STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

LUV-A-LOT CHILD CARE CENTER,

Respondent.

)

)

)

)

)

) Case No. 04-3204

)

)

)

)

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 13, 2005, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary Ellen McDonald, Esquire

Department of children and Family Services

2639 North Monroe Street Building A, Suite 100A Tallahassee, Florida 32399-0700

For Respondent: Angel Towels, pro se

Luv-A-Lot Child Care Center 2501 Lake Bradford Road Tallahassee, Florida 32310

STATEMENT OF THE ISSUE

The issue is whether Petitioner should revoke Respondent's license to operate a child care facility for failing to provide documentation of the director's credential or training.

PRELIMINARY STATEMENT

On or about July 12, 2004, Petitioner Department of Children and Family Services (Petitioner) issued an Administrative Complaint, alleging that Respondent Luv-A-Lot Child Care Center (Respondent) had failed to comply with Section 402.305(2)(f), Florida Statutes (2004), and Florida Administrative Code Rule 65C-22.003(7)(a). On August 26, 2004, Angel R. Towels, as Respondent's owner, requested an administrative hearing. Petitioner referred Respondent's hearing request to the Division of Administrative Hearings on September 10, 2004.

A notice of hearing dated September 22, 2004, scheduled the hearing for November 12, 2004. When Respondent failed to make an appearance at the hearing, the undersigned's office contacted her by telephone. During that conversation, Respondent asserted that she had never received the hearing notice. Consequently, the undersigned issued an Order granting a continuance and rescheduling the hearing for January 13, 2005.

During the hearing, Petitioner presented the testimony of two witnesses. Petitioner offered two composite exhibits that were accepted into the record as evidence.

Respondent presented the testimony of Angel Towers and two other witnesses. Respondent offered one composite exhibit that was accepted into the record as evidence.

A transcript of the proceeding was filed on January 21, 2005.

On January 31, 2005, Petitioner filed an unopposed Motion for Extension to File Proposed Recommended Order. On February 2, 2005, the undersigned issued an Order Granting Extension to File Proposed Recommended Order.

On February 7, 2005, Petitioner filed a Proposed Recommended Order. As of the date that this Recommended Order was issued, Respondent had not filed proposed findings of fact and conclusions of law.

All references hereinafter shall be to Florida Statutes (2004) unless otherwise indicated.

FINDINGS OF FACT

1. Carlin and Susan Towels created Respondent in 1990.

   
   

   Their daughter, Angel R. Towels, began working part-time taking care of children at the facility in 1998. Ms. Towels was sixteen-years old at that time.

2. In 1999, the minimum standards for child care personnel included a requirement for the director of a child care facility to be credentialed by January 1, 2000. See § 402.305(2)(f), Fla. Stat. (1999). Additionally, the statute mandated that the director's credential would become a required minimum standard for licensing of child care facilities by January 1, 2003. Id.

3. Prior to November 2003, the Leon County Health Department was responsible for inspecting child care facilities and issuing licenses to them in Leon County, Florida. Respondent has been licensed by the Leon County Health Department as child care facility for many years.

4. In 2000, Ms. Towels began working full-time as part of Respondent's staff. She became the licensed owner and operator/director in 2002. Ms. Towels has never been credentialed to act as Respondent's director because she has not completed a required course of study that would earn her a Child Development Associate (CDA) degree, certificate, or equivalent recognition.

5. Ms. Towels' father was never credentialed to act as Respondent's director. He completed the CDA class but he never passed the examination for the required class entitled Behavior, Observation, and Screening (BOS).

6. In February 2002, the Leon County Health Department sent Ms. Towels a document entitled "Reminder Notice of Director

   Credential Requirement." Ms. Towels signed the document indicating that she was aware of the need for Respondent's director to be properly credentialed by January 1, 2003, pursuant to Section 402.305(2)(f), Florida Statutes (2001).

7. In 2002, the Legislature amended the statute requiring credentials for directors of child care facilities as a condition of licensing. Section 402.305(2)(f), Florida Statutes (2002), required directors to be properly credentialed by January 1, 2004, instead of January 1, 2003.

