vs.
Respondent.
) Case No. 04-3698
Pursuant to notice and in accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes (2004), a final hearing was held on January 14, 2005, in Lakeland, Florida, before Fred L. Buckine, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
Law Offices of Peterson, P.A.
Whether Respondent proved by clear and convincing evidence the allegations contained in its August 27, 2004, letter denying Petitioner's licensure renewal application.
The Department of Children and Family Services (Respondent or Department) notified Sherrell Lanier, d/b/a/ Lanier Family Day Care Home (Petitioner or Ms. Lanier), of its intent to deny renewal of her family day care home application, for renewal of license number F14PO0266, for repeated violations cited in three inspection reports, dated March 31, 2004; April 29, 2004; and
August 11, 2004.
Ms. Lanier timely requested an administrative hearing on the Department's proposed action, and, on January 14, 2005, the matter was heard by the undersigned.
At the final hearing in Lakeland, Florida, the Department presented the testimony of Tim Graddy, child care licensing inspector; Patricia Hamilton, child care licensing supervisor; and Nianza Green, child care licensing inspector. The Department's seven exhibits: Inspection Reports dated August 7, 2003; August 18, 2003; March 31, 2004; April 29, 2004; and August 11, 2004; Inspection Report Log; and the denial letter were accepted in evidence. The Department's request for official recognition of Sections 402.310 and 402.313, Florida
Statutes (2004), and Florida Administrative Code Chapter 65C-22 was granted.
Ms. Lanier testified on her own behalf and presented the testimony of Angela Lisbon, daughter and representative of her father, the landlord of the facility where Lanier Family Day Care Home is housed. Ms. Lanier tendered one exhibit, the Department's letter of May 6, 2004, levying a $330 fine against Ms. Lanier for Florida Administrative Code violations on
August 7 and 18, 2003, and March 31 and April 29, 2004, which was accepted as ALJ's Exhibit A.
No transcript of the proceeding was ordered. The parties were given until February 16, 2005, to submit proposed recommended orders. Proposed Recommended Orders filed by the parties were considered in rendering this Recommended Order.
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 (2004); and the record complied herein, the following relevant and material facts are determined:
Respondent is the state agency responsible for licensing, inspecting, and regulating child care facilities, including family day care homes.
Respondent is authorized to inspect a family day care home at any time. Regular and routine inspections, as well as inspections resulting from complaints received, are conducted of licensed family day care homes to ascertain whether the home is in compliance with applicable statutes and promulgated rules.
Violations (or "non-compliances") of statutes and rules and/or other problematic situations found during inspections are noted on a hand-written inspection report. The inspector takes those noted non-compliance items back to the office and transfers them to Respondent's "Family Child Care Home Inspection Checklist" (Inspection Checklist).1 Inspectors may or may not discuss each non-compliance item with the home operator at the time of the inspection. On those occasions non- compliance items are discussed with the home operator, those items capable of instant correction are corrected before the inspector departs the premises. When appropriate, the Inspection Checklist provides a time frame within which the operator must correct the cited non-compliance item(s) indicated on the Inspection Checklist.
The Family Day Care Home Facility
Ms. Lanier is the provider and licensed owner of Lanier Family Day Care Home ("the care facility") located at
1039 Madison Avenue, Lakeland, Florida. Ms. Lanier is a tenant at this location, and Angela Lisbon and/or her relatives are the landlord.
The Inspections and Cited Violations
Tim Graddy conducted a re-licensure inspection of the care facility on August 7, 2003. Re-licensure inspections are conducted when the family child care owner's current license is about to expire, and the owner's application for re-licensure has been filed. The non-compliance items recorded on the Inspection Checklist were: operator's training in first aid not current, operator's CPR training not current, litter (foam cups) in the children play area, access to a road and a four-foot fence was "not provided"--the gate needed repair, floor mats not covered with impermeable surface, evidence of rodents/vermin in the home, one broken window needs replacement, no operative landline telephone available-only cellular telephone available, and supplies missing from first aid kit.
At the time of Mr. Graddy's re-inspection on August 18, 2003, all non-compliance items recorded on the Inspection Checklist dated August 7, 2003, had been addressed and corrected by Ms. Lanier, but for the vermin infestation. However,
Ms. Lanier's request of her landlord to exterminate the property to address the reoccurring problem of vermin infestation had occurred.
