STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA ROSADO,

vs.

Petitioner,

Case No. 17-3080

DEPARTMENT OF CHILDREN AND FAMILIES,

Respondent.

/

RECOMMENDED ORDER

D. R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted a hearing in this case on June 22, 2017, in Orlando, Florida.

APPEARANCES

For Petitioner: Cynthia Rosado, pro se

4419 Fairlawn Drive

Orlando, Florida 32809-4409

For Respondent: Brian Christopher Meola, Esquire

Department of Children and Families

Suite S-1129

400 West Robinson Street Orlando, Florida 32801-1707

STATEMENT OF THE ISSUE

The issue is whether to deny Petitioner's application to renew her registration to operate a family day care home for the reasons stated in the Notice of Denial dated April 7, 2017.

PRELIMINARY STATEMENT

On April 7, 2017, the Department of Children & Families (Department) notified Petitioner by letter that her renewal application to operate a registered family day care home had been denied for two reasons: the application was incomplete in eight respects, and an abuse investigation of her facility conducted in May 2016 resulted in verified findings of inadequate supervision and environmental hazards. Respondent timely requested a hearing and the matter was referred by the Department to DOAH to resolve the dispute.

At the final hearing, Petitioner testified in her own behalf and presented the testimony of two witnesses.

Petitioner's Exhibits A through F were accepted in evidence. The Department presented the testimony of four witnesses.

Department Exhibits A through K were accepted in evidence.

A transcript of the proceeding was not prepared. Both parties filed post-hearing submissions, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the agency charged with the responsibility of licensing and registering family day care homes. See § 402.313, Fla. Stat.

2. A family day care home is an "occupied residence in which child care is regularly provided for children from at

   
   

   least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care." § 402.302(8), Fla. Stat. In order to operate a family day care home, the home must be licensed or registered by the Department. § 402.312(1), Fla. Stat. Unlike a licensed home, which is subject to more regulatory oversight, a registered home is not subject to periodic inspections, and the home is only required to

   undergo an annual evaluation during the registration process.

   
   

   § 402.313(1), Fla. Stat.

   
   

3. Petitioner has operated a registered family day care home under the name of Little Bright Stars of Orlando at 4419 Fairlawn Drive, Orlando, for several years. Her most

   recent registration expired on March 9, 2017. This proceeding concerns Ms. Rosado's application for renewal of her registration.

4. Unless a complete renewal application is filed, the application will be denied. § 402.313(1), Fla. Stat. This is because the Department has no authority to approve an incomplete application conditioned on an applicant filing the missing items at a later time. On March 9, 2017, Petitioner filed her renewal application with the Department. The application did not have the following required items: the application fee; a list of children in her care; a copy of the current immunization record for each child in her care; a copy of a training certificate, an

   
   

   in-service training record form 5268, or a continuing education unit certificate documenting ten clock hours of annual in- service training; a copy of the completed Registered Family Care Home Health and Safety Checklist; a copy of the tear-off section signed by the parent or legal guardian for each child in her care; a copy of the completed Child Abuse & Neglect Reporting Requirements form, signed and dated by the substitute(s); and a Level 2 Background Screening (livescan) for the operator, adult household members, and substitute(s). Petitioner was sent an email the following day informing her that she must file the incomplete and missing items.

5. When the application was filed, Petitioner had several health-related issues, which required her to temporarily stop caring for children in her home. At that time, she was forced to make a choice between paying her medical expenses or the costs associated with renewing her application. She chose the former and submitted an incomplete application without a filing fee. Once the Notice of Denial was issued, Petitioner decided there was no reason to incur the costs associated with the missing items until she knew whether her application would be approved. As of the date of the hearing, the application was still incomplete.

6. Pursuant to section 39.201(6), Florida Statutes, information in the Department's central abuse hotline and

   
   

   automated abuse information system may be used in its evaluation of a registration application.

7. In May 2016, the Department received a complaint that Petitioner's home was "operating illegally," and she had forced a three-year-old child to clean up his urine when he had an accident. Petitioner characterizes the complaint as "false" and asserts it is based on erroneous information provided by a disgruntled parent who just removed her two children from the home. The Department's subsequent investigation belies this contention.

8. In response to the complaint, a Child Institutional Investigation was conducted by a Department Licensing Counselor and a Child Protective Investigator on May 23, 2016. While investigating the urine incident, the investigators observed an unscreened person, Petitioner's 17-year-old daughter-in-law, living in the home and assisting with the care of the children. They also observed children sleeping on the floor with no mats, a leaking ceiling in the area where the children play, and paint cans that were accessible to the children. These conditions violate Florida Administrative Code Rule 65C-20.010, which establishes health and safety-related requirements for family day care homes.

9. The Department closed the investigation on July 4, 2016, with verified findings of inadequate supervision and

   
   

   environmental hazards. See Dep't Ex. B. The report concluded

   
   

   that based on the confirmed findings, the safety assessment was "low," meaning the deficiencies did not present a high risk of injury to the children. Petitioner was notified by letter dated August 16, 2016, that the investigation was closed and she could request a copy of the report. Petitioner did not request a copy, and she saw the report for the first time when the Department pre-filed its exhibits.

