STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FAIL FAMILY CHILD CARE HOME,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 04-2795

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RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding and hearing before P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The formal hearing was conducted in Ocala, Florida, on February 8, 2005. The appearances were as follows:

APPEARANCES

For Petitioner: Clara Fail, pro se

5501 Southeast 29th Court Ocala, Florida 34480

For Respondent: T. Shane Deboard, Esquire

Department of Children and Family Services 1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner's child care license should be renewed based upon a purported violation of rules contained in Florida

Administrative Code Chapter 65C-20, concerning adequate supervision of children left in the Petitioner's care and

custody.

PRELIMINARY STATEMENT

This cause arose when a denial letter was issued to the Petitioner, Clara Fail, dated July 7, 2004. It advised Ms. Fail that her application to re-new the license to operate the Fail Family Child Care Home was denied. The decision was based upon findings concerning a complaint indicating that Ms. Fail had failed to adequately supervise a child left in her care by allowing the child to wander several blocks away from her child care home for approximately one and one-half hours. Ms. Fail allegedly failed to document the incident in her own files, to report it to the Department and had failed on two occasions to have dogs belonging to neighbors removed from her fenced yard area where the children were allowed to play. It is contended by the Department that the Petitioner has not complied with Section 402.305, Florida Statutes, concerning minimum standards for child care homes, as well as the above-referenced rule chapter.

The cause came on for hearing as noticed. At the hearing the Petitioner, Clara Fail, testified on her own behalf and the Respondent produced witnesses Heidi Stalice, Deputy Jimmy Shively, Michaeline Cone, Diana McKenzie, and the testimony of

the Petitioner Clara Fail. Four exhibits were admitted into evidence upon presentation by the Respondent Department. Upon conclusion of the proceeding the parties were given an opportunity to submit proposed recommended orders. The Petitioner submitted an informal pleading by way of a proposed recommended order. The Agency did not submit a proposed

recommended order.

FINDINGS OF FACT

1. The Petitioner, Clara Fail, is the operator of a licensed child care home or facility. The Respondent is an agency of the State of Florida charged with licensure and regulation of the operation of child care facilities in accordance with Florida Administrative Code Rule Chapter 65C-20. By its letter of July 7, 2004, the Respondent Agency advised the Petitioner that her application to renew her license to operate a child care facility was denied based upon failure to adequately supervise a child left in her care. In essence, it is charged that the Petitioner failed to supervise a minor child left in her care by failing to safely maintain the child at the Petitioner's home, the licensed facility.

2. On or about April 9, 2004, Heidi Stalice who lives in the neighborhood of the Petitioner's daycare facility located a nine year-old child wondering on her street. The nine-year-old identified himself and was unsure where he lived, upon inquiry

   from Ms. Stalice. Ms. Stalice took the child to her nearby residence and kept him safe with her own son, who is approximately the same age. Mr. Stalice attempted to locate the child's address by driving him around the neighborhood without success. She then contacted the Marion County Sheriff's Office and Deputy Shively. Deputy Shively went to Ms. Stalice's residence and also contacted the foster care personnel of the Department. He was advised by them that the child's foster mother was Patti Green. The employees at the foster care office made contact with Ms. Green who advised them that the child was supposed to be at the Petitioner's house at 5501 Southeast 29th Court, his "babysitter."

3. Deputy Shively made contact with the Petitioner Clara Fail, by phone who advised him that this was the first day she had kept the child who was a foster child of Ms. Green and had been placed in foster care with her the day before. Ms. Fail advised Deputy Shively that the child had walked away from her residence earlier that morning at approximately 11:00 a.m., and had returned a short time later and ate lunch. Ms. Fail advised Deputy Shively that the child again left the residence on foot at approximately 2:00 p.m., at which time she stated that she called the foster mother Ms. Green, at work, but did not get a response.

4. Investigator Blystone spoke with Deputy Shively by phone and advised the deputy that the foster mother, Patti Green, was going to Ms. Stalice's residence and that he was to relinquish custody of the child to Ms. Green, his foster mother with the understanding that the child was not to be taken back to Ms. Fail's residence until an investigation by DCF could be completed.

5. Ms. Michaeline Cone is a family services counselor.

   
   

   She and her supervisor Diana McKenzie, who is a family services counselor supervisor both went to Ms. Fail's home to investigate this matter. Ms. Fail acknowledged the incident and told

   Ms. Cone that the child had wandered away twice and she had been unable to keep him in the fenced area that day.

6. Ms. McKenzie established that children playing in the fenced yard area at Ms. Fail's home could not be in Ms. Fail's view at all times if Ms. Fail was inside the house, and that therefore to that extent they were sometimes unsupervised. Upon Ms. Cone's June 2, 2004, visit she had asked Ms. Fail if the three dogs she saw present in her yard had been vaccinated.