On March 31, 2004, Nianza Green, another inspector, completed a routine child care licensing inspection of the child care facility. The non-compliance items noted by Ms. Green on the Inspection Checklist were: unsafe storage of materials dangerous to children was observed in that cleaning supplies were in an unlocked cabinet and in the bathroom; water hose, dirty towels, and some mops on playground--play areas in home not clean; and evidence of rodents/vermin in home--"most [sic] have professional pest control before next visit. Copy of inspection to be faxed or mailed to licensing office"; all parts of the home and premises including furnishings and equipment were not kept clean and sanitary; all parts of the home and premises including equipment, furnishings and plumbing were not kept in orderly condition; meals and snacks supplied by the operator were not of a quantity and/or quality to meet the daily nutritional needs of the children; soiled items were not disposed of in a plastic lined, securely covered container; potty chairs were not cleaned and sanitized after each use; diaper changing surface was not cleaned with a sanitizing solution after each use--used as a storage, cords and other harmful items on shelves of changing table; first aid kit
missing some supplies; monthly fire drills not conducted; written record of fire drills not completed; operator did not have record of drills for the past six months; and neither DH Form 680, Certification of Immunization, nor DH Form 681, Religious Exemption from Immunization, was on file for child(ren).
On April 29, 2004, Mr. Graddy conducted a routine inspection of the care facility. Mr. Graddy listed the following non-compliance items on the Inspection Checklist: unsafe storage of materials dangerous to children was observed in that disinfectant was left on lower shelf of changing table, children in the outdoor play space had access to a trafficked road/street, and fencing a minimum of four feet in height was not provided--top rail of fence broken in front corner of fence, and evidence of rodents/vermin--live bugs observed in kitchen.
On August 11, 2004, Mr. Graddy conducted a re-licensure inspection of the care facility and listed the following non- compliance items on the Inspection Checklist: front gate is not in good repair and does not close properly, live bugs seen in kitchen, loose pieces of ceramic title in kitchen, no operable smoke detector, up-to-date and age-appropriate immunization record missing, and DH Form 3040 not available.
On May 6, 2004, by certified mail, Respondent issued an "Intent to Impose Administrative Action" letter, citing that
repeated violations were revealed during four inspections conducted on August 7, 2003; August 18, 2003; March 31, 2004; and April 29, 2004. For those repeated violations, Respondent levied a $330 fine.2
Respondent's Cross-Examination re: Inspection Checklist
Regarding his August 7, 2003, inspection, Mr. Graddy acknowledged that the inspection report indicated no children were present during the inspection, and, thus, no children were in any immediate danger as a result of the cited non- compliances. The cited non-compliance, fence was "not provided," was, in fact, the gate itself closed but the latch did not close properly. Therefore, no children were in immediate danger.
Mr. Graddy acknowledged that the August 18, 2003, re- inspection Inspection Checklist listed a non-compliance item contained in the August 7, 2003, Inspection Checklist, and that the August 7, 2003, non-compliance items had been corrected, but for the vermin infestation. Mr. Graddy was informed by
Ms. Lanier that the exterminator (landlord) had been contacted and that he/she would exterminate the care facility. No children were present at the care facility during the August 18, 2003, inspection and, therefore, were not subjected to any harm or immediate danger.
Ms. Green acknowledged that her March 31, 2004, inspection did not accurately reflect the conditions of the daycare. Specifically, she described the non-compliance item as the property was "cluttered up"; yet, she failed to describe in the inspection report what she meant by that term. Ms. Green's report indicated that the potty chair was not cleaned after each use; however, upon cross-examination, Ms. Green admitted that she never saw the potty chair being used by the one child in the care facility at the time of her inspection. Likewise, she reported that the diaper changing table surface was not cleaned after each use although she never saw the diaper changing table being used and had no idea whether the allegation had a basis in fact.
Ms. Green's Inspection Checklist noted, "[t]he center was not stocked with adequate supplies of food," but she never checked the food cabinets and other storage areas. Ms. Green testified that a bucket was present outside the facility and presented a hazard to children, but she did not note this particular non-compliance on her Inspection Checklist.
Ms. Green was unable to confirm that Ms. Lanier was even aware of the "bucket" non-compliance.
