STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

PATRICIA GAINEY d/b/a GAINEY FAMILY DAY CARE HOME,

Respondent.

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RECOMMENDED ORDER

On April 16, 2004, an administrative hearing in this case was held in Lakeland, Florida, before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Patricia Gainey, pro se

Gainey Family Day Care Home 2406 Winter Ridge Road Auburndale, Florida 33823

STATEMENT OF THE ISSUES

Whether Petitioner's license to operate a family day care home should be disciplined, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By certified letter dated January 26, 2004, the Department of Children and Family Services (Petitioner) informed Patricia Gainey, d/b/a Gainey Family Day Care Home (Respondent), that her license to operate a family day care home was being revoked.

The proposed revocation was based upon the results of Petitioner's inspections of Respondent's home on April 16, 2003, and January 22, 2004, which alleged non-compliance with applicable licensing statutes and rules.

Respondent disputed the facts underlying Petitioner's decision, and on February 17, 2004, she timely requested a formal administrative hearing. On March 8, 2004, Petitioner referred the matter to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct the hearing requested by Respondent.1

The final hearing was scheduled for and held on April 16, 2004. At the hearing, official recognition was taken of Sections 402.310 and 402.313, Florida Statutes (2003), and Florida Administrative Code Chapter 65C-20. Petitioner presented the testimony of Jim Pickett, a family service inspector in Petitioner's child care licensing division; and Patricia Hamilton, a supervisor in Petitioner's child care licensing division. Petitioner Exhibits 1 through 3 were received into evidence.

Respondent testified in her own behalf at the hearing and also presented the testimony of her clients, Catherine Phillips; Stacy E. Summer; and Catherine A. Hall. Respondent's Exhibits 1 and 2 were received into evidence.

No transcript of the hearing was filed with DOAH.

The parties initially requested 15 days from the date of the hearing to file their proposed recommended orders (PROs). As a result, the parties waived the deadline for entry of this Recommended Order. See Florida Administrative Code Rule

28-106.216(2). Petitioner timely filed its PRO on April 30, 2004. Respondent has not filed her proposal as of the date of this Recommended Order. However, Respondent did file memoranda from Petitioner's child protective investigator and from Petitioner's child care licensing supervisor on April 22, 2004.

FINDINGS OF FACT

Based on the testimony and evidence received at the hearing, the following findings are made:

1. The Parties

   
   

   1. Petitioner is the state agency responsible for licensing and regulating child care facilities, including family day care homes.

   2. Petitioner routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems

      found during the inspections are noted on a report which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected.

   3. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes which have a provisional license rather than a standard license. Petitioner also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice.

   4. Respondent is the owner and operator of a licensed family day care home located at 2406 Winter Ridge Drive, Auburndale, Florida (hereinafter "Respondent's facility" or "the facility"). Respondent resides at that address as well.

   5. Respondent has operated a day care home at the above address for approximately five years, and she has been involved in child care for approximately ten years. Respondent has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating family day care homes.

   6. Respondent keeps children in her home, and children also play in Respondent's backyard. This area is enclosed by an approximately three and a half foot high chain-link fence.

      Respondent also owns a one-acre parcel behind her house and yard, which is apparently not fenced.

2. Inspections and Resulting Actions by Petitioner

   
   

   1. Respondent's facility was inspected on April 16, 2003, and several areas of non-compliance were identified during this inspection. Noted as violations included Petitioner's son and husband who were in the home without a completed background screening on each of them; a fence surrounding the property had protruding chicken wire and was less than four feet in height; children's floor mats were torn and not properly covered; a bathroom sink was missing and needed replacement; no paper towels were in the bathroom for the children; one child's immunization records had expired and one child's required physical examination was out of date; and there were eight preschool children over the age of one year old in the home, where the maximum allowed was six.

   2. A re-inspection was conducted on April 23, 2003.

      
      

   3. On January 22, 2004, Petitioner's inspector Mr. Pickett went to Respondent's family day care home to carry out a routine inspection. Several areas of non-compliance were identified. Ms. Gainey's husband, Jerry Gainey, was staying in the home, but he had no letter on file showing he had been properly screened; there were too many children in the home (three children

      under 12 months old) when the maximum allowable is two; there

      were seven preschool children in the home when the maximum allowable is three; hazardous containers, a gas can and a paint can, had been left near the front door easily accessible to small children; a glass sliding door had a metal obstacle that could cause children to trip and fall; and three of the children in the home had no enrollment information on file--even their names and parents' names could not be found or names of anyone to call in case of an emergency.

   4. After Pickett completed his inspection, he discussed the results with Respondent and provided Respondent a copy of the inspection report. Pickett then went back to his office and discussed the results of the inspection with his supervisor, Ms. Hamilton.

