STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCIA EDWARDS FAMILY DAY CARE ) HOME, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

Case No. 02-3784

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 9 and 10, 2002, in Fort Myers, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven Wetter, Esquire

1617 Hendry Street, Suite 213 Fort Myers, Florida 33901

For Respondent: Eugenie G. Rehak, Esquire

Department of Children and Family Services

Post Office Box 60085 Fort Myers, Florida 33906

STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.

PRELIMINARY STATEMENT

By letter dated August 14, 2002, the Department notified Marcia Edwards of its decision to revoke her license to operate a family day care home. The Department's letter recited a lengthy history of complaints about Ms. Edwards' family day care home, and listed violations of minimum licensing standards discovered during Department inspections. However, the precipitating event that triggered the decision to revoke

Ms. Edwards' license was the complaint that Ms. Edwards' substitute caregiver, Wayne Brueckman, had touched a two-year- old child in an inappropriate manner during diaper changes.

Mr. Brueckman was arrested and charged with a criminal offense. The Department's letter noted that similar complaints had been made against Mr. Brueckman on two previous occasions. Though no physical evidence could be produced to substantiate the earlier charges, the Department had warned Ms. Edwards not to leave

Mr. Brueckman alone with children to avoid future complaints.

Ms. Edwards timely contested the revocation of her license and requested a formal administrative hearing on the matter. On September 27, 2002, the Department forwarded the case to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a formal hearing.

The case was initially set for hearing on November 13, 2002. On October 29, 2002, counsel for Ms. Edwards filed a motion for

continuance, which was granted by Order dated November 1, 2002. The matter was rescheduled for hearing on December 9 and 10, 2002.

At the hearing, the Department presented the testimony of Department employees Sarah Jarabek and Mary Allyn Moore;

John Wolff and Louise Smith, the father and grandmother of a child who stayed at the Edwards Family Day Care Home; Lisa Bledsoe, an expert in child and infant development; and Detective Tracey Booth of the Lee County Sheriff's Office. The Department's Exhibits 1 through 50 were admitted into evidence. Department Exhibits 16, 20, 22, 31, 32, 33, 44, and 45 have been placed under seal with the consent of both parties.

Ms. Edwards presented the testimony of Ana Gregg, Debra Stanley, Deborah Oatley, Kayla Francis, Caroline Byrd, and Yvonne Griffin, all parents of children who spent time at the Edwards home, either socially or as day care clients.

Ms. Edwards offered no exhibits.

At the hearing, counsel for Ms. Edwards objected to the admission of evidence of any alleged violations that occurred prior to Ms. Edwards receiving her license in December 2001. The objection was overruled at the hearing, without prejudice to Ms. Edwards' offering a more detailed legal argument in her

post-hearing submissions.

Both parties addressed the objection to evidence of prior violations in their post-hearing submissions. Ms. Edwards' first objection is that prior corrected deficiencies, of which the Department was aware before issuing the license, should form no part of the decision to revoke Ms. Edwards' license. The Department contends that Section 402.310(1)(b)3., Florida Statutes, requires consideration of "previous violations of the licensee" in determining the appropriate disciplinary action to be taken for a violation.

Both parties cite Department of Children and Family

Services v. Pillsbury, DOAH Case No. 95-3041, as authority for their positions. Ms. Edwards looks to the Recommended Order in that case, dated November 29, 1995, in which the Administrative Law Judge ruled as follows:

81. Although Section 402.310(1)(b)3., Florida Statutes, provides that previous violations of the licensee shall be considered in disciplinary actions, HRS has by prior order stated that those deficiencies which are corrected by the licensee in a timely manner should not constitute the basis for further disciplinary action. Department of Health and Rehabilitative Services v. Alice P. White d/b/a Miss Patty's Day Care Center, DOAH consolidated Cases Nos. 92-7148 and

92-7447, HRS Final Order entered November 3, 1993. In this case Respondents have, over this six-year period, addressed each violation cited by HRS and corrected the deficiency in a reasonable manner.

The Department points out that the Final Order, dated July 10, 1996, stated:

I also reject the conclusion of law stated in paragraph 81 of the Recommended Order.

