STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

JOSEPHINE JONES,

Respondent.

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) Case No. 04-1064

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding on behalf of the Division of Administrative Hearings (DOAH), on May 21, 2004, in Lakeland, Florida.

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Josephine Jones, pro se

Jones Family Day Care Home

279 Cesara Estates Loop Mulberry, Florida 33860

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent committed the acts alleged in a denial letter issued by Petitioner, and, if so, whether Petitioner should revoke

Respondent's family day care license pursuant to Subsection 402.310(1)(a), Florida Statutes (2003).

PRELIMINARY STATEMENT

By letter dated February 27, 2004, Petitioner notified Respondent that Petitioner proposed to deny Respondent's application to renew her license to operate a family day care home. Petitioner timely requested an administrative hearing.

At the hearing, the ALJ changed the style of the case, nunc pro tunc, to reflect the Department of Children and Family Services as Petitioner and Josephine Jones as Respondent.

Petitioner presented the testimony of one witness and one rebuttal witness and submitted nine exhibits for admission into evidence. Respondent testified, called four other witnesses, and submitted no exhibits for admission into evidence.

The identity of the witnesses and exhibits, and any attendant rulings, are reported in the record of the hearing. Neither party requested the record to be published in a transcript.

Petitioner timely filed its Proposed Recommended Order (PRO) on June 1, 2004. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the agency responsible for licensing and regulating day care homes in the state. Respondent is licensed to operate a day care home known as Jones Family Day Care Home

   at 279 Cesara Estates Loop, Mulberry, Florida 33860 (the facility).

2. Petitioner inspected the facility on August 12 and 26, 2003, and on January 6 and 14, 2004. Respondent committed 14 violations of applicable statutes and rules during the four inspections.

3. In four of the 14 violations, Respondent violated the requirements in Subsection 402.313(3), Florida Statutes (2003), for background screening of child care personnel. On each of the four inspections, Respondent failed to maintain on-file for inspection at the facility required background screening documents for child care personnel, who were relatives of Respondent. Respondent's grandmother and aunt routinely visited the facility during regular business hours and assisted Respondent in the care of children at the facility.

4. The violations of background screening requirements are not ongoing violations. Respondent complied with relevant background screening requirements by the date of the administrative hearing. The violations, prior to hearing, resulted in no actual harm to children at the facility. The child care personnel were known to Respondent and presented little risk of harm to children in Respondent's care.

5. The fifth violation occurred during the inspection on August 12, 2003. Respondent violated Subsection 402.302(7),

   Florida Statutes (2003), by caring for 15 children in the facility. Petitioner licensed Respondent to care for a maximum of three children in the facility. The violation caused no harm to any of the children and created a moderate risk of potential harm. The violation did not recur in any of the subsequent inspections and is not an ongoing violation.

6. Three more violations involved a swimming pool at the facility. Respondent violated Florida Administrative Code Rule 65C-20.010(1)(f) in each of the three inspections prior to January 14, 2004, by maintaining a swimming pool without an adequate fence and without a pool alarm. Respondent corrected the violation by the time Petitioner conducted the inspection on January 14, 2004.

7. The violation involving the pool presented a risk of serious harm, but a low probability of harm. The swimming pool is located in the back yard of the facility and is used only by Respondent's family. Children in Respondent's care at the facility do not use the pool, and their playground is in the front of the house. The violation did not harm any child, is corrected, and presents no current risk of harm to children.

8. Four of the remaining six violations occurred on August 12, 2003. First, Respondent violated the prohibition against toxic or hazardous material in the facility. Petitioner's inspectors found bleach "in the bathroom floor."

   Second, Respondent violated a requirement for diapering areas to be cleaned and sanitized after each use. Respondent changed a baby on a blanket on the floor. The blanket was not an impermeable surface. Third, Respondent violated a requirement for current immunization records. Respondent did not maintain on file at the facility an "up-to-date and age-appropriate immunization record" for some of the children at the facility.

