STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE CHILDREN'S PALACE II,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 05-0358

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RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on October 24, 2005, by video teleconference with sites in Jacksonville and in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

For Respondent: Robin Whipple-Hunter, Esquire

Department of Children and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's license to operate a child care facility should be revoked.

PRELIMINARY STATEMENT

By letter dated December 3, 2004, the Department advised Geraldine Lee that it intended to revoke her license to operate a child care facility, and she timely requested an administrative hearing regarding that determination. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

The Department presented the testimony of Reginald Brady, Officer Brian B. Norton, Theresa Lucia, Taunya D. Patterson, and Teresa Rosier. Geraldine Lee testified on behalf of Petitioner and presented the testimony of Theresa Lucia. Additionally, the Department's Exhibits numbered 1-12 were admitted in evidence.

Both parties submitted proposed recommended orders after the conclusion of the final hearing in this cause. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Geraldine Lee was the owner and operator of a child care facility, licensed by the State of Florida and known as The Children's Palace II. On November 14, 2004, there were eighteen children in the care of The Children's Palace II.

2. Each child was signed in by the child's parent when the child arrived each morning, and one of Lee's employees then

   signed that the child was actually there. The child was then signed out when the child was picked up that day.

3. The facility was open until 10:00 p.m. However, the facility closed earlier if all the children had been picked up before that time.

4. On November 14 when Taunya Patterson brought her six- month-old son Kenneth Geddes to the facility, she neglected to sign in her son, and no employee counter-signed. Thus, there was no written record that he was there. At that time, Geddes had been receiving child care at The Children's Palace II for two months.

5. When Patterson returned to the facility at 9:00 p.m. to pick up her son, she found the facility closed, locked, and dark. She summoned the police, who, in turn, summoned

   Geraldine Lee, who came to the facility. She unlocked the facility and Patterson's son was in the crib where he normally slept, lying on his stomach and crying. The infant was unharmed.

6. Geraldine Lee had left the facility that day at approximately 7:30 p.m. Before leaving the facility, she walked through but did not see any children still there. She left her employee Theresa Leverett in charge of the facility.

7. At approximately 8:30 p.m. Lee returned to the facility to pick up her granddaughter. Leverett was leaving the facility when Lee was picking up her granddaughter.

8. On December 3, 2004, the Department notified Lee that it was revoking her license to operate a child care facility effective immediately.

9. On August 18, 2004, Lee had been issued a provisional license for The Children's Palace II, effective August 20, 2004, to February 19, 2005. Once before, The Children's Palace II had been issued a provisional license but had been issued a regular license thereafter.

10. Prior to November 14, 2004, no child had been left alone in the facility. The only prior similar incident occurred when an employee walked out of a room where a child was present, thereby leaving the child unsupervised.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

12. In this revocation of licensure proceeding the Department bears the burden of proving its allegations by clear and convincing evidence. Dept. of Banking & Finance, Div. of

    Securities & Investor Protection v. Osborne, Stern & Co., 670 So. 2d 932 (Fla. 1996). The Department has failed to do so.

13. The letter the Department sent to Geraldine Lee notifying her of its intent to revoke the license of The Children's Palace II states that it is based upon violations of Sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. The statutory sections cited cover the Department's authority to take disciplinary action, the requirement that child care facilities be inspected, the requirement that family day care homes be inspected, the requirement that family day care homes be licensed, the establishment of child care transportation programs, and other subjects which have no relevancy to this case. Similarly, the entire chapter of administrative rules cited is quite long and covers many subjects irrelevant to this proceeding.

14. Similarly, the Department's proposed recommended order fails to identify any specific statute or rule which the Department is alleging has been violated. It is not within the authority of the undersigned to compose charges against The Children's Palace II.

15. The only specificity in the letter of intent is the factual allegation that an infant was left alone in the closed, locked facility on November 15, which is not the date of the incident described above.

16. It is undisputed that the child should not have been left in the facility alone. It is undisputed that the facility

had a system in place for checking the children in and out, that the child's mother failed to sign in the child, and that an employee of the facility closed it while a child remained behind. However, the Department has failed to cite a statutory or rule section that has been violated, and it is not sufficient to revoke a license based upon a general allegation that something happened that should not have. Marcelin v. State Dept. of Business & Professional Regulation, Construction Industry Licensing Board, 753 So. 2d 745 (Fla. 3d DCA 2000); Ghani v. Dept. of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Florida Administrative Code Rule 28-106.201(2)(e) and (f).

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that the Department failed to meet its burden of proof and dismissing its notice of intent to revoke the license of The Children's

Palace II.

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

S

LINDA M. RIGOT

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 6th day of December, 2005.

COPIES FURNISHED:

Robin Whipple-Hunter, Esquire

Department of Children and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

Gregory Venz, Agency Clerk

Department of Children and Family Services Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Acting General Counsel Department of Children and Family Services Building 2, Room 204

1317 Winewood Boulevard

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: 05-000358

Orders for Case No: 05-000358