STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This cause came on for formal hearing before P. Michael Ruff, a duly-designated Administrative Law Judge of the Division of Administrative Hearings Leesburg, Florida, on May 8, 2009.

The appearances were as follows:

APPEARANCES

For Petitioner: Shirley Carter, pro se

241 Mont Clair Road Leesburg, Florida 34748

For Respondent: Joyce L. Miller, 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 licensure to operate a child-care

facility in Leesburg, Florida, should be denied, under relevant authority cited below.

PRELIMINARY STATEMENT

This cause arose when the Petitioner submitted an application for a license to operate a child-care facility at 1329 Marshall Drive, in Leesburg, Florida. That application was denied by a letter issued by the Department of Children and Family Services (Department), the Respondent, on January 16, 2009.

Upon receiving the notice that the application was to be denied by the Respondent, the Petitioner sought an opportunity to have a formal proceeding and hearing to contest the matter. The dispute was thereafter duly transmitted to the Division of Administrative Hearings and the undersigned Administrative Law Judge for adjudication.

The cause came on for hearing as noticed. At the hearing, the Petitioner presented her testimony and one exhibit which was admitted into evidence. The Respondent presented the testimony of one witness and submitted four exhibits which were admitted into evidence. Upon conclusion of the proceeding, the Agency elected to order a transcript thereof and the parties were given an opportunity to submit proposed recommended orders. On

July 31, 2009, an order was entered extending the time for submission of proposed recommended orders. This was because, as

explained in more detail in that order, it had become apparent, by a post-hearing filing by the unrepresented Petitioner that the Petitioner may have been confused and may have misunderstood the procedure for obtaining a transcript, and for filing a proposed recommended order. Accordingly, by that Order, the Petitioner was given additional time, until August 20, 2009, in the event that she wanted a copy of the transcript and wished to submit a proposed recommended order. Ultimately, only the Respondent submitted a Proposed Recommended Order, which has been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. This dispute arose when the Department notified the Petitioner, by letter of January 16, 2009, that the application submitted by the Petitioner to authorize operation of a child- care facility was denied. The facility was to be located at 1329 Marshall Drive in Leesburg, Florida. The application was submitted on October 23, 2008. Upon being informed of the intended denial of the Application for Licensure, the Petitioner requested an administrative hearing and the dispute was transferred to the Division of Administrative Hearings for adjudication.

2. The Department had denied the application based on a history of serious violations of statutes and rules, related to the safety of children, during the Petitioner's previous

   operation of Small Fries Daycare Center in 2004. The renewal of licensure for Small Fries, as well as an application for licensure to operate a second facility, "The Learning Tree," was denied after a hearing before an Administrative Law Judge, by a Final Order entered by the Department on December 12, 2005.

3. The Petitioner offered no credible evidence to show why the previous, serious violations would not re-occur if the subject facility was granted licensure. The Petitioner's testimony was somewhat contradictory and she appeared focused on the wrongs she believes were done with regard to her licensure and her facilities in the 2004 dispute, as much as on the present application dispute. She offered no evidence of additional training or rehabilitation since her flawed operation of the Small Fries facility, other than her own self-serving statements. Although she testified that she would be a good operator and follow all relevant rules, she testified in a misleading fashion as to her credentials and training. It became apparent that she was reading from a list of available, relevant educational courses for operators for daycare facilities, but provided no proof that she had actually completed the courses. She also admitted that she did not have the required Director's credentials to operate a child-care facility.

4. She offered no employment history and testified that she had, in fact, not worked since the closure of the Small Fries facility, in 2005, by the above-referenced Final Order. The findings in the Recommended Order in that case, as adopted in the Final Order, entered in 2005, established that the Petitioner was responsible for a number of violations of statutes and rules pertaining to licensure and safe operation of her child care facility.1

5. The Petitioner made a misrepresentation of a critical fact on her application. The primary reason the Respondent took the position that licensure in this case should be denied was the past operational and licensure history of the Petitioner and her facility, which culminated in the referenced Recommended and Final Orders denying licensure. There were multiple legal violations which resulted in her loss of licensure. On the subject application the Petitioner misrepresented a critical fact by failing to acknowledge that she had her licensure denied in the past. Ultimately, the Petitioner admitted in testimony that she had not been truthful on her application when she answered the question at issue and did not disclose a previous licensure denial.