   Fourth, Respondent violated a requirement for current physicals for children at the facility. The "student health examination" information, for some of the children at the facility, was not current. The foregoing deficiencies, respectively, violated Florida Administrative Code Rules 65C-20.010(1)(b) and (2)(e) and 65C-20.011(1) and (2)(a).

9. None of the violations in the foregoing paragraph are ongoing. None of the violations caused harm to a child. Respondent corrected each violation before the next inspection two weeks later. None of the violations presented a serious risk of harm to a child at the facility.

10. The remaining two violations occurred on January 6, 2004. Respondent violated Florida Administrative Code

    Rule 65C-20.010(2)(d) and (3)(b)4, respectively, by failing to keep paper towels in the bathroom and failing to maintain a written record of fire drills. The violations did not harm any

    child and did not present a risk of serious harm to a child at the facility. Respondent corrected the violations.

11. The number of violations that Respondent committed were extensive within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). Respondent committed 14 violations in approximately 135 days. The single violation that occurred when Respondent cared for 15 children on August 12, 2003, and the recurring violations involving the swimming pool were extensive in nature, scope, and potential for harm.

12. None of the violations were severe within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The violations did not result in death or serious harm to a child. There was no evidence that the violations created a probability, rather than a possibility, of death or serious harm to a child.

13. The licensee took action to correct all of the violations. The licensee corrected all violations before the next inspection, except for recurring violations involving background screening and the pool. The licensee corrected the recurring violations before the administrative hearing.

14. Petitioner issued a letter dated February 27, 2004, notifying Respondent that Petitioner intends to deny Respondent's application for renewal of Respondent's license (the denial letter). Petitioner intends the denial letter to be

    an Administrative Complaint. The Administrative Complaint does not allege that the licensee has any previous violations.

    CONCLUSIONS OF LAW

    
    

15. DOAH has jurisdiction over the parties and subject matter of this case. §§ 120.569 and 120.57(1), Fla. Stat. (2003). DOAH provided the parties with adequate notice of the administrative hearing.

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

    
    

    Department of Banking and Finance, Division of Securities and Investor Protection vs. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996). Petitioner must prove by clear and convincing evidence the allegations in the Administrative Complaint and the reasonableness of the proposed penalty.

17. Petitioner proved that Respondent committed the acts alleged in the Administrative Complaint. However, Petitioner failed to show that revocation is an appropriate penalty.

18. In relevant part, Subsection 402.310(1)(a), Florida Statutes (2003), authorizes Petitioner to suspend or revoke Respondent's license for the violations that Respondent committed. Subsection 402.310(1)(b), Florida Statutes (2003), prescribes the factors to be considered in formulating a penalty.

19. Several mitigating factors support a penalty less than revocation. The Administrative Complaint does not allege that

    Respondent has any previous violations within the meaning of Subsection 402.310(1)(b)3., Florida Statutes (2003). Neither DOAH nor Petitioner may find Respondent guilty of facts or violations not alleged in the Administrative Complaint. See Cotrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (facts not alleged in the Administrative Complaint). See also B.D.M. Financial Corporation v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997) (violations not alleged in the Administrative Complaint). To do so would negate the right to an administrative hearing to contest the violations alleged in the Administrative Complaint, and it would eviscerate fundamental principles of due process.

20. None of the violations were severe within the meaning of Subsection 402.310(1)(b)1., Florida Statutes (2003). The violations did not result in death or serious harm to a child. There was little probability of harm to a child. Respondent undertook reasonable efforts to correct the violations.

21. There are few aggravating factors. The violations of screening requirements and operation of a pool were recurring. The number of violations during the four inspections was extensive within the meaning of Subsection 402.310(1)(b)1., Florida Statutes (2003).

RECOMMENDATION

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

RECOMMENDED that Respondent enter a final order finding Respondent guilty of committing the acts alleged in the Administrative Complaint, granting the application for renewal, and suspending Respondent's license for five business days.

DONE AND ENTERED this 17th day of June, 2004, 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 17th day of June, 2004.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Josephine Jones

Jones Family Day Care Home

279 Cesara Estates Loop Mulberry, Florida 33860

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: 04-001064

Orders for Case No: 04-001064