The Issue The issue is whether Petitioner should revoke Respondent's license to operate a child care facility for failing to provide documentation of the director's credential or training.
Findings Of Fact Carlin and Susan Towels created Respondent in 1990. Their daughter, Angel R. Towels, began working part-time taking care of children at the facility in 1998. Ms. Towels was sixteen-years old at that time. In 1999, the minimum standards for child care personnel included a requirement for the director of a child care facility to be credentialed by January 1, 2000. See § 402.305(2)(f), Fla. Stat. (1999). Additionally, the statute mandated that the director's credential would become a required minimum standard for licensing of child care facilities by January 1, 2003. Id. Prior to November 2003, the Leon County Health Department was responsible for inspecting child care facilities and issuing licenses to them in Leon County, Florida. Respondent has been licensed by the Leon County Health Department as child care facility for many years. In 2000, Ms. Towels began working full-time as part of Respondent's staff. She became the licensed owner and operator/director in 2002. Ms. Towels has never been credentialed to act as Respondent's director because she has not completed a required course of study that would earn her a Child Development Associate (CDA) degree, certificate, or equivalent recognition. Ms. Towels' father was never credentialed to act as Respondent's director. He completed the CDA class but he never passed the examination for the required class entitled Behavior, Observation, and Screening (BOS). In February 2002, the Leon County Health Department sent Ms. Towels a document entitled "Reminder Notice of Director Credential Requirement." Ms. Towels signed the document indicating that she was aware of the need for Respondent's director to be properly credentialed by January 1, 2003, pursuant to Section 402.305(2)(f), Florida Statutes (2001). In 2002, the Legislature amended the statute requiring credentials for directors of child care facilities as a condition of licensing. Section 402.305(2)(f), Florida Statutes (2002), required directors to be properly credentialed by January 1, 2004, instead of January 1, 2003. The most recent license issued to Respondent by the Leon County Health Department was effective January 9, 2003, through January 9, 2004. The license authorized Respondent to care for a maximum of 23 children based on the square footage in the facility. At some point in time, the Leon County Health Department amended the license, authorizing Respondent to care for a maximum of 19 children. The Leon County Health Department amended the license at Respondent's request. Respondent made the request based on the mistaken belief that documentation establishing its director's credentials would not be required for a facility that cared for no more than 19 children. Around November 2003, Petitioner assumed the duties previously performed by the Leon County Heath Department relative to inspections and licensing of child care facilities in Leon County, Florida. In an on-site visit in November or December 2003, Petitioner's staff discussed the need for Respondent's director to be properly credentialed by January 1, 2004. In a letter dated December 31, 2003, Petitioner reminded Respondent of the minimum standard licensing requirement for credentials beginning January 1, 2004. The letter requested Respondent to provide Petitioner with a copy of its director's credential or the director's training transcript within 10 business days. The letter advised that Petitioner would issue Respondent a provisional license, not to exceed six months, if Respondent failed to provide the required documentation. According to the letter, if Respondent failed to comply with the credential requirement within the provisional- license period, Petitioner intended to initiate administrative action to revoke Respondent's license. In a letter dated January 28, 2004, Petitioner again advised Respondent that it was not in compliance with the statute. Petitioner's letter requested Respondent to provide monthly updates on the director's progress toward earning a credential or the facility's progress in hiring a director with the appropriate credential. The letter clearly stated that if Respondent's director was not credentialed at the end of the provisional-license period, Petitioner would take action to revoke Respondent's license. Petitioner enclosed Respondent's provisional license with the January 28, 2004, letter. The provisional license was effective January 2, 2004, through July 2, 2004. The provisional license authorized Respondent to care for 23 children based on the square footage of the facility as stated in Respondent's most recent application for renewal of license. In a letter dated June 1, 2004, Petitioner once again reminded Respondent the director's credential was a minimum licensing requirement. The letter asserted Petitioner's intent to revoke Respondent's license if Respondent did not comply with the requirement for a credentialed director by July 2, 2004. On or about July 12, 2004, Petitioner issued an Administrative Complaint. The complaint alleged that Respondent's director was not properly credentialed and that Petitioner intended to revoke Respondent's license. After Petitioner issued the Administrative Complaint, Petitioner continued to contact Respondent to see if Respondent was making progress in complying with the credential requirement. There were two telephone contacts in July 2004, on-site visits in August and November 2004, and a re-inspection most recently on January 6, 2005. In July 2004, Ms. Towels registered for a course equivalent to the CDA degree. However, she dropped out of the class before completing it. In January 2005, Ms. Towels enrolled in another CDA class, which she had not completed by the time that the hearing commenced. The class Ms. Towels is attending is approximately a one-semester course that students may complete within six months.