6. Moreover, there is no dispute that the Petitioner's application to operate the day care facility was incomplete at the time it was submitted. The Petitioner ultimately, and

   reluctantly, admitted in testimony that she did not have a Certificate of Occupancy for the building, did not have the required sanitation and environmental inspection from the Health Department, nor an approved fire inspection. These are all items that are required to be obtained before an application can be considered complete and subject to being granted, under the relevant Department rules. These were all items that the Petitioner knew or should have known must be submitted for an application to be complete.

7. The Department, as a routine procedure, reviews applications for completeness and required documentation. If items are missing, the Department sends a letter to the applicant, within 30 days of receipt of the application, in order to comply with Section 120.60(1), Florida Statutes (2009). The Department Licensing Counselor, Ms. Burleson, sent the letter containing the list of missing items to the Petitioner at the address of record on November 19, 2008. This was well within 30 days of the application submission (October 23, 2008) in compliance with Section 120.60(1), Florida Statutes (2009).

8. The Petitioner was informed of the lack of information, and the need to supply it, by the Department after the filing of her application during the fall of 2008. She maintained that she had faxed the information to the Department, which proved not to be true. The Department never received any faxed

   information prior to the letter sent by Ms. Burleson to the Petitioner on November 19, 2008, specifically listing missing items. Moreover, the Petitioner also admitted that the Fire Department was requiring her to install additional sprinklers in the second floor of the building she proposes to use for her facility, before she could receive the necessary approval. She stated that this was a large expense that she was not able to complete at this time.

9. The Petitioner contended that had she known within 30 days which specific items were missing from her application, as to compliance with licensure requirements, she would have had time to complete them. That statement is not credible and, indeed, the Petitioner's own testimony refutes it. The Petitioner admitted that she did not have the required health and fire inspections or the Certificate of Occupancy as late as the date of the hearing. She claimed to have faxed the missing CPR certificate to the Respondent in December 2008, after the date of the letter, November 19, 2008, informing her of missing items. In fact, the purported fax of the missing certificate never happened.

10. The Petitioner also claimed to have taken some of the missing items with her to a meeting she had with Ms. Burleson on January 16, 2009. If she did not know what items were missing from her application, because of purportedly not having received

    the November 19, 2008, letter (even though she executed the application herself) then she could not have known what to fax to the Department or take with her to the meeting with Ms.

    Burleson. In fact, however, the missing items referenced in these findings of fact remain missing from the application, rendering it non-compliant, as of the date of the hearing.

11. The Petitioner's testimony that she did not receive the November 19, 2008, letter from the Department is not credible. It is not supported by any evidence produced by the Petitioner. The Petitioner admitted that the address on the letter (241 Mont Clair Road, Leesburg, Florida) is her current mailing address and the address where she currently receives mail. She admitted receiving the September 8, 2008, letter from the Department, as well as the Notice of Intent which she later completed and returned to the Department. Her statement that she did not receive the November 19, 2008, letter from the Department, advising her of incomplete documentation is inexplicable and not credible, given the evidence that she knew what was missing from her application.

12. The Petitioner knew, or should have known, that at the time she requested the hearing and at all times through the hearing date that she could not possibly meet the requirements for licensure. This is because she admittedly lacked the four critical items required for licensure: a current Directors

    Certificate; an Occupancy Permit for the building from the City of Leesburg; an approved Health and Sanitation Report from the Lake County Health Department; and an approved Fire Safety Inspection and evidence of it. The Petitioner instead, admitted at the hearing that she had chosen not to comply with the fire inspection requirement, which would result in the addition of more fire sprinklers, because they were too expensive.

13. The Petitioner's refusal to expend time and money to comply with the licensing requirements, in essence, resulted in her demanding a hearing when the inevitable Notice of Intent to Deny Licensure was issued from the Department. This resulted in the expenditure of resources by the Department and the Division of Administrative Hearings, when such use of resources for the formal hearing process might have been avoided. In essence, she approached the hearing as an attempt to re-try the prior facts which resulted in her loss of licensure in 2005, rather than make a more affirmative showing of how she could comply with the licensure and operational requirements attendant to the potential grant of the subject application.

    CONCLUSIONS OF LAW

    
    

14. 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. Sta. (2009).

15. The Petitioner has applied for licensure to operate a

    new child-care facility. As the applicant for a new license, the Petitioner has the burden of presenting evidence of the facility's fitness for licensure. Department of Banking and Finance, Division of Securities and Investor Protection v.

    Osborne Sterne, Inc., 670 So. 2d 932, 934 (Fla. 1996). If the Petitioner presents evidence supporting fitness for licensure, the burden of going forward with evidence shifts to the Department to show violation of statutes, rules or rule interpretation supporting denial. The ultimate burden of persuasion remains with the Petitioner however.

