STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LITTLE EINSTEIN'S EARLY EDUCATION CENTER, INC.,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILIES,

Respondent.

/

Case No. 16-4630

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016)1/, on October 20, 2016, by video teleconference with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Paige L. Carlos, Esquire

NeJame Law Suite 1800

189 South Orange Avenue Orlando, Florida 32801

For Respondent: Brian Christopher Meola, Esquire

Suite S-1129

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this matter is whether the Department of Children and Families should grant Petitioner’s application for a license to operate a childcare facility.

PRELIMINARY STATEMENT

On May 26, 2016, Ericka Davis submitted an application to the Department of Children and Families (the “Department”) for a license to operate a childcare facility. (Ms. Davis shall be referred to as “Petitioner.”) Following the Department’s request for additional information, Petitioner submitted a revised application on June 6, 2016.

By letter, dated July 5, 2016, the Department informed Petitioner that it was denying her application. The Department alleged that Petitioner falsified her application by denying that she had ever been the subject of disciplinary action by the Department.

Petitioner timely requested an administrative hearing challenging the Department’s intended denial. On August 16, 2016, the Department referred the matter to the Division of Administrative Hearings (“DOAH”) and requested assignment to an Administrative Law Judge to conduct a chapter 120, evidentiary hearing.

The final hearing was held on October 20, 2016. The Department presented the testimony of Dr. Ronald Fulmore, Ida Lewis, Avida Rosa, Roy Garcia, and Christina Bryant.

Department’s Exhibits 1 through 12 were admitted into evidence without objection. Petitioner testified on her own behalf.

Petitioner’s Exhibit 1 was admitted into evidence.

A court reporter recorded the final hearing. At the close of the hearing, the parties were advised of a ten-day timeframe following DOAH’s receipt of the Transcript to file post-hearing submittals. The Department requested an additional ten days to submit a proposed recommended order, which was granted. A

two-volume Transcript of the proceeding was filed on November 18, 2016. Both parties filed Proposed Recommended Orders, which were duly considered in preparing this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with regulating providers who are licensed or registered to provide childcare in the State in Florida.

2. On May 26, 2016, Petitioner applied to the Department for a license to operate a childcare facility. Petitioner submitted her application using the Department’s prescribed form CF-FSP 5017 (“Form 5017”). See Fla. Admin. Code

   R. 65C-22.001(1)(a). Petitioner named her desired childcare

   
   

   facility “Little Einstein’s Early Education Center” (“Little Einstein’s”).

3. On May 27, 2016, the Department issued a letter to Petitioner notifying her that her application was incomplete. Of relevance to this matter, the Department informed Petitioner that she needed to complete section 3 of Form 5017 (“Section 3”). She also needed to sign and date her application.

4. Section 3 is entitled ATTESTATION and queries, “Has the owner, applicant, or director ever had a license denied, revoked, or suspended in any state or jurisdiction, been the subject of a disciplinary action, or been fined while employed in a child care facility?” Section 3 includes boxes for the applicant to mark either “Yes” or “No.” Section 3 then states, “If yes, please explain: (attach additional sheet(s) if necessary).” Form 5017 further instructs that “Falsification of application information is grounds for denial or revocation of the license to operate a child care facility. Your signature on this application indicates your understanding and compliance with this law.”

5. In her initial Form 5017 Petitioner submitted to the Department on May 26, 2016, she placed an “X” in the “No” box in Section 3.

6. Following the Department’s letter on May 27, 2016, Petitioner ventured to the Department’s Orlando office to request

   
   

   assistance to complete her Form 5017. There, Petitioner spoke with Ida Lewis, a licensing counselor for the Department.

7. Ms. Lewis reviews applications for childcare facilities as part of her job responsibilities for the Department. At the final hearing, Ms. Lewis confirmed that she reviewed the unsigned Form 5017 with Petitioner. Ms. Lewis testified that she specifically pointed out Section 3 to Petitioner because it is common for applicants to incorrectly mark that section.

8. Together, Petitioner and Ms. Lewis completed Section 3.

   
   

   Ms. Lewis testified that Petitioner had initially marked “No” to the Section 3 question regarding prior disciplinary action.

