home did not meet the minimum standards for licensure.

18. Petitioner did not present any meritorious evidence to establish her entitlement to licensure.

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 family day care home license.

DONE AND ENTERED this 26th day of February, 2004, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 February, 2004.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Cassandra Napier 1535 Peavy Court

Lakeland, Florida 33801

Paul Flounlacker, 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: 03-004751

Orders for Case No: 03-004751