vs. ) Case No. 01-0110
Respondent. )
A formal hearing was held before Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings, on April 20, 2001, by video conference to Fort Myers, Florida. The following appearances were entered:
For Petitioner: Richard D. Lakeman, Esquire
Law Office of Richard D. Lakeman, P.A. Post Office Box 101580
For Respondent: Eugenie G. Rehak, Esquire
At issue in this case is whether Petitioner's application to register as a family day care home should be granted.
Petitioner was registered with the Department of Children and Family Services (the "Department") as a family day care home from February 1995 until September 1998. In September 2000, Petitioner filed an application for registration with the Department. The registration was denied by letter dated December 1, 2000. Petitioner filed a request for hearing, the matter was transferred to the Division of Administrative Hearings on January 10, 2001, and this hearing followed.
At the hearing, Petitioner testified in her own behalf and presented the testimony of Reverend Michael Mowry, minister to single adults at McGregor Baptist Church in Fort Myers; Lisa Lucius, Petitioner's sister; and Nancy Starr, a licensing administrator for Respondent. Petitioner's Exhibits
1 through 23 were admitted into evidence. The Department presented the testimony of Daniel McLean, at relevant times a child protective investigator for Respondent, and Sarah Jarabek, at relevant times a licensing supervisor for Respondent. The Department's Exhibits 4, 11, 12, 14, 18, 19, 23, 26, and 29 were admitted into evidence.
No transcript of the hearing was ordered. Each party timely submitted Proposed Recommended Orders on April 30, 2001.
Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made:
This case involves Petitioner's application to operate a registered family child care home. Petitioner had been registered as a family child care home from April 1989 to June 1992 and again from February 1995 to August 1998. The Department received Petitioner's most recent application on September 6, 2000.
The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections
402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home may care for no
more than five preschool children from more than one unrelated family. Subsection 402.302(7), Florida Statutes.
The application requires disclosure of "other family/household members." Petitioner's application identified David Barcelona as a household member and stated that his family relationship was "friend (roommate)."
During her previous periods of registration, Petitioner had been the subject of numerous complaints to the Department. In May 1989, the Department notified Petitioner that she had been found to be caring for more than five preschool children. Petitioner acknowledged that she was operating above capacity, but assured the Department that the situation would be rectified by June 1, 1989. Nonetheless, complaints regarding the number of children at Petitioner's home persisted through at least June 1991.
The Department also received several complaints concerning drug use in Petitioner's home. In September 1995, a complaint alleged that Petitioner and several other adults were seen smoking marijuana in the home. A complaint filed by a parent in February 1996 stated that the parent could smell marijuana on his children when he picked them up from Petitioner's home. A complaint from November 1996 stated that Petitioner was seen smoking marijuana in the presence of the children in her care.
In each instance, the Department wrote a letter to Petitioner. The Department's letter of February 26, 1996, is representative and is quoted in relevant part:
As a registered family day care home, you are not statutorily required to meet all the child care standards established in [then] Rule 10M-12 or 10M-10 of the Florida Administrative Code. In addition, Chapter 402.302-313 of the Florida Statutes does not provide the department with any statutory authority to regulate complaints of this nature within registered family day care homes.
However, in the interest of safety and proper child care, we wanted to bring the complaint to your attention so that you might correct the issues as appropriate. Providing care for any child is very important. It is our hope that you are not engaging in any illegal or inappropriate activities which [sic] operating your child care business.
During the Department's investigations of these complaints, Petitioner consistently denied that she used any illegal drugs.
On August 10, 1998, the Department received a complaint that an unsupervised child was seen outside in the rain at Petitioner's house. On the same date, the Department received another complaint regarding Petitioner's live-in boyfriend, David Barcellona, and whether his presence rendered her home an unsafe environment for children. The complaint stated that Mr. Barcellona had not undergone background screening and had admitted to hitting one of Petitioner's own
children. The complaint also stated that children reported witnessing Petitioner's use of marijuana and crack cocaine in the home.
