STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. )

) THERESA HAYES, d/b/a ARIELLE'S ) ANGEL CARE, )

)

Respondent. )

Case No. 04-0677

)

RECOMMENDED ORDER

Pursuant to notice and in accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes (2003), a final hearing was held on May 19, 2004, in Bartow, Florida, before Fred L. Buckine, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Theresa Hayes, pro se

Arielle's Angel Care 965 Waldon Avenue

Bartow, Florida 33830

STATEMENT OF THE ISSUE

The issue is whether Petitioner proved by clear and convincing evidence allegations contained in its Proposed Revocation of Respondent's Family Day Care License No. 907 dated January 21, 2004.

PRELIMINARY STATEMENT

By letter dated January 21, 2004, the Department of Children and Family Services (Petitioner) notified Theresa Hayes, d/b/a Arielle's Angel Care (Respondent), of its intent to revoke her family day care home license for violations of Sections 402.302(7) and 402.313, Florida Statutes (2003).

Respondent timely requested an administrative hearing on Petitioner's proposed action. On February 26, 2004, the matter was referred to the Division of Administrative Hearings (DOAH) for assignment of an Administrative Law Judge to conduct the hearing.

The Initial Order was entered on February 26, 2004, and on March 3, 2004, the parties' joint response was filed. On

March 11, 2004, a Notice of Hearing, scheduling the final hearing for May 5, 2004, in Bartow, Florida, and an Order of Pre-hearing Instructions were entered.

On April 30, 2004, Petitioner's Motion for Continuance of the final hearing was filed, and on May 3, 2004, an Order rescheduling the final hearing for May 19, 2004, in Bartow,

Florida, was entered. The final hearing was held as rescheduled on May 19, 2004.

At the final hearing, Petitioner presented the testimony of Gloria Mathews, child care licensing inspector, and Tricia Step, child care inspector trainee. Petitioner offered three exhibits (P-1 through P-3) that were accepted into evidence.

Petitioner's request for official recognition of

Sections 402.302 and 402.313, Florida Statutes (2003), and Florida Administrative Code Rule 65C-20 was granted.

Respondent called James Hayes as a witness, testified on her own behalf, and offered two exhibits (R-A, composite consisting of four testimonial letters from parents of children kept by Respondent, and R-B, composite consisting of

13 photographs of the family day care home) that were accepted into evidence.

No transcript of the proceeding was ordered. The parties were given ten days to submit proposed recommended orders. At the close of the hearing, Petitioner made an ore tenus motion for an extension of time to file proposed recommended orders due to backlog; the motion was granted. Respondent did not file a proposed recommended order. Petitioner's Proposed Recommended Order was filed on June 1, 2004, and was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor while testifying, exhibits admitted into evidence, stipulations and arguments of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003), and the entire record compiled herein, the following relevant and material facts are determined:

The Parties

1. Petitioner is the state agency responsible for licensing and regulating child care facilities, including family day care homes.

2. Petitioner routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the home’s operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected.

3. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on family day care homes that have a provisional license rather than a standard license. Petitioner also conducts inspections in response to complaints it receives, and

   it has the authority to inspect family day care homes at any time without notice.

4. Respondent is the provider and licensed owner of a licensed family day care home located at 965 Waldon Avenue in Bartow, Florida (hereinafter “Respondent’s facility” or “the facility”). Respondent’s facility consists of a family residence with a connecting door to the converted garage.

5. The number of children Respondent may have in “care” each day depends upon: (1) the ages of the children in care and

   (2) the number of qualified caregivers available to supervise the children in various age groups. This restrictive requirement, referred to as the “child care ratio,” is mandated by statute, the violation of which creates a dangerous situation and a dangerous condition for the safety and well-being of the children in care.

   The Inspection and violations

   
   

6. On March 12, 2003, Respondent’s facility was inspected by Gloria Mathews (Ms. Mathews) and Tricia Step (Ms. Step), and several areas of non-compliance were identified during this inspection. The following non-compliant items were noted on Petitioner’s Family Child Care Home Inspection Checklist: unsafe storage of materials dangerous to children was observed in the bathroom drawers, litter was observed in areas where children play, equipment or plumbing not in working order (item

   was a baby crib and toilet with tissue the children had not flushed), no operable smoke detector or fire extinguisher, the surface of the diaper changing area was not impermeable, no record of fire drills for the past six months, and an up-to-date and age-appropriate immunization record was missing for one child. Two other non-compliant items, Ipecac not labeled with poison control phone number and seven pre-school age children ages 12 months and older were in the facility. Respondent may provide care to only six children in this age group. The extra child was taken home, and this item was corrected at the time of inspection.

