vs.
Respondent.
) Case No. 06-3268
A formal hearing was held in this case before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, on January 3, 2007, in Orlando, Florida.
For Respondent: Stacy N. Robinson, Esquire
Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant
in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
By letter, dated May 10, 2006, Respondent, Department of Children and Families (DCF or Department), advised Petitioner, Jacqueline Bizzell, that her family day care home was closed and her registration had been invalidated. Petitioner was advised that she had 21 days from the receipt of the notice to request an administrative proceeding under Section 120.57, Florida Statutes. Petitioner disagreed with the invalidation of her registration and disputed the allegations of the letter. By letter, dated May 26, 2006, and a second letter, dated July 25, 2006, Petitioner timely requested a formal administrative hearing. The case was thereafter forwarded to the Division of Administrative Hearings (DOAH) on August 28, 2006.
At the hearing, Petitioner testified in her own behalf, presented the testimony of three witnesses, and offered one exhibit into evidence. Respondent presented the testimony of three witnesses and offered three exhibits, which were received in evidence.
Proposed recommended orders were to be submitted within 15 days of the filing of the transcript. The Transcript was filed on February 26, 2007. Petitioner has not filed her proposal as
of the date of this Recommended Order. Respondent filed its Proposed Recommended Order on March 14, 2007.
Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care.
On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005).
On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006.
Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report.
As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers.
Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner.
Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was
sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date.
Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration.
Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that
he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident.
Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers.
According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider.
Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor.
Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for
Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider.
The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home.
The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006.
The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives
compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1), 120.60(5) and (6), and 402.310(2), Florida Statutes.
Respondent regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. §§ 402.305 and 402.313, Fla. Stat. While the first two categories of facilities require annual on-site inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care home involves no inspections and only requires that the operator complete a training course and provide to Respondent certain paperwork and that the operator and other household members undergo background
screening. The operator of a registered family day care home must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes.
Respondent has the burden to prove by clear and convincing evidence the grounds to revoke or "close" or "invalidate" Petitioner's family day care home registration.2 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 v. Department of Children
and Family Services, Case No. 02-3784 (DOAH February 5, 2003), adopted in toto, DCF Case No. 03-086FO (March 4, 2003); Department of Children and Family Services v. Dorothy Dempsey Family Day Care Home, Case No. 02-1435 (DOAH August 7, 2002), adopted in toto, DCF Case No. 02-305FO (December 1, 2002).
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 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.
Inquiry Concerning Judge Davey, 645 So. 2d 398, 404 (Fla. 1994), (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (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").
Subsection 120.569(2)(g), Florida Statutes (2006), relating to the Florida Administrative Procedures Act, provides:
Irrelevant, immaterial or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.
Subsection 120.57(1)(c), Florida Statutes (2006), provides:
Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
Violations of the Licensing Statutes and Rules at Respondent's home
Subsection 402.308(1), Florida Statutes provides, as follows:
ANNUAL LICENSING. Every child care facility in the state shall have a license which shall be renewed annually.
"License" is defined by Subsection 120.52(9), Florida Statutes, as a ". . . certification, registration, . . . or similar form of authorization required by law. . . ." (Emphasis supplied)
"Licensing" means the agency process respecting the issuance, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license or imposition of terms for the exercise of a license. § 120.52(10), Fla. Stat.
Subsection 402.302(1), Florida Statutes, states: "'Child care' means the care, protection, and supervision of a child, for a period of less that 24 hours a day on a regular basis, which supplements parental care, enrichment, and health supervision for the child, in accordance with his or her individual needs, and for which a payment, fee, or grant is made for care."
Subsection 402.302(7), Florida Statutes, states, in relevant part: "'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, . . ."
Family day care homes are required by Subsection 402.313(1)(a), Florida Statutes, to register annually and must comply with the requirements of the statute.
Subsection 402.310(1)(a), Florida Statutes, provides that Respondent may "impose an administrative fine not to exceed
$100 per violation, per day. . . . Convert a license or registration to probation status and require the licensee or registrant to comply with the terms of probation. Deny,
suspend, or revoke a license or registration . . . for the violation of any provision of ss. 402.301-402.319 or rules the adopted thereunder." (Emphasis supplied)
Subsection 402.305(1)(c), Florida Statutes, reads as follows:
LICENSING STANDARDS. The department
shall establish licensing standards that each licensed child care facility must meet regardless of the origin or source of the fees used to operate the facility or the type of children served by the facility.
* * *
(c) The minimum standards for child care facilities shall be adopted in the rules of the department and shall address the areas delineated in this section. The department, in adopting rules to establish minimum standards for child care facilities, shall recognize that different age groups of children may require different standards.
The rules adopted by Respondent to implement Sections
402.301 through 402.319, Florida Statutes, are codified in Florida Administrative Code Chapter 65C-22.