These complaints were resolved when Petitioner ceased providing child care. She sold her house and voluntarily relinquished her registration.
A child protective services investigation was also commenced on August 10, 1998, by investigator Daniel McLean. His investigation confirmed that Mr. Barcellona had hit Petitioner's ten-year-old son "upside the head with an open hand" because the boy had called him a "faggot." Petitioner had given Mr. Barcellona permission to physically discipline her children. The children expressed a fear of living in the home with Mr. Barcellona. No observable injuries were found on either Petitioner's son or her eight-year-old daughter.
Mr. McLean testified that Petitioner told him at least twice that she had smoked marijuana for 15 years. Mr. McLean attempted several times to obtain a drug screen from Petitioner without success. At length, Mr. McLean informed Petitioner that the Department would begin legal proceedings if Petitioner did not voluntarily surrender custody of her children to their natural father.
On August 13, 1998, Petitioner signed the papers giving custody of the children to their natural father. She
testified that "I picked the drugs over my children at that time."
The evidence admitted at hearing established that, despite her denials, Petitioner had been a long-time user of marijuana. By her own admission, Petitioner was addicted to crack cocaine for a period of at least three months in 1998. Petitioner's sister, Lisa Lucius, estimated Petitioner's crack usage lasted for six months. Mr. McLean testified that Petitioner told him she had been using crack for seven months.
At some point in 1999, Petitioner shoplifted a pair of tennis shoes, was arrested, and placed on one year's probation for petit theft. Her probation was conditioned upon her entering a 28-day live-in drug rehabilitation and counseling program at the Ruth Cooper Center in Fort Myers. Petitioner successfully completed this program.
Another condition of her probation was her attendance twice weekly at Alcoholics Anonymous meetings. She complied with this condition.
Finally, Petitioner's probation was conditioned upon providing random urinalysis drug tests. She complied with this condition, and her tests were all drug free.
Petitioner testified that she has been drug free since completing the program at the Ruth Cooper Center. Since the conclusion of her probation in 2000, she has discontinued
attendance at Alcoholics Anonymous or Narcotics Anonymous meetings. She testified that she no longer has a drug problem.
In the registration application at issue in this proceeding, Petitioner listed David Barcellona as a family/household member. Both Petitioner and Mr. Barcellona were required to undergo Level 2 background screening as set forth in Subsection 435.04(1), Florida Statutes. Petitioner successfully passed the background screening and was so notified by a letter from the Department dated October 24, 2000. The letter informed Petitioner that she had passed the screening, but expressly cautioned: "Receipt of this letter does not automatically qualify you for the employment, specific position or license you may be seeking. That determination will be made [by] either an employer or licensing department."
The background screening disclosed potentially disqualifying offenses for David Barcellona. As of November 6, 2000, the Department had sent Mr. Barcellona a letter offering him the opportunity to provide documentation as to the disposition of those offenses, but Mr. Barcellona had not responded.
On October 31, 2000, Petitioner phoned Sarah Jarabek of the Department to inquire as to the status of her
application. Ms. Jarabek told Petitioner that the Department had concerns about her history of substance abuse and about the presence of Mr. Barcellona in the home. They made an appointment to meet in Ms. Jarabek's office on November 6, 2000.
On November 6, 2000, Petitioner and Ms. Lucius met with Ms. Jarabek, Nancy Starr, and Patricia Richardson of the Department. Petitioner provided evidence of the drug abuse treatment she had received while on probation. She also produced documentation that she had completed the required 30- hour Family Child Care Training Course, documentation of her church attendance and completion of a single parenting program at her church, and documentation that she had taken a technical training course for legal secretaries. Ms. Jarabek testified that she accepted all of Petitioner's representations at the meeting regarding her treatment and other matters, but that concerns remained because of Petitioner's history of denying her drug use and because the lonely, pressure-filled business of family day care might prove a poor rehabilitative environment.