8. The most recent license issued to Respondent by the Leon County Health Department was effective January 9, 2003, through January 9, 2004. The license authorized Respondent to care for a maximum of 23 children based on the square footage in the facility.

9. At some point in time, the Leon County Health Department amended the license, authorizing Respondent to care for a maximum of 19 children. The Leon County Health Department amended the license at Respondent's request. Respondent made the request based on the mistaken belief that documentation establishing its director's credentials would not be required for a facility that cared for no more than 19 children.

10. Around November 2003, Petitioner assumed the duties previously performed by the Leon County Heath Department relative to inspections and licensing of child care facilities

    in Leon County, Florida. In an on-site visit in November or December 2003, Petitioner's staff discussed the need for Respondent's director to be properly credentialed by January 1, 2004.

11. In a letter dated December 31, 2003, Petitioner reminded Respondent of the minimum standard licensing requirement for credentials beginning January 1, 2004. The letter requested Respondent to provide Petitioner with a copy of its director's credential or the director's training transcript within 10 business days. The letter advised that Petitioner would issue Respondent a provisional license, not to exceed six months, if Respondent failed to provide the required documentation. According to the letter, if Respondent failed to comply with the credential requirement within the provisional- license period, Petitioner intended to initiate administrative action to revoke Respondent's license.

12. In a letter dated January 28, 2004, Petitioner again advised Respondent that it was not in compliance with the statute. Petitioner's letter requested Respondent to provide monthly updates on the director's progress toward earning a credential or the facility's progress in hiring a director with the appropriate credential. The letter clearly stated that if Respondent's director was not credentialed at the end of the

    provisional-license period, Petitioner would take action to revoke Respondent's license.

13. Petitioner enclosed Respondent's provisional license with the January 28, 2004, letter. The provisional license was effective January 2, 2004, through July 2, 2004. The provisional license authorized Respondent to care for 23 children based on the square footage of the facility as stated in Respondent's most recent application for renewal of license.

14. In a letter dated June 1, 2004, Petitioner once again reminded Respondent the director's credential was a minimum licensing requirement. The letter asserted Petitioner's intent to revoke Respondent's license if Respondent did not comply with the requirement for a credentialed director by July 2, 2004.

15. On or about July 12, 2004, Petitioner issued an Administrative Complaint. The complaint alleged that Respondent's director was not properly credentialed and that Petitioner intended to revoke Respondent's license.

16. After Petitioner issued the Administrative Complaint, Petitioner continued to contact Respondent to see if Respondent was making progress in complying with the credential requirement. There were two telephone contacts in July 2004, on-site visits in August and November 2004, and a re-inspection most recently on January 6, 2005.

17. In July 2004, Ms. Towels registered for a course equivalent to the CDA degree. However, she dropped out of the class before completing it.

18. In January 2005, Ms. Towels enrolled in another CDA class, which she had not completed by the time that the hearing commenced. The class Ms. Towels is attending is approximately a one-semester course that students may complete within six months.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties an the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

20. Section 402.305, Florida Statutes, states as follows in relevant part:

    1. LICENSING STANDARDS.--The department shall establish licensing standards that each licensed child care facility must meet regardless of the origin or source of the fees used to operate the facility or the type of children serviced by the facility.

       
       

       1. The standards shall be designed to address the following areas:

          
          

          1. The health, sanitation, safety, and adequate physical surroundings for all children in child care.

             
             

          2. The health and nutrition of all children in child care.

          3. The child development needs of all children in child care.

          
          

          * * *

          
          

    2. PERSONNEL.--Minimum standards for child care personnel shall include minimum requirements as to:

       
       

       * * *

       
       

       (f) By January 1, 2000, a credential for child care facility directors. By January 1, 2004, the credential shall be a required minimum standard for licensing.

