STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH CAMPO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2677

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on September 27, 1995 in Orlando, Florida.

The following appearances were entered:

APPEARANCES

For Petitioner: Elizabeth Campo, Director

South Orlando Christian Academy & Day Care, Inc.

5813 Makoma Drive

Orlando, Florida 32809

For Respondent: James A. Sawyer, Jr., Esquire

Department of Health and Rehabilitative Services

400 West Robinson Street South Tower, Suite S-827 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to an exemption or "grandfathering" from the square foot per child requirement in the general requirements for the physical facilities at a child care facility provided in Rule 10M-12.003(3)(a), Florida Administrative Code and Section 402.305(6), Florida Statutes.

PRELIMINARY STATEMENT

This matter began when Petitioner applied for a renewal of its license to operate a child care facility early in 1995. The license was approved, effective February 20, 1995; however, the total capacity was reduced from 99 children to 84 children. Respondent challenged the calculations and requested a formal administrative hearing. This matter was referred to the Division of Administrative Hearings on May 17, 1995, and was set for hearing in Orlando.

At the hearing, Official Notice was taken of Section 402.305, Florida Statutes, and Chapter 10M-2, Florida Administrative Code. Two joint exhibits were admitted in evidence. Petitioner, the director of the facility, testified in her own behalf. Respondent presented the testimony of one witness, and one composite evidentiary exhibit was admitted in evidence. A transcript of the hearing has not been filed. The parties asked for fifteen days in which to file proposed recommended orders. Neither party has submitted proposed findings of fact or conclusions of law as of the filing of this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. South Orlando Christian Academy and Day Care, Inc. is a child care facility licensed by Respondent for operation at 5816 Makoma Avenue and 5870 Tomako Drive, Orlando, Florida.

   
   

2. The most recent license for operation of the center was issued on May 1, 1995, Certificate Number 595-26, and is valid for one year from that date with a maximum license capacity of 126 children.

   
   

3. The prior relevant license for operation of the center was issued on February 20, 1995, Certificate Number 295-6, and was valid for one year from that date with a maximum license capacity of 84 children.

   
   

4. During all relevant times, Petitioner, Elizabeth Campo, was the director of the facility.

   
   

5. The facility was originally licensed in February 1991 for operation at

   112 Oak Ridge Road, Orlando, and was approved for 99 children based on a calculation of 20 square foot of usable indoor floor space per child. Said license was renewed from year to year since that date.

   
   

6. Sometime in 1993 or early 1994, Petitioner moved her facility across the street to a larger facility located at 5815 Makoma Avenue. The church, where the child care center was located, needed to use the building for other purposes.

   
   

7. Early in 1994, inspectors from Respondent came to inspect the facility and measured the building for the purpose of determining maximum license capacity, under the rules and statutes. It was determined that the building consisted of 3,023.5 square feet of usable indoor floor space. That number was divided by 35 and it was determined that the maximum license capacity for that building was 84 children. Certificate No. 295-6 was issued on February 20, 1995 based on these calculations.

   
   

8. Subsequently, the inspectors returned when they were notified by Petitioner that a second building had been added to the complex and Petitioner desired that Respondent increase the maximum allowable capacity.

   
   

9. Upon inspection by Respondent, it was determined that the second building consisted of 1,538.5 square feet of usable indoor floor space. That number was divided by 35 and it was determined that the maximum license capacity for the second building was 42 children. Certificate No. 595-26 was issued on May 1, 1995 based on the addition of 42 children to the prior calculation of 84 children for the first building, for a total maximum capacity of 126 children.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Section 120.57(1), Florida Statutes.

    
    

11. Child care facilities and their personnel are licensed and regulated by the Department of Health and Rehabilitative Services, pursuant to the provisions of Sections 402.301-402.319, Florida Statutes.

    
    

12. Section 402.301, Florida Statutes, provides in pertinent part:

    
    

    Child care facilities; legislative intent and declaration of purpose and policy. - It is the legislative intent to protect the health, safety, and well-being of the children of the state and to promote their emotional and intellectual development and care. Toward that end:

    1. It is the purpose of ss. 402.301-

       402.319 to establish statewide minimum standards for the care and protection of children in child care facilities, to ensure maintenance of these standards, and to approve county administration and enforcement to regulate conditions in such facilities through a program of licensing.

13. Section 402.302, Florida Statutes, provides in pertinent part: Definitions. - As used in ss. 402.301-402.319:

    . . .

    (4) "Child care facility" 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.

    . . .

    1. "Operator" means any on site person ultimately responsible for the overall operation of a child care facility, whether or not he is the owner or administrator of such facility.

    2. "Owner" means the person who is licensed to operate the child care facility.

    . . .

