STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WANDA WILLIAMS, d/b/a WILLIAMS ) FAMILY DAYCARE HOME, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

Case No. 03-2480

)

RECOMMENDED ORDER

On August 27, 2003, an administrative hearing in this case was held in Lakeland, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wanda Williams, pro se

Williams Family Daycare Home 1630 Fruitwood Drive

Lakeland, Florida 33805

For Respondent: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner's application for renewal of a family day care home license should be granted.

PRELIMINARY STATEMENT

By letter dated May 29, 2003, the Department of Children and Family Services (Respondent) notified Wanda Williams (Petitioner) that the Petitioner's application for renewal of a license to operate a family day care home was denied. The Petitioner challenged the denial and requested an administrative hearing. The Respondent forwarded the request for hearing to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on her own behalf.

The Respondent presented the testimony of three witnesses and had one exhibit admitted into evidence. No transcript of the hearing was filed. The Petitioner submitted a letter that has been treated as a Proposed Recommended Order. The Respondent filed a Proposed Recommended Order.

All citations are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. At all times relevant to this case, the Petitioner owned and operated a licensed family day care home in Lakeland, Florida.

2. On March 26, 2003, representatives of the Respondent arrived at the Petitioner's facility to assist in distributing materials that had been obtained by the facility.

3. There were six children in the facility on March 26, 2003. The Petitioner was the only adult present and available to supervise the children.

4. Upon arriving at the facility, one of the Respondent's representatives discovered an unsupervised "toddler" playing in the bathroom. The child's hands were in a toilet that was unclean and unflushed. One of the Respondent's representatives removed the child's hands from the toilet intending to wash the child's hands, but there was no soap or toweling available. It is unclear whether the Petitioner was aware that the child was in the bathroom, but in any event the child was unsupervised.

5. Subsequently during the same visit, the Petitioner took the children outside into a play area and then returned inside to talk to the Respondent's representatives, leaving all of the children outside and unsupervised. The Respondent's representatives terminated their visit after advising the Petitioner to return outside and supervise the children.

6. On March 27, 2003, a child protective investigator (CPI) employed by the Respondent arrived at the facility to investigate a report of inadequate supervision received on the previous day.

7. Upon arriving, the CPI asked the Petitioner, who was the only adult present in the facility, as to the census and was

   advised that there were five children in the facility. The CPI observed the five children in a playroom.

8. A few minutes later, the CPI responded to noise coming from the bathroom and discovered a sixth child, unsupervised and playing in the apparently-clean toilet water. The CPI removed the child's hands from the water.

9. At one point, the Petitioner took another child into the bathroom and left him there. At another point, the Petitioner put infants into a room to nap, leaving the other children unsupervised while she did so, and then leaving the infants unsupervised while they napped. One child ran into an enclosed garage area without the Petitioner's knowledge.

10. The Petitioner was unable to properly identify all of the children by name when requested to do so by the CPI. When asked to retrieve files on the children, the Petitioner left all the children unsupervised while she went to her automobile to get the files. The Petitioner asserted that the CPI had offered to watch the children while she went outside to get the files. The CPI denied having agreed to supervise the children. The greater weight of the evidence fails to support the Petitioner's assertion that the CPI offered to supervise the children during the visit.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1).

12. The Petitioner has the burden of establishing that the day care home meets the qualifications for licensure. Balino v.

    Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this case, the burden has not been met.

13. Section 402.310(1)(a) provides that a license may be denied "for the violation of any provision of ss. 402.301-

    402.319 or rules adopted thereunder. "

    
    

14. Rule 65C-20.009(3)(a), Florida Administrative Code, provides as follows:

    (3) Supervision.

    (a) 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.

    
    

15. In this case, the evidence establishes that the Petitioner has failed to comply with the requirement that children be supervised at all times. During the two home visits identified herein, children were frequently unsupervised. On

    one day, the Petitioner was even unaware of how many children were present in the facility.

16. The Petitioner offered no credible evidence to contradict the lack of supervision present in the facility. Although the Petitioner asserted that her daughter assisted in supervision of the children, the daughter was not present on either March 26 or 27, 2003, and there is no evidence as to the frequency with which such assistance was available to the Petitioner.

RECOMMENDATION

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

RECOMMENDED that the Respondent enter a Final Order denying the Petitioner's application for renewal of licensure as a family day care home.

DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 24th day of September, 2003.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Wanda Williams

Williams Family Daycare Home 1630 Fruitwood Drive

Lakeland, Florida 33805

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: 03-002480

Orders for Case No: 03-002480