STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LENA FRITH,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 03-0873

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on June 2, 2003, in Orlando, Florida, on behalf of the Division of Administrative Hearings (DOAH). The parties attended the hearing in Orlando. The ALJ conducted the hearing by videoconference from Tallahassee,

Florida.

APPEARANCES

For Petitioner: Sheila D. Engum, Esquire

Post Office Box 620837 Oviedo, Florida 32762-0837

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 is whether Respondent should deny Petitioner's application to operate a registered family day care home on the grounds that two incidents of child neglect demonstrate Petitioner's inability to ensure the safety of children under Petitioner's care.

PRELIMINARY STATEMENT

By letter dated January 27, 2002, Respondent notified Petitioner that Respondent intended to deny Petitioner's application for a registered family day care home on the grounds that Petitioner demonstrated an inability to ensure the safety of children under her care. Petitioner timely requested an administrative hearing.

At the hearing, Petitioner testified, presented the testimony of four other witnesses, and submitted six exhibits for admission into evidence. Petitioner did not provide copies of the exhibits to the ALJ after the hearing.

Respondent presented the testimony of two witnesses and submitted Exhibits A through F for admission into evidence. The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the hearing.

Neither party requested a transcript of the hearing record.

The ALJ granted Petitioner's Unopposed Motion for Enlargement of Time to File Proposed Recommended Orders.

Petitioner and Respondent timely filed their respective Proposed Recommended Orders on June 22 and 25, 2003.

FINDINGS OF FACT

1. Respondent is the state agency responsible for registering family day care homes in Florida. Respondent operated a registered family day care in her home from sometime before July 30, 2001, until the registration expired on July 29, 2002. In November 2002, Petitioner applied to operate a registered family day care home, Respondent proposes to deny that application.

2. Respondent's licensing division conducted a background screening investigation of the applicant in accordance with applicable statutes and rules. The investigation revealed two reports in the Florida Abuse Hotline Information System (FAHIS) in which children under Petitioner's care suffered injuries.

3. By letter dated January 27, 2002, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application to operate a registered family day care home (Notice of Denial). The Notice of Denial provides that the two incidents of injuries to children under Petitioner's care demonstrate an inability to "ensure the safety of children to the level necessary to be registered as a family day care."

4. On August 9, 2000, Respondent received a report alleging that a child in Petitioner's care received bite marks.

   Respondent investigated the report and closed the report in an untimely manner sometime in 2002 as verified for maltreatment. The final report named Petitioner as the perpetrator of maltreatment.

5. On July 30, 2001, Respondent approved Petitioner's application to operate a registered day care home. Respondent approved the application after Respondent received the report of maltreatment on August 9, 2000, but before Respondent closed the report in 2002. The registration approved by Respondent on

   July 30, 2001, expired on July 29, 2002.

   
   

6. On November 1, 2001, Respondent received a second report alleging that a child under Petitioner's care was injured. Respondent investigated the report and timely closed the report verified for inadequate supervision. The report found that a child in Petitioner's care received bite marks, bruising, scratches, and a swollen upper lip while in an unsupervised room with two other children. The report found that the cause of the injuries was unknown.

7. Petitioner did not request a hearing to challenge either the report of maltreatment or the report of inadequate supervision. The time for contesting the content of the reports has expired. Petitioner's registration to operate a family day care home expired on July 29, 2002.

8. Respondent should not grant Petitioner's application to operate a registered family day care home. The evidence is clear and convincing that Petitioner is unable to ensure the safety of children to the level necessary to operate a registered family day care home.

   CONCLUSIONS OF LAW

   
   

9. DOAH has jurisdiction over the parties and subject matter of this case. Sections 120.569 and 120.57(1), Florida Statutes (2002). The parties received adequate notice of the administrative hearing.

10. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by a preponderance of the evidence that she is able to ensure the safety of children to the level necessary to operate a registered family day care home. Department of

    Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

11. Petitioner failed to satisfy her burden of proof.

Rather, the evidence is clear and convincing that Petitioner is unable to ensure the safety of children in her care to the level necessary to operate a registered day care home.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a Final Order denying Petitioner's application to operate a registered family day care home.

DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 11th day of July, 2003.

COPIES FURNISHED:

Richard Cato, Esquire Department of Children and

Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Sheila D. Engum, Esquire Post Office Box 620837 Oviedo, Florida 32762-0837

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

Jerry Regier, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

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: 03-000873

Orders for Case No: 03-000873