    (11) "Substantial compliance" means that level of adherence which is sufficient to safe- guard the health, safety, and well-being of all children under care. Substantial compliance is greater than minimal adherence but not to the level of absolute adherence. Where a violation or variation is identified as the type which impacts, or can be reasonably expected within

    90 days to impact, the health safety, or well- being of a child, there is no substantial compliance.

    . . .

14. Section 402.305, Florida Statutes, provides in pertinent part: Licensing standards; child care facilities.

    1. LICENSING STANDARDS. - The state 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.

       1. Until October 1, 1992, a child care facility that holds a valid license must meet the licensing requirements in effect on July 1, 1991. Beginning October 1, 1992, all such facilities must comply with the licensing standards established in this section.

       2. The standards shall be designed to address the following areas:

       1. The health, sanitation, safety, and adequate physical surroundings for all children in child care.

       . . .

       (d) 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.

       . . .

       1. PHYSICAL FACILITIES. - Minimum standards shall include requirements for building conditions, indoor play space, outdoor play space, mapping space, bathroom facilities, food preparation facilities, outdoor equipment, and indoor equipment.

          . . .

       2. SQUARE FOOTAGE PER CHILD. - Minimum standards shall be established by the department by rule.

          1. A child care facility that holds a valid license on October 1, 1992, must have a minimum

             of 20 square feet of usable indoor floor space for each child and a minimum of 45 square feet of usable outdoor play area for each child. . . . This standard applies as long as the child care facility remains licensed at the site occupied on October 1, 1992,

             and shall not be affected by any change in the ownership of the site.

          2. A child care facility that does not hold a valid license on October 1, 1992, and seeks regulatory approval to operate as a child care facility must have a minimum of 35 square feet of usable floor space for each child and a minimum of 45 square feet of usable outdoor play area for each child.

       . . .

15. The Petitioner has adopted rules implementing the statutory directive relating to child care standards. Chapter 10M-12, Florida Administrative Code, reads in pertinent part:

    
    

    Rule 10M-12.003 Physical Facilities.

    . . .

    (3) Indoor Play Space:

    (a) A child care facility that holds a valid license on October 1, 1992, must have a minimum of 20 square feet of usable indoor floor space for each child. A child care facility that does not hold a valid license on October 1, 1992 and seeks regulatory approval to operate as a child care facility must have a minimum of 35 square feet of usable floor space for each child. . . .

    1. A child care facility which holds a license prior to October 1, 1992 but physically expands or adds to the existing physical structure must comply with the 35 square feet per child requirement if the building permit for the expansion was issued after October 1, 1992. The licensing agency must be advised in writing of the expansion efforts.

    . . .

    
    

16. This proceeding involves a challenge to the Respondent's calculation of the maximum license capacity of Petitioner's child care facility through the application of a "grandfathering" exemption. Therefore the burden of proof to establish the facts upon which Petitioner seeks relief is on the Petitioner. See: Walker v. Department of Transportation, 352 So.2d 126 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1221 (Fla. 1978).

    
    

17. Petitioner must show by the preponderance of evidence that her child care facility meets the "grandfathering" provision contained in Section 402.305(6)(a), Florida Statutes and Rule 12M-12.003(3)(a), Florida Administrative Code. Petitioner has not met this statutory or rule requirement.

    
    

18. The uncontroverted evidence indicated that Petitioner's child care facility was licensed and in operation prior to October 1, 1992. The facility was authorized to have a maximum capacity of 99 children based on calculating 20 square feet of usable indoor space for each child. This calculation was based on the statutes and rules in effect when the original license was issued. Had the facility remained at the same location, Petitioner would have been entitled to the "grandfathering" provision for the original structure for an indefinite period, as provided in the statute and rules. Section 402.305(1)(a),(6)(a), Florida Statutes, and Rule 10M-12.003(3)(a), Florida Administrative Code. Although the rules of the Department do not so specify, the statute is clear that once Petitioner moved the facility to a new location the "grandfathering" provision was lost. Section 402.305(6)(a) proves that "[t]his standard applies as long as the child care facility remains licensed at the site occupied on October 1, 1992." This provision is clear and unambiguous. Therefore, Petitioner must comply with the new indoor play space requirements of the law (35 square feet of usable indoor floor space per child) for the new site. The measurements and calculations of the Department are not in dispute; therefore, the maximum license capacity for Petitioner's facility, factoring in the new building, is 126, as set forth in Certificate No. 595-26.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered DENYING Petitioner's request to

recompute the maximum license capacity for children based on 20 square foot of usable indoor floor space per child.

DONE AND ENTERED this 15th day of November, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1995.

COPIES FURNISHED:

James A. Sawyer, Jr., Esq. Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

Elizabeth Campo, Director

South Orlando Christian Academy & Day Care, Inc.

5813 Makoma Drive

Orlando, Florida 32809

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 95-002677

Orders for Case No: 95-002677