STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA STEWART d/b/a STEWART FAMILY DAY CARE,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-0694

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings, held a final hearing in the

above-styled case on Wednesday, May 15, 2002, in Inverness, Florida.

APPEARANCES

For Petitioner: E. Eric Rubio, Esquire

2407 East Bloomingdale Avenue Valrico, Florida 33594-6404

For Respondent: Ralph McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida

Administrative Code, as alleged by Respondent, sufficient to justify Respondent's refusal to renew Petitioner's license.

PRELIMINARY STATEMENT

Petitioner was notified by letter dated January 22, 2002, from Respondent's representative that Petitioner's day care license would not be renewed. A conviction for the offense of Driving Under the Influence of Alcohol on September 24, 2000, and an allegation of a domestic violence dispute on May 13, 2000, were the reasons stated in the letter for the refusal to renew.

Petitioner timely sought an administrative proceeding to contest Respondent's decision not to renew, and the dispute was transferred to the Division of Administrative Hearings.

At the final hearing, Respondent presented one witness and three exhibits. Petitioner presented five exhibits and testimony of five witnesses.

No transcript was provided. Petitioner timely submitted a Proposed Recommended Order, but no such order has been submitted on behalf of the Respondent. Petitioner's Proposed Recommended Order has been reviewed and utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Linda Stewart, on behalf of Stewart Family Day Care (Petitioner), received the business’ first license to

   operate a family day care center for no more than 10 children on December 20, 1996. Annual renewals of the license followed until January 2002, following Stewart Family Day Care’s renewal application filed the first of that month.

2. On January 22, 2002, Petitioner was notified that the Department of Children and Family Services (Respondent) had declined to renew Stewart Family Day Care’s license to operate as a family day care. Denial was based on Petitioner’s September 24, 2000, arrest and subsequent conviction for Driving Under the Influence of Alcohol (DUI).

3. License denial was also based on a report made to Respondent of domestic violence (Report No. 2000-075894) in the home in which Petitioner operated the Stewart Family Day Care. An additional report, Report No. 2001-04761, which made allegations that Petitioner was intoxicated while caring for children was closed as unfounded.

4. At the time of both occurrences for which Respondent had concerns, there were no children in the care of Petitioner Stewart with the exception of her son, who was at the time of the alleged domestic violence 16 years of age.

5. As established by the evidence, Petitioner was not the first aggressor and did not initiate the altercation that occurred in her home when a guest, not a live-in as alleged in the report, with too much to drink became violent, hitting

   Petitioner. Petitioner’s son went next door at his mother’s request and called law enforcement.

6. Following Respondent’s refusal to renew Petitioner’s license, Petitioner has become actively involved with Alcoholics Anonymous (AA). Petitioner’s sponsor in AA testified that Petitioner attends meetings and is sincere in her commitment

   to AA.

   
   

7. Petitioner, it is specifically found, has effectively rebutted through clear and convincing evidence, the allegations of domestic violence upon which Respondent relied for denial of re-licensure. Additionally, the evidence convincingly establishes that the DUI offense committed by Petitioner, at night, was unrelated in any way to her day care business.

8. Further, as established by testimony of parents at the final hearing, Petitioner enjoys their full confidence with regard to the care afforded their children.

9. Licensure renewal has never been denied to Petitioner in the past. Additionally, she has attended, through the years, numerous seminars and short courses to compliment and increase her proficiency in the area of child care.

   CONCLUSIONS OF LAW

   
   

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

11. Respondent seeks to deny renewal of Petitioner's license due to the results of a domestic violence report, the accuracy of which has been effectively rebutted by Petitioner. Additionally, Respondent relies upon Petitioner’s DUI conviction, which is unrelated to her day care business and has also been effectively rebutted as a basis for license non- renewal. Respondent, however, possesses a wide array of authority with regard to denial, suspension, revocation, and/or renewal of Petitioner's licensure status. Section 402.305, Florida Statutes, and Rule Chapter 65C-22, Florida Administrative Code.

12. Excepting Petitioner’s DUI conviction and the requirement of Rule Section 65C-22.001(6)(a), Florida Administrative Code, that any vehicle used for transportation by a child care facility be operated by someone with a valid driver’s license, no fact established by the evidence indicates Petitioner should be disqualified from re-licensure. Further, if Petitioner now possesses a valid license, that obstacle falls as well.

13. With regard to Petitioner’s DUI conviction, it must be noted that to the extent that such conviction denotes an alcoholism addiction on her part, she is now a member of AA and confronting the problem. Such action is to be applauded.

14. In determining the severity of discipline to be imposed on a licensee where the charges are effectively proven, as opposed to the clear and convincing rebuttal in the present matter, a review of a portion of Section 402.310, Florida Statutes, is in order and reads as follows:

    402.310 Disciplinary actions; hearings upon denial, suspension, or revocation of license; administrative fines.--

    (1)(a) The department or local licensing agency may deny, suspend, or revoke a license or impose an administrative fine not to exceed $100 per violation, per day, for the violation of any provision of

    ss. 402.301-402.319 or rules adopted thereunder. However, where the violation could or does cause death or serious harm, the department or local licensing agency may impose an administrative fine, not to exceed

    $500 per violation per day.

    (b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:

    1. The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 402.301-402.319 have been violated.

    2. Actions taken by the licensee to correct the violation or to remedy complaints.

    3. Any previous violations of the licensee.

    
    

15. As noted, Petitioner has never before been subjected to discipline of her license. A review of the factors set forth in Section 402.310, Florida Statutes, above, which must be considered in the determination of discipline to be imposed on a

    licensee, shows conclusively that Petitioner should not be denied re-licensure.

16. Petitioner has established that matters underlying Respondent’s determination not to renew Petitioner’s license were untrue or that improprieties have been corrected.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

Recommended that a final order be entered granting renewal of Petitioner’s license to operate a day care center.

DONE AND ENTERED this 4th day of June, 2002, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 4th day of June, 2002.

COPIES FURNISHED:

Ralph J. McMurphy, Esquire Department of Children and

Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

R. Eric Rubio, Esquire

2407 East Bloomingdale Avenue Valrico, Florida 33594-6404

Paul Flounlacker, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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: 02-000694

Orders for Case No: 02-000694