   5. Based upon the results of the January 22, 2004, inspection and the prior incidence of non-compliance at Respondent's facility, Ms. Hamilton determined that Respondent's license should be revoked. Petitioner did not give Respondent an opportunity to bring her home into compliance with the minimum standards in Petitioner's licensing rules and standards.

   6. Thereafter, on January 26, 2004, Pickett sent a letter to Respondent informing her that her license was being revoked and advising Respondent of her right to "appeal" that decision through the administrative process.

   7. At the hearing, Ms. Hamilton testified that she was particularly concerned about Respondent's repeat violations, namely Respondent's husband not being screened for nearly nine months and the repeated ratio violations, that is, too many children in the home. She characterized these as serious child safety violations. These were the primary reasons she recommended that Respondent's child care license be revoked.

   8. Respondent, in her testimony, did not deny committing the violations noted in the inspections of April 16, 2003, and January 22, 2004. However, she did demonstrate that a

      re-inspection of her facility on April 23, 2003, listed her to be in compliance with all violations listed in the April 16, 2003, report, except for the background screening requirement for her husband.

   9. Respondent insisted that her son, Jerry L. Gainey, who is 28 years old, lives down the street from her and does not regularly watch the children in her home. Due to an emergency situation, she was required to leave her home in order to pick up some children from school, and she called upon her son to watch the children until her return. Respondent asserts that her son has not watched the children since that date. Respondent also asserts that her husband, who has had a stroke and is cognitively impaired and walks with the aide of a cane or scooter, does not reside with her full-time but, in fact, lives

      with his sister in Arkansas. The testimony in regard to her husband's permanent place of resident is not credible, since he was in the home on at least two occasions--April 16, 2003, and January 22, 2004--when it was inspected.

   10. It is undisputed that Respondent was not at the facility when Mr. McClary arrived in the early afternoon of April 16, 2003. Her husband and son were watching the children. Respondent's testimony indicated that her husband was physically impaired and not capable of supervising the children.

       Therefore, only her son was left in charge of the facility and the children that afternoon, and her son was not authorized to supervise the children. As a result, the children were effectively left unsupervised when Respondent left the facility that afternoon.

   11. Respondent's testimony is credible, especially when bolstered by her client's testimony, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home.

   12. Respondent explained that at the time of the April 16, 2003, inspection, the sink was missing because the entire bathroom was being renovated, and the renovation has been complete for some time. Respondent also stated that she did not understand the need for Petitioner's insistence on strict compliance with the four-foot height requirement for the chain-

       link fence, especially since she owns the one-acre parcel in the back of her yard. Respondent also explained that the reason she had exceeded the maximum allowable number of children in her home on two occasions was concern for the custodial parents' inability to find suitable child care when they worked odd hours or the swing shift and that she was willing to inconvenience herself in order to provide this service. This testimony was corroborated by several parents and grandparents who testified in Petitioner's behalf.

   13. The evidence is clear and convincing that Respondent violated several code provisions, including failure to properly screen her husband, having too many children in the home, and failure to have current enrollment on file for each child.

   14. The evidence is not clear and convincing that Respondent violated the code provisions relating to minimum fence height requirements; improper floor mats; failure to have a functioning sink in the children's bathroom; no paper towels in the bathroom for the children; expiration of a child's shot records or that a child's physical examination was outdated.

   15. Respondent has shown mitigating evidence that she is a concerned and loving caregiver which demonstrates that her license as a family day care home license should not be revoked.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), 120.60(5), and 402.310(2), Florida Statutes (2003).2

   17. Petitioner has the burden to prove by clear and convincing evidence the grounds for revocation of Respondent's family day care home license. See Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996); Coke v. Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998); Accord Marcia Edwards Family Day Care Home vs. Department of Children and Family Services, Case

       No. 02-3784 (DOAH February 5, 2003), adopted in toto, DCF Case No. 03-086-FO (March 4, 2003); Department of Children and Family

       Services vs. Dorothy Dempsey Family Day Care Home, Case

       
       

       No. 02-1435 (DOAH August 7, 2002), adopted in toto, DCF Case No. 02-305-FO (November 27, 2002).

   18. The clear and convincing evidence standard has been described as follows:

       Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or

       conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       Inquiry Concerning Judge Davey, 645 So. 2d 398, 404 (Fla. 1994), (quoting Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)) (internal brackets omitted). Accord Westinghouse Electric Corporation, Inc. v. Shuler Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)("Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous.").

3. Violations of the Licensing Statutes and Rules at Respondent's Facility

   
   

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

   2. The rules adopted by Petitioner to implement Sections

      
      

      402.301 through 402.319, Florida Statutes, are codified in Florida Administrative Code Chapter 65C-20.