   Ms. Lewis advised Petitioner that if she had ever been the subject of disciplinary action involving other childcare facilities, then Petitioner must document that history on the application. Ms. Lewis also counseled Petitioner that if her initial response in Section 3 was not correct, then Petitioner needed to mark the “Yes” box and add the name(s) of the prior childcare facility(ies) where the disciplinary action took place.

9. Following their discussion, Petitioner appears to have followed Ms. Lewis’ instructions. On her Form 5017, Petitioner drew a line through the “No” box and initialed her correction. She then placed an “X” in the “Yes” box. Next to the boxes, Petitioner wrote “Wiggles & Giggles Learning Center I, II, III”

   
   

   (“Wiggles & Giggles”). Ms. Lewis accepted Petitioner’s application, then handed a copy back to Petitioner.

10. On June 6, 2016, Petitioner resubmitted her Form 5017 to the Department. However, Petitioner did not file the version of her application that she completed with Ms. Lewis which included a “Yes” answer in Section 3 and the name Wiggles & Giggles. Instead, Petitioner’s second Form 5017 simply had the “No” box marked and did not include Petitioner’s reference to Wiggles & Giggles.

11. Upon receiving Petitioner’s Form 5017, the Department reviewed whether to grant her application. The Department discovered that Petitioner was the subject of several prior Administrative Complaints while she was the owner and operator of Wiggles & Giggles III, another childcare facility licensed in her name. Petitioner’s disciplinary history included the following2/:

    1. On August 20, 2014, the Department issued an Administrative Complaint against Petitioner alleging that she did not timely renew her childcare license. The Department fined Petitioner in the amount of $50.

    2. On March 9, 2015, the Department issued an Administrative Complaint against Petitioner alleging that she committed a Class I violation by leaving an unscreened individual alone to supervise children in her care. The Department fined Petitioner in the amount of $500.

       
       

    3. On October 1, 2015, the Department issued an Administrative Complaint against Petitioner alleging that she committed a background screening violation. The Department fined Petitioner in the amount of $60.

12. Consequently, Petitioner’s submission of her revised Form 5017 marking “No” in Section 3 to the question of whether she had been the subject of a disciplinary action was not true.3/

13. On July 5, 2016, the Department issued a letter to Petitioner denying her application for a license to operate Little Einstein’s. Ms. Lewis prepared the denial letter. She explained that the Department denied Petitioner’s application based on two reasons. First, the Department found that Petitioner falsified her application by failing to disclose prior disciplinary actions from her operation of Wiggles & Giggles III. Second, the Department determined that Petitioner’s prior violations made her unfit to receive a license to operate another childcare facility.

14. At the final hearing, Petitioner did not deny that she was the subject of several disciplinary actions by the Department while operating Wiggles & Giggles III. Petitioner also expressed that she now understands that she incorrectly marked Section 3 of Form 5017.

15. Regarding her submission of the revised Form 5017 marking “No” in Section 3, Petitioner testified that she

    
    

    initially left Section 3 blank. She wanted advice from the Department on the proper manner in which to complete her application. Following her meeting with Ms. Lewis, however, Petitioner stated that she was still confused about which box to mark. Petitioner recalled that she and Ms. Lewis agreed that “No” was the appropriate response. Therefore, after she initially answered “Yes” in Section 3, she changed her response to “No” on the version of her Form 5017 she submitted to the Department on June 6, 2016.

16. Based on the competent substantial evidence presented at the final hearing, the Department presented sufficient factual and legal grounds to deny Petitioner’s application. Further, Petitioner failed to meet her ultimate burden of establishing, by a preponderance of the evidence, that she is entitled to a license to operate a childcare facility.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1).

18. Every childcare facility in Florida must be licensed with the Department. See §§ 402.308(1) and 402.312(1), Fla.

    Stat. The Department shall issue a license upon receipt of the license fee and “upon being satisfied that all standards required

    
    

    by ss. 402.301-402.319 have been met.” § 402.308(3)(d), Fla. Stat.

19. Application for a license to operate a childcare facility shall be made in the manner and on the forms prescribed by the Department. § 402.308(3)(a), Fla. Stat. Pursuant to section 402.310(1)(c)(1), the Department adopted rules to establish the grounds under which it may deny a license or registration. An application for a license to operate a childcare facility must be made on Form 5017. Fla. Admin. Code R. 65C-22.001(1)(a).

