STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE BRUNSON FAMILY DAY CARE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5905

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 24, 1997, at Jacksonville, Florida, before P. Michael Ruff, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joyce Brunson, Pro se

Joyce Brunson Family Day Care 12340 Sondra Cove Trail North Jacksonville, Florida 32225

For Respondent: Robert L. D. Williams, Esquire

Department of Health and Rehabilitative Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family day care home should be denied based upon the reasons asserted in the denial letter.

PRELIMINARY STATEMENT

This cause arose upon the issuance of a denial letter to the Petitioner advising her that her application for license renewal to operate a family daycare center was denied. That denial was based upon alleged failure to properly administer discipline to a child under her care, as envisioned in Section 402.305(12)(a)(3), Florida Statutes. The agency's authority to deny renewal of the license is predicated on Section 402.310(1)(a), Florida Statutes, which allows denial, suspension or revocation of a license or the imposition of an administrative fine, not to exceed $100.00 per violation per day for the violation of any provision of Sections 402.301-402.319, Florida Statutes or related rules. Upon receipt of the denial letter the Petitioner timely availed herself of the right to a formal proceeding before the Division of Administrative Hearings and this proceeding ensued.

This cause came on for hearing as noticed. At the hearing, the Petitioner presented two witnesses and Petitioner's composite exhibit 1. The Respondent, Agency, presented three witnesses and

5 exhibits. All exhibits were admitted into evidence, although some adduced by the Petitioner were hearsay and are used only for purposes of corroboration or explanation of competent testimony and evidence. At the conclusion of the hearing, the parties were given an agreed-upon period of time to submit late exhibits and proposed recommended orders. Proposed recommended orders were

not submitted but, all exhibits were submitted and the Petitioner submitted written argument in letter form.

FINDINGS OF FACT

1. The Petitioner, until denial of licensure, owned and operated a licensed day care facility, licensed under Chapter 402, Florida Statutes.

2. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering and regulating the statutory and regulatory provisions governing entry into and licensure of the business of operating day care facilities and with regulating the practice of day care facilities and operators such as the Petitioner.

3. Witness Tamika McConner is the mother of a child who was placed by Ms. McConner in the Petitioner's day care facility under Petitioner's care at the time pertinent hereto. Ms. McConner maintains that the Petitioner struck her child with a sandal while they were in the Petitioner's car or van on one occasion and that the Petitioner did not see to it that the child ate properly or at the proper times while in her facility.

4. The Petitioner denies these occurrences or indications of improper child care. The evidence show that there is a hostile relationship between Ms. McConner and the Petitioner, apparently stemming from a check written by Ms. McConner for services to the Petitioner which was returned for insufficient funds and concerning which they apparently had a dispute. Under

   these circumstances, it is not found that Ms. McConner's testimony is preponderant evidence to establish that the occurrences she related actually happened. Moreover, as near as can be gleaned from the paucity of concise pleadings of the agency's allegations, this incident or incidents was not the subject of the report which led to license denial.

5. On or shortly before October 3, 1996, an abuse report was received by the above-named agency concerning a child T.S.

   T.S. was enrolled in the care of the Petitioner in her day care center. An incident occurred that day when the Petitioner was taking the children in her charge to the Regency Mall for shopping. While at the mall, when the Petitioner was in a store shopping with the children, the child T.S. got to close to her and almost knocked something over on a shelf in the store. The Petitioner maintained that the child was so close to her that she contacted him when she turned around and it caused her to lose her balance and start to fall with the result that she reached out, accidentally knocking the child to the floor. Instead, however, witness Quinones testified and at least one witness in the store verified to the Department's investigator (see Respondent's exhibit 5 in evidence and the testimony of Mr. Gore) that the Petitioner struck the child in anger and knocked him to the floor. Ms. Quinones testified that the child didn't cry but was visibly shaken and Ms. Quinones was concerned that the

   Petitioner appeared to lose control of her temper on that occasion.

