STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

JONES FAMILY DAY CARE HOME,

Respondent.

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) Case No. 12-2184

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 29, 2012, by video teleconference with the parties appearing from Orlando, Florida, before J.D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stefanie C. Beach, Esquire

Department of Children and Families

400 West Robinson Street, Suite S-1129 Orlando, Florida 32801

For Respondent: Mildred Jones, pro se

Jones Family Day Care 5027 Caserta Street

Orlando, Florida 32819

STATEMENT OF THE ISSUE

Whether Respondent, Mildred Jones, doing business as Jones Family Day Care (Jones or Respondent), committed the violations alleged in the Administrative Complaint dated May 29, 2012, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 29, 2012, Petitioner, Department of Children and Families (Petitioner or Department), issued an Administrative Complaint against Respondent that alleged a

Class I licensing violation. More specifically, Petitioner maintained that Respondent had left an unscreened individual alone to supervise children in care. Respondent timely challenged the allegations of fact and requested an administrative hearing.

The case was forwarded to the Division of Administrative Hearings (DOAH) for formal proceedings on June 12, 2012. The case was scheduled for hearing on August 29, 2012. At the hearing, Petitioner presented testimony from Luz Torres and offered Petitioner’s Exhibits A and B, which were received in evidence. Respondent testified in her own behalf and offered the testimony of Christine Randall and Carol Wright.

A transcript of the proceeding has not been filed.

Petitioner filed a Proposed Recommended Order on September 10,

2012. It has been considered in the preparation of this Recommended Order. Respondent did not file a proposed order.

FINDINGS OF FACT

1. At all times material to this case, Respondent operated a licensed day care facility located in Orange County, Florida. On the date of the attempted inspection in this case, Respondent had six children enrolled in her day care program.

2. Petitioner is the state agency charged with the responsibility of licensing and inspecting day care facilities throughout the State of Florida. As part of that responsibility, Petitioner routinely inspects day care facilities to assure compliance with rules and regulations that govern day care programs.

3. On May 4, 2012, Petitioner’s agent, Luz Torres, inspected Respondent’s home. This was not Ms. Torres’ first visit to the home and, like all other visits, she approached the front door during regular business hours and knocked.

4. Upon knocking, Ms. Torres was greeted by a female voice behind the door who advised that she could not let Ms. Torres into the home. The female, later identified as Christine Randall, refused Ms. Torres admission even after the inspector advised that it was required by law.

5. Despite her efforts to enter the home, Ms. Torres was denied access. Ms. Torres could hear the sounds of children

   
   

   within the home but could not from outside the front door determine the identity or number of the voices.

6. Ms. Randall did not advise Ms. Torres that Ms. Jones was in the rear of the property. Ms. Randall did not direct Ms. Torres to go to the rear of the property. Ms. Torres could not view the rear of the property from the front entrance.

   Ms. Torres’ efforts to reach Ms. Jones by telephone proved fruitless.

7. Ms. Randall has not been screened or had a background check in years.

8. Ms. Randall was not listed as a substitute caregiver for Respondent’s facility.

9. Ms. Jones’ claim that only Ms. Randall’s two children were present on the date Ms. Torres attempted entrance has not been deemed credible. Ms. Jones also claimed Ms. Randall was present helping her prepare for her inspection. Had only two children been present, Ms. Randall could have easily admitted Ms. Torres, had her observe that the home was being prepared for inspection without other children present, and addressed her role as helper to Ms. Jones with only her own children present in the home. Instead, Ms. Randall denied access to the home and failed to direct Ms. Torres to the rear of the property (presuming Ms. Jones was, in fact, there).

   
   

10. Ms. Wright’s suggestion that only Ms. Randall’s children were present on the date in question has not been deemed persuasive as Ms. Wright did not enter the home on that date, did not view the home for the entire time, and does not routinely know who is or is not in the home from her vantage as Respondent’s neighbor and friend.

    CONCLUSIONS OF LAW

    
    

11. DOAH has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2012).

12. Petitioner bears the burden of proof in this cause to establish by clear and convincing evidence that Respondent committed the violation alleged in the Administrative Complaint. See Dep’t of Banking & Fin., Div. of Sec. and Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). Evidence that is credible, denoted by precise facts and information that a witness distinctly remembers is sufficient to support the burden of clear and

    
    

    convincing evidence. See In re Davey, 645 So. 2d 398 (Fla. 1994), and Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

14. Florida Administrative Code Rule 65C-20.008 provides, in part:

    1. A submitted CF-FSP Form 5133 will not be considered complete until the licensing authority receives proof of background screening clearance on the operator of the family day care home, substitutes, and on all other household members who are subject to background screening pursuant to Section 402.313(3), F.S. If the designated substitute changes during the licensure year, prior to taking care of children, the new designated substitute for the operator must comply with background screening requirements and the licensing authority must receive proof of background screening clearances.

       
       

       1. Initial Screening includes all of the following:

          
          

          1. Level 2 screening, which includes at a minimum Federal Bureau of Investigation (FBI), Florida Department of Law Enforcement (FDLE), and local criminal records checks. For the purpose of issuing a license, any out-of-state criminal offense, which if committed in Florida would constitute a disqualifying felony offense, shall be treated as a disqualifying felony offense for licensing and screening purposes under this rule.

             
             

          2. An employment history check for the operator and substitute(s) must include the previous two years of employment history, which shall include the applicant’s position

          
          

          description, confirmation of employment dates from previous job(s), and level of job performance.

