vs.
Respondent.
) Case No. 04-1141
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this case on behalf of the Division of Administrative Hearings (DOAH), in Lakeland, Florida, on May 21, 2004.
For Petitioner: M. G., pro se
The issue for determination is whether Respondent should deny Petitioner's application for a license to operate a family day care home for the reasons stated in Respondent's letter of denial.
By letter dated March 5, 2004, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application for a license to operate a family day care home. Petitioner timely requested an administrative hearing.
At the hearing, Petitioner testified, presented the testimony of two other witnesses, and submitted two exhibits for admission into evidence. Respondent presented the testimony of two witnesses and submitted two exhibits for admission into evidence.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the hearing.
Neither party requested the record to be published in a transcript.
Petitioner timely filed her Proposed Recommended Order (PRO) on May 28, 2004. Respondent timely filed its PRO on June 1, 2004.
On January 21, 2004, Petitioner, M.G., applied for a license to operate a family day care home at 2430 Kiwanis Avenue in Lakeland, Florida. Respondent, the Department of Children and Family Services, is the agency responsible for licensing family day care homes in the state.
By letter dated March 5, 2004, Respondent notified Petitioner of Respondent's intent to deny Petitioner's application for a license (the denial letter). The denial letter relies solely on a report from the Florida Abuse Hotline Information System, Report No. 2003352176 (the abuse report).
The denial letter states, in relevant part, that Respondent is unable to determine from information in the abuse report whether Petitioner will adequately ensure the safety of children. The preponderance of competent and substantial evidence at the administrative hearing shows that Petitioner will adequately ensure the safety of children in a family day care home.
Petitioner left her two biological children in her vehicle on September 15, 2003, in front of a strip center of stores while Petitioner retrieved a paycheck from a consignment store that employed Petitioner and then went to an automatic teller (ATM) machine at an adjacent store. Petitioner left her children in the back seat of the vehicle with the doors locked, the engine running for air conditioning, the transmission in park, and the parking break engaged.
The abuse report bases its findings on hearsay statements obtained by an investigator for Respondent during his investigation on September 17, 2003. The abuse report concluded that Petitioner neglected her children because she was inside a
store retrieving her paycheck for more than five minutes and that the children were out of sight of Petitioner while Petitioner was inside the store. The trier of fact cannot base findings of fact solely on hearsay testimony of the investigator.
The preponderance of competent and substantial evidence at the administrative hearing shows that Petitioner did not leave sight of her children. Petitioner parked her car in front of the consignment store. The width of the sidewalk, or approximately ten feet, separated the car from the entrance to the consignment store. Petitioner never entered the consignment store but remained in the doorway within sight of her children. Petitioner had telephoned ahead to the owner of the consignment store. The owner had the paycheck prepared when Petitioner arrived and handed it to Petitioner in the doorway of the store.
Petitioner then used an ATM at an adjacent store. The ATM was approximately 20 feet from Petitioner's vehicle. The retrieval of the paycheck and the ATM transaction lasted approximately five minutes.
During the five minutes that Petitioner was outside of her car, Petitioner's youngest child escaped from his car seat in the back seat of the vehicle and crossed into the front seat. Petitioner, subsequently, entered the vehicle, put her child in the car seat, and drove away.
The facts on which the abuse report concluded that Petitioner had neglected her children on September 15, 2003, were based on hearsay. Competent and substantial evidence at the hearing did not support some of those facts.
If it were determined that the facts shown at the hearing constituted neglect, the abuse report correctly determined that the neglect resulted in a low risk of harm to the children. The abuse report recommended no intervention, placement services, or judicial intervention.
The incident on September 15, 2003, was a single isolated event that does not represent a pattern and practice of endangering children. The incident was an exception to Petitioner's normal practice, rather than evidence of her normal practice. Petitioner demonstrated that she can adequately ensure the safety of children in her care.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this case. §§ 120.569 and 120.57(1), Fla. Stat. (2003). DOAH provided the parties with adequate notice of the administrative hearing.
Petitioner has the burden of proof in this proceeding.
Petitioner must show by a preponderance of evidence that she can adequately ensure the safety of children in her care. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d
778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
In relevant part, Subsection 402.310(1)(a), Florida Statutes (2003), authorizes Petitioner to deny Respondent's license for the reasons stated in the denial letter. Subsection 402.310(1)(b), Florida Statutes (2003), prescribes the factors to be considered in determining whether to deny the application.
The denial letter does not allege that Respondent is unable to adequately ensure the safety of children in a family day care home. Rather, the denial letter states that the information in the abuse report renders Respondent unable to determine whether Petitioner will adequately ensure the safety of children under Petitioner's care. Neither DOAH nor Petitioner may deny Petitioner's license application for reasons other than those for which Respondent notified Petitioner in the denial letter. Compare Cotrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (holding that an agency cannot find that a licensee committed acts not alleged in the administrative complaint) with B.D.M. Financial Corporation v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997) (holding that an agency cannot find that the agency cannot conclude that the acts alleged in the administrative complaint constituted violations that are not charged in the administrative complaint).
At the administrative hearing, Petitioner showed by a preponderance of evidence that material factual information on which the abuse report based its conclusion of neglect was incorrect. Petitioner also showed that she can adequately ensure the safety of children in her care.
The information in the abuse report is based on hearsay statements made to an investigator for the Department. Section 120.57, Florida Statutes (2003), prohibits the ALJ from basing a finding of fact on hearsay, unless the hearsay explains or supplements other competent and substantial evidence. Petitioner was the sole source of competent and substantial evidence at the hearing on material factual issues in the abuse report. Petitioner's testimony was credible and persuasive.