Ms. Green's Inspection Checklist noted fire drills "had not" been conducted, when, in fact, she was fully aware that fire drills had been conducted on a monthly basis.
Ms. Green knew the approved capacity of the care facility was ten children, but only one child was present during her inspection. She could not articulate whether the "missing" immunization records were missing for a particular child or children, if any.
After her walk-through, Ms. Green spent little time in the care facility and chose instead to "work" (list her non- compliance items) in her car because she "was concerned about bugs" she believed to have been in the facility might adversely affect her computer. When asked if she advised or discussed with Ms. Lanier her problems and concerns, Ms. Green stated that her job was to "inform the supervisor of the inspecting." At the time of this inspection, Ms. Green had worked as an inspector for only three months.
Regarding the April 29, 2004, inspection, Mr. Graddy noted one child present and that child "did not have access to disinfectant near the changing table." His notation, the "top rail of the fence broken in the far corner," was not a repeated violation of an existing problem previously noted. Mr. Graddy also testified that any gaps that existed in the fence were not in sections of the fence less than the required four feet height; therefore, no children were placed at risk or were endangered in any manner by the alleged condition of the fence.
Regarding "vermin in the facility," Mr. Graddy acknowledged that he only saw "more than two," acknowledging more than two was not "infestation."
Regarding the August 11, 2004, inspection, Mr. Graddy testified that his notation, "the fence [gate] would not lock," on the Inspection Checklist was made without him actually attempting to lock the gate, and, thus, he acknowledged his notation was speculation. He added that this particular problem was different from prior fence problems and did not constitute a repeat violation. The "broken tile" problem noted on this Inspection Checklist had not previously existed; likewise, this non-compliance was not a repeat violation.
Mr. Gaddy's non-compliance notation, "smoke detector missing," was that in reality the smoke detector was "present," but the battery may have run down. Mr. Graddy gave Ms. Lanier until the next day to correct this problem, but he never checked back for compliance. Likewise, Ms. Lanier contacted the telephone company and had the landline telephone that was present in the care facility activated which corrected the "no landline telephone" non-compliance item.
Regarding the medical records for children non- compliance items noted by Mr. Graddy, he did not check whether the missing medical records on file were for the four children present on the day he noted this item or other children who were
not present. Thus, he was unable to identify any specific medical records that were missing.
According to Mr. Graddy, "he always goes over the inspection report with the provider, gives them a date after which the noted infractions need be corrected." His above self- imposed inspection standard was later qualified by his admission that he did not provide Ms. Lanier an opportunity to correct/comply with non-compliances contained on his Inspection Checklist before declining renewal of her current license number F14PO0266. Immediately after the August 11, 2004, inspection, the Department determined to deny Ms. Lanier's license renewal application request.
The $330 fine issued against Ms. Lanier by the Department on May 6, 2004, was based upon five facility inspections that had occurred on August 7, 2003; August 18, 2003; March 31, 2004; April 29, 2004; and August 11, 2004. Ms. Lanier paid the $330 fine on August 26, 2004. The
Department accepted and deposited Ms. Lanier's $330 fine despite the obvious fact that the Department had decided to deny
Ms. Lanier's pending license renewal application at the time it levied the fine and accepted her $330 payment of the fine.
Ms. Lanier's testimony that she paid the $330 fine on August 26, 2004, with the understanding that her license renewal application would be granted, went unchallenged by the
Department. On this particular point, the lack of challenge by the Department regarding this ambiguous statement, whether
Ms. Lanier's understanding was induced by suggestion or silence or was assumed in the absence of explanation to the contrary by accepting the $330 fine, is resolved in favor of Ms. Lanier.
Patricia Hamilton, child care licensing supervisor, did not personally perform inspections of this facility. She compiled the five inspection reports submitted by the inspectors, charted those inspections, and assumed each non- compliance item on each subsequent inspection was a repeated non-compliance item; when, in fact, they were not.
Ms. Lanier testified that upon notice of vermin, she contacted her landlord who sprayed for bugs on regular monthly intervals. Ms. Lisbon, landlord's representative, confirmed that Ms. Lanier made more than one request for additional extermination of the property.
