STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAMBI DAY CARE I, )

)

Petitioner, )

)

vs. ) Case No. 05-2363

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_ )

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on September 21, 2005, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Mercedes Arabi, Director

Bambi Day Care Center and Nursery 19204 Northwest 48th Avenue Carol City, Florida 33055

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N-1014 Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether Respondent should continue to allow the Bambi Day Care I child care facility to remain open for business.

PRELIMINARY STATEMENT

By letter dated July 2, 2004, Respondent advised Mercedes Arabi, the operator of Bambi Day Care I, that it "intended

to revoke [her] license to operate a Child Care Facility . . . based on the facility's failure to comply with s. 402.305(2)(f) [Florida Statutes] and 65C-22.003(7)(a), Florida Administrative Code." Ms. Arabi subsequently filed a written request for a hearing on the matter. On June 10, 2005, the case was referred to DOAH for the assignment of an administrative law judge to conduct the hearing Ms. Arabi had requested.

As noted above, the hearing was held on September 21, 2005.1 Three witnesses testified at the hearing: Colleen Mauer, Mercedes Arabi, and Elena Arabi. In addition, four exhibits (Respondent's Exhibits 1 through 4) were offered and received into evidence.

At the close of the taking of evidence, the undersigned established a deadline (10 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.

The Transcript of the hearing (consisting of one volume) was filed with DOAH on December 2, 2005.

On December 12, 2005, Respondent filed a Motion for Additional Time to Submit Proposed Recommended Order. By Order issued December 13, 2005, the motion was granted and the parties

were given until December 22, 2005, to file their proposed recommended orders.

Respondent filed its Proposed Recommended Order on December 22, 2005. To date, Ms. Arabi has not filed any post- hearing pleading.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Bambi Day Care I (Facility) is a child care facility located in Miami-Dade County.

2. At all times material to the instant case, Mercedes Arabi has been the director of the Facility.

3. Ms. Arabi does not now have, nor has she ever possessed, a director credential issued by Respondent.

4. Although she has attempted to obtain such a credential, she has not been able to meet the credentialing requirements.

5. On or about August 13, 2003, Respondent sent to the Facility (by certified mail, return receipt requested) a form letter advising of the following:

   The deadline for the Director's Credential is January 1, 2004. This is mandated by Chapter 65C-22, Florida Administrative Code.

   
   

   Each child care facility must have a director that meets this requirement by January 1, 2004.

   Failure to comply will affect your licensure status seriously.

   
   

   If you have already completed the Director Credential requirement, please disregard this letter and mail or fax immediately a copy of your certificate for your licensing record. (Include the name of your facility.)

   
   

   The same letter was sent to all other licensed child care facilities having an uncredentialed director.

6. The letter was delivered to the Facility on August 21, 2003.

7. Not having received any indication that Ms. Arabi had obtained the required director credential, Respondent, on or about January 16, 2004, changed the Facility's licensure status by issuing a provisional license, effective from January 2, 2004, through July 2, 2004, authorizing the Facility's operation.

8. As of July 2, 2004, Ms. Arabi still had not become credentialed. Accordingly, on that date, Respondent advised her that it "intended to revoke [her] license to operate [the Facility]."

9. Ms. Arabi requested an administrative hearing on the matter.

10. Notwithstanding that the expiration date on the Facility's provisional license was July 2, 2004, Respondent has affirmatively allowed the Facility to continue to operate

    pending the outcome of Ms. Arabi's challenge to the revocation action announced in Respondent's July 2, 2004, letter. In doing so, it has effectively extended the life of the Facility's provisional license (which, for all intents and purposes, remains in existence).

    CONCLUSIONS OF LAW

    
    

11. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes (2005).

12. Section 402.308, Florida Statutes (2005), mandates that "[e]very child care facility[2] in the state shall have a license which shall be renewed annually."

13. Respondent is responsible for the licensing of child care facilities, except in those counties where there is a local licensing agency (that has been approved by Respondent). See

    § 402.308, Fla. Stat. (2005).

    
    

14. To be licensed, child care facilities must meet certain "minimum standards." See § 402.305, Fla. Stat. (2005).

15. For instance, Section 402.305(2)(f), Florida Statutes (2005), provides:

    PERSONNEL.--Minimum standards for child care personnel shall include minimum requirements as to:

    
    

    By January 1, 2000, a credential for child care facility directors. By January 1,

    2004, the credential shall be a required minimum standard for licensing.

