STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRIS PATRICE ANDERSON,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-1559

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case on July 1, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: Iris Patrice Anderson, pro se

1720 South Rio Grande Avenue Orlando, Florida 32805

For Respondent: Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782 STATEMENT OF THE ISSUE

The issue in this case is whether or not Petitioner's license as a family day care home should be revoked.

PRELIMINARY STATEMENT

On March 18, 2002, Respondent, Department of Children and Family Services, notified Petitioner, Iris Patrice Anderson, of the Notice of Revocation of Registration to operate a family day care home. The Notice of Revocation of Registration advised Petitioner that revocation was the result of an incident of "inappropriate discipline of a child resulting in injury to said child" which demonstrated "an inability to ensure the safety of children . . . to the level necessary to be registered as a family day care."

On March 26, 2002, Petitioner responded by letter denying the allegations of Respondent's Notice of Revocation of Registration and requested an administrative hearing. On

April 17, 2002, the Division of Administrative Hearings received a Request for Administrative Hearing from Respondent. On the same day, the Division of Administrative Hearings sent an Initial Order to both parties.

Based on the parties' responses to the Initial Order, on May 30, 2002, the case was set for final hearing, in Orlando, Florida, on July 1, 2002.

The final hearing was held on July 1, 2002, as scheduled.

Petitioner appeared and testified on her own behalf; she did not offer any exhibits. Respondent presented two witnesses: Patricia Richardson, licensing supervisor, and Charlene Groves,

child protective supervisor. Respondent offered eight exhibits into evidence; seven were admitted into evidence and marked Exhibits A-G. The final exhibit offered, Orange County Sheriff's Office Incident Report, Case Number 02-002487, was not received into evidence; however, it was proffered by Respondent and is included as part of the record. Respondent requested that official notice be taken of Section 402.305, Florida Statutes, which is the child care facilities licensing standards.

No transcript of the proceedings was filed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

Based on the testimony and demeanor of the witnesses and the documentary evidence presented, the following findings of fact are made:

1. On November 19, 2001, Petitioner received a letter advising that Respondent "has registered your Family Day Care Home for one year effective November 30, 2001. Your registration number is 07E732." This registration was for Petitioner's residence at 2716 Seabreeze Court, Orlando, Florida 32805.

2. On November 29, 2001, Petitioner advised Respondent of an address change for the registered family day care home.

3. On the same day, November 29, 2001, by a hand-delivered letter, Respondent advised Petitioner: "The Department of Children and Families has been notified of your change of address. Please be advised that registrations for family day care homes are issued exclusively to the address at the time of application. Accordingly, your registration at 2716 Seabreeze Court; Orlando, Florida 32805 is cancelled."

4. On the same day, November 29, 2001, Petitioner submitted an application for registration for 1720 South Rio Grande Avenue, Orlando, Florida 32805. No evidence was presented as to whether or not a registration was granted regarding this application for registration.

5. On January 8, 2002, an incident of alleged child abuse was reported to the Orange County Sheriff's office by the parent of a child placed for day care with Petitioner. This incident was reported to the Florida Protective Services abuse hotline and Respondent by the Orange County Sheriff's Office.

6. An investigation of the abuse complaint determined that Petitioner had disciplined a three-year-old child by striking the child a number of times on the legs, arms, and buttocks with a plastic mini-blind rod approximately two feet in length. Striking the child with the mini-blind rod had caused welts and had broken the skin in places. Petitioner acknowledged using the plastic mini-blind rod to strike the three-year-old child.

   Credible evidence, some from Petitioner herself, was received that Petitioner physically punished a three-year-old child.

7. On March 18, 2002, as a result of the abuse investigation, Respondent notified Petitioner by Certified Mail, of "Notice of Revocation of Registration." The letter stated: "The purpose of this letter is to advise you that your registration #07E732 issued by the Department of Children and Families effective November 30, 2001 to provide child care services is revoked." (This appears to be a revocation of the registration that was cancelled on November 29, 2001; see

   paragraph 3, supra).

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Subsection 120.57(1), Florida Statutes.

9. The burden of proof is upon Respondent to adduce evidence to support the revocation of Petitioner's licensure. Dubin v. Department of Business Regulation, 262 So. 2d 273 (Fla. 1st DCA 1972). To meet its burden, Respondent must establish facts upon which its allegations are based by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern

   Company, 670 So. 2d 932, 933 (Fla. 1996); Coke v. Department of

   Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998); and Subsection 120.57(1)(j), Florida Statutes.

10. 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 through 402.319, Florida Statutes, or rules adopted thereunder.

11. The Notice of Revocation of Registration letter of March 18, 2002, is essentially the "charging document" in this case. It alleges that "an incident in which your inappropriate discipline of a child resulted in injury to said child. Section

    402.302 of the Florida Statutes defines child care as 'the care, protection, and supervision of a child' which supplements that of the parent(s). Your actions demonstrate an inability to ensure the safety of children in your care to the level necessary to be registered as a family day care."

12. Subsection 402.302(1), Florida Statutes, states: "'Child care' means the care, protection, and supervision of a child, for a period of less than 24 hours a day on a regular basis, which supplements parental care, enrichment, and health supervision for the child, in accordance with his or her individual needs, and for which a payment, fee, or grant is made for care."

13. Subsection 402.305(1)(a)(1), Florida Statutes, reads as follows:

    1. LICENSING STANDARDS.–The department 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. 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.

          
          

14. Subsection 402.305(12)(a)(3), Florida Statutes, reads as follows:

    (12) CHILD DISCIPLINE.–

    
    

    (a) Minimum standards for child discipline practices shall ensure that age- appropriate, constructive disciplinary practices are used for children in care. Such standards shall include at least the following requirements:

    
    

    * * *

    
    

    3. Spanking or any other form of physical punishment is prohibited.

    
    

15. Clear and convincing evidence established that Petitioner inappropriately physically punished a three-year-old child by striking the child with a two-foot plastic mini-blind rod.

RECOMMENDATION

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

RECOMMENDED that the Department of Children and Family Services' revocation of Petitioner's license as a family day care home is found to be appropriate and be upheld.

DONE AND ENTERED this 26th day of August, 2002, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 26th day of August, 2002.

COPIES FURNISHED:

Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Iris Patrice Anderson

1720 South Rio Grande Avenue Orlando, Florida 32805

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: 02-001559

Orders for Case No: 02-001559