The hearing officer erred as a matter of law by refusing to consider past violations of the applicable child care statutes and rules in determining whether license revocation was warranted in this case. The hearing officer ignored both statute and rule directing that such evidence be considered, and chose instead to rely upon a 1993 final order wherein the department declined to consider prior violations as a basis for licensure revocation.

While an agency's interpretation of a statute administered by it must ordinarily be accorded deference, that interpretation must comport with, and not vitiate, the statute or a portion thereof. See St. Joe Paper Co. v. Dept. of Community Affairs, 657 So. 2d 27 (Fla. 1st DCA 1995). As the hearing officer acknowledged, Section 402.301(1)(b)3., Florida Statutes, provides that a licensee's prior violations "shall be considered" in subsequent disciplinary actions. Rule 10M-12.011(1)(a), Florida Administrative Code, provides that license revocation proceedings must involve consideration of repetition of the violation. To the extent that the cited final order is inconsistent with the controlling statute and departmental rule, it cannot be followed.

The Final Order was appealed. In Pillsbury v. Department of Health and Rehabilitative Services, 705 So. 2d 32 (Fla. 2d DCA 1997), the appellate court reversed and remanded the final order because the agency had failed to review the complete record prior to increasing the penalty recommended by the

Administrative Law Judge. In an amended final order on remand, dated February 11, 1998, the Department again ordered the license revoked, and again expressly rejected the Administrative Law Judge's conclusion that past violations should not be considered.

The amended final order was appealed. In Pillsbury v.

Department of Health and Rehabilitative Services, 744 So. 2d 1040 (Fla. 2d DCA 1999), the appellate court again reversed the Department, this time for rejecting findings of fact without indicating that the rejected findings were not supported by competent substantial evidence. For purposes of the instant dispute, the following language by the appellate court is critical:

The other conclusion rejected by the Department, whether past violations could be considered, was also erroneously rejected.

The Department's finding that the evidence was not considered is not supported by the record. Although the hearing officer indicated that past violations did not have to be considered, it is clear from a reading of the recommended order that all violations were considered in reaching the final determination.

744 So. 2d at 1042.

The quoted language indicates that the proper evidentiary course in these proceedings is to consider all previous violations. Ms. Edwards' objection that the Department failed to comply with Section 120.57(1)(d), Florida Statutes, does not

change this conclusion. Section 120.57(1)(d), Florida Statutes, states:

Notwithstanding s. 120.569(2)(g),[1] similar fact evidence of other violations, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity. When the state in an administrative proceeding intends to offer evidence of other acts or offenses under this paragraph, the state shall furnish to the party whose substantial interests are being determined and whose other acts or offenses will be the subject of such evidence, no fewer than 10 days before commencement of the proceeding, a written statement of the acts or offenses it intends to offer, describing them and the evidence the state intends to offer with particularity. Notice is not required for evidence of acts or offenses which is used for impeachment or on rebuttal.

The Department did not introduce fact evidence of other violations "solely to prove bad character or propensity." Rather, the Department was complying with its statutory duty to review the licensee's disciplinary history to help determine the appropriate discipline for the precipitating violation in this case, the alleged fondling of a child during a diaper change by Wayne Brueckman, Ms. Edwards' substitute caregiver. Part of that history included earlier investigations that the Department

contends should have placed Ms. Edwards on notice that her continued employment of Mr. Brueckman was problematic.

The Department in fact provided notice of the prior acts in the Notice of License Revocation issued on August 15, 2002, and provided copies of the actual documents to be offered at the hearing no later than November 27, 2002, more than ten days prior to commencement of the final hearing.

No transcript of the hearing was ordered. The parties timely submitted Proposed Recommended Orders on December 20, 2002.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following findings are made:

1. From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908.

2. 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 home 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 must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes.

3. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne."

4. On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither

   Ms. Edwards' mother nor "Wayne" had undergone background screening.

5. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6,

   1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information.

6. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations.

7. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations.

8. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave

   Mr. Brueckman alone with the children in her care for extended periods of time.

9. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations.

10. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards

    home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head.

    Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse.

11. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked.

12. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy.

13. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the

    supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse

    Mr. Brueckman or anyone else in the home.

    
    

14. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W.

15. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002.

16. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it

    was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge

    Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001.

17. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840.

18. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes.

19. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training

    and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers.

20. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to

    30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care.

21. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful

    pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development.

22. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge.

23. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children.

24. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002.

25. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at

    St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home.

26. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the

    Edwards children nor their friends were restricted from access to the designated child care room.

27. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial.

28. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm.

29. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation.

30. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of

    D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code.

31. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home,

    Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training.

32. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach.

33. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations.

34. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.

    CONCLUSIONS OF LAW

    
    

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

36. The Department has the burden of proof to adduce evidence to support the revocation of Ms. Edwards' license. Dubin v. Department of Business Regulation, 262 So. 2d 273 (Fla. 1st DCA 1972). To meet its burden, the Department must establish the 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.

37. Pursuant to Section 402.301, Florida Statutes, it is the intent of the legislature to protect the health, safety, and well-being of the children in child care and to promote their emotional and intellectual development and care.

    Section 402.302(1), Florida Statutes, defines child care as 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."

38. Section 402.27, Florida Statutes, establishes the importance of the availability of quality child care to meet the varying needs of all parents by establishing in each district of the Department a child care resource and referral network. One of the duties of the resource and referral network is to provide technical assistance to help existing child care service providers maximize their ability to serve children and parents in their community.

39. Section 402.302(7), Florida Statutes (2002),2 provides:

    "Family day care home" means 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. A family day care home shall be allowed to provide care for one of the following groups of children, which

    shall include those children under 13 years of age who are related to the caregiver:

    
    

    1. A maximum of four children from birth to 12 months of age.

       
       

    2. A maximum of three children from birth to 12 months of age, and other children, for a maximum total of six children.

       
       

    3. A maximum of six preschool children if all are older than 12 months of age.

       
       

    4. A maximum of 10 children if no more than 5 are preschool age and, of those 5, no more than 2 are under 12 months of age.

       
       

40. Section 402.313, Florida Statutes, and Chapter 65C-20, Florida Administrative Code (formerly Chapter 10M-12, Florida Administrative Code), provide minimum standards for the registration and licensure of family day care homes.

41. The authority for the Department to revoke a license is provided for in Section 402.310(1), Florida Statutes, as

follows:

(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.

1. 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.

1. The minimum standards for staffing and supervision of children in care are stated in Rule 65C-20.009, Florida Administrative Code, as follows:

   1. Personnel.

      
      

      1. The family day care home license shall be issued in the name of the operator who must be at least 18 years of age and a resident of the family home. The operator of a family day care may not work out of the home during the hours when the family day care is operating. In the event of rental or leased property the operator shall be the individual who occupies the residence.

         
         

      2. Substitute Arrangements. There shall be a written plan to provide at least one other competent adult, who must be at least

         18 years of age, to be available to substitute for the operator on a temporary or emergency basis. This plan shall include the name, address and telephone number of the designated substitute.

         
         

   2. Staff Training.

      
      

      1. After October 1, 1999, prior to licensure, all family day care operators must complete training in the department's 30-clock-hour Family Child Care Training

         course, documented on the department's CF- FSP Form 5194, May 97, Family Child Care training certificate, which is incorporated by reference. The operator providing care to the children in the family day care home must have a valid training certificate attesting to completion of the Family Child Care Training course.

         
         

         1. Family day care substitutes who work less than 40 hours a month shall complete the department's 3-clock-hour Fundamentals of Child Care course, documented on the department's CF-FSP Form 5155, Jan. 98, Fundamentals of Child Care Training certificate, which is incorporated by reference, and must complete infant and child cardiopulmonary resuscitation and first aid training prior to taking care of children.

            
            

         2. Family day care substitutes who work 40 hours or more a month must complete the 30- clock-hour Family Child Care Training course, documented on the department's CF- FSP Form 5194, May 97, Family Child Care training certificate, which is incorporated by reference and must complete infant and child cardiopulmonary resuscitation and first aid training prior to taking care of children.

            
            

         3. The operator of the family day care home must sign a statement attesting to the number of hours that the substitute works in their home which will be placed in their file.

