07-005100 Department Of Children And Family Services vs. God`s Little Angels And Vickie Olopade
 Status: Closed
Recommended Order on Wednesday, July 2, 2008.


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Summary: Petitioner failed to file its charging document in this cause and failed to prove any of its allegations in the Addendum to its charging document by even a preponderance of the evidence, let alone the required clear and convincing burden of proof.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF CHILDREN AND )

13FAMILY SERVICES, )

16)

17Petitioner, )

19)

20vs. ) Case No. 07-5100

25)

26GOD'S LITTLE ANGELS and VICKIE OLOPADE, )

33)

34)

35Respondents. )

37)

38RECOMMENDED ORDER

40Pursuant to notice, this cause was heard by Linda M. Rigot,

51the assigned Administrative Law Judge of the Division of

60Administrative Hearings, on April 14, 2008, by video

68teleconference with sites in Jacksonville and in Tallahassee,

76Florida.

77APPEARANCES

78For Petitioner: Robin Whipple-Hunter, Esquire

83Department of Children and

87Family Services

89Post Office Box 2417

93Jacksonville, Florida 32231-0083

96For Respondents: Randall A. Schmidt, Esquire

102620 West 37th Street

106Savannah, Georgia 31415

109STATEMENT OF THE ISSUE

113The issue presented is whether Respondents' license to

121operate a child care facility should be revoked.

129PRELIMINARY STATEMENT

131In response to the Department's undated Intent to Revoke

140License alleging that Respondents had violated certain statutes

148and rules regulating the operation of a child care facility,

158Respondents requested an administrative hearing regarding the

165Department's allegations by correspondence dated October 22,

1722007. On November 6, 2007, the Department transmitted its

181undated Intent to Revoke License and Respondents' request for a

191hearing to the Division of Administrative Hearings to conduct

200the evidentiary proceeding.

203By Order of Pre-hearing Instructions entered November 26,

2112007, the parties were ordered to file a pre-hearing stipulation

221no later than 20 days before the final hearing in this cause.

233The Department never complied with that Order.

240On April 14, 2008, the day of the final hearing in this

252cause, Respondents filed a unilateral statement, erroneously

259entitled "Pre-hearing Stipulation." In that document,

265Respondents admitted that the Department's Intent to Revoke

273License had been amended. Although an amended intent to revoke

283license would replace the intent to revoke license it was

293amending and would become the charging document/administrative

300complaint, no amended intent to revoke license was ever filed

310with the Division. Further, the Department never requested

318leave to amend the charges in this cause. Accordingly, it

328cannot be determined which, if any, allegations contained in the

338Department's original Intent to Revoke License survived in the

347amended intent to revoke license.

352Also on April 14, 2008, the day of the final hearing in

364this cause, the Department filed its Addendum to Amended Intent

374to Revoke License dated January 16, 2008, neglecting still to

384file the document to which the Addendum referred. Since the

394Intent to Revoke License was apparently replaced by an amended

404document not filed in this proceeding, the only charging

413document at issue in this proceeding is the Addendum to the

424Amended Intent to Revoke License filed on April 14, 2008.

434At the final hearing the Department presented the

442testimony of Pauline Miller, Pamela Buckham, and Pamela Jett.

451Respondent Vickie Olopade testified on behalf of the Respondents

460and presented the testimony of Amanda Woodridge, Keisha McGriff,

469Antoinette Jones, Dorothy Daniels, Nichol Rogers, and

476Lynette Blair.

478The Department's Exhibits numbered 5, 6, 8-14, the third

487page of 15, 16-19, and 36-68 and Respondents' Exhibits numbered

4971-6 were admitted in evidence without objection. Ruling was

506reserved on the admissibility of the Department's Exhibits

514numbered 1-4, 7, and the first two pages of 15, subject to the

527parties filing post-hearing memorandum on the issue of whether

536the Department could take disciplinary action for violations

544remote in time and for which disciplinary action had already

554been imposed and resolved and which pre-date the issuance of

564subsequent annual licenses. Since the Department's Proposed

571Recommended Order contained no legal argument on this issue but

581merely asserted that it could do so, the Department's Exhibits

591numbered 1-4, 7, and the first two pages of 15 are rejected.