   Ms. Fail replied that she did not own any of the animals and that they belonged to neighbors. Ms. Cone requested that the dogs be removed from the property and that the gates be secured so that the animals could not return to the property.

7. On June 15, 2004, when Ms. McKenzie and Ms. Cone again made an inspection of the Fail home, Ms. McKenzie observed

   Ms. Fail taking the three dogs from the front of the yard to the rear yard. When asked about the dogs during that visit Ms. Fail once again stated that the dogs did not belong to her.

   Ms. McKenzie again reminded her to remove the dogs from the

   
   

   premises.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

9. Florida Administrative Code Rule 65C-20.010, "health related requirements," provides general requirements for health and safety for family daycare homes and large family daycare homes. It provides that animals must have current immunizations and be free of disease and that parents must be informed in writing of all animals on the premises of the home. It also provides that for all family daycare homes other than those providing care for only infants under 12 months of age (not applicable here) the outdoor play space must be fenced a minimum of four feet in height, if the property borders, as here, a road or street open to travel by the public. The rule provides, implicitly as to small family daycare homes and explicitly as to large family child care homes that the fencing shall be four

   feet in height including gates, and it must be continuous, without a gap that would allow children to exit the outdoor play area. It must prevent inside or outside access by children or animals. The Rule further provides in paragraph (3)(b)3., that all incidents which occur at a family daycare home be documented and shared with the custodial parent. "Documentation shall include the name of the affected party, date and time of occurrence, description of occurrence, actions taken, and signature of operator and custodial parent or legal guardian.

   Records of accidents, incidents, and observed health related signs and symptoms must be maintained for one year."

10. The evidence establishes without question that the incident involved in this case was not documented by the Petitioner in compliance with this provision of the above Rule. The evidence also establishes that the outdoor play space was not maintained according to the above referenced Rule, and that a gap had to have been allowed because the child escaped twice during the day in question, April 9, 2004. It is also true that the outdoor play space and its fencing were not maintained in such a way that the three dogs belonging to a neighbor were kept off the premises on the two occasions they were observed by Department personnel.

11. The above-referenced Rule, was promulgated under authority of Section 402.313, Florida Statutes. It is also

    provided in Section 402.310, Florida Statutes, concerning disciplinary actions, that the Department or a local licensing agency, may deny, suspend, or revoke a license or impose an administrative fine not to exceed $100.00 per violation per day for a violation of any provision of Section 402.301 through 402.319, Florida Statutes, or rules adopted thereunder. Section 402.310(1)(a), Florida Statutes, also provides:

    " . . . However, where violation a could or does cause death or serious harm, the Department or local licensing agency may impose an administrative fine, not to exceed

    $500.00 per violation per day."

    
    

    (b) in determining the appropriate disciplinary action to be taken for violation as provided in (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 Sections 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.

    
    

12. There is no question that the violation of the above Rule by the Petitioner, Ms. Fail, could have resulted in death or serious harm to the child in question, although fortunately such harm did not actually occur in this incident. Given the potential seriousness of the child's escape from the facility

    twice in the same day, coupled with the twice-observed failure to keep dogs off the premises which did not belong there, a substantial penalty is warranted.

13. In consideration of all the circumstances established in the above facts by the preponderant evidence of record and given that the licensee has taken steps to correct the violations, the appropriate penalty should be a $500.00 fine plus the issuance of a provisional license pursuant to Section 402.309, Florida Statutes, rather than a plenary license, because of the licensee's failure as of the time of the events in question, to conform to all the standards of Sections 402.301 through 402.319, Florida Statutes. The provisional license should be issued for the statutorily required period of no more than six months during which time an enhanced schedule of inspections of the licensee's facility, pursuant to Section 402.311, Florida Statutes, should be conducted to ensure that the safety-related violations have been corrected, continue to be corrected, and the facility properly operated in accordance with the above Rules and Sections 402.301 through 319, Florida Statutes.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Department of Children and Family Services imposing an administrative fine in the amount of $500.00 and imposing the requirement of a provisional licensure not to exceed six months duration after which licensure shall be again reviewed by the Department, and during which six month period at least monthly inspections for the safety and proper operation of the facility shall be conducted.

DONE AND ENTERED this 6th day of April, 2005, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 Clerk of the

Division of Administrative Hearings this 6th day of April, 2005.

COPIES FURNISHED:

Joe Garwood, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Clara Fail

5501 Southeast 29th Court Ocala, Florida 34480

T. Shane Deboard, Esquire

Department of Children and Family Services 1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

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: 04-002795

Orders for Case No: 04-002795