00-001017 Department Of Children And Family Services vs. Mary Higdon Status: Closed Recommended Order on Monday, August 7, 2000.

Summary: Licensed family day care has an obligation to permit inspection by the Department of Children and Family Services during regular business hours; refusal to permit inspection, even when operator is not present, is a violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-1017

)

MARY HIGDON, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge, Division of Administrative Hearings, on

May 23, 2000, by video conference from Tallahassee to Orlando,

Florida.

APPEARANCES

For Petitioner: Carmen M. Sierra, Esquire

Department of Children

and Family Services

400 West Robinson Street, Suite S-1106

Orlando, Florida 32801-1792

For Respondent: Mary Higdon, pro se

7141 Green Needle Drive

Winter Park, Florida 32792

STATEMENT OF THE ISSUES

Whether Peti tioner has grounds to impose a fine for a

violation of the rule that requires the family day care operator

to allow access to the entire premises of the family day care

home for inspection.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Comp laint dated January

31, 2000, imposing an administrative fine of $25.00. Respondent

denied the allegations and requested an administrative hearing.

The matter was forwarded to the Division of Administrative

Hearings for formal proceedings on March 6, 2000, and this

hearing followed.

At hearing, Petitioner presented testimony from Barbara

Ivey, the licensing representative of the Department of Children

and Family Services (DCF). Respondent testified on her own

behalf and presented the testimony of her daughter, Stacy Rivera.

No documents were offered in evidence. No transcript of the

proceeding was filed. Petitioner timely filed a Proposed

Recommended Order. Respondent has not filed proposals as of the

date of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to the allegations of this case,

Respondent, Mary Higdon, was licensed by Petitioner to operate a

family day care in her home.

2. Barbara Ivey, DCF, has been the day care licensing

representative for Respondent since 1996.

3. At Ivey's first inspection of the day care home, Higdon

refused her access to the master bedroom. Ivey did not note the

violation. However, Ivey advised Respondent that the rule

required that the entire premises had to be inspected.

4. In 1998, during a scheduled appointment, Respondent

again refused access to the master bedroom on the grounds that

her husband worked nights and was sleeping. Ivey insisted that

she must inspect the master bedroom and she would be back. When

Ivey returned, she was able to inspect the master bedroom.

5. In 1999, during a scheduled appointment, Respondent

again refused access to the master bedroom. Ivey reminded her

that Respondent had agreed to the time of the appointment and

that this refusal was not acceptable. Respondent then stated

that someone could "peek" in to the room while her husband slept.

6. A trainee, who was with Ivey, went with Respondent

toward the bedroom; the door was opened slightly, and the trainee

peeked into the room but was not able to see into the dark room.

7. On August 24, 1999, Ivey made an unannounced visit to

Respondent's home to inspect the entire premises and re-check an

air-conditioner that was out of compliance. This re-check was

necessary for re-licensing.

8. Ivey arrived a t the home on a weekday during regular

operating hours. Stacy Rivera, Respondent's daughter, answered

the door to Ivey. Ivey identified herself and asked to inspect

the premises. She explained to Rivera that the inspection would

only take a moment. Rivera acknowledged that she knew that Ivey

was an inspector for DCF. Ivey also noted that there were six or

seven children present at the home. Rivera indicated that all of

them were her children.

9. Rivera stated her mother was out of town and refused t o

permit Ivey entry. Ivey requested that Rivera contact her mother

so she could complete the re-licensing. Ivey observed Rivera

calling someone, but did not know who. Rivera returned to the

door and reiterated that Ivey could not enter.

10. Rivera has not been screened to care for children.

Rivera testified that she was not an employee of the family day

care.

11. Respondent did not notify Petitioner that the day care

would not be in operation during the week of the inspection.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to these

proceedings, pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

13. Section 402.310(1)(a), Florida Statutes, authorizes the

Petitioner to deny, suspend, or revoke a license, or impose an

administrative fine, for the violation of any provision of

Sections 402.301-402.319, Florida Statutes.

14. Section 402.313, Florida Statutes, stated a family day

care home may be fined a maximum of $100 per day per violation

for non-compliance with any of the applicable provisions of

Sections 402.301-402.319, Florida Statutes, and Rule 65C-

20.012(1), Florida Administrative Code.

15. Section 402.313(10), Florida Statutes, requires that

Petitioner establish, by rule, minimum standards for family day

care homes.

16. Section 402.313, Florida Statutes, entitled, "Family

Day Care Homes," does not specifically address inspection of the

premises. Inspection of the premises is addressed in its own

section. Rule 65C-20.12(3), Florida Administrative Code,

establishes that the operator of the family day care must allow

access to the entire premises of the family day care home to

inspect for compliance with family day care minimum standards.

17. Section 402.311, Flor ida Statutes, states in pertinent

part:

A licensed child care facility shall accord

to the department or the local licensing

agency, whichever is applicable, the

privilege of inspection, including access to

facilities and personnel and to those records

required in s. 402.305, at reasonable times

during regular business hours, to ensure

compliance with the provisions of ss.

402.301-402.319.

18. Section 402.313, Florida Statutes, is part of the range

of sections listed for Petitioner to ensure compliance. The

statute makes no mention of whether there are children present,

and only mentions the "person in charge" and not the

owner/operator as the individual from whom permission for access

must be sought. The strict wording of the statute appears only

to pertain to licensed "facilities."

19. However, it is a basic tenet of statutory construction

that where there is ambiguity, or where the context of the

statute taken literally conflicts with the plain legislative

intent, the context must yield to the legislative purpose.

AMISUB v. Department of Health and Rehabilitation , 577 So. 2d 648

(Fla. 1st DCA 1991),

20. As explained by Section 402.301, Florida Statutes, the

Legislature intends the licensing and re-licensing provisions of

Chapter 402, Florida Statutes, to protect the health, safety and

well-being of children.

21. Applying the rules of statutory construction to Section

402.311, Florida Statutes, it is clear that the Legislature

intended Petitioner to have the authority to inspect the premises

of any licensed child care. This is further evidenced in the

corresponding section in the code regulating licensed family day

care homes. Rule 65C-20.012(3), Florida Administrative Code.

22. In the instant case, the licensing representative

arrived at the family day care home during regular business

hours. Although the owner/operator was not at home, the owner's

daughter, Stacy Rivera, was present in the home. Rivera admitted

that she knew Ivey. Ivey also observed several children present,

and was concerned that an unscreened caretaker (Rivera) was

caring for these children.

23. By denying Ivey entry to inspect the premises and

verifying that the children were not children in care, Rule 65C-

20.012(3), Florida Administrative Code, was violated.

24. This was not the first time that Ivey had been denied

access to the entire premises, and Respondent was aware that DCF

was required to inspect the entire premises of the family day

care home.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion s of

Law, it is hereby

RECOMMENDED that Respondent was found guilty of violating

Rule 65C-20.012(3), Florida Administrative Code, and that an

administrative fine of $100.00 be imposed.

DONE AND ENTERED this 7th day of August, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of August, 2000.

COPIES FURNISHED:

Carmen M. Sierra, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S-1106

Orlando, Florida 32801-1792

Mary Higdon

7141 Green Needle Drive

Winter Park, Florida 32792

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 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

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.