Florida Administrative Code Rule 65C-22.001 states, in relevant part,
* * *
General Information.
(5) Supervision.
Direct supervision means watching and directing children's activities within the same room or designated outdoor play area and responding to the needs of each child. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times, child care personnel shall remain responsible for the supervision of the children in care, capable of responding to emergencies and are accountable for children at all times, including when children are separated from their groups.
During nap time, supervision means sufficient staff in close proximity, within sight and hearing of all the children. All other staff to meet the required staff-to- child ratio shall be within the same building on the same floor and be readily accessible and available to be summoned to ensure the safety of the children. Nap time supervision, as described in this section, does not include supervision of children up to 24 months of age, who must be directly supervised at all times. (Emphasis added)
Clear and convincing evidence established that Petitioner failed to directly supervise the child within the
same room during nap time. Even where the rule allows staff to be in close proximity to children during nap time, this section of the rule does not apply to the child in the instant case, who was only eight months old at the time of the incident.
Furthermore, Petition admitted that she was not in the same room with the child for a least 14 or 15 minutes.
Violations of Petitioner's due process rights by Respondent
Respondent's district child licensing administrator testified that her review of the Investigative Report was sufficient, without any further investigation, for her to take action; and that the only action available to her, under the Respondent's statutes and rules, when a serious violation is believed to have occurred in a registered family day care home, is to close the facility, immediately and permanently.
Respondent's Letter, dated May 10, 2006, advised Petitioner that "effective immediately, your Family Day Care home is closed and your registration in no longer valid." The reason given for the action was based on "a confirmed report of indicators of inadequate supervision." The statutory definition of supervision of a child was cited. The letter merely advised Petitioner that if her substantial interests were affected, she could request an administrative proceeding, under ss. 120.57, within twenty-one (21) days of receipt of the notice, and was advised to send the request in writing to the District 7
Administrator. No mention was made of Petitioner's right to an immediate appeal, or to an expedited hearing; nor was the fact that Respondent's authority to close her facility only extended to a suspension of her registration, and not to the immediate and permanent "invalidation" of her registration.
This response completely ignores each of the statutes and rules cited hereinafter.
Section 402.310 Disciplinary Actions; hearings upon denial, suspension, or revocation of license; administrative fines, provides in pertinent part:
The department shall adopt rules to:
Establish the grounds under which the department may deny, suspend, or revoke a license or registration or place a licensee or registrant on probation status for violations of ss. 402.301-402.319.
Establish a uniform system of procedures to impose disciplinary sanctions for violations of ss. 402.301-402.319.
The disciplinary sanctions set forth in this section apply to licensed child care facilities, licensed large family child care homes, and licensed or registered family day care homes.
(2) When the department has reasonable cause to believe that grounds exist for the denial, suspension, or revocation of a license or registration; the conversion of a license or registration to probation status; or the imposition of an administrative fine, it shall determine the matter in accordance with procedures prescribed in chapter 120. (Emphasis added)
Under its existing rules dealing with enforcement of violations of the minimum standards for family day care homes, Florida Administrative Code Rule 65C-20.012(2) provides that if the Department believes that a registered or licensed family day care home is in serious violation of the minimum standards, it has the authority to seek an injunction in the local circuit court to stop the continued operation of the home.
In addition, the provisions of Subsection 120.60(6), Florida Statutes, have been available since at least 1977, to all agencies who grant licenses. Recognition of this remedy is currently being recognized, at the Department's headquarters level, by the addition to Subsection (2) of the above-cited rule, effective April 12, 2007, of the following sentence:
Pursuant to Subsection 120.60(6), Florida Statutes, an emergency suspension order may also be used to stop the continued operation if the family day care home poses an immediate serious danger to the public health safety, or welfare of the children who are enrolled.
Utilization of this procedure requires the agency to make a specific finding in its charging document of "immediate serious danger to the public health, safety, or welfare . . ." It must show compliance with the requirements of fundamental due process, and it only has the authority to issue an emergency or summary suspension of a license, and "a suspension or revocation
proceeding pursuant to ss. 120.569 and 120.57 shall, also, be promptly instituted and acted upon." See Former FAC Rule 28- 107.005, now 28-106.501, which requires initiation of this procedure within 20 days after the emergency action.
Respondent in this case did not utilize any of the above-cited remedies. Respondent ordered Petitioner to close immediately and she complied.
Respondent's Administration stated that because Petitioner fad a registered home, Respondent could not inspect it even after receiving the Child Protective Inspection Report. This is also inaccurate; Florida Administration Code Rule 5C- 20.012(3) requires the child care home operator to allow access to the entire premises of the home to inspect for compliance with Respondent's minimum standards.
There is no dispute that Petitioner timely requested a formal hearing within the 21-day requirement contained in the May 10, 2006, letter. However, the administrative process was not begun until Petitioner filed a second request for hearing on July 25, 2006, and, yet this matter was not referred to DOAH until August 30, 2006. No explanation for this delay was ever given.
