STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGETT MORRIS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 04-1142

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RECOMMENDED ORDER

On June 15, 2004, an administrative hearing in this case was held in Lakeland, Florida, before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bridgett Morris, pro se

1502 North Kettles Avenue 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

Whether Petitioner's license to operate a family day care home should be renewed.

PRELIMINARY STATEMENT

By certified letter dated March 2, 2004, Respondent, Department of Children and Family Services, informed Petitioner, Bridgett Morris,1 that her application to renew her license to operate a family day care home was being denied. The proposed denial was based upon the results of Respondent's inspections of Petitioner's home on February 4, 2003, August 26, 2003, and January 15, 2004, which alleged noncompliance with applicable licensing statutes and rules.

Petitioner disputed the facts underlying Respondent's decision, and on March 23, 2004, she timely requested a formal administrative hearing. On April 2, 2004, Respondent referred the matter to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct the hearing requested by Petitioner.

The final hearing was scheduled for and held on June 15, 2004. At the hearing, official recognition was taken of Sections 402.310 and 402.313, Florida Statutes (2003), and Florida Administrative Code Rule Chapter 65C-20. Respondent presented the testimony of Timothy Graddy and Patricia Step, family service inspectors in Respondent's child care licensing division; and Patricia Hamilton, a supervisor in Respondent's child care licensing division. Respondent Exhibits 1 through 5 were received into evidence.

Petitioner testified on her own behalf at the hearing, and Petitioner's Exhibits 1 and 2 (a composite exhibit consisting of 11 letters of support from parents and friends) were received into evidence.

The Transcript of the hearing was filed with DOAH on June 30, 2004.

Respondent timely filed its Proposed Recommended Order on July 12, 2004. Petitioner has not filed her proposals as of the date of this Recommended Order.

FINDINGS OF FACT

Based on the testimony and evidence received at the hearing, the following findings are made:

1. The Parties

   
   

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

   2. Respondent routinely conducts inspections of licensed family day care homes to determine whether the homes are 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 which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice.

   4. Petitioner is the owner and operator of a licensed family day care home located at 1502 North Kettles Avenue, Lakeland, Florida (hereinafter "Petitioner's facility" or "the facility"). Petitioner resides at that address as well.

   5. Petitioner has operated a day care home at the above address for approximately three years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating family day care homes.

   6. Petitioner keeps children in her home, and children also play in Petitioner's backyard. This area is enclosed by a fence.

2. Inspections and Resulting Actions by Respondent

   
   

   1. Petitioner's facility was inspected on February 4, 2003, by Respondent's inspector, Timothy Graddy, who found Petitioner caring for children. Several areas of noncompliance were identified during this inspection. Violations noted

      included unsafe and unsecured storage of materials dangerous to children, namely, bleach and other household cleaning chemicals were left out in the kitchen and a bathroom cleaning product was observed in the tub; paper and trash were littered around the home's back door which leads to the playground area; water that had collected in the sandbox, which presented a drowning hazard; no written evidence of a fire drill having been conducted on a monthly basis; and some of the children's immunization records were found to be out-of-date, which presented a health safety issue.

   2. A re-inspection was conducted on February 6, 2003, all violations had been corrected, and no fine or other penalty was imposed at that time.

   3. On August 26, 2004, Respondent's inspector, Tricia Step, went to Petitioner's family day care home to carry out a routine inspection, and she observed five children in the home at that time. Several areas of noncompliance were identified. The lock on a kitchen cabinet did not catch, allowing children access to household cleaning products stored there; the children's play area contained litter (empty chip bags and soda cans); an extension cord was lying on the ground in the playground area; the play areas in the home were not clean and stacked against a wall were toys and "stuff," which could fall on the children; at the time of the inspection, children were

      observed sleeping on blankets with no mats under them, which is in violation of the requirement that each child be provided with a mat, at least one inch thick, covered with an impermeable surface; Petitioner could not provide a record of fire drills being conducted within the previous six months; and an up-to- date and age-appropriate immunization record was missing for a child in her care.

   4. After Ms. Step completed her inspection, she discussed the results with Petitioner and provided Petitioner a copy of the inspection report. Petitioner made the corrections required prior to the due date listed on the report.