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order revoking Respondent's license. DONE AND ENTERED this 1st day March, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 1st day of March, 2005. COPIES FURNISHED: Mary Ellen McDonald, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 100A Tallahassee, Florida 32399-0700 Angel Towels Luv-A-Lot Child Care Center 2501 Lake Bradford Road Tallahassee, Florida 32310 Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1371 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Department of Health and Rehabilitative Services properly assessed an administrative fine in the amount of $150.00 on Lourdes Guanlao d/b/a Children's Paradise for violations of Sections 402.305(4) and 402.305(12), Florida Statutes, and Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.
Findings Of Fact The Department issued a Child Day Care Facility license to Lourdes Guanlao to operate a facility known as Children's Paradise on October 9, 1991. From 1991 to 1994 Petitioner conducted routine facility inspections at Children's Paradise. These inspections included a determination whether the facility was operating with appropriate staff-to-child ratios. On April 1, 1992, Sandy Looney, Respondent's Senior Children's and Families' Counselor, conducted an inspection of Children's Paradise. When Ms. Looney arrived at the facility, Jeane Weiss was the only staff member present. There were seven children present in the center. Two children were under the age of one year and two children were between one and two years old. There should have been two staff members at the facility for the grouping of children present. Within ten minutes of Ms. Looney's arrival, Ms. Guanlao, arrived at the facility thereby correcting the staffing violation. Ms. Guanlao signed the inspection checklist. Ms. Looney discussed the staffing violation with Mrs. Guanlao and left a copy of the checklist with her. On July 27, 1993, Ms. Looney conducted an inspection of Children's Paradise. There were two staff members present at the facility, Ms. Weiss and Ms. Tan. There were sixteen children present in the center. Three children were under the age of one year, six children were between one and two years old. Three staff members were required for the grouping of children present. Ms. Weiss signed the inspection checklist. Ms. Looney left the checklist with staff. Before Ms. Looney left the premises, a staff member arrived for work thereby correcting the staffing violation. On August 17, 1994, Ms. Looney conducted a re-licensure inspection of Children's Paradise. There were two staff members present at the center, Ms. Weiss and Ms. Guanlao. There were twenty-one children present in the center. Seven were under the age of two. Three staff members were required if the children were separated in groups and four staff members were required if the children were all together. Ms. Weiss signed the inspection checklist. Mrs. Looney discussed the violation with Mrs. Guanlao who advised there was no substitute or other staff member available to call to work. Correction of the staffing violation was due on August 18, 1994. On August 18, 1994, Ms. Looney returned to Children's Paradise to determine if Ms. Guanlao had corrected the staffing violation. At that time there were eighteen children present. Six children were under the age of two. The same two staff members were present, Ms. Weiss and Ms. Guanlao. Mrs. Guanlao called a ten year old child to assist and again indicated that there was no adult available to call. Each time that Ms. Looney inspected Respondent's facility, she actually counted the number of children present and asked staff to verify their age. Evidence to the contrary is not persuasive. On August 29, 1994, Petitioner issued an Administrative Complaint imposing a fine in the amount of $75.00 for the August 17, 1994, staffing violation which Respondent had not corrected at the time of reinspection on August 18, 1994. This complaint properly advised Respondent of her right to a proceeding pursuant to Section 120.57(1), Florida Statutes. By letter dated September 13, 1994, Ms. Looney advised Ms. Guanlao that if she disputed the imposition of the fine, she could request an administrative hearing. The letter further stated that if Ms. Guanlao did not dispute the fine, she could pay it by mailing a check or money order. Ms. Guanlao tendered check number 1839 dated September 22, 1994, in the amount of $75.00 with "Adm. Fine" noted thereon. Ms. Looney transmitted this check to the fiscal office for deposit on or about October 7, 1995. There is no persuasive evidence that Ms. Looney told Ms. Guanlao she had to pay the administrative fine or risk losing her license. Gerald Stephens, Protective Investigator for Petitioner went to Children's Paradise on November 18, 1994. The purpose of his visit was associated with an investigation unrelated to this proceeding. When Mr. Stephens arrived at the facility, Ms. Guanlao was the only staff member present. He observed ten children in the center. The youngest child present at the center was eighteen months old. This number of children required at least two staff members to be present at the facility. Mr. Stephens interviewed one of Ms. Guanlao's staff members on the morning of November 18, 1994. There is no persuasive evidence that Mr. Stephens prevented the staff member from showing up for work that morning by telling her he was going to shut the facility down. Seven witnesses testified that they were volunteers at the center and had agreed to act as substitute staff on an as needed basis. Only two of these people had been properly screened and trained to work in a day care center or with children. One of these two volunteers did not receive her certification to work in a day care facility until October 3, 1994. Some of the volunteers had other full time jobs. Consequently, the times they were available to help Ms. Guanlao was limited. There is no evidence that Ms. Guanlao called any of these people to substitute on April 1, 1992, July 27, 1993, August 17, 1994, August 18, 1994 or November 18, 1994. Ms. Guanlao attended a training course that Ms. Looney conducted prior to October 9, 1991. One purpose of the course was to familiarize participants with the rules regulating child day care centers. During the training Ms. Looney provided Ms. Guanlao with written material including the Child Care Standards contained in Rule 10M-12, Florida Administrative Code. This rule sets forth staffing requirements and child discipline standards. Ms. Looney and Ms. Guanlao discussed subsequent changes in the rules related to staffing requirements. Ms. Looney also explained to Ms. Guanlao that the staffing requirements applied at all times the children were in the center regardless of the activity that was taking place. In other words, the staff-to- child ratios applied even if the children were napping. On August 19, 1994 Ms. Looney received a complaint involving the day care center on an unrelated licensing issue. As a result of the subsequent investigation, Ms. Looney was at the facility on August 24, 1994. During that visit, Ms. Guanlao admitted that she sometimes slapped the children on the hands as punishment.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Petitioner Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine on Respondent Lourdes Guanlao d/b/a Children's Paradise in the amount of $150 for violating Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code. DONE and ENTERED this 16th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1996. COPIES FURNISHED: Frances S. Childers, Esquire District 3 Legal Office Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Box 3 Gainesville, Florida 32601 Michael M. Naughton, Esquire 3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of child care facilities operating in the State of Florida. The Respondent is a licensed child care facility, Florida license number 400-9, located at 1221 South Washington Avenue in Apopka, Florida. On March 1, 2001, the Petitioner received a complaint related to alleged poor conditions at the Respondent facility, including unclean bathrooms, and unsupervised children. An investigator employed by the Petitioner was assigned to inspect the facility. He visited the child care center on the afternoon of March 1, 2001, and recorded his observations on an "inspection checklist." On March 1, 2001, the facility was observed to be "dirty and cluttered." One of the restrooms was unclean and apparently not functional. Additionally, three infants were left alone in a room without adult supervision. The closest adult to the infant room was conducting business with a customer and was not within sight of the children.
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 imposing a fine of one hundred dollars ($100) against the Respondent. DONE AND ENTERED this 29th day of August, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of August, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street, Suite 1106 Orlando, Florida 32801 Carol Wiggins Central Avenue Child Care 1221 South Washington Avenue Apopka, Florida 32703 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact Chapter 402, Florida Statutes, provides for licensing of child care facilities by the Department of Health and Rehabilitative Services (hereinafter "HRS"). It mandates minimum standards for personnel, physical facilities, sanitation and safety, nutritional practices, admissions and record keeping, transportation safety, child discipline, and plans of activities. Section 402.306, Florida Statutes, allows counties whose licensing standards meet or exceed state minimum standards to perform child care facility licensing in