         
         

      2. Prior to initial licensure, family day care home operators must have a valid certificate of course completion for infant and child cardiopulmonary resuscitation procedures and first aid training. The person providing care to the children in the family day care home must have a valid certificate of course completion for infant and child cardiopulmonary resuscitation

      procedures and first aid training. Certificates of course completion are valid based on the time frames established by each first aid and CPR training program, not to exceed three years.

      
      

   3. Supervision by Staff.

      
      

      1. At all times, which includes when the children are sleeping, the operator shall remain responsible for the supervision of the children in care and capable of responding to the emergencies and needs of the children. During the daytime hours of operation, children shall have adult supervision which means watching and directing children's activities, both indoors and outdoors, and responding to each child's needs.

         
         

      2. A child who has been placed in an isolation area due to illness must be within sight and hearing of the operator.

      
      

      (Emphasis added.)

      
      

2. The evidence established that Ms. Edwards was the operator of the home, that the home was operated on a 24 hours a day, 7 days per week basis, that Ms. Edwards routinely worked outside the home and routinely left Wayne Brueckman alone at the home caring for children. Mr. Brueckman was far more than a "temporary or emergency substitute," even under the liberal interpretation given that term under the rule. The weight of the evidence adduced at the hearing indicated that Mr. Brueckman was the primary caregiver in the Edwards home for large amounts of time. He worked full-time for Ms. Edwards in return for room and board.

3. Section 402.305(2)(a), Florida Statutes, provides that the minimum standards for child care personnel shall include "good moral character based upon screening." The screening must be conducted as provided in Chapter 435, Florida Statutes, "using the level 2 standards for screening set forth in that chapter." The level 2 standards are set forth in Section 435.04, Florida Statutes, and essentially limit the inquiry to criminal convictions listed in Section 435.04(2), Florida Statutes, or commission of an act of domestic violence pursuant to Section 435.04(4)(b), Florida Statutes.

4. Thus, the Department was limited in the actions it could take regarding Wayne Brueckman while he worked in the Edwards home. No criminal convictions or acts of domestic violence were discovered by his background screening. For that matter, the Department can not prohibit Mr. Brueckman from performing child care even now, unless and until he is convicted of the crime for which he awaits trial.

5. A report of child abuse, neglect, or abandonment may be used to affect licensure or approval of family day care homes pursuant to Section 39.202(2)(a), Florida Statutes, only if there is evidentiary sufficiency. The Department suspected

   Mr. Brueckman of inflicting sexual abuse on two different occasions prior to the incident leading to his arrest, but could not establish sufficient evidence to prove it.

6. Ms. Edwards was not bound by the same restrictions in investigating or taking corrective action regarding her employee. Department personnel strongly urged Ms. Edwards not to leave Mr. Brueckman alone with children. It was

   Mr. Brueckman who violated the standard of care required for supervision of D.S. by committing the crime of lewd and lascivious molestation and the tort of battery. However, it was Ms. Edwards who had ultimate responsibility for the family day care home and proper supervision of children in care.

   Ms. Edwards had notice of a persistent pattern of past irregularities and the ongoing concerns of the Department.

7. The Department is required to prove that a licensee knew or should have known of misconduct by an employee in order to support revocation of a license. Ganter v. Department of

   Insurance, 620 So. 2d 202 (Fla. 1st DCA 1993). A licensee may not avoid responsibility by claiming ignorance of the violations due to her absence from the premises. Id. at 205.

8. At the time of licensure, Ms. Edwards was informed of her supervisory responsibilities as the operator of the family day care home. She affirmatively accepted those responsibilities, agreeing that she would not work outside the home. Ms. Edwards then continued working outside the home. The Department pointedly warned Ms. Edwards not to leave

   Mr. Brueckman alone with children. Ms. Edwards ignored that

   warning. She took remedial action only when Mr. Brueckman confessed on the third occasion he was accused of sexual abuse while working for Ms. Edwards. The Department established by clear and convincing evidence that Ms. Edwards should be held accountable for the violation of her supervisory responsibilities.