603The Transcript of the final hearing was filed on May 12,

6142008. By agreed motion, the parties requested that their

623deadline for filing proposed recommended orders be extended to

632June 12, 2008, and that request was granted. Although both

642parties were afforded leave to file proposed recommended orders,

651only the Department did so.

656FINDINGS OF FACT

6591. The Department first issued a child care facility

668license to Respondent God's Little Angels in 1999.

6762. On October 30, 2007, the Department's inspector went to

686Respondent God's Little Angels to conduct a routine inspection.

695Several items on the Department's form checklist are marked as

705being in "noncompliance." Those items are either given a date

715by which they must be corrected or are marked "complete."

725Although the Department presented no evidence as to the meaning

735of the notation "complete," a review of the types of items

746marked "complete" suggests that the item was corrected

754immediately and/or before the inspection was finished.

7613. Those items marked "complete" were four staff members

770in a room instead of five; no soap in one of the bathrooms; one

784child did not wash his or her hands after using the bathroom; a

797toy in the outdoor play area was broken; water was standing in

809toys and equipment outside; and one bottle was not labeled with

820the child's first and last name. As to the standing water in

832the outdoor toys, no information is provided as to whether it

843was raining or whether the sprinklers were operating at the time

854or whether any children were outside.

8604. A number of items on the October 30, 2007, form

871checklist are marked as being in "noncompliance" and have a

881deadline by which they must be corrected. They are: the

891facility's storage of linens was not sanitary, due date

900October 31, 2007; and outdoor toys need to be cleaned, due date

912November 5, 2007. There are also several recordkeeping items

921noted: 3 children out of 45 did not have a current physical

933examination record, due date November 9, 2007; 5 children did

943not have a current immunization record, one child's record did

953not have an expiration date, and 2 records had expired, due date

965November 10, 2007; and 19 children had incomplete enrollment

974information on file, due date November 3, 2007.

9825. The Department's inspector returned to the facility on

991November 30, 2007. The form checklist carries a notation that

1001the owner's spouse indicated that the Department and the

1010facility could only deal with each other through their

1019attorneys. When the inspector asked her supervisor for advice,

1028her supervisor told her to leave the facility. November 30,

10382007, is subsequent to the Department's referral of this case to

1049the Division of Administrative Hearings.

10546. On December 28, 2007, the Department conducted a

1063routine inspection of God's Little Angels. The form checklist

1072has attached to it a hand-written explanation of the visit of

1083November 30, 2007, by the inspector who went to the facility on

1095that date. Her explanation is more detailed and states that the

1106owner's spouse denied her access because the facility was "in

1116the process of revocation" and that his lawyer had told him that

1128everything now had to go through the facility's lawyer and the

1139Department's lawyer. The explanation also states that the

1147owner's spouse tried to contact his lawyer but was unable to.

1158The owner's spouse then called the inspector's supervisors and

1167talked to them; they then told the inspector not to do the

1179inspection that day.

11827. The items marked to be in "noncompliance" and

"1191complete" on the December 28, 2007, form checklist are as

1201follows: the back door did not have a screen and was open; some

1214outdoor toys were splashed with mud, some had standing water in

1225them, and two were cracked; the posted menu did not have the

1237date on it; and an evacuation plan was missing from "the back

1249room." The Inspection Checklist contains a notation that the

1258inspector came to the facility on December 28, 2007, but was

1269denied access by the owner's spouse. When the inspector

1278returned later that day, the owner's spouse and the Department's

1288program administrator had conferred, and the owner's spouse

1296advised the inspector that the inspection could take place.

13058. The items marked to be in "noncompliance" and which

1315have a deadline for correction are as follows: side fence is

1326not secure, due date January 7, 2008; the facility did not have

1338documentation to show completion of a five-hour literacy

1346training course for one staff member, due date January 7, 2008;

1357the facility did not have an Attestation of Good Moral Character

1368for that same staff member, due date January 4, 2008.