16. Florida Administrative Code Rule 65C-22.002(7)(a) requires, for licensure or re-licensure, that child care facilities undergo an annual fire inspection and submit an inspection report showing that the facility complies with relevant standards for child care facilities adopted by the State Fire Marshall. The Petitioner conceded at hearing that she had never obtained a favorable fire inspection report because she did not want to expend money to upgrade the sprinkler system in the building she proposes to use for her facility. This was shown to have been a requirement in order for her and her facility to comply with the relevant fire safety code. Because she failed to secure the fire safety report, there was no way to establish entitlement to licensure. Because she failed to establish that her facility was suitable for the

    safe care of children, in terms of fire safety, the Department, on that basis alone, had a reason to deny licensure.

17. Moreover, the Petitioner's failure to submit required reports and documentation extended to her never obtaining the necessary approval and health and sanitation report from the Lake County Health Department, as required by Florida Administrative Code Rule 65C-22.005(2); Section 381.006(16), Florida Statutes (2008), and Section 381.0072, Florida Statutes (2008). The Petitioner contended that she took some of the missing documentation to the January 16, 2009, meeting with

    Ms. Burlson and some representatives of the Department. She also represented that she left that meeting with the documents in her possession and never actually submitted them to the Department for consideration. More importantly, she did not submit them at the de novo hearing, where she had an opportunity to prove her compliance with the relevant rule standards for licensure.

18. Pursuant to Section 402.3055(1), Florida Statutes (2008), the Department's application form includes a question concerning whether the applicant, owner, or director of the proposed facility has ever had a license denied, revoked, or suspended in any state or jurisdiction. The Petitioner answered that question in the negative, despite the fact that she was well aware that she had been denied re-licensure for Small Fries

    Day Care Center and a new licensure for the "The Learning Tree" facility, in the prior-referenced consolidated case. The Petitioner did not attempt to really justify this negative answer as an honest misunderstanding of the question during her testimony at the hearing. Instead, she seemed to take the position that she had been wronged in the previous proceeding and that her licensure had been wrongly denied. She apparently felt that she was free to contend that she had never been denied licensure for any facility, simply because she disagreed with the prior result. Section 402.319(1)(a), Florida Statutes, (2008), provides that if any person knowingly fails to disclose or misrepresents any information in an application for licensure, required under the applicable statutes, that such act or omission is a first degree misdemeanor.

19. The Department has discretion, pursuant to Section 402.310(1)(a), Florida Statutes (2008), to revoke, suspend, or deny licensure for any violation of applicable statutes or rules. The Petitioner failed to comply with a number of statutes and rules, including Section 402.319(1)(a) (a criminal misdemeanor). The Petitioner presented no corresponding significant evidence to demonstrate that a denial in this situation would result in an abuse of the Department's discretion. The severity of the past infractions, the Petitioner's history with the D11epartment, as well as the

    omissions related to her failure to establish compliance with licensure standards relevant to this application, clearly support denial of licensure.

20. Section 402.3055(1)(a), Florida Statutes (2008), gives the Department discretion to determine, after review of any prior licensure denial, whether it will be in the best interest of the state, and the children of the state, for the applicant to be licensed again. The Department made a determination, based upon its review of prior history, that it was not in the state's interest for the Petitioner to be licensed again on the basis of the present application. It presented evidence justifying that position, based upon prior history, in this

    de novo proceeding. The Petitioner presented no persuasive, credible evidence to demonstrate that her ability to operate a safe child-care facility, compliant with the relevant statutes and rules, had improved since the prior licensure denials.

21. The Petitioner's own admissions at hearing, showing that she had never gotten the referenced approved items necessary for a grant of the application, show that licensure denial is justified under the state of the evidence in this case.

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

RECOMMENDED:

That a final order be entered by the State of Florida, Department of Children and Family Services denying the application in its entirety.

DONE AND ENTERED this 5th day of October, 2009, 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

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2009.

ENDNOTE

1/ Small Fries Daycare, Inc. v. Department of Children and Family Services; The Growing Tree Learning Center and Nursery v. Department of Children and Family Services, Case No. 04-3046 and

04-3892 (consolidated) (DOAH September 12, 2005; Final Order

December 12, 2005).

COPIES FURNISHED:

Joyce L. Miller, Esquire Department of Children and

Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

Shirley Carter

241 Mont Clair Road Leesburg, Florida 34748

Gregory Venz, Agency Clerk

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, 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: 09-001241

Orders for Case No: 09-001241