STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN FLANDERS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 06-2252

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 23, 2006, in Orlando, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karen Flanders, pro se

14924 Lady Victoria Boulevard Orlando, Florida 32826

For Respondent: Stacy N. Robinson, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1114 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application for a license to operate a family day care center should be granted.

PRELIMINARY STATEMENT

By letter to Petitioner dated May 31, 2006, the Department of Children and Family Services ("DCF") notified Petitioner that her license to operate a Family Day Care Home was being denied, stating that Respondent did not have the ability to ensure the safety of children in Petitioner's care to the level necessary to be registered as a family day care home. Petitioner filed a letter dated June 6, 2006, requesting an administrative hearing.

Petitioner testified on her own behalf at the final hearing and introduced one exhibit into evidence. Respondent called two witnesses: Wilmer Chavira, child care licensing supervisor; and Gail Beasley, family services counselor for DCF. Respondent offered four exhibits into evidence, each of which was received without objection.

Upon the conclusion of the final hearing, the parties were given ten days from receipt of the hearing transcript to file proposed recommended orders. The one-volume Transcript was filed on September 8, 2006. The parties filed their respective proposed recommended orders on September 19, 2006, and they were duly considered by the administrative law judge in the preparation of this Recommended Order.

FINDINGS OF FACT

1. DCF is the state agency responsible for, inter alia, the approval and monitoring of family day care homes.

2. Petitioner Karen G. Flanders ("Flanders") has been working in the child care field for several years. On or about April 21, 2006, Flanders submitted a Family Day Care Home Registration form, which is an application seeking approval to operate a small day care home. As part of the application process, Flanders agreed to allow DCF to conduct a Central Abuse Hotline Record search to determine the existence of any complaints or actions against her. The consent form Flanders signed allowing the search included a provision that the department would see any investigation resulting in "verified indicators."

3. During its processing of the application, DCF determined the existence of an investigative report concerning Flanders. The incident in the report allegedly occurred on September 1, 2005.

4. Flanders was alleged to have grabbed, slapped, and punched a child, C.S., while working as a day care worker for Kids Together day care facility. Flanders was immediately terminated from employment by her employer.

5. The Central Abuse Hotline was contacted immediately.

   
   

   By her own admission, Flanders was the caller. Pursuant to its duty, DCF conducted an investigation the day after the alleged incident.

6. The investigation found there were "some indicators" of excessive corporal punishment.

7. The term "some indicators" advises DCF that some adverse incident has happened, but it could have been a one-time issue that may never happen again. In this case, the primary concern of DCF was that the alleged incident occurred in a child care facility.

8. Flanders had an excessive history of prior reported incidents, which was taken into consideration by the investigators. Based on those findings, the safety of the child victim became a concern. DCF found, however, that Flanders' termination from employment was sufficient to alleviate further concern for the child.

9. Flanders has been involved in child care for many years and considers it her occupation. Her pending application to operate a small child care facility is consistent with her work history. However, she has had an adverse incident resulting in some indicators of abusive behavior.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).

11. Subsection 402.302(1), Florida Statutes (2005), says:

    
    

    "Child care" means the care, protection, and supervision of a child, for a period of less than 24 hours a day on a regular basis, which supplements parental care, enrichment, and health supervision for the child, in accordance with his or her individual needs, and for which a payment, fee, or grant is made for care.

    
    

12. Subsection 402.305(1), Florida Statutes (2005), requires DCF to establish standards which must be met in order to obtain a license to operate a child day care facility. Those standards are set forth in Florida Administrative Code

    Rule 65C-20. One of the stated standards is the prohibition against spanking or any form of physical punishment. Based on the existence of an investigative report, which included some indicators of abuse, Flanders failed to satisfy a standard necessary for approval of her license, i.e., the ability to insure the safety of the children.

13. As the applicant, Flanders has the burden to establish that she is entitled to operate a family day care home facility. Florida Department of Transportation v. J.W.C.

Company, 396 So. 2d 778 (Fla. 1st DCA 1981). Flanders has failed to meet that burden.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Department of Children and Family Services denying the application by Karen Flanders to operate a day care facility.

DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 22nd day of September, 2006.

COPIES FURNISHED:

Karen Flanders

14924 Lady Victoria Boulevard Orlando, Florida 32826

Stacy N. Robinson Pierce, Esquire Department of Children

and Family Services

400 West Robinson Street, Suite S-1114 Orlando, Florida 32801

Gregory Venz, Agency Clerk Department of Children

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

Tallahassee, Florida 32399-0700

John Copelan, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Luci D. Hadi, Secretary Department of Children

and Family Services Building 1, Room 202

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: 06-002252

Orders for Case No: 06-002252