       
       

       * * *

       
       

    3. MINIMUM STAFF CREDENTIALS.--By July 1, 1996, for every 20 children in licensed child care facility, if the facility operates 8 hours or more per week, one of the child care personnel in the facility must have:

       
       

       1. A child development associate credential;

          
          

       2. A child care professional credential, unless the department determines that such child care professional credential is not equivalent to or greater than a child development associate credential; or

          
          

       3. A credential that is equivalent to or greater than the credential required in paragraph (a) or paragraph (b).

          
          

21. Florida Administrative Code Rule 65C-22.003 states as follows in pertinent part:

    1. Definitions.

       
       

       1. "CDA" Child Development Associate is a national credential, recognized throughout the United States and the world,

          issued by the Council for Early Childhood Professional Recognition in Washington, D.C.

          
          

       2. "State Approved CDA Equivalency" is a training program that has been approved by the Department of Children and Family Services as meeting or exceeding the criteria established for an equivalency program.

          
          

       3. "Director" for the purpose of this section and consistent with the statutory definition of operator, refers to the onsite administrator or individual of a child care facility who has the primary responsibility for the day-to-day operation, supervision and administration of the child care facility.

          
          

       4. "Director Credential" means a comprehensive credentialing program consisting of two levels of education and experiential requirement as outlined in subsection 65C-22.003(8), F.A.C.

       
       

       * * *

       
       

    2. Training Requirements.

       
       

       (a) The 40 hour Introductory Child Care Training Requirement is divided into two parts. Part I is comprised of 30 hours of training, consisting of the Department of Children and Family Services' training modules, identified below:

       
       

       * * *

       
       

       5. Behavioral Observation and Screening.

       
       

       * * *

       
       

       1. Staff Credentials.

          
          

          (a) Every licensed child care facility must have one member of its child care

          personnel for every 20 children with one of the following qualifications.

          
          

          1. National Child Development Associate Credential.

          
          

          * * *

          
          

       2. Director Credential.

       
       

       (a) Pursuant to Section 402.305(2)(f), F.S., every child care facility director must have a director credential by

       January 1, 2004, which consists of the foundational level or the advanced level. As of January 1, 2004, every applicant for a license to operate a child care facility or a license for a change of ownership of a child care facility must document that the facility director has a director credential prior to issuance of the license to operate the facility.

       
       

22. Florida Administrative Code Rule 65C-22.003(8) goes on to explain in great detail the requirements for a director's credential. Among other things, both the foundational level and the advanced level credentials require a director to have one of the following: "a Child Development Associate (CDA) Credential; a state-approved Florida CDA Equivalency; the Florida School-Age Certification; a formal education exemption qualification; or a documented employment history recognition exemption" See Fla. Admin. Code Rules 65C-22.003(8)(c) and 65C-22.003(8)(d).

23. The requirement for a properly credentialed director was not a sudden mandate. Ms. Towels and her parents knew or should have known that the credential required certain training

    and experience. As child care professionals, they should have known the difference between "staff credentials" (one per 20 children) and "director credentials" (one per facility).

24. The greater weight of the evidence indicates that Ms. Towels had regular contact with Petitioner's staff. She knew who to contact if she had questions. She could not have been caught off-guard by the credential requirement.

25. As Respondent's owner and operator, Ms. Towels should have been aware of the time she needed to complete her training for the credential. It appears that she waited too long to begin the process of earning her CDA degree, certificate, or equivalent recognition. At the time of the hearing, she still had neither earned the appropriate credential nor hired a qualified director to serve as Respondent's director.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner enter a final order revoking Respondent's license.

DONE AND ENTERED this 1st day March, 2005, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 1st day of March, 2005.

COPIES FURNISHED:

Mary Ellen McDonald, Esquire Department of Children

and Family Services 2639 North Monroe Street Building A, Suite 100A

Tallahassee, Florida 32399-0700

Angel Towels

Luv-A-Lot Child Care Center 2501 Lake Bradford Road Tallahassee, Florida 32310

Joe Garwood, Agency Clerk Department of Children

and Family Services Building 2, Room 204B 1371 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children

and Family Services Building 2, Room 204B 1317 Winewood Boulevard

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: 04-003204

Orders for Case No: 04-003204