Simply providing a routine notice of a point of entry into the administrative process is not enough. The point of entry given by Respondent was so remote in time from the agency
action, which in this case was final agency action, not intended agency action as to be ineffectual as a vehicle for affording a party, whose substantial interests were obviously affected by the agency's drastic action. Petitioner was not given a prompt opportunity to challenge disputed issues of material fact in a formal hearing. Actual notice of agency action that does not inform the affected party of the right to request a hearing on an expedited basis is inadequate to satisfy the clear point of entry requirement. §§ 120.569(1) and 120.60(6), Fla. Stat.
Cf. General Development Utilities Inc. v. Florida Department of
Environmental Regulation, 417 So. 2d 1068, 1070 (Fla. 1st DCA 1982).
Upon the referral of this matter by Respondent, the DOAH case file was opened and processed and set for hearing as if the licensee had been given an adequate notice and opportunity to contest Respondent's intended action. See § 120.60(5), Fla. Stat., McDonalds v. Department of Banking and Finance, 346 So. 2d 569, 589 (Fla. 1st DCA 1977). After the case had been set for hearing, Petitioner sought a continuance in order to seek counsel and to conduct discovery. However, Petitioner was never able to successfully obtain the assistance of counsel. She, also, consented to a continuance requested by Respondent, until the formal hearing was conducted on January 7, 2007.
Further, Respondent, in its Proposed Recommended Order, states:
It was within the Respondent's discretion to invalidate the Petitioner registration as a family day care especially where the facts underlying the abuse report indicated that the Petitioner inadequately supervised a child. Therefore, Petitioner's registration should be invalidated.
There is no such authority to "invalidate" a license or registration. Respondent has the authority to deny, suspend or revoke a license or registration or to convert it to probationary status. § 402.310(1), Fla. Stat.
There is no agency discretion to "invalidate" a licensure or registration of a child care facility. The scope of agency authority is restricted by the controlling provisions of substantive law. The scope of agency authority, also, is affected by procedural requirements established by law. Its enforcement authority is derived from Subsection 402.310(1)(c), Florida Statutes, and the rules implementing that authority, primarily Florida Administration Code Rule 65C-20.012(1) and
(2).
We are now faced with a dilemma. The evidence is
clear that Petitioner neglected an important safety requirement for child care providers by not directly supervising an infant who was napping while in her care.
Subsection 402.310(1)(b), Florida Statutes, directs Respondent 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:
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.
Actions taken by the licensee to correct the violation or to remedy complaints.
Any previous violations of the licensee.
However, the above-cited statute was not considered.
Respondent presented little or no evidence of the severity of the violation; since Respondent has permanently closed her doors, Petitioner could take no action to correct the violation; the evidence is clear that Petitioner had no prior violations, is a sincere and caring provider, and is well thought of in the community as a responsible child care provider.
Respondent is responsible for an egregious violation of Petitioner's fundamental due process right to proper notice and an expedited hearing.
Further, by operation of law, Petitioner's one-year home registration was to have expired on January 30, 2007. In order to maintain her registration, Petitioner must re-apply and show that she is in compliance with the minimum standards for a family day care home in effect at the time. There was no evidence presented at the formal hearing to indicate that she has done so; nor was any indication given that she would be permitted to reapply.
Since Respondent did not invoke the provisions of Section 120.60(6), Florida Statutes, but was summarily closed, Respondent's Letter of May 10, 2006, must be considered a "Notice of Intent to Revoke" Petitioner's family day care home registration. As such, Petitioner would have been entitled to continue to operate her business until the entry of a final order by the agency, since she timely invoked the formal hearing provisions of the Administrative Procedures Act. Accord Marcia Edwards Family Day Care v. 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). Therefore, Petitioner is entitled to the re-activation of her family day care home registration for the 264 days remaining on the 2006 registration.
Petitioner must be afforded the opportunity to submit an application for renewal of her family day care home
registration, upon the expiration of the extended registration period.
Because Petitioner was not charged with a serious violation of the minimum standards, a $100 fine for one violation on one day would be appropriate.
The Secretary of the Department of Children and Family Services issue a final order as follows:
DONE AND ENTERED this 13th day of April, 2007, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2007.
1/ All references to Florida Statutes are to Florida Statutes (2005), unless otherwise indicated. All references to Rules are to the current version of the Florida Administration Code, except where noted.
2/ The "notice" by which this case was referred to the Division of Administrative Hearings designated Jacqueline Bizzell as Petitioner and the Department of Children and Family Services as Respondent. Those designations were not changed by the Clerk of the Division of Administrative Hearings, as reflected in the case style above. However, the facts show that this is a license revocation proceeding in which the Department of Children and Family Services is the party seeking the affirmative relief.
Stacy N. Robinson, Esquire Department of Children and
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.
