STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-1017

)

MARY HIGDON, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on May 23, 2000, by video conference from Tallahassee to Orlando, Florida.

APPEARANCES

For Petitioner: Carmen M. Sierra, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1792

For Respondent: Mary Higdon, pro se

7141 Green Needle Drive Winter Park, Florida 32792

STATEMENT OF THE ISSUES

Whether Petitioner has grounds to impose a fine for a violation of the rule that requires the family day care operator to allow access to the entire premises of the family day care home for inspection.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint dated January 31, 2000, imposing an administrative fine of $25.00. Respondent denied the allegations and requested an administrative hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on March 6, 2000, and this hearing followed.

At hearing, Petitioner presented testimony from Barbara Ivey, the licensing representative of the Department of Children and Family Services (DCF). Respondent testified on her own behalf and presented the testimony of her daughter, Stacy Rivera. No documents were offered in evidence. No transcript of the proceeding was filed. Petitioner timely filed a Proposed Recommended Order. Respondent has not filed proposals as of the date of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to the allegations of this case, Respondent, Mary Higdon, was licensed by Petitioner to operate a family day care in her home.

2. Barbara Ivey, DCF, has been the day care licensing representative for Respondent since 1996.

3. At Ivey's first inspection of the day care home, Higdon refused her access to the master bedroom. Ivey did not note the violation. However, Ivey advised Respondent that the rule required that the entire premises had to be inspected.

4. In 1998, during a scheduled appointment, Respondent again refused access to the master bedroom on the grounds that her husband worked nights and was sleeping. Ivey insisted that she must inspect the master bedroom and she would be back. When Ivey returned, she was able to inspect the master bedroom.

5. In 1999, during a scheduled appointment, Respondent again refused access to the master bedroom. Ivey reminded her that Respondent had agreed to the time of the appointment and that this refusal was not acceptable. Respondent then stated that someone could "peek" in to the room while her husband slept.

6. A trainee, who was with Ivey, went with Respondent toward the bedroom; the door was opened slightly, and the trainee peeked into the room but was not able to see into the dark room.

7. On August 24, 1999, Ivey made an unannounced visit to Respondent's home to inspect the entire premises and re-check an air-conditioner that was out of compliance. This re-check was necessary for re-licensing.

8. Ivey arrived at the home on a weekday during regular operating hours. Stacy Rivera, Respondent's daughter, answered the door to Ivey. Ivey identified herself and asked to inspect the premises. She explained to Rivera that the inspection would only take a moment. Rivera acknowledged that she knew that Ivey was an inspector for DCF. Ivey also noted that there were six or seven children present at the home. Rivera indicated that all of them were her children.

9. Rivera stated her mother was out of town and refused to permit Ivey entry. Ivey requested that Rivera contact her mother so she could complete the re-licensing. Ivey observed Rivera calling someone, but did not know who. Rivera returned to the door and reiterated that Ivey could not enter.

10. Rivera has not been screened to care for children. Rivera testified that she was not an employee of the family day care.

11. Respondent did not notify Petitioner that the day care would not be in operation during the week of the inspection.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to these proceedings, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. Section 402.310(1)(a), Florida Statutes, authorizes the Petitioner to deny, suspend, or revoke a license, or impose an administrative fine, for the violation of any provision of Sections 402.301-402.319, Florida Statutes.

14. Section 402.313, Florida Statutes, stated a family day care home may be fined a maximum of $100 per day per violation for non-compliance with any of the applicable provisions of Sections 402.301-402.319, Florida Statutes, and Rule 65C- 20.012(1), Florida Administrative Code.

15. Section 402.313(10), Florida Statutes, requires that Petitioner establish, by rule, minimum standards for family day care homes.

16. Section 402.313, Florida Statutes, entitled, "Family Day Care Homes," does not specifically address inspection of the premises. Inspection of the premises is addressed in its own section. Rule 65C-20.12(3), Florida Administrative Code, establishes that the operator of the family day care must allow access to the entire premises of the family day care home to inspect for compliance with family day care minimum standards.

17. Section 402.311, Florida Statutes, states in pertinent part:

    A licensed child care facility shall accord to the department or the local licensing agency, whichever is applicable, the privilege of inspection, including access to facilities and personnel and to those records required in s. 402.305, at reasonable times during regular business hours, to ensure compliance with the provisions of ss.

    402.301-402.319.

    
    

18. Section 402.313, Florida Statutes, is part of the range of sections listed for Petitioner to ensure compliance. The statute makes no mention of whether there are children present, and only mentions the "person in charge" and not the owner/operator as the individual from whom permission for access must be sought. The strict wording of the statute appears only to pertain to licensed "facilities."

19. However, it is a basic tenet of statutory construction that where there is ambiguity, or where the context of the statute taken literally conflicts with the plain legislative intent, the context must yield to the legislative purpose. AMISUB v. Department of Health and Rehabilitation, 577 So. 2d 648 (Fla. 1st DCA 1991),

20. As explained by Section 402.301, Florida Statutes, the Legislature intends the licensing and re-licensing provisions of Chapter 402, Florida Statutes, to protect the health, safety and well-being of children.

21. Applying the rules of statutory construction to Section 402.311, Florida Statutes, it is clear that the Legislature intended Petitioner to have the authority to inspect the premises of any licensed child care. This is further evidenced in the corresponding section in the code regulating licensed family day care homes. Rule 65C-20.012(3), Florida Administrative Code.

22. In the instant case, the licensing representative arrived at the family day care home during regular business hours. Although the owner/operator was not at home, the owner's daughter, Stacy Rivera, was present in the home. Rivera admitted that she knew Ivey. Ivey also observed several children present, and was concerned that an unscreened caretaker (Rivera) was caring for these children.

23. By denying Ivey entry to inspect the premises and verifying that the children were not children in care, Rule 65C- 20.012(3), Florida Administrative Code, was violated.

24. This was not the first time that Ivey had been denied access to the entire premises, and Respondent was aware that DCF was required to inspect the entire premises of the family day care home.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that Respondent was found guilty of violating Rule 65C-20.012(3), Florida Administrative Code, and that an administrative fine of $100.00 be imposed.

DONE AND ENTERED this 7th day of August, 2000, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2000.

COPIES FURNISHED:

Carmen M. Sierra, Esquire Department of Children and

Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1792

Mary Higdon

7141 Green Needle Drive Winter Park, Florida 32792

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204B 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: 00-001017

Orders for Case No: 00-001017