10. At hearing, most of Petitioner's evidence addressed the confirmed findings in the abuse report. She questioned why she was never offered a hearing to contest those findings, but there is no statutory requirement that the Department conduct a hearing to allow a perpetrator to challenge a confirmed report. In any event, Petitioner was allowed to respond to the findings in the report and to provide evidence to mitigate or contradict the observations of the investigators.

11. Petitioner also questioned why a second inspection was never conducted by the Department to determine if the violations observed during the May 23 investigation had been corrected. An abuse investigation, however, differs from a licensing inspection, and there is no requirement that the Department conduct a second inspection to verify that abuse violations have been corrected.

    
    

12. At hearing, Petitioner explained that her 17-year-old daughter-in-law was a temporary occupant of the home while her husband (Petitioner's son) was on active duty in the military. She admitted, however, that the daughter-in-law was not screened, which is a requirement for all persons having contact with the children in a family day care home. She also acknowledged that her husband resides in the home but is not screened.

13. At hearing, Petitioner denied that she had forced a child to clean up his urine. She explained that the child had actually spilled water on the bathroom floor while washing his hands and she made the child clean up the spilled water. During the investigation on May 23, 2016, however, Petitioner admitted to the investigators that the child had continued to urinate on himself and she required the child to clean up the urine in the hope that he would not do this in the future. This is a Class 1 violation of rule 65C-20.010(6)(a), which prohibits humiliating a child as a disciplinary measure. It also meets the definition of "abuse," as defined in section 39.01(2), and "harm," as defined in section 39.01(30). For these reasons, the abuse report confirmed the finding of inadequate supervision.

14. Petitioner further explained that on May 23, 2016, her husband was in the process of making repairs to the leaking roof and the damaged ceiling in the home, and these repairs were

    
    

    completed shortly after the investigation. After being told that sleeping mats were required for the children, Petitioner purchased ten mats for the children. Even so, these deficiencies were observed on May 23, 2016, are confirmed by testimony and photographs received in evidence, and are grounds to verify the abuse allegations.

15. Two parents who have used Petitioner's services attested to her good character and the quality of care that their children receive. They urged that the home be allowed to remain open.

16. Even if the abuse report is not considered, the Department would still be required to deny the application because it is incomplete. According to a Department witness, if a complete application had been filed, denial would still be required based on the confirmed abuse report.

    CONCLUSIONS OF LAW

    
    

17. Where the Department seeks to deny a renewal of an applicant's registration based on specific acts of misconduct without imposing a fine, it has the burden of proving these allegations by a preponderance of the evidence. See, e.g., Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v.

    Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996). See also Fla. Dep't of Child. & Fams. v. Davis Fam. Day Care Home,

    
    

    160 So. 3d 854, 857 (Fla. 2015); Comprehensive Med. Access, Inc.

    
    

    v. Off. of Ins. Reg., 983 So. 2d 45, 46 (Fla. 1st DCA 2008).

    
    

18. For the violation of a rule or statute governing the operation of a family day care home, the Department may impose a sanction, including converting the registration to a probation status or denial of a renewal application. § 402.310(1)(a), Fla. Stat. The abuse report alone does not mean that a registration must be automatically denied. Rather, it is a factor to be considered in determining an appropriate sanction. See Dep't of Child. & Fams. v. Scally Fam. Day Care Home, Case

    No. 16-0736 (Fla. DOAH Aug. 2, 2016; DCF Oct. 17, 2016).

    
    

19. The Department's letter of April 7, 2017, denied the renewal application for two reasons. First, the application is incomplete. Second, an abuse investigation was closed with verified findings of inadequate supervision and environmental hazards.

20. By a preponderance of the evidence, the Department has established the allegations in its letter dated April 7, 2017. Conversely, Petitioner did not meet her ultimate burden of demonstrating that she is entitled to be registered. Despite being informed that her application was incomplete, the missing items have never been supplied. While the abuse report alone may not warrant denial as a sanction, when coupled with the incomplete application, the Department's decision to deny the

application is supported by the evidence. However, Petitioner is not foreclosed from reapplying for a registration at a future date, subject to complying with all statutory and rule

requirements.

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 denying Petitioner's application to renew her family day care home registration.

DONE AND ENTERED this 13th day of July, 2017, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER 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 July, 2017.

COPIES FURNISHED:

Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Cynthia Rosado 4419 Fairlawn Drive

Orlando, Florida 32809-4409 (eServed)

Rebecca Falcon Kapusta, General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Brian Christopher Meola, Esquire Department of Children and Families. Suite S-1129

400 West Robinson Street Orlando, Florida 32801-1707 (eServed)

Mike Carroll, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the Agency Clerk, Department of Children and Families, at the address listed above.

Docket for Case No: 17-003080

Orders for Case No: 17-003080