STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

TONYA RODREGUEZ REGISTERED FAMILY DAY CARE HOME,

Respondent.

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) Case No. 11-0168

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RECOMMENDED ORDER

On March 10, 2011, a formal administrative hearing in this case was held in Fort Myers, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eugenie G. Rehak, Esquire

Department of Children and Family Services

Post Office Box 60085

Fort Myers, Florida 33906

For Respondent: Tonya Rodreguez, pro se

Tonya Rodreguez Registered Family Day Care Home

2736 Lemon Street

Fort Myers, Florida 33916

STATEMENT OF THE ISSUE

The issue in the case is whether the application for registration of the Tonya Rodreguez Registered Family Day Care Home (Respondent) should be denied.

PRELIMINARY STATEMENT

By Administrative Complaint and Notice of Registration Denial dated November 30, 2010, the Department of Children and Family Services (Petitioner) notified Tonya Rodreguez

(Mrs. Rodreguez) that her application for registration of the "Tonya Rodreguez Registered Family Day Care Home" was being denied. By letter dated December 19, 2010, Mrs. Rodreguez challenged the denial of the application and requested a formal hearing. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding. The case was transferred to the undersigned on February 28, 2011.

At the hearing, the Petitioner presented the testimony of three witnesses and had Exhibits 1 through 14 admitted into evidence. Mrs. Rodreguez testified on behalf of the Respondent and had one exhibit admitted into evidence.

No transcript of the hearing was filed. On March 16, 2011, the Petitioner filed a Proposed Recommended Order. On March 17, 2011, the Respondent filed a document titled "My Answer to Why

Case Should Be in My Favor" that has been treated as a Proposed Recommended Order.

FINDINGS OF FACT

1. Since 1994, and at all times material to this case, Mrs. Rodreguez has operated the Respondent, which is located at 2736 Lemon Street, Fort Myers, Florida.

2. On October 25, 2010, Mrs. Rodreguez filed an application with the Petitioner for registration of the Respondent. The previous registration had lapsed.

3. Since 1992, and at all times material to this case, Mrs. Rodreguez has been married to her husband, Terry Rodreguez (Mr. Rodreguez).

4. In 1990, Mr. Rodreguez was convicted of possession of a controlled substance and a concealed firearm. Mrs. Rodreguez was aware of her husband's criminal conviction.

5. The registration application included a section where an applicant was directed to list "OTHER FAMILY/HOUSEHOLD MEMBERS."

6. The application filed on October 25, 2010, by

   
   

   Mrs. Rodreguez disclosed only herself and her three children. Mrs. Rodreguez did not list her husband on the application.

7. On June 23, 2010, a child protective investigator (CPI) commenced an unrelated investigation of the Respondent and went to the Lemon Street address. Mr. Rodreguez was present in the

   
   

   home when the CPI arrived. The CPI testified without contradiction that Mr. Rodreguez was uncooperative. She returned to the Respondent later that day accompanied by a law enforcement officer, but, when they arrived, Mr. Rodreguez was no longer present at the Respondent.

8. On June 24, 2010, the CPI returned to the Lemon Street address, and Mr. Rodreguez was again present. During questioning by the CPI on that date, Mr. Rodreguez stated that he resided in the home. Additionally, Mrs. Rodreguez advised the CPI that she and her husband had separated, but acknowledged that she and her husband both resided at the home.

9. At the hearing, Mrs. Rodreguez asserted that she has been separated from her husband for many years; however, she acknowledged that they remain legally married, that he uses her address as his legal address, and that her address is listed on his driver's license. She testified that he is homeless and that he returns to the house to see her children.

10. Mr. Rodreguez was issued several traffic citations between January and July of 2010, and all of the citations identified his address as 2736 Lemon Street, Fort Myers, Florida.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).1/

12. Section 402.302(3), Florida Statutes, provides, in relevant part, as follows:

    “Child care personnel” means all owners, operators, employees, and volunteers working in a child care facility. The term does not include persons who work in a child care facility after hours when children are not present or parents of children in a child care facility. For purposes of screening, the term includes any member, over the age of 12 years, of a child care facility operator’s family, or person, over the age of 12 years, residing with a child care facility operator if the child care facility is located in or adjacent to the home of the operator or if the family member of, or person residing with, the child care facility operator has any direct contact with the children in the facility during its hours of operation. Members of the operator’s family or persons residing with the operator who are between the ages of

    12 years and 18 years are not required to be fingerprinted but must be screened for delinquency records. (emphasis added).

    
    

13. Section 402.313 provides, in relevant part, as follows:

    Family day care homes.—-

    
    

    1. Family day care homes shall be licensed under this act if they are presently being licensed under an existing county licensing ordinance or if the board of county

       
       

       commissioners passes a resolution that family day care homes be licensed.

       
       

       1. If not subject to license, family day care homes shall register annually with the department, providing the following information:

          
          

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          5. Proof of screening and background checks.

          
          

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          (3) Child care personnel in family day care homes shall be subject to the applicable screening provisions contained in ss. 402.305(2) and 402.3055. For purposes of screening in family day care homes, the term includes any member over the age of 12 years of a family day care home operator’s family, or persons over the age of 12 years residing with the operator in the family day care home. Members of the operator’s family, or persons residing with the operator, who are between the ages of 12 years and 18 years shall not be required to be fingerprinted, but shall be screened for delinquency records. (emphasis added).

          
          

14. In this case, in the absence of local licensure, registration of the Respondent is required.

15. As the applicant for registration, the Respondent has the burden of establishing by a preponderance of the evidence entitlement to the licensure sought. § 120.57(1)(j), Fla. Stat.; Balino v. Dep't of HRS, 348 So. 2d 349 (1st DCA 1977). In this case, the burden has not been met.

    
    

16. One of the requirements for registration of a family day care home is proof of screening and background checks for "child care personnel." Mrs. Rodreguez's husband is a member of her family. Her husband is included within the "child care personnel" who must undergo screening and background checks.

    The Respondent failed to submit the required proof of screening and background checks for the members of her family, who are, by definition, "child care personnel."

17. At the hearing, Mrs. Rodreguez testified that, at some point prior to June 23, 2010, she notified the Petitioner that she and her husband were separated. Although a review of the Petitioner's records back to 1999 failed to locate such notification, even had Mrs. Rodreguez provided such notification, the result here would be the same. Separation has no legal effect in this case.

18. The couple remained married, and, at various times, Mr. Rodreguez has resided with Mrs. Rodreguez at the Lemon Street address. As a family member, Mr. Rodreguez is, by definition, included within those persons who are required to complete the required screening and background checks.

Mrs. Rodreguez is required to submit proof that all child care personnel have completed screening and background checks.

Because Mrs. Rodreguez failed to submit such proof, the

requirements for registration of the Respondent have not been met.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application for registration of the Tonya Rodreguez Registered Family Day Care Home.

DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2011.

ENDNOTE

1/ References to Florida Statutes are to Florida Statutes (2010), unless otherwise indicated.

COPIES FURNISHED:

Eugenie G. Rehak, Esquire Department of Children and

Family Services Post Office Box 60085

Fort Myers, Florida 33906

Tonya Rodreguez

Tonya Rodreguez Registered Family Day Care Home

2736 Lemon Street

Fort Myers, Florida 33916

Gregory Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, Acting General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

David Wilkins, 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: 11-000168

Orders for Case No: 11-000168