   5. Petitioner's premises were inspected for re-licensure by Mr. Graddy on January 15, 2004, and several areas of noncompliance were identified. Mr. Graddy observed a hammer, motor oil, and a plastic garbage bag on the front stoop area, which are hazardous and dangerous to children; litter, including aluminum cans and paper, was observed in areas where children play; a gap in the required 4-foot fence was observed, which would permit children in the outdoor play area access to a trafficked street; a written record of fire drills for the months of December 2003 and January 2004 were not provided; Petitioner was unable to produce a student health examination file on two children in her care; and the current enrollment information was incomplete on four children.

   6. The results of the inspection were discussed with Petitioner, and she was given a copy of the report.

   7. Graddy then went back to his office and discussed the results of the inspection with his supervisor, Patricia Hamilton. Based upon the results of the January 15, 2004, inspection and the prior incidents of noncompliance at Petitioner's facility, Ms. Hamilton determined that Petitioner's license should not be renewed. Although Petitioner attempted to do so, Respondent did not give Petitioner an opportunity to bring her home into compliance with the minimum standards in Respondent's licensing rules and standards before deciding to issue a letter of denial.

   8. Thereafter, on March 2, 2004, Mr. Graddy sent a letter to Petitioner informing her that her license was not being renewed and advising Petitioner of her right to "appeal" that decision through the administrative process.

   9. At the hearing, Ms. Hamilton testified that she was particularly concerned about Petitioner's repeat violations, namely Petitioner allowing the children access to toxic and other dangerous materials, repeated failure to conduct fire drills, and to keep health and enrollment records current. She characterized these as serious child safety violations. These were the primary reasons she recommended that Petitioner's child care license not be renewed.

   10. Petitioner, in her testimony, did not deny committing the violations noted in the inspections of February 4, 2003, August 26, 2003, and January 15, 2004. However, she did demonstrate that a re-inspection of her facility listed her to be in compliance with all violations listed in the report. Petitioner's testimony is credible, especially when bolstered by her friends, family, and client's testimonials, that she is a loving and caring person who goes out of her way to care for the children she keeps in her home.

   11. The evidence is clear and convincing that Petitioner violated several code provisions, including repeated violations of the rules regarding toxic and hazardous materials; trash and dangerous conditions in the children's play area; failure to conduct fire drills; and failure to have current health and enrollment records on file for each child. Respondent withdrew its allegation that Petitioner was not a person of good moral character.

   12. Petitioner has shown mitigating evidence that she is a concerned and loving caregiver and has demonstrated that her license for a family day care home should not be denied or revoked but that a lesser penalty should be imposed.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this

       proceeding pursuant to Section 120.569 and Subsections 120.57(1), 120.60(5), and 402.310(2), Florida Statutes (2003).2

   14. Respondent has the burden to prove by clear and convincing evidence the grounds to deny renewal of Petitioner's family day care home license. See Department of Banking and Finance v. Osborne Stern & 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. 02-784 (DOAH February 5, 2003), adopted in toto, DCF Case No. 03-086-FO (March 4, 2003); Department of Children and Family Services vs. Dorothy Dempsey Family Day Care Home, Case

       No. 02-1435 (DOAH August 7, 2002), adopted in toto, DCF Case No. 02-305-FO (December 1, 2002).

   15. 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 in 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, 800 (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").

3. Violations of the Licensing Statutes and Rules at Respondent's Facility

   
   

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

   2. The rules adopted by Respondent to implement Sections

      
      

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

   3. Mr. Graddy's February 4, 2003, and January 15, 2004, inspection reports and Ms. Step's August 23, 2003, inspection report served as a basis for Respondent's March 2, 2004, denial letter. It cited the following rules/statutes, which Petitioner allegedly violated: Florida Administrative Code Rule 65C- 20.010(1)(b) (relating to toxic/hazardous materials); Florida Administrative Code Rule 65C-20.010(1)(e) (relating to keeping

      play areas clean and free of litter); and Florida Administrative Code Rule 65C-20.010(3)(b)4. (relating to failure to conduct fire drills on a monthly basis). Petitioner was not charged with violations of Florida Administrative Code Rule

      65C-20.011(1), (2)(a), and (4) (relating to maintenance of health and enrollment records), and Respondent withdrew its allegation that Petitioner violated Section 402.301, Florida Statutes, relating to Petitioner's failure to have good moral character. Each alleged violation will be addressed in turn.