9. Pursuant to Rule 65C-20.009(1)(b) and (2), Florida Administrative Code, a family day care home must have at least one other competent adult to be available to substitute for the operator on a temporary or emergency basis. Substitutes who work less than 40 hours a month must complete a three-hour child care course, in addition to infant and child CPR and first aid. At the time of the hearing, Ms. Edwards had no available substitute as required by the Code.

10. The Edwards family day care home violated the then- existing capacity limitations at least five times between 1987 and 1999.

11. The minimum standards for the licensing violations cited from October 10, 2001 through July 1, 2002, are delineated in the Florida Administrative Code as follows:

    1. Adequate lighting – Rule 65C- 20.010(1)(o), Florida Administrative Code;

       
       

    2. Children's immunization records – Rule 65C-20.011(1), Florida Administrative Code;

    3. Children's enrollment information – Rule 65C-20.011(4), Florida Administrative Code;

       
       

    4. Vermin/pest control – Rule 65C- 20.010(1)(n), Florida Administrative Code;

       
       

    5. Home, furnishing, toys, equipment clean/good repair – Rule 65C-20.010(1)(o), Florida Administrative Code;

       
       

    6. First aid supplies – Rule 65C- 20.010(3)(a), Florida Administrative Code;

       
       

    7. Hazardous materials within reach – Rule 65C-20.010(1)(b), Florida Administrative Code.

    
    

    Ms. Edwards took remedial action on these violations. The Department did not pursue fines for these violations. Standing alone, these violations would not substantiate a basis for revocation of Ms. Edwards' license. However, they do add a cumulative impact to the more serious violations established in this proceeding.

12. The Department has met its burden of proof to establish a sufficient basis for revocation of the Edwards family day care home license. Ms. Edwards failure to comply with the supervisory requirements for the operator of a family day care home directly led to the opportunity for Mr. Brueckman to commit his crime. The Department's decision to revoke the license should be upheld.

RECOMMENDATION

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

RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home.

DONE AND ENTERED this 5th day of February, 2003, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 5th day of February, 2003.

ENDNOTES

1/ Section 120.569(2)(g), Florida Statutes, provides:

Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath.

2/ Prior to 1990, Section 402.302(5), Florida Statutes, defined "family day care home" as follows:

"Family day care home" means an occupied residence in which child care is regularly provided for no more than five preschool children from more than one unrelated family and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. The maximum number of five preschool children includes preschool children living in the home and preschool children received for day care who are not related to the resident caregiver. Elementary school siblings of the preschool children received for day care may also be cared for outside of school hours provided the total number of children, including the caregiver's own and those related to the caregiver, does not exceed 10.

Chapter 90-306, section 34, Laws of Florida, amended the definition to read:

"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 of the following groups of children:

1. A family day care home may care for a maximum of five preschool children from more than one unrelated family and a maximum of five elementary school siblings of the preschool children in care after school hours. The maximum number of five preschool children includes preschool children in the home and preschool children received for day care who are not related to the resident caregiver. The total number of children in the home may not exceed ten under this paragraph.

2. When the home is licensed and provisions are made for substitute care, a family day care home may care for a maximum of five preschool children from more than one unrelated family, a maximum of three elementary school siblings of the preschool children in care after school hours, and a maximum of two elementary school children unrelated to the preschool children in care after school hours. The maximum number of five preschool children includes preschool children in the home and preschool children received for day care who are not related to the resident caregiver. The total number of children in the home may not exceed ten under this paragraph.

   
   

3. When the home is licensed and provisions are made for substitute care, a family day care home may care for a maximum number of seven elementary school children from more than one unrelated family in care after school hours. Preschool children shall not be in care in the home. The total number of elementary school children in the home may not exceed seven under this paragraph.

The definition of "family day care home" was given its current definition by Chapter 96-175, section 75, Laws of Florida, and was renumbered as Section 402.302(7) by Chapter 97-63, section 1, Laws of Florida.

COPIES FURNISHED:

Eugenie Rehak, Esquire

Department of Children and Family Services Post Office Box 60085

Fort Myers, Florida 33906

Steve Wetter, Esquire

1617 Hendry Street, Suite 213 Fort Myers, Florida 33901

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: 02-003784

Orders for Case No: 02-003784