Ms. Lanier testified that she addressed/corrected non- compliance items identified by the Department's inspector(s) during their several inspections of her facility. Many small items were corrected by the close of business on the day noticed. Items such as floor mats were replaced, foam cups and other debris in play area were removed, food supplies were available in storage in the house (during spring break the kitchen itself was not stocked as it would be during a normal
school week), broken window was repaired, smoke detector battery was replaced, and first aid supplies were replenished. The continuous efforts demonstrated by Ms. Lanier evidenced a sincere intent and cooperative desire to comply with the Department's rules and regulations, noted and interpreted by the several inspectors at the time they inspected the facility, to provide a safe and necessary family day care home for working parents in her immediate community.
The Department proved that the facility had a reoccurring bug problem. Without more, a "reoccurring bug problem," common in many areas, does not, ipso facto, equate to infestation.3 When noticed, Ms. Lanier did not fail or refuse to address this issue, she secured extermination and, from the property owner, requested monthly treatments thereafter.
The Department did not allege nor introduce evidence of any probability that death, serious harm to the health or safety of any person would, could, or had resulted, nor evidence of the severity, the actual or potential harm, and the extent to which Sections 402.301 through 402.319, Florida Statutes (2004), had been violated. There is no evidence of record whatsoever that any child was harmed or evidence that a particular or a combination of specific non-compliance items, not timely corrected, presented a hazard to the children observed in the facility. The Department's post-hearing argument in vague terms
such as "understandably concerned" and "were justified in expecting," "did not rehabilitate her or correct her propensity to violate," and "Department justifiably had enough" are statements open to more than one interpretation and does not constitute direct evidence of an objective standard by which to evaluate appropriate conduct or lack thereof.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to these proceedings pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2004).
The burden of proof is on the party asserting the affirmative of an issue before and administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,
396 So. 2d 778 (Fla. 1st DCA 1981). The extension of the clear and convincing evidence standard is warranted. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996); 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).
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.
Inquire 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.").
Subsection 402.310(1)(a), Florida Statutes (2004), provides in pertinent part 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."
The rules adopted by the Department to implement Sections 402.301 through 402.319, Florida Statutes (2004), are codified in Florida Administrative Code Chapter 65C-20.
The Department contends that the incidents set forth in its letter of August 27, 2004, constituted violations of Section 402.310, Florida Statutes (2004), regarding licensing standards for child care facilities.
Florida Administrative Code Rule 65C-22.002(1) provides in pertinent part:
General Requirements.
All child care facilities must be in good repair, free from health and safety hazards, clean, and free from vermin infestation. During the hours that the facility is in operation, no portion of the building shall be used for any activity, which endangers the health and safety of the children.
All areas and surfaces accessible to children shall be free of toxic substances and hazardous materials.
* * *
(d) All potentially harmful items including cleaning supplies, flammable products, poisonous, toxic, and hazardous materials must be labeled. These items as well as knives and sharp tools shall be stored in locations inaccessible to the children in care.
Florida Administrative Code Rule 65C-22.002(2)(c) and
provides in pertinent part:
(2) Rooms Occupied by Children.
* * *
All rooms shall be kept clean, adequately ventilated and in good repair.
Cleaning shall not take place while rooms are occupied by children except for general clean-up activities which are a part of the daily routine.
Rodents and vermin shall be exterminated. Pest control shall not take place while rooms are occupied by children.
The "more than two" vermin noted by Mr. Graddy were exterminated, and the vermin noted by Ms. Green were exterminated. The Department did not prove, clearly and convincingly, that vermin were not exterminated.
Florida Administrative Code Rule 65C-22.002(4)(c), (d), and (e) provides in pertinent part:
(4) Outdoor Play Area.
* * *
The outdoor play area shall be clean, free of litter, nails, glass and other hazards. . . .
The facility's outdoor play area shall be fenced in accordance with accepted safety practices and local ordinances to prevent access by children to all water hazards, within or adjacent to outdoor play areas, such as pools, ditches, retention and fish ponds.
The outdoor play area shall have and maintain safe and adequate fencing or walls a minimum of four (4) feet in height. Fencing, including gates, must be continuous and shall not have gaps that would allow children to exit the outdoor play area. The base of the fence must remain at ground level, free from erosion or build-up, to prevent inside or outside access by children or animals.