that county rather than HRS performing that activity. Chapter 402, Florida Statutes, was originally enacted in 1974 to provide minimum standards for the growing number of commercial day care facilities. In the definitional section of that Chapter, the legislature specifically defined a child care facility and further specified those programs and facilities exempted from the child care facility licensing laws. Section 402.302(4), Florida Statutes, provided as follows: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools which are in compliance with the Compulsory School Attendance Law, chapter 232; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during vacation periods. [Emphasis supplied.] Due to extensive publicity involving certain abuse incidents by personnel at child care facilities and public opinion, the child care facility licensing laws were revisited in 1984. In a special session, the Legislature strengthened some requirements of Chapter 402 and provided for screening and background checks of personnel in child care facilities and for reasonable parental access to children in those facilities. Chapter 84-551, Laws of Florida. Due to the insistence of HRS and certain counties performing their own child care facility licensing that pre- kindergarten programs in schools required those schools to obtain licensure as child care facilities, Chapter 402 was further amended in 1985 to clarify the exclusion of schools. As amended, the statutory definition of child care facility now provides: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools and their integral programs; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during during vacation periods. [Emphasis supplied.] Section 402.302(4), Florida Statutes 1985. The Senate Staff Analysis and Economic Impact Statement regarding the amendment of Chapter 402 provides that this change is a "Technical amendment which clarifies that public and non-public school programs are not subject to licensure as child care facilities." Respondent's Exhibit numbered 6. Following the 1985 amendments to Chapter 402, HRS and the Palm Beach County Health Department (which was responsible for child care facility licensing in Palm Beach County) jointly requested a legal opinion from the Attorney General regarding the scope of the statutory exclusions from child care licensing laws for public and nonpublic schools and their integral programs. The specific question posed was as follows: Do the exemptions under s. 402.302(4), F.S., as amended, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer: Prekindergarten classes during regular school hours in the same physical plant or in an adjoining structure? Infant care during regular school hours in the same physical plant or in an adjoining structure? School age child care services before and after school hours in the same physical plant or in an adjoining structure? In a lengthy analysis of the statutory exclusion of schools from child care facility licensing requirements, the Attorney General concluded: In sum, then, and unless and until legislatively or judicially determined otherwise, it is my opinion that the exemptions under s. 402.302(4), F.S., as amended by Chs. 84-551 and 85-54, Laws of Florida, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer prekindergarten classes or infant care during regular schools hours or school age child care services before and after school hours. . . . AGO 55-74, p. 7. Attorney General Opinion 85-74 also provides at page 3 as follows: Thus, public schools and nonpublic schools and their integral programs are not "child care facilit[ies]" for purposes of ss. 402.301-402.319, F.S., as amended. The term "integral programs" is not defined within ss. 402.301-402.319, F.S., as amended, or Oh. 85-54, Laws of Florida; however, the word "integral" has generally been defined as "[c]onstituting a completed whole; . . . lacking nothing of completeness." See, 46 C.J.S. Integral p. 1100; Ballentine's Law Dictionary 645 (3rd ed. 1969). And see, Random House Dictionary of the English Language Integral p. 738 (unabridged ed. 1967) (pertaining to or belonging as a part of the whole; constituent or component; necessary to the completeness of the whole); Webster's Third International Dictionary Integral p. 1173 (1966) (composed of constituent parts; making up a whole). Of., Matezak v. Secretary of Health, Education and Welfare, 299 F.Supp. 409, 413 (D.C.N.Y. 1969)("integral" means part of constituent component necessary or essential to complete the whole). Whether a particular child care center or arrangement constitutes an integral program for purposes of s. 402.302(4), FS., as amended, would appear to present a factual question which can only be reached on a case-by-case basis. [Emphasis supplied.] During the special session in 1984 and the regular session in 1985, the Legislature increased funding for HRS' child care facility licensing activities and also created 48 additional staff positions for those licensure activities. Several HRS employees determined that (1) the Attorney General's Opinion was confusing, (2) it was too difficult to determine on a case-by-case basis whether a program was an integral part of a school or a child care facility, and (3) the exclusion