vs.
Respondent.
) Case No. 04-0398
On March 5, 2004, an administrative hearing in this case was held in Lakeland, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
The issue in the case is whether the Petitioner's application for licensure of a family day care home should be granted.
By Notice of Denial dated November 18, 2003, the Department of Children and Family Services (Respondent) notified Gwendolyn Brison (Petitioner) that the Petitioner's application to operate a family day care home was denied. The Petitioner challenged the denial and requested a 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 two witnesses, and had two exhibits admitted into evidence. No transcript of the hearing was filed. Neither party filed a proposed recommended order.
In June 2003, the Petitioner applied to the Respondent for a license to operate a family day care home.
Tim Graddy, an employee of the Respondent, inspected the Petitioner's home located at 1031 Herschell Street, Lakeland, Florida 33815 on June 19, 2003. The purpose of the inspection was to determine whether the Petitioner's home met applicable requirements for licensure as a family day care home.
The Petitioner was present at all times during the inspection. Upon completion of the inspection, the Petitioner received a copy of the inspection report and was instructed to
contact Mr. Graddy to arrange for a re-inspection after the deficiencies identified in the report were corrected.
The inspection report indicates that the Petitioner's background screening information had not been provided to the Respondent by the date of the inspection. According to the inspection report, the Petitioner was to provide such information to the Respondent by no later than August 18, 2003.
The inspection revealed that the Petitioner's First Aid and CPR training certifications had expired. According to the inspection report, the Petitioner was to provide renewed certifications to the Respondent by July 19, 2003.
Mr. Graddy noted that there were unsecured wooden logs stacked in a play area outside of the house. Additionally, the play area abutted a trafficked road, and the chain-link fence was sagging and did not properly surround the play area. According to the inspection report, the logs were to be moved and the fence repaired by July 19, 2003.
Inside the house, Mr. Graddy observed that two floor mats used for napping had tears in the impermeable surface covering and that a high chair seat was torn. Also, the First Aid kit did not contain rolled gauze and required emergency telephone numbers (the abuse hotline and the poison control center) were not posted by the telephone. According to the
inspection report, the cited deficiencies were to be remedied by July 19, 2003.
Mr. Graddy had no further contact with the Petitioner until sometime in October of 2003, when he received a telephone message indicating that the Petitioner had called. Mr. Graddy returned the call, but was unable to contact the Petitioner. He left a telephone message, but did not hear back from the Petitioner.
On or about November 18, 2003, the Respondent issued a Notice of Denial of the Petitioner's license application.
The Notice of Denial sets forth the reasons cited by the Respondent for denial of the application as follows:
Your background screening results reveal a criminal history that causes the Department to believe you cannot provide a safe and nurturing environment for children because of the nature of the charges, and the frequency of the disqualifying offenses.
On June 19, 2003 an inspection of your proposed family day care home revealed the following violations of the Florida Administrative Code (F.A.C.).
Your CPR and First Aid certification had expired; Rule 65C-20.009(2)(a), F.A.C.
The outdoor play area had wooden logs
that posed a safety hazard; Rule 65C- 20.010(1)(e), F.A.C.
A section of the chain link fence was
broken; Rule 65C-20.010(1)(f), F.A.C.
Napping mats with tears in them; Rule 65C-20.010(1)(h), F.A.C.
High chair with broken seat cover; Rule 65C-20.010(1)(o), F.A.C.
Your first Aid Kit was incomplete; Rule
65C-20.010(3)(a), F.A.C.
Emergency telephone numbers not posted, Rule 65C-20.010(3)(b)(1), F.A.C.
At the hearing, counsel for the Respondent stated that Respondent was solely relying on the June 19, 2003, inspection report as grounds for denial of the Petitioner's application and withdrew the paragraph related to the Petitioner's alleged criminal history.
The Petitioner testified at the hearing. During the testimony, the Petitioner stated that all the deficiencies cited in the inspection report had been addressed by the time of the hearing.
The evidence establishes that some, but not all, of the deficiencies were corrected prior to issuance of the Notice of Denial.
The background screening information was apparently provided prior to issuance of the Notice of Denial.
The First Aid and CPR training certification was not renewed until February 21, 2004.
Although the Petitioner testified that the logs were moved and the fence repaired, the evidence fails to establish whether the work was completed prior to the issuance of the Notice of Denial.
The floor mats were discarded on the day of the inspection.
The Petitioner testified that the high chair was discarded, that the rolled gauze has been replaced in the First Aid kit, and that the required telephone numbers have been posted.
Because the Petitioner did not notify the Respondent until the date of the hearing that the deficiencies set forth in the inspection report have been remedied, there has been no inspection of the property to confirm that the repairs were appropriately made. There has been no inspection of the home since June 19, 2003.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).