20. Petitioner challenges the Department’s denial of her application for a license to operate a childcare facility. Petitioner, as the party asserting the affirmative, carries the ultimate burden of persuasion. Dep't of Child. & Fams. v. Davis

    Fam. Day Care Home, 160 So. 3d 854, 857 (Fla. 2015); Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla.

    1996) (Osborne Stern & Co. II); Dep’t of Transp. v. J.W.C. Co.,

    
    

    396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

21. In an application denial proceeding, however, the agency has the burden to prove the specific acts or violations which it alleges are grounds for denial. See M.H. v. Dep't of

    Child. & Fams., 977 So. 2d 755, 761 (Fla. 2d DCA 2008) (“Without question, an applicant for a license has the initial burden of demonstrating his or her fitness to be licensed. Osborne Stern &

    
    

    Co. I, 647 So. 2d at 248 [Osborne Stern & Co. v. Dep’t of

    
    

    Banking & Fin., 647 So. 2d 245 (Fla. 1st DCA 1994)]. But if

    
    

    the licensing agency proposes to deny the requested license based on specific acts of misconduct, then the agency assumes the burden of proving the specific acts of misconduct that it claims demonstrate the applicant's lack of fitness to be licensed.

    Osborne Stern & Co. II, 670 So. 2d at 934.”); and Comprehensive

    
    

    Med. Access, Inc. v. Off. of Ins. Reg., 983 So. 2d 45, 46 (Fla.

    
    

    1st DCA 2008) (While the applicant continuously has the burden of persuasion to prove entitlement to be licensed, “the agency denying the license has the burden to produce evidence to support a denial.”).

22. The burden of proof in a license application proceeding is preponderance of the evidence. M.H., 977 So. 2d at 761,

    citing Osborne Stern & Co. II, 670 So. 2d at 934-35.

    
    

23. The Department denied Petitioner’s application based on two reasons. First, the Department asserts that Petitioner intentionally falsified her application. Second, based on the sanctions Petitioner received while operating a prior childcare facility, the Department is not satisfied that Petitioner meets the standards for the care and protection of children in childcare facilities required under Florida law, i.e., she is unfit. See, e.g., § 402.301, Fla. Stat.

    
    

24. Based on the competent substantial evidence in the record, the Department met its burden of producing sufficient evidence to support its denial of Petitioner’s application. The evidence establishes that the application Petitioner submitted to the Department contains a material and significant misrepresentation. In Section 3 of her Form 5017, Petitioner indicated that she had not ever been the subject of a disciplinary action by the Department. Petitioner’s representation was untrue. Petitioner was the subject of several disciplinary actions while she operated Wiggles & Giggles III. Despite receiving specific directions from Ms. Lewis on how to complete Section 3, Petitioner failed to include this information in her application. This action shows that Petitioner intentionally submitted a version of Form 5017 knowing the information contained therein was false or misleading. Accordingly, the Department established the specific act of misconduct (falsification of her application) that demonstrates Petitioner’s lack of fitness to be licensed.

25. Further, the evidence in the record establishes that, between August 2014 and October 2015, during her operation of Wiggles & Giggles III, Petitioner violated several Department rules. The rules Petitioner failed to meet include

    rule 65C-22.001(d) (failure to timely renew her annual license),

    
    

    rule 65C-22.001(5)(a) (failure to adequately supervise), and rule 65C-22.006(4) (failure to maintain required records). The fact that the Department sanctioned the childcare facility Petitioner operated three times in the two years prior to Petitioner’s application for Little Einstein’s, also provides a factual and legal basis for the Department’s determination that Petitioner will not meet all the standards required in

    sections 402.301 through 402.319.4/

    
    

26. Conversely, Petitioner, as the applicant, did not meet her ultimate burden of demonstrating that she is entitled to be licensed. Petitioner’s explanation of why she marked “No” in Section 3 of her Form 5017–-thereby denying that she was the subject of disciplinary action–-did not persuade the undersigned that the Department should grant her a license to operate a childcare facility. Petitioner’s action was not based on an oversight or misunderstanding. Prior to submitting her application, Petitioner reviewed Section 3 with a Department representative, Ms. Lewis, who specifically told her what information should be included in Section 3. Further, the evidence shows that Petitioner actually completed Section 3 with the appropriate response marked. Petitioner did not credibly explain why she did not submit the correct Form 5017 to the Department on June 6, 2016, instead of the version she marked

    
    

    “No.” Consequently, Petitioner did not meet her ultimate burden of establishing that she is entitled to receive a license to operate a childcare facility.