of schools from child care facility licensing requirements was inconsistent with legislative intent of protecting children. Accordingly, HRS drafted an amendment to Rule 10M-12.001, Florida Administrative Code, to define the term "integral program". The "rule package" prepared by HRS in compliance with Section 120.54, Florida Statutes, commences with the following language: Reason rule is being filed or amended: Chapter 402.302(4), Florida Statutes, provides the definition of a child care facility. Public and non public schools and their integral programs are precluded from this definition as a child care facility and therefore are not subject to licensure. . . . The term "integral programs", which is not defined by statute, is ambiguous and has been the subject of various interpretations by public and non public schools. For purposes of licensure, this rule amendment is necessary in order to clarify which specific child care programs in the public and non public schools are required to be licensed. Without the rule amendment, some schools will continue to interpret their "integral programs" as meaning their infant and preschool programs, or before and after school programs, thereby avoiding licensure and resulting in no regulation by the department . . . Rule 10M-12.001, Florida Administrative Code, as proposed, would provide as follows: (1) Child Care Standards and Licensure. Child Care Standards included in this chapter were adopted by the department to protect the health, safety and well being of the children of the State who receive child care in child care facilities as defined in Section 402.302, Florida Statutes, and to promote their emotional and intellectual development and care. Public and nonpublic schools and their integral programs are not child care facilities as defined in Section 402.302(4) Florida Statutes, and are not subject to licensure. The term "integral programs" includes school activities which are directly related to the educational component of the school for 5 year old kindergarten programs through grade 12, and extra curricular activities, such as sport teams, school yearbook, school band, meetings, and service clubs. The term also includes child care programs administered directly by the school to care and supervise children from 5 year old kindergarten through grade 12 before and after the school day. The term "integral program" does not include child care programs for children below 5 year old kindergarten, such as infants and preschoolers, and child care programs which are contracted by the school to provide care and supervision for children from 5 year old kindergarten through grade 12 before and after the school day. The proposed rule as published and noticed by HRS, although defended by HRS vigorously in this proceeding, is not in fact the rule that HRS intends to adopt. HRS now admits that it has no authority to regulate any program in a public school since only the Florida Department of Education can regulate public schools. HRS intends, therefore, to delete the reference to public schools in its proposed rule and to only regulate nonpublic schools although it admits that such regulation of only nonpublic schools would therefore be discriminatory. HRS further intends to amend its proposed rule so as to clarify that those nonpublic schools which are religious in affiliation will continue to enjoy the additional exemption from child care facility licensure given to them by Section 402.316(1), Florida Statutes, which provides: The provisions of ss. 402.301-402.319, except for the requirements regarding screening of child care personnel, shall not apply to a child care facility which is an integral part of church or parochial schools conducting regularly scheduled classes, courses of study, or education programs accredited by, or by a member of, an organization which publishes and requires compliance with its standards for health, safety, and sanitation. However, such facilities shall meet minimum requirements of the applicable local governing body as to health, sanitation, and safety and shall meet the screening requirements pursuant to ss. 402.305 and 402.3055. Failure by a facility to comply with such screening requirements shall result in the loss of the facility's exemption from licensure. Petitioner Florida Association of Academic Nonpublic Schools (hereinafter "FAANS") is comprised of approximately 25 associations of schools. Additionally, archdioceses, which are separate corporate entities, and which own and operate schools, are direct members as are county organizations and the Florida Catholic Conference. The organization itself represents nonpublic schools in the state of Florida before state agencies, including the Legislature which it actively lobbies. It has a direct relationship as a state representative, one of only five in the country, with the United States Department of Education. It is involved in accreditation and has a code of ethics with which all schools (both direct members and indirect members) must comply. FAANS presently represents 943 schools with approximately 230,000 students, out of the approximate 1,750 nonpublic schools in the state of Florida. A majority of the schools represented by FAANS operate educational programs