Section 402.310(1)(a), Florida Statutes (2003), provides that a license may be denied "for the violation of any provision of ss. 402.301-402.319 or rules adopted thereunder. "
The Petitioner has the burden of establishing that the day care center 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. The evidence establishes that some, but not all, of the deficiencies cited during the inspection were resolved prior to issuance of the November 18, 2003, Notice of Denial.
The Notice of Denial cites Florida Administrative Code Rule 65C-20.009(2)(a) as the basis for the requirement that the Petitioner hold First Aid and CPR certification. According to the copy of the Florida Administrative Code provided at the hearing by counsel for the Respondent, Florida Administrative Code Rule 65C-20.009(2)(b) is the rule that provides as follows:
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 center 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.
The evidence establishes that the First Aid and CPR training certification was not completed until February 21, 2004.
The Notice of Denial cites Florida Administrative Code Rule 65C-20.010(1)(e) as the basis for the requirement that the wooden logs in the play area be removed. The cited rule requires that "[p]lay areas shall be clean, free of litter, nails, glass and other hazards."
The Notice of Denial cites Florida Administrative Code Rule 65C-20.010(1)(f) as the basis for the requirement that the chain-link fence be repaired. In relevant part, the cited rule requires as follows:
Family day care homes caring only for infants under 12 months of age, shall not be required to have an outdoor play area; however, infants in care shall be provided opportunities for outdoor time each day that weather permits. For all other family day care homes, including those providing evening care, the outdoor space shall be fenced, a minimum of 4 feet in height, if the family day care home property borders any of the following:
1. Laned road or laned street open to travel by the public . . . .
The evidence fails to establish that the log removal and the fence repair occurred prior to the date of the Notice of Denial.
The Notice of Denial cites Florida Administrative Code Rule 65C-20.010(1)(h) as the basis for the requirement that floor mats be repaired or replaced. The cited rule requires that "[a] family day care home must include a designated area where each child can sit quietly or lie down to rest or nap." Florida Administrative Code Rule 65C-20.010(1)(i) requires as follows:
Each child in care must be provided safe and sanitary bedding to be used when napping.
Bedding means a cot, bed, crib, mattress, playpen or floor mat. Mats must be at least
one inch thick and covered with an impermeable surface.
The uncontradicted testimony of the Petitioner establishes that the two torn floor mats were discarded on the day of the inspection.
The Notice of Denial cites Florida Administrative Code Rule 65C-20.010(1)(o) as the basis for requiring that the broken high chair be repaired or replaced. In relevant part, the cited rule requires that "[a]ll parts of the home, both indoors and outdoors, including the furnishings, equipment, and plumbing shall be kept clean and sanitary, free of hazards, in an orderly condition and in good repair at all times." The Petitioner testified that the high chair had been discarded, but the evidence fails to establish when the chair was discarded.
The Notice of Denial cites Florida Administrative Code Rule 65C-20.010(3)(a) as the basis for the requirement that the First Aid kit include rolled gauze. Florida Administrative Code Rule 65C-20.010(3)(a)5., specifically requires "sterile gauze pads and rolls" be included in the kit. The Petitioner testified that the gauze had been replaced, but the evidence fails to establish when the gauze was replaced.
The Notice of Denial cites Florida Administrative Code Rule 65C-20.010(3)(b)1. as the basis for requiring the posting
of emergency numbers near the telephone. The cited rule requires as follows:
Emergency telephone numbers, including ambulance, fire, police, poison control center, Florida Abuse Hotline, county public health unit, and the address of and directions to the home, must be posed on or near all telephones and shall be used to protect the health, safety and well-being of any child in care. To meet the immediate needs of the child, family day care home operators shall call 911 or other emergency numbers in the event of an emergency.
The Petitioner testified that the telephone numbers had been posted, but the evidence fails to establish when the numbers were posted.
The Petitioner also asserted that she was unaware that the Respondent would be making a determination regarding her application within a 90-day period after the deadline for filing the background screening information. In making the determination to deny the Petitioner's application, the Respondent was governed by the provisions of Section 120.60(1), Florida Statutes (2003). In relevant part, the cited section requires that the Respondent approve or deny an application not more than 90 days after the expiration of the deadline for submission of any requested additional information. The Respondent set a deadline of August 18, 2003, for submission of information related to background screening, and the application was then deemed complete. Thereafter, the Respondent proceeded
pursuant to Section 120.60 (1), Florida Statutes (2003), to deny the application by Notice of Denial November 18, 2003, 90 days after the deadline for submission of information had expired.
RECOMMENDED that the Respondent enter a Final Order denying the Petitioner's application for operation of a family day care home.
DONE AND ENTERED this 25th day of March, 2004, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2004.
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.