   3. Charles McClary's April 16, 2003, and Mr. Pickett's January 22, 2004, inspection reports served as a basis for Petitioner's January 26, 2004, revocation letter. It cited the following rules/statutes which Respondent allegedly violated: Subsections 402.313(3) and 402.305(2), Florida Statutes

      (relating to background screening requirements); Florida Administrative Code Rule 65C-20.010(1)(8) (relating to four-foot minimum fence requirement); Florida Administrative Code Rule 65C-20.010(1)(o) and (2)(a) and (d) (relating to a missing bathroom sink and to hazards); Florida Administrative Code Rule 65C-20.010(1)(f)(i) (relating to floor mats not covered with impermeable surface and two mats torn); Florida Administrative Code Rule 65C-20.010(1)(b) (relating to hazardous materials); Florida Administrative Code Rule 65C-20.011(1), (2)(a), and (4) (relating to maintenance of health and enrollment records); and Subsection 402.302(7) (relating to the maximum number of children allowed at the facility). Each alleged violation will be addressed in turn.

   4. Florida Administrative Code Rule 65C-20.009(3)(a)

      
      

      provides:

      
      

      1. 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.

         
         

   5. The evidence clearly and convincingly establishes that Respondent was in violation of Florida Administrative Code Rule 65C-20.009(3)(a).

   6. Respondent acknowledged at the hearing that she was "taking a chance" by leaving the children at the facility in order to pick up some other children from school with her son being present. Nevertheless, she did so. Supervision is a cornerstone of child care. See Subsection 402.302(1), Florida Statutes (defining "child care" to mean "the care, protection, and supervision of a child, . . . ."). On April 16, 2003, Respondent's failure to supervise the children in her care by leaving the facility to pick up other children from school without a proper substitute, is a serious violation of the licensing statutes and rules. While there is no evidence that any of the children suffered actual harm, such evidence is not required under Subsection 402.310(1)(b)1., Florida Statutes. This is a first offense.

   7. Florida Administrative Code Rule 65C-20.010(1)(b) and (1)(o) provides:

      1. All areas and surfaces accessible to children shall be free of toxic substances and hazardous materials. All potentially harmful items including cleaning supplies, flammable products, poisonous and toxic materials must be labeled. These items as well as knives, and sharp tools and other potentially dangerous hazards shall be stored in locations inaccessible to the children in care.

      
      

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      (o) All parts of the home, both indoors and outdoors, including the furnishings,

      equipment, and plumbing shall be kept clean and sanitary, free of hazards, in an orderly condition and in good repair at all

      times. . . .

      
      

   8. The evidence clearly and convincingly establishes that Respondent violated Florida Administrative Code Rule

      65C-20.010(1)(b) by placing a gas can and paint near the front door, which the inspector found when he arrived on January 22, 2004. Respondent conceded that this posed a hazard to small children. However, it is undisputed that the hazardous material was removed before the close of business that day. In regard to the metal obstacles protruding from the sliding glass door near the children's play area, since no re-inspection has been conducted, it is not known whether that hazard has been removed or not.

   9. Florida Administrative Code Rule 65C-20.010(1)(f)

   
   

   provides:

   
   

   1. he outdoor space shall be fenced, a minimum of 4 feet in height, if the family day care home property borders any of the following:

      
      

      1. Laned road or laned street open to travel by the public; . . . .

   
   

   1. The evidence fails to establish a violation of Florida Administrative Code Rule 65C-20.010(1)(f). It is undisputed that the backyard of Respondent's facility was fenced at the time of the April 16, 2003, inspection. However, Respondent was

      cited because the fence was not the minimum four-feet in height. However, Respondent testified that she brought this violation into compliance. This assertion is supported by the April 23, 2003, re-inspection which indicated that the fence was in compliance, and Respondent was not charged with this violation at all following the January 22, 2004, inspection. The evidence does not clearly and convincingly establish that the backyard fencing was under the minimum standard at the time of any of the inspections.

   2. Florida Administrative Code Rule 65C-20.011(1), (2)(a), and (4) provides:

      1. Immunizations. Within 30 days of enrollment, each child must have on file and keep up to date a completed DH Form 680, Florida Certification of Immunization, Part A-1, B, and or C, (July 2001), or DH Form 681, Religious Exemption from Immunization (May 1999), which is incorporated by reference in subsection 64D-3.011(5), F.A.C., DH Forms 680 and 681 can be obtained from the local county health department.

         The DH Form 680, Florida Certification of Immunization Parts A-1, Certification of Immunizationor for K-12 Excluding 7th Grade Requirements or Part B, Temporary Medical Exemption, shall be signed by a physician or authorized personnel licensed under the provisions of Chapter 458, 459, or 460, F.S., and shall document vaccination for the prevention of diphtheria, pertussis, tetanus, poliomyelitis, rubeola, rubella, mumps, and Haemophilus influenza type B (HIB), and effective July 1, 2001, completion of varicella vaccination. The DH Form 680, Florida Certification of Immunization Part C, Permanent Medical

         Exemptions, shall be dated and signed by a physician licensed under the provisions of Chapter 458 or 459, F.S.