for children under 5 years of age. For the most part, these school programs are not licensed as child care facilities although some of the schools have licensed their programs under duress rather than have their programs closed by the child care facility licensing agencies. All of the nonpublic schools represented by FAANS comply with the Florida Department of Education requirement that they annually submit statistical information including the number of students and faculty in their prekindergarten programs for the Department of Education's Nonpublic School Data Base. Petitioner Jacksonville Country Day School presented no evidence in this proceeding. Petitioner The Cushman School is a nonpublic school in Miami, Florida, and is an indirect member of FAANS. It has been in operation for 62 years and has operated educational programs for children under 5 since it was founded. It begins enrolling students at the age of 3 years (and on rare occasion 2 years) and offers education through grade 6. It is not presently licensed as a child care facility. Under the proposed rule as published in the June 6, 1986, Florida Administrative Weekly, The Cushman School would be required to obtain a child care facility license, the economic impact of which would be significant. First, it would lose its exemption from property taxes as an educational institution at a speculated cost of approximately $10,000. Structural modifications would need to be made to the school for bathing and sleeping facilities. Additional requirements, such as fencing and child-staff ratios, would come into play imposing more costs on the school. The Cushman School possesses historic site status which means even minor repairs, let alone structural modifications, have extensive restrictions imposed as to how they can be done and the materials that can be used. The end result is that if the proposed rule goes into effect, The Cushman School will have to discontinue its educational programs for children under 5 years of age. The economic impact of compliance with child care facility licensing requirements by schools is not unique to The Cushman School. Section 120.54, Florida Statutes, requires each agency proposing or amending a rule to provide a detailed economic impact statement. The purpose of an economic impact statement is to promote informed decision-making by ensuring an accurate analysis of economic factors, and those factors an agency must consider are clearly specified. An agency must also consider the impact of a proposed rule on small businesses as defined in the Florida Small and Minority Business Assistance Act of 1985. There are nonpublic schools throughout Florida which fit the statutory definition of small business. It is clear from the economic impact statement for proposed rule 10M-12.001 that HRS did not consider the impact of the rule on small business nonpublic schools. Also to be considered is the cost to an agency of implementing the rule. According to HRS' impact statement, actual implementation statewide will only cost $31. There is no consideration of additional staff time and paperwork to process applications, issue additional licenses, or conduct additional inspections. There is no comment in the economic impact statement of the impact on competition and the open market for employment, or any indication that such an analysis is inapplicable; rather, the agency's estimate of effect on competition speaks to potential cost savings from deregulation of before and after school care programs. Similarly, the required analysis of the costs or economic benefits to all persons directly affected by the proposed rule speaks in terms of deregulation and substantial savings and is, accordingly, deceptive. An agency is also required to provide a detailed statement of the data and method used in making each of the estimates required in the economic impact statement. The only detailed statement in HRS' economic impact statement refers to the costs of printing and mailing, publication of the proposed rule in the Florida Administrative Weekly, and conducting a public hearing on the proposed rule. There is no hint of the data and method used, if any, in reaching other conclusions contained within the economic impact statement. The economic impact statement accompanying proposed rule 10M-12.001 is inadequate. Section 120.54(1), Florida Statutes, further requires that an agency proposing a rule give notice of its intended action and the specific legal authority under which its adoption is authorized. As set forth above, the rule proposed by HRS does not reflect its intended action since the rule purports to apply to both public and nonpublic schools and HRS intends to further amend the rule so as to exclude its application to public schools and its application to religious nonpublic schools. As to the specific legal authority under which the proposed rule is authorized, HRS cites, at the end of the proposed rule, as its rulemaking authority Section 402.301, Florida Statutes. That section is entitled "Child care facilities; legislative intent and declaration of purpose and policy". Nowhere in that legislative intent section is HRS authorized to promulgate rules. The proposed rule thus fails to fulfill that requirement.