6. Witness David Gore of the Department of Children and Family Services is in the business of inspecting and licensing child care facilities and has owned and operated a child care facility himself. He inspected the Petitioner's facility and found deficiency problems involving immunization records, some sanitary conditions, inoperative smoke detectors and hazardous household products left in reach of children, an incomplete first aid kit and paint and lumber left in the play area. The paint and lumber was there temporarily for the purpose of building a swing set for the children.

7. The deficiencies were promptly corrected by the Petitioner. These deficiencies, however, were not the basis for the notice of licensure denial to the Petitioner however.

8. Witness Roxanne Jordan testified on behalf of the Petitioner. The Petitioner cares for her child or did before the licensure problem arose and said she never had a problem with the Petitioner's care for her child nor did she observe any deficiencies or improprieties in the care of other children she observed at the Petitioner's facility. Ms. Jordan's describes the Petitioner as an excellent caregiver for children. This testimony is corroborated by substantial number of "testimonial letters" from people who have experience with her child care activities, in evidence as "corroborative hearsay." These served

   to establish that indeed the Petitioner is a caring, compassionate keeper of children in the operation of her day care facility and in the course of her duties baby-sitting for friends' children before she was licensed as a day care facility operator.

9. The Petitioner is in earnest about pursuing the profession of child care and becoming re-licensed to do that.

   The Petitioner has demonstrated a long-standing interest and aptitude for caring for children. Indeed, in the last two years, she has earned approximately 55 hours of educational training at Florida Community College in Jacksonville in courses generally applicable to the profession of child care. The direct, competent evidence of record and the corroborative hearsay evidence in the form of testimonial letters, from people who have experience with her child care skills and her personality, establish that she has been, in most ways, a competent child care facility operator and caregiver for children and has the capability of becoming more so. In order to justify her re- licensure, however, she must demonstrate a willingness to and a capability of controlling her anger and enhancing her positive child discipline skills.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this subject matter of and the parties to this

    proceeding. Sections 120.569(1), and 120.57(1)(a)Florida Statutes.

11. Family day care homes are subject to the provisions in Chapter 402.302(5)(a) and 402.313, Florida Statutes. Section 402.302(5)(a) and 402.313, Florida Statutes. Section 402.302(5), Florida Statutes states:

    'Family day care home' means an occupied residence in which child care is regularly provided for children and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. A family day care home shall be allowed to provide care for one or more of the following groups of children:...

12. There is no question that the facility operated by the Petitioner for which licensure is in dispute in this proceeding meets this definition. Licensure standards are treated at Section 402.305, Florida Statutes. Specifically, license denial may be predicated, as in the instant case, on failure to administer appropriate discipline in accordance with Section 402.385(12)(a)(3), Florida Statutes. In turn, the Department is authorized to deny, suspend or revoke a license or impose an administrative fine, not to exceed $100.00 per violation per day, for the violation of any provision of Sections 402.301 through

    402.319 or rules adopted thereunder as set forth in Section 402.310(1)(a), Florida Statutes.

13. The preponderant, credible evidence of record establishes that the violation with which the Petitioner is "charged" occurred as found in the facts stated above. The

    incident involving the striking of a child was indeed perpetrated by the Petitioner. The above findings of fact also show, however, that there are extenuating circumstances and positive reasons why the Petitioner should not be permanently excluded from the practice of her profession, for which the subject license is required.

14. There is ample evidence to justify a belief in the undersigned that with additional training the Petitioner can learn to control anger and learn to properly discipline children under her care in a positive way.

RECOMMENDATION

Accordingly, in consideration of the greater weight of the evidence, supportive of the above findings of fact and these conclusions of law, it is

RECOMMENDED

That a final order be entered by the Department imposing an administrative fine of $100.00 and granting licensure on a probationary basis, conditioned on the Petitioner enrolling in and completing a continuing education course, satisfactory to the Department, designed to improve her skills in anger control and child discipline.

DONE AND ENTERED this 5th day of June, 1997, in Tallahassee, Florida.

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1997.

COPIES FURNISHED:

Roger L. D. Williams, Esquire Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Ms. Joyce Brunson

Joyce Brunson Family Day Care 12340 Sondra Cove Trail North Jacksonville, Florida 32225

Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and Families 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: 96-005905

Orders for Case No: 96-005905