         
         

      2. Children's Student Health Examination.

         
         

         1. Within 30 days of enrollment, each child must have on file a completed DH Form 3040, (June 02), Student Health Examination, which is incorporated by reference, and copies of which are available from the local county health department or the child's pediatrician. The student health examination shall be completed by a person given statutory authority to perform health examinations. . . .

            
            

         2. This Student Health Examination is valid for two (2) years from the date the physical was performed.

            
            

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            (4) Enrollment and Medical Authorization.

            
            

            1. The operator shall obtain enrollment information from the child's custodial parent or legal guardian, prior to accepting the child in care. This information shall be documented on CF-FSP Form 5219, Dec. 02, Child Care Application for Enrollment, which can be obtained from the local Department of Children and Families district service center or the local licensing agency, and is incorporated by reference, or an equivalent that contains all the information required by the department's form.

               
               

            2. Enrollment information shall be kept current and on file for each child in care.

            
            

   3. Petitioner failed to prove a violation of Florida Administrative Code Rule 65C-20.011(1) or (2)(a) because

      Mr. McClary's inspection report, which was not supported by the

      testimony of any of Petitioner's witnesses, did not clearly and convincingly demonstrate which child's shot records were expired or which child's physical examination was out-dated, or that those children were enrolled in the facility for more than 30 days, which is the time frame allowed by the Rule to obtain that information. However, Petitioner did establish a violation of Florida Administrative Code Rule 65C-20.011(4) because

      Mr. Pickett's inspection report and his testimony did clearly and convincingly demonstrate that three children's enrollment records were missing.

   4. Subsection 402.302(7), Florida Statutes, provides, in relevant part, that:

      1. "Family day care home" means an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. A family day care home shall be allowed to provide care for one of the following groups of children, which shall include those children under 13 years of age who are related to the caregiver:

         
         

         1. A maximum of four children from birth to 12 months of age.

            
            

         2. A maximum of three children from birth to 12 months of age, and other children, for a maximum total of six children.

            
            

         3. A maximum of six preschool children if all are older than 12 months of age.

         4. A maximum of 10 children if no more than 5 are preschool age and, of those 5, no more than 2 are under 12 months of age.

      
      

   5. Petitioner proved two violations of Subsection 402.302(7), Florida Statutes. The evidence is clear and convincing that Respondent had a total of eight children at the facility on April 16, 2003, consisting of eight children under the age of five. At the time of the January 22, 2004, inspection, Respondent had a total of ten children at the facility, consisting of three infants (12 months or younger) and seven other children under the age of five. Respondent's justification for this violation is not persuasive.

4. Appropriate Penalty

1. Subsection 402.310(1)(b), Florida Statutes, directs Petitioner to consider the following factors in determining the appropriate disciplinary action for a violation of Subsection 402.310(1)(b), Florida Statutes:

   (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.

   
   

2. Respondent argues that revocation is not appropriate under the circumstances of this case and that less severe sanctions (such as suspension or provisional licensing) were available to Petitioner.

3. A provisional license is issued where Petitioner has continued concerns regarding the day care home's compliance with the applicable statutes and Rules. A provisional license is issued in lieu of denying a license renewal or suspending or revoking the day care home's license. A provisional license gives the licensee an opportunity to correct the areas of non- compliance and because such homes are inspected more frequently, Petitioner has an opportunity to monitor the licensee's progress. The issuance of a provisional license would be appropriate in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Children and Family Services issue a final order as follows:

1. Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rules 65C-20.009(3)(a) (one count), 65C-20.010(1)(b) (one count), and 65C-20.011(4); and Subsection 402.032(7), Florida Statutes (two counts).

2. Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rules

   65C-20.010(1)(o), 65C-20.010(1)(f), and 65C-20.011(1) and (2)(a).

3. Issuing Respondent a provisional license and imposing an administrative fine of $250.00.

DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 8th day of June, 2004.

ENDNOTES

1/ The "notice" by which this case was referred to the Division of Administrative Hearings designated Patricia Gainey as Petitioner and the Department of Children and Family Services as

Respondent. Those designations were changed by the Clerk of the Division of Administrative Hearings as reflected in the case style above. That change was based upon the fact that this is a license revocation proceeding in which the Department of Children and Family Services is the party seeking the affirmative relief.

2/ All references to Sections are to the 2003 version of the Florida Statutes. All references to Rules are to the current version of the Florida Administrative Code.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Patricia Gainey

Gainey Family Day Care Home 2406 Winter Ridge Road Auburndale, Florida 33823

Paul F. 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: 04-000729

Orders for Case No: 04-000729