   4. Florida Administrative Code Rule 65C-20.010(1)(b)

      
      

      provides:

      
      

      (b) All areas and surfaces accessible to children shall be free of toxic substances and hazardous materials. All potentially harmful items including cleaning supplies, flammable products, poisonous and toxic materials must be labeled. These items as well as knives, and sharp tools and other potentially dangerous hazards shall be stored in locations inaccessible to the children in care. . . .

      
      

   5. The evidence clearly and convincingly establishes that Petitioner violated Florida Administrative Code Rule

      65C-20.010(1)(b) by failing to ensure that toxic or hazardous chemicals were stored in locations inaccessible to the children in her care, which the inspector found on three occasions when they arrived on February 4, 2003, August 26, 2003, and

      January 15, 2004. Petitioner conceded that the household

      cleaners posed a hazard to small children. However, it is undisputed that the hazardous material was removed before the close of business that day.

   6. Florida Administrative Code Rule 65C-20.010(1)(e) and (o) provides:

      (e) Play area shall be clean, free of litter, nails, glass and other hazards.

      
      

      * * *

      
      

      (o) All 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. . . .

      
      

   7. The evidence is clear and convincing that Petitioner consistently failed to keep play areas clean and free of litter in violation of Florida Administrative Code Rule

      65C-20.010(1)(e) and (o). Petitioner seems to have a problem cleaning up after the children (or adults) when they have snacks.

   8. Florida Administrative Code Rule 65C-20.010(3)(b)4.

   
   

   provides:

   
   

   1. Fire drills shall be conducted monthly and shall be conducted at various times when children are in care. A written record shall be maintained showing the date, time, number of children in attendance and time taken to evacuate the home. This record shall be maintained for six months.

      1. The evidence is clear and convincing that Petitioner violated the provisions of this Rule. At the time of all three inspections, Petitioner could not produce the records required to be prepared and maintained to ensure that the fire drills were conducted and done properly. This is a serious violation, and Petitioner offered no reasonable explanation why the drills were not conducted. Petitioner's statement that her house is a very safe home and that she keeps a close eye on the children at all times is not sufficient to excuse her neglect of this important safety requirement.

      2. Although Respondent offered evidence that a violation of the provisions relating to health and enrollment records occurred, Respondent did not include such violation on the charging document, the denial letter of March 2, 2004, which served as the administrative complaint; therefore, the alleged violations cannot be used as a basis for denying the renewal of Petitioner's license. Marcelin v. State Department of Business and Professional Regulation, Construction Industry Licensing

         Board, 753 So. 2d 745 (Fla. 3d DCA 2000); Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998).

4. Appropriate Penalty

1. Subsection 402.310(1)(b), Florida Statutes, directs Respondent to consider the following factors in determining the

   appropriate disciplinary action for a violation of Subsection 402.310(1)(b), Florida Statutes:

   (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 violation or to remedy complaints.

      
      

   3. Any previous violations of the licensee.

   
   

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

3. A provisional license is issued where Respondent has continued concerns regarding the 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 revoking the day care home's license. A provisional license gives the licensee an opportunity to correct the areas of noncompliance, and because such homes are inspected more frequently, Respondent has an opportunity to monitor the

licensee's progress. The issuance of a provisional license would be appropriate in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact 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 the provisions of Florida Administrative Code Rules 65C-20.010(1)(b) (three counts), 65C-20.010(1(e) (three counts), and 65C-20.010(3)(b)4. (three counts).

2. Finding Petitioner not guilty of violating the provisions of Section 402.301, Florida Statutes.

3. Issuing Petitioner a provisional license.

DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 30th day of July, 2004.

ENDNOTES

1/ The "notice" by which this case was referred to the Division of Administrative Hearings designated Bridgett Morris as Petitioner and the Department of Children and Family Services as Respondent. Those designations were not changed by the Clerk of the Division of Administrative Hearings, as reflected in the case style above. However, the facts show that this is a license revocation proceeding in which the Department of Children and Family Services is the party seeking the affirmative relief.

2/ All references to Sections are to the 2003 version of the Florida Statutes. All references to Rules are to the current version of the Florida Administrative Code.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Bridgett Morris

1502 North Kettles Avenue Lakeland, Florida 33805

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: 04-001142

Orders for Case No: 04-001142