7. On December 18, 2003, Respondent’s facility was inspected by Ms. Mathews and Ms. Step, and the following non- compliant items were noted on the Family Child Care Home Complaint: Respondent had 18 children in the facility three of which were infants. Respondent was not present at the time of inspection, and the substitute caregiver was in charge. Petitioner could not determine whether screening of the substitute caregiver, Elizabeth Ricks, had been completed.

8. Ms. Mathews and Ms. Step remained at Respondent’s facility until the parents picked up their children. James Hayes (Mr. Hayes), Respondent’s husband, took one child home.

9. On January 21, 2004, Petitioner informed Respondent by certified mail of the proposed revocation of her family day care license initially issued in March 2002. Petitioner alleged that the decision to revoke Respondent’s license to operate a family child care facility was based on her failure to ensure that the children' substitute caregivers were adequately screened and because Respondent's home was over capacity and out of ratio. The notice stated:

   On December 18, 2003, there were eighteen

   (18) children in your day care home. Three

   (3) of the children were under the age of twelve (12) months. With 3 infants in your care, your license permits you to care for a maximum of six (6) children. The number of children in your home far exceeds the number of children allowed. During an inspection on March 12, 2003, seven (7) preschool age children ages 12 months and older were observed in your home. You are permitted six (6) children in this age group. This violates section 402.302(7), F.S.

   
   

   You also failed to insure [sic] that the substitute care persons in your home caring for children were properly screened in accordance with section 402.313, Florida Statutes.

   
   

10. At the final hearing, Petitioner’s inspectors, Ms. Mathews and Ms. Step testified that when they arrived at

    Respondent’s facility on December 18, 2003, Mr. Hayes was in the facility. Based upon the testimony of the inspectors, Petitioner argued in its post-hearing submittal that Mr. Hayes had not been screened and that he had a criminal record.

    Petitioner presented no evidence to substantiate the claim that Mr. Hayes had a criminal record. The testimony and argument regarding this issue is hearsay without corroboration and disregarded.

    Respondent's Evidence

    
    

11. Respondent testified that she was out of town on December 18, 2003, and that her substitute caregiver had begun training classes, but apparently had not completed the course and, therefore, had no background check performed.

12. According to Respondent, non-compliant items identified by Petitioner’s inspectors were corrected as soon thereafter as possible. Respondent testified that she was confused regarding the infant and pre-school child-to-caregiver ratio because it was never explained to her in the manner testified to by both Ms. Mathews and Ms. Step. Continuing, Respondent testified that her substitute caregiver(s) had completed the required training and are now qualified to assist her. She contended that submission of the names and certification of training completion had been provided to Petitioner and that she was awaiting Petitioner's response. This testimony was not disputed by Petitioner.

13. Respondent, to counter allegations that her facility and personnel presented a significant or potential risk of harm to the children, provided four testimonial letters from parents

    who were regular patrons of her facility. Each of the four parents expressed confidence in the assurance of safety and the ready necessity of Respondent’s child care services during the work week and often times during the weekend.

14. Respondent presented photographs of her facility evidencing the facility’s configuration, carpeting, equipment, beds, and other furniture.

15. Respondent testified that Mr. Hayes does not enter the facility during the time children are present. To ensure separation between the family’s living area and the attached rooms used for child care, Respondent installed a door between the room leading from the family’s living area to the anteroom and the garage.

16. Respondent corrected every non-compliant item identified by Petitioner during their two inspections of her facility. Many, if not all, corrections were made when identified; i.e., the clogged toilet was flushed. The non- compliant items, individually or collectively, were minor and did not directly create an unsafe situation for the children in care. These efforts demonstrated a sincere intent and desire to comply with Petitioner's rules and regulations and to continue to provide a safe and necessary family day care home for working parents in her immediate neighborhood.

    Violations Proven by Petitioner

    
    

17. Petitioner proved by clear and convincing evidence that on March 12, 2003, there were seven preschool children ages

    12 months and older in the facility, Family Day Care License No. 907 permits a maximum of six children in care, an amount in violation of Subsection 402.302(7)(c), Florida Statutes (2003).

18. Petitioner proved by clear and convincing evidence that on December 18, 2003, there were 18 children in Respondent's facility in violation of Subsection 402.302(7)(b), Florida Statutes (2003).

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).

20. Petitioner has the burden to prove by clear and convincing evidence the grounds for revocation of Respondent's family day care home license. See Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932, 935 (Fla. 1996); Coke v. Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998); Accord Marcia Edwards Family Day Care Home v. Department of Children and Family Services, Case No. 02-3784 (DOAH February 5, 2003), adopted in toto, DCF Case No. 03-086-FO (March 4, 2003); Department of Children and Family Services v. Dorothy Dempsey Family Day Care Home, Case No. 02-

    1435 (DOAH August 7, 2002), adopted in toto, DCF Case No. 02-

    
    

    305-FO (November 27, 2002).