          
          

15. Florida Administrative Code Rule 65C-20.012 provides, in part:

    1. Definitions.

       
       

       (a) “Day” means a weekday, excluding weekends and holidays.

       
       

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       1. “Standards” are requirements for the operation of a licensed family day care home or large family child care home provided in statute or in rule.

          
          

       2. “Violation” means a finding of noncompliance by the department or local licensing authority of a licensing standard.

       
       

       1. “Class I Violation” is an incident of noncompliance with a Class I standard as described on CF-FSP Form 5318 March 2009 Family Day Care Home Standards Classifications Summary and CF-FSP Form 5317, March 2009 Large Family Child Care Home Standards Classification Summary, which is incorporated. A copy of CF-FSP Form 5318 and 5317 may be obtained from the department’s website www.myflorida.com/childcare. Class I violations are the most serious in nature, pose an imminent threat to a child including abuse or neglect and which could or do result in death or serious harm to the health, safety or well-being of a child.

       
       

       * * *

       
       

    2. Authority. The operation of a family day care home is prohibited unless registered or licensed, as required by county ordinance or resolution. The

       
       

       department or local licensing agency shall have the authority to seek an injunction in the circuit court where the home is located to stop the continued operation of a family day care home that is not licensed or registered. For licensed family day care homes, the department or local licensing agency shall also have the authority to seek an injunction in the circuit court where the home is located to stop the continued operation if the family day care home is in violation of the minimum standards.

       Pursuant to Section 120.60(6), F.S., an emergency suspension order may also be used to stop the continued operation if the family day care home poses immediate serious danger to the public health, safety, or welfare of the children who are enrolled.

       
       

    3. Disciplinary Sanctions.

    
    

    1. Enforcement of disciplinary sanctions shall be applied progressively for each standard violation. In addition, providers will be offered technical assistance in conjunction with any disciplinary sanction. The department shall take into consideration the actions taken by the home to correct the violation when determining the appropriate disciplinary sanction.

       
       

    2. Each standard violation has an assigned classification based on the nature or severity of the violation(s) as identified within CF-FSP Form 5318 and CF-FSP Form 5317.

       
       

    3. A violation of a Class II standard that results in death or serious harm to a child shall escalate to a Class I violation.

       
       

    4. Failure to submit a completed CF-FSP Form 5133, Application for a License to Operate a Family Day Care Home, which is incorporated by reference in subsection 65C- 20.008(1), F.A.C. or CF-FSP Form 5238, Application for a License to Operate a Large

       
       

       Family Child Care Home, which is incorporated by reference in paragraph 65C- 20.013(3)(a), F.A.C., for renewal of an annual license at least 45 days prior to the expiration date of the current license constitutes a licensing violation. The department shall issue an administrative complaint imposing a fine of $50.00 for the first occurrence, $100.00 for the second occurrence, and $200.00 for each subsequent occurrence within a five year period.

       
       

    5. Disciplinary sanctions for licensing violations that occur within a two year period shall be progressively enforced as follows:

    
    

    1. Class I Violations.

    
    

    a. For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine.

    
    

16. Florida Administrative Code Rule 65C-20.009 provides, in part:

    (2) Personnel.

    
    

    1. Operator. The family day care home license shall be issued in the name of the operator who must be at least 18 years of age and a resident of the family home. In the event of rental or leased property, the operator shall be the individual who occupies the residence. The operator of a family day care home may not work outside of the home during the hours the family day care home is operating.

       
       

    2. Substitutes. There shall be a written plan to provide at least one other competent

    
    

    adult, who must be at least 18 years of age, to be available as a substitute for the operator on a temporary or emergency basis.

    
    

    1. This plan shall include the name, address, and telephone number of the designated substitute. Proof of background screening clearance and completion of required training for the designated substitute must be submitted with the written plan at time of licensure.

    
    

    * * *

    
    

    3. Family day care home operators must maintain written documentation (i.e. time records) of the hours a substitute worked in their home each day for the preceding 12 months. Substitutes may not work more than

    40 hours per month on average over a six month period in any single home for which they have been identified as the designated substitute.

    
    

    * * *

    
    

    (5) Supervision.

    
    

    (a) At all times, which includes when the children are napping or sleeping, the operator shall remain responsible for the supervision of the children in care and capable of responding to emergencies and the needs of the children. While children are napping or sleeping in bedrooms, the bedroom doors must remain open. During the daytime hours of operation, children shall have adult supervision, which means watching and directing children’s activities, both indoors and outdoors, and responding to each child’s needs.

    
    

17. Based upon the credible evidence presented in this case, Petitioner has proven by clear and convincing evidence that Respondent committed a Class I violation. Respondent’s

place of business was to remain available for inspection by authorities at any time during the business day. Respondent or an approved substitute was to be present on the property with the children at all times. And, finally, Respondent failed to have a substitute (if Ms. Randall is deemed one) appropriately screened and trained.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent committed a Class I violation and imposing an administrative fine in the amount of $250.00.

DONE AND ENTERED this 1st day of October, 2012, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 1st day of October, 2012.

COPIES FURNISHED:

Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129

400 West Robinson Street Orlando, Florida 32801-1782

Mildred Jones

Jones Family Day Care Home 5027 Caserta Street

Orlando, Florida 32819

Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

David Wilkins, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204

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: 12-002184

Orders for Case No: 12-002184