Ms. Starr testified that she believed more time
should pass for Petitioner to demonstrate that she was not subject to a relapse. Petitioner had only been off probation since March 2000, and had yet to demonstrate her stability
when her activities were not being constantly monitored. Ms. Starr was also concerned because Petitioner was not currently involved in any organized program to maintain her recovery and because Petitioner had denied using drugs when the complaints were filed in 1996 through 1998.
At the November 6 meeting, the Department's representatives also raised the question of Mr. Barcellona's continued presence in the house. Petitioner told them that she had broken up with Mr. Barcellona and ejected him from her house, because she thought he was smoking crack cocaine. She told them that Mr. Barcellona had continued to harass her. He would bang on her door late at night, screaming, "I love you." He would spray his cologne outside her house, to "leave his scent." Petitioner and her children were "terrified" of him, and Petitioner was in the process of obtaining a restraining order against him.
Ms. Jarabek believed Petitioner's statement that
Mr. Barcellona was no longer living in the house, but remained concerned for the safety of children who would be staying at Petitioner's home, given Mr. Barcellona's erratic behavior.
By letter dated November 14, 2000, David Barcellona was notified that he was ineligible for a position subject to background screening. Mr. Barcellona had not responded to the prior agency letter offering him the opportunity to provide
documentation regarding the disposition of the disqualifying offenses. As the applicant for registration, Petitioner received a copy of the letter to Mr. Barcellona.
By letter dated December 1, 2000, the Department notified Petitioner that her application to operate a registered family child care home had been denied. The letter cited the following as grounds for the denial: the history of at least 13 complaints regarding the operation of the home during Petitioner's previous registration periods, including six complaints related to Petitioner's use of marijuana and/or cocaine in the presence of her own or other people's children; the unreported presence of Mr. Barcellona in the home during Petitioner's previous registration periods; and the lack of sufficient time and evidence to demonstrate that Petitioner was capable of providing a safe and healthy environment for children in her care.
Petitioner contended that the Department waived its ability to hold her prior complaints against her now because it repeatedly allowed her to re-register during the relevant years despite those complaints. Ms. Jarabek testified that this apparent anomaly was due to a change in Department policy since Petitioner was last registered. The Department previously took the position that it was required to ignore drug usage in a registered family day care home, because
Section 402.313, Florida Statutes, did not expressly provide authority to deny or revoke a registration on that ground.
Ms. Jarabek testified that the Department's current interpretation of its statutory authority to supervise the provision of child care permits it to consider drug usage in the home.
The December 1 letter took note of the "positive changes" in Petitioner's life, but also noted that these changes were too recent to overcome the concerns about Petitioner's past behavior and future stability.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
Subsection 402.302(7), Florida Statutes, defines "family day care home" to mean:
an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit.
Subsection 402.313(1)(a), Florida Statutes, provides for registration of family day care homes as follows:
Family day care homes shall be licensed under this act if they are presently being licensed under an existing county licensing ordinance, if they are participating in the subsidized child care
program, or if the board of county commissioners passes a resolution that family day care homes be licensed. If no county authority exists for the licensing of a family day care home, the department shall have the authority to license family day care homes under contract for the purchase-of-service system in the subsidized child care program.
If not subject to license, family day care homes shall register annually with the department, providing the following information:
The name and address of the home.
The name of the operator.
The number of children served.
Proof of a written plan to provide at least one other competent adult to be available to substitute for the operator in an emergency. This plan shall include the name, address, and telephone number of the designated substitute.
Proof of screening and background checks.
Proof of completion of the 30-hour training course, which shall include:
State and local rules and regulations that govern child care.
Health, safety, and nutrition.
Identifying and reporting child abuse and neglect.
Child development, including typical and atypical language development; and cognitive, motor, social, and self-help skills development.