The "gate" issue was corrected, and the "gap" in the fence was corrected. At no time prior to correction of those two items could children have exited the outdoor play area. The Department failed to prove the fence was in violation of Florida Administrative Code Rule 65C-22.002(4)(e). There was no testimony that the fence was "of inadequate height, allowed children access to water hazards, had gaps, was not continuous, or had an improperly maintained base."
Florida Administrative Code Rule 65C-22.002(7)(b) and (c) provides in pertinent part:
(7) Fire Safety.
* * *
There shall be at least one corded telephone in the child care facility which is neither locked nor located at a pay station and is available to all staff during the hours of operation.
Fire drills shall be conducted monthly and shall be conducted when children are in care. A current attendance record must accompany staff out of the building during a drill or actual evacuation and be used to account for all children.
Ms. Lanier, as is currently common practice and habit of many citizens, used her cellular telephone. However, upon notice, she connected the landline telephone that had always been present in the facility.
Records of fire drills were kept and available after notice, and no inspector returned to review and confirm the current attendance records. Ms. Green was aware that Ms. Lanier conducted monthly fire drills.
Florida Administrative Code Rule 65C-22.002(9)(b)4. provides in pertinent part:
All equipment, fences, and objects on the facility's premises shall be free of sharp, broken and jagged edges and properly placed to prevent overcrowding of safety hazards in any one area.
The Department did not prove that Ms. Lanier operated the facility after notice and correction of the non-compliance items. These non-compliance items were noted and were timely corrected. Any perceived hazard, after notice, was removed and remedied by Ms. Lanier. Finally, the Department failed to prove that a child was at risk in any manner whatsoever due to or as a result of the alleged violations herein noted.
Penalty
Subsection 402.310(1)(b), Florida Statutes (2004), requires consideration of the following factors by the Department in determining appropriate disciplinary action for violation of Subsection 402.310(1)(a), Florida Statutes. Subsections 402.310(1)(a) and (b) provide:
(1)(a) The department or local licensing agency may deny, suspend, or revoke a license or impose an administrative find not
to exceed $100 per violation, per day, for the violation of any provision of ss.
402.301-402.319 or rules adopted thereunder. However, where the violation could or does cause death or serious harm, the department or local licensing agency may impose an administrative fine, not to exceed $500 per violation per day.
(b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:
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.
Actions taken by the licensee to correct the violation or to remedy complaints.
Any previous violations of the licensee.
Based upon the Findings of Fact herein, the Department's failure to carry the burden of proof regarding whether a child was at risk in any manner whatsoever due to or as a result of the alleged violations, and the range of penalties from a fine, suspension, provisional license, to a denial, denial is not an appropriate penalty.
Giving due consideration to the Department's "concerns" for the overall welfare of children in care, coupled with Ms. Lanier's ongoing corrective cooperation with noted non- compliance items, a provisional license is deemed appropriate.
A provisional license would accommodate the Department's concerns regarding the family day care home's full and continuous compliance with applicable statutes and rules.
A provisional license would provide the licensee an opportunity to continue day care service to her community thereby enabling parents to be gainfully employed. The licensee is afforded an opportunity to become accustomed to "continuous inspections" and the need for ongoing corrections of non- compliance items stemming from normal wear and tear.
A provisional license would entail more frequent inspections by the Department affording an opportunity to monitor Ms. Lanier's progress.
RECOMMENDED that Respondent enter a final order issuing to Petitioner a provisional license until the following conditions are met to the satisfaction of Respondent:
DONE AND ENTERED this 18th day of April, 2005, in Tallahassee, Leon County, Florida.
FRED L. BUCKINE
Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 2005.
19. Handwashing 65C-20.010(2)(a)
ANY REPEAT VIOLATION MAY RESULT IN ADMINISTRATIVE ACTION, WHICH MAY INCLUDE A FINE AND OR REVOCATION OF LICENSE.
Under each major heading and subsection the inspector lists non- compliance items discovered during each inspection. A full explanation is rarely written in the report; it is usually left to recollection testimony of each inspector.
2/ Petitioner's relevance objection to Respondent's proffer of Petitioner's May 6, 2004, letter was overruled upon consideration that inspections listed in the letter, as the basis for the fine, are the identical inspections Petitioner alleged as the basis for its intended licensure renewal denial.
3/ Infestation -- To inhabit or overrun in large numbers so as to be harmful or unpleasant. Page 673, American Heritage Dictionary.
Law Offices of Peterson, P.A.
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.