    
    

21. The clear and convincing evidence standard has been described as follows:

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Inquiry Concerning Judge Davey, 645 So. 2d 398, 404 (Fla. 1994), (quoting Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)) (internal brackets omitted). Accord Westinghouse Electric Corporation, Inc. v. Shuler Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)("Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous.").

    Violations of the Licensing Statutes and Rules

    
    

22. Subsection 402.310(1)(a), Florida Statutes, provides that Petitioner may "deny, suspend, or revoke a license . . . for the violation of any provision of ss. 402.301-402.319 or rules adopted thereunder."

23. The rules adopted by Petitioner to implement Sections

    
    

    402.301 through 402.319, Florida Statutes, are codified in Florida Administrative Code Rule 65C-20.

24. Petitioner contends that the incidents set forth in its letter of January 21, 2004, constituted violations of Subsections 402.302(7), Florida Statutes (2003), regarding licensing standards for child care facilities, which 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.

       
       

25. On December 18, 2003, Respondent had 18 children in her facility of which three were under the age of 12 months in violation of Subsection (7)(b) above.

26. Subsections 402.313(3) Florida Statutes (2003), provides in pertinent part:

    (3) Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss. 402.305(2) and 402.3055. For purposes of screening in family day care homes, the term includes any member over the age of 12 years of a family day care home operator's family, or persons over the age of 12 years residing with the operator in the family day care home. Members of the operator's family, or persons residing with the operator, who are between the ages of 12 years and 18 years shall not be required to be fingerprinted, but shall be screened for delinquency records.

    
    

27. Petitioner proved that Respondent's substitute care person(s) in the home was/were not properly screened in violation of Subsection (3) above.

    Penalty

    
    

28. Subsection 402.310(1)(b), Florida Statutes (2003), directs Petitioner to consider the following factors in determining the appropriate disciplinary action for violation of Subsection (1)(a):

    (b) 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 violations or to remedy complaints.

    3. Any previous violations of the licensee.

    
    

29. Respondent argues that revocation is not appropriate under the circumstances of this case and that a less severe sanction (such as suspension or provisional licensing) is available to Petitioner.

30. A provisional license is issued where Petitioner has continued concerns regarding the family day care home's compliance with the applicable statutes and rules. A provisional license is issued in lieu of denying a license renewal or suspending or, the harshest penalty of revoking the family day care home's license. A provisional license gives the licensee an opportunity to continue day care services and correct the areas of non-compliance. Homes are inspected more frequently in these situations. In these situations Petitioner has the opportunity to monitor the licensee's progress.

31. A suspension of license requires the licensee to cease all day care services until compliance with all terms and conditions imposed by Petitioner to meet required standards are met and approved.

32. Respondent admitted she did not understand the child ratio methodology that requires a daily count of children by age and ready availability of additional caregivers on those occasions when the ratio exceeds the number of caregivers

    present in the facility. Acquiring a working knowledge of Petitioner's ratio calculations require only instructions, time and attention.

33. Respondent's substitute caregivers, need only to complete training to become qualified caregivers.

34. The four testimonial letters from parents of children who are regularly attendees at Respondent's facility attest to the fact that Respondent's facility serves the needs of her immediate community.

35. Respondent's facility is well-kept, clean, airy, and adequately furnished as evidenced by photographs.

36. So considered, the suspension of a license would be appropriate under the circumstances of this case.

RECOMMENDATION

Based upon the foregoing Finding of Facts and Conclusions of Law, it is

RECOMMENDED that the Department of Children and Family Services issue a final order as follows:

1. Finding Petitioner guilty of violating Subsection 402.302(7), Florida Statutes (2003), twice.

2. Finding Petitioner not guilty of violating Section 402.313(3), Florida Statutes (2003).

3. Setting aside the revocation of Respondent's family day care home license.

4. Suspending Respondent's family day care home license until such time that the following conditions are met to the satisfaction of the Department:

   1. Respondent's substitute caregivers are identified, trained, qualified, and approved by Petitioner.

   2. Respondent demonstrates an understanding of the required child-to-child caregiver ratios.

   3. Respondent has trained each of her substitute caregivers on the child-to-child caregiver ratios and provides written instructions to be followed by her caregivers each day when the children in care in a specific age group are out of ratio to the number of caregivers present.

   4. That all conditions hereinabove are completed to the satisfaction of Petitioner as the condition for lifting the suspension.

DONE AND ENTERED this 17th day of September 2004, in Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 17th day of September, 2004.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Theresa Hayes Arielle's Angel Care 965 Waldon Avenue

Bartow, Florida 33830

Paul F. 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: 04-000677

Orders for Case No: 04-000677