Observation of developmental behaviors, including using a checklist or other similar observation tools and techniques to determine a child's developmental level.
Specialized areas, as determined by the department, for owner-operators of family day care homes.
Proof that immunization records are kept current.
Section 402.310, Florida Statutes, authorizes the Department of Children and Family Services to deny a license for the violation of any provision of Sections 402.301- 402.319, Florida Statutes. The cited provisions are silent as to the extent of the Department's authority to deny registration of a family day care home not subject to licensure.
Section 402.301, Florida Statutes, provides, in relevant part:
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:
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.
It is the intent of the Legislature that all owners, operators, and child care personnel shall be of good moral character.
It shall be the policy of the state to ensure protection of children and to encourage child care providers and parents to share responsibility for and to assist in the improvement of child care programs.
It is concluded that the Department has at least the authority to deny registration in the interest of protecting "the health, safety, and well-being" of the children who would be in the care of the applicant.
In this case, Petitioner is seeking an initial registration, not the renewal of an existing registration. Thus, the initial burden is on Petitioner to present evidence of her fitness for registration. The burden then shifts to the Department to demonstrate, by a preponderance of the evidence, that Petitioner is unfit for registration. Throughout the proceeding, the burden of persuasion remains upon the applicant. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996). See also Garafolo v. Department of Agriculture and Consumer Services, DOAH Case No. 97-0865, 1997 WL 1052993 (August 7, 1997), regarding the burden of proof in initial registration cases versus registration renewal cases.
Subsection 435.04(1), Florida Statutes, "Level 2 screening standards" provides:
All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.
At the time of her application, Petitioner listed David Barcelona as a member of her household, thus subjecting him to the Level 2 screening described above. Mr. Barcellona's background check revealed possible disqualifying offenses, and Mr. Barcellona declined to offer the Department information regarding the resolution of those offenses. The failure of
Mr. Barcellona to pass the background screening would have justified rejection of Petitioner's application had the Department not accepted her statement that Mr. Barcellona was no longer living in her home as of November 6, 2000.
Even assuming that Petitioner presented a prima facie case that she met the registration criteria, Petitioner did not carry the ultimate burden of persuasion. The Department presented sufficient evidence that its concerns were well- founded regarding Petitioner's ability to protect the health,
safety, and well-being of the children in her care. Petitioner admitted to long-term marijuana use and addiction to crack cocaine. The evidence established that she used drugs in the presence of her day care children. Petitioner testified that she and her children were so "terrified" of Mr. Barcellona that Petitioner went to court to obtain a restraining order against him, raising legitimate concerns about the safety of her home.
The Department fully credited Petitioner for having made positive changes in her life, but reasonably determined that enough time has not passed to establish her long-term stability in light of the serious problems she is attempting to overcome. Ms. Starr cogently observed that Petitioner's probation provided extraneous controls over her behavior and that more time is required to prove that Petitioner can control herself when she is not under constant observation.
Counsel for Petitioner argued that the Department's action in this case was deficient for failure to provide Petitioner with specific guidelines for demonstrating her rehabilitation. This argument is rejected. The Department personnel who worked with Petitioner clearly indicated to her, orally and in writing, that she is on the right path but needs to stay on that path for more than a few months. The Department's inability to provide Petitioner with a specific period of time that would definitively establish her
rehabilitation is simply a reflection of the case-by-case, fact intensive nature of these decisions. There was no evidence to support Petitioner's assertion that future applications by Petitioner would not be treated fairly or taken seriously by the Department.
Based on the foregoing findings of fact and conclusions of law, it is, therefore,
RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for registration of her family day care home.
DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida.
___________________________________ LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001.
Richard D. Lakeman, Esquire
Law Office of Richard D. Lakeman, P.A. Post Office Box 101580
Eugenie G. Rehak, Esquire Department of Children and
Virginia A. Daire, Agency Clerk Department of Children and
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.