27. In sum, the Department met its burden of proving specific grounds and a legal basis to deny Petitioner’s application for a license to operate a childcare facility. Further, Petitioner failed to carry the ultimate burden of persuasion by proving that she is entitled to a childcare facility license. Consequently, the Department should deny Petitioner’s application.5/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner’s application for a license to operate a childcare facility.

DONE AND ENTERED this 12th day of January, 2017, in Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER 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 12th day of January, 2017.

ENDNOTES

1/ All references to Florida Statutes will be to the 2016 version.

2/ Petitioner waived her right to contest each of the Administrative Complaints and paid the fine. Thus, the Administrative Complaints became Final Orders.

3/ Petitioner no longer operates Wiggles & Giggles III. The parties dispute whether the Department officially revoked Petitioner’s license in April 2016 or Petitioner simply elected not to renew her license. The evidence and testimony presented at the final hearing did not satisfactorily resolve this issue.

4/ The Department also introduced evidence that it served a fourth Administrative Compliant on Petitioner, involving her operation of Wiggles & Giggles III on March 30, 2016. In this Administrative Complaint, the Department alleged a number of violations, including a Class I violation for misrepresentation; multiple Class II violations, including noncompliance with ratio standards, noncompliance with credentialed staff requirements, failure to document background screening information, failure to have an approved fire inspection on record, and failure to

conduct a visual sweep of a vehicle; and several Class III violations, including noncompliance with background screening documentation, failure to maintain transportation logs, and failure to maintain a clean facility.

Upon receiving the Administrative Complaint, Petitioner asserts that she decided to not renew her childcare facility license for Wiggles & Giggles III. Therefore, the Department discontinued its attempt to revoke or sanction Petitioner based on the underlying allegations. As stated in Endnote 1 above, the facts in the record do not sufficiently establish whether this Administrative Complaint proceeded beyond the complaint stage.

Nor do they prove the allegations contained therein. Consequently, the undersigned finds insufficient evidence to include allegations asserted in the fourth Administrative Complaint as additional support for the Department’s decision to deny Petitioner’s application to operate Little Einstein’s.

5/ At the final hearing, Petitioner requested the Department grant her a provisional license under section 402.309. Section

402.309 allows the Department to consider this option and states:

1. The local licensing agency or the department, whichever is authorized to license child care facilities in a county, may issue a provisional license for child care facilities . . . to applicants for an initial license or registration . . . who are unable to meet all the standards provided for in ss. 402.301-402.319.

   
   

2. A provisional license or registration may not be issued unless the operator or owner makes adequate provisions for the health and safety of the child. A provisional license may be issued for a child care facility if all of the screening materials have been timely submitted.

A provisional license or registration may not be issued unless the child care facility

. . . is in compliance with the requirements for screening of child care personnel in

ss. 402.305, 402.3055, 402.313, and 402.3131,

respectively.

However, while the Department may elect to issue Petitioner a provisional license, the facts found in this matter do not support such action. Petitioner did not present evidence sufficiently demonstrating that she will make “adequate provisions for the health and safety” of the children she will care for at Little Einstein’s. Nor did she offer evidence that Little Einstein’s is in compliance with childcare personnel screening requirements.

COPIES FURNISHED:

Paige L. Carlos, Esquire NeJame Law

Suite 1800

189 South Orange Avenue Orlando, Florida 32801 (eServed)

T. Shane DeBoard, Esquire Department of Children and Families Suite S-1129

400 West Robinson Street Orlando, Florida 32801-1707 (eServed)

Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Brian Christopher Meola, Esquire Suite S-1129

400 West Robinson Street Orlando, Florida 32801 (eServed)

Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Mike Carroll, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

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: 16-004630

Orders for Case No: 16-004630