    
    

    Florida Administrative Code Rule 65C-22.003(8)(a)1. elaborates on this "minimum standard." It provides, in pertinent part, as follows:

    Director Credential.

    
    

    Pursuant to Section 402.305(2)(f), F.S., every child care facility director must have a director credential by January 1, 2004, which consists of the foundational level or the advanced level. As of January 1, 2004, every applicant for a license to operate a child care facility or a license for a change of ownership of a child care facility must document that the facility director has a director credential prior to issuance of the license to operate the facility.

    
    

    Child care facility owners must notify the licensing authority within five (5) working days of when the facility loses a credentialed director or when there is a change of director. The licensing authority will then issue a provisional license for a period not to exceed six (6) months. The provisional license will have an effective date of the first day the facility was without a credentialed director.

    
    

16. "Provisional licenses" issued by Respondent are discussed in Section 402.309, Florida Statutes (2005), which provides, in pertinent part, as follows:

    Provisional license.--

    
    

    1. The . . . department . . . may issue a provisional license to applicants for a license or to licensees who are unable to conform to all the standards provided for in ss. 402.301-402.319.

       
       

    2. No provisional license may be issued unless the operator or owner makes adequate provisions for the health and safety of the child. . . .

       
       

    3. The provisional license shall in no event be issued for a period in excess of 6 months; however, it may be renewed one time for a period not in excess of 6 months under unusual circumstances beyond the control of the applicant.

       
       

    4. The provisional license may be suspended if periodic inspection made by . . . the department indicates that

       insufficient progress has been made toward compliance.

       
       

17. Section 402.310(1)(a), Florida Statutes (2005), authorizes Respondent to "deny, suspend, or revoke a license or impose an administrative fine . . . for the violation of any provision of ss. 402.301-402.319 or rules adopted thereunder."

18. "No revocation [or] suspension . . . of any [child care facility] license is lawful unless, prior to the entry of a final order, [Respondent] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." § 120.60(5), Fla. Stat. (2005).

19. The licensee must be afforded an evidentiary hearing if, upon receiving such written notice, the licensee disputes

    the alleged facts set forth in the administrative complaint. See §§ 120.569(1) and 120.57, Fla. Stat. (2005).

20. At the hearing, Respondent bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violation(s), alleged in the written notice. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the licensee's violation(s) is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of Central Florida

    v. Department of Business Regulation, 601 So. 2d 245, 249 (Fla. 1st DCA 1992); Coke v. Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998); and § 120.57(1)(j), Fla. Stat. (2005)("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

21. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

    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 in 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

22. In determining whether Respondent has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific factual allegation(s) made in the written notice. Due process prohibits an agency from taking penal action against a licensee based on matters not specifically alleged in the written notice, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999).

23. The written notice in the instant case alleges that the Facility is in continuing violation of the requirement of Section 402.305, Florida Statutes (2005), and Florida Administrative Code 65C-22.003 that it have a duly credentialed director.

24. The evidence offered and received at the hearing held in this case clearly and convincingly establishes that at no time since January 1, 2004, has the Facility had a director possessing the director credential required by Section 402.305(2)(f), Florida Statutes (2005), and Florida Administrative Code 65C-22.003(8)(a)1.

25. Accordingly, the Facility should not continue to be licensed.

RECOMMENDATION

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

RECOMMENDED that Respondent issue a Final Order revoking its permission allowing the Facility to operate as a child care facility.

DONE AND ENTERED this 27th day of December, 2005, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 27th day of December, 2005.

ENDNOTES

1/ The hearing was originally scheduled to commence on September 9, 2005, but was continued due to Ms. Arabi's illness.

2/ According to Section 402.302(2), Florida Statutes (2005), a "child care facility," as that term is used in Section 402.308, Florida Statutes (2005), "includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit."

COPIES FURNISHED:

Mercedes Arabi

Bambi Day Care Center and Nursery 19204 Northwest 48th Avenue

Carol City, Florida 33055

Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N-1014 Miami, Florida 33128

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory Venz, Agency Clerk

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

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: 05-002363

Orders for Case No: 05-002363