13789. The only item on the December 28, 2007, inspection

1388checklist that also appeared on the October 30, 2007, inspection

1398checklist is the standing water in the outdoor playground

1407equipment or toys. On both checklists that notation is marked

"1417complete" so it is assumed that the water was removed before

1428either of those inspections was completed.

143410. No item on the October checklist was found to remain

1445in non-compliance in December. Checklists for three inspections

1453after the December inspection were admitted in evidence but no

1463testimony explaining the entries or the actual inspections was

1472offered. The January 29, 2008, inspection checklist has an

1481entry related to the fence, but the description is different

1491than on the December inspection form. It cannot be assumed,

1501therefore, that the deficiency was the same. The February 28,

15112008, and the March 28, 2008, checklists indicate that

1520Respondents were in compliance with all statutory and rule

1529requirements.

153011. Respondents have obtained assistance from the

1537grandmother of one of the children attending God's Little

1546Angels. That lady has assisted Respondents to organize the

1555required paperwork, has given Respondents computer programs to

1563track the required paperwork, and has created spreadsheets to

1572handle Respondents' finances. Since she is also a state-

1581certified firefighter, she has inspected the facility regarding

1589safety issues and made suggestions for improvements. Those

1597suggestions have been implemented.

160112. Respondents have also hired a woman to be the

1611operations manager at God's Little Angels. She will computerize

1620God's Little Angels' records and ensure that all of the

1630Department's rules and regulations are being met by Respondents

1639and by the parents of children attending the facility. Her

1649background is as a medical office supervisor, overseeing 12

1658facilities, and, according to her testimony at the final

1667hearing, has never failed an inspection by the State regarding

1677those facilities.

167913. Respondents have made a number of physical changes to

1689the facility and organizational changes to the required

1697recordkeeping in their attempt to avoid revocation of their

1706license.

1707CONCLUSIONS OF LAW

171014. The Division of Administrative Hearings has

1717jurisdiction over the subject matter hereof and the parties

1726hereto. §§ 120.569 and 120.57(1), Fla. Stat.

173315. The Department seeks to take disciplinary action

1741against Respondents in this proceeding. The burden of proof,

1750therefore, is on the Department, and the Department must prove

1760the allegations in its Administrative Complaint by clear and

1769convincing evidence. Dept. of Banking & Finance, Division of

1778Securities & Investor Protection v. Osborne Stern & Co. , 670 So.

17892d 932 (Fla. 1996).

179316. Since the Department's Intent to Revoke License has

1802been replaced by an amended notice of intent to revoke license

1813which was never filed in this case, the only charging document

1824remaining in this proceeding is the Addendum to the Amended

1834Intent to Revoke License which was filed the day of the final

1846hearing in this cause.

185017. The Addendum alleges that Respondents have violated

1858Chapter 402, Florida Statutes, and Chapter 65C-22, Florida

1866Administrative Code. The Addendum recites the violations found

1874during the October 30, 2007, inspection and the December 28,

18842007, inspection. It also curiously alleges that the Department

1893received a complaint from a parent on December 18, 2007,

1903investigated the complaint, and found that Respondents were in

1912compliance. It also alleges that on November 30, 2007, the

1922Department was prevented from making a routine inspection by the

1932owner's spouse. It fails to explain, as the Department's

1941November 30 notes attached to the December checklist explained,

1950that the owner's spouse said his attorney had told him that

1961contact with the Department should only go through the

1970attorneys, that the owner's spouse spoke with the inspector's

1979supervisor's supervisor, and that that Department employee told

1987the inspector not to inspect the facility that day.

199618. The parent complaint that the Department found to be

2006without merit and the inspection that was not performed upon

2016orders of the inspector's superior are not alleged in the

2026Addendum to be statutory or rule violations and warrant no

2036further discussion in this Recommended Order.

204219. As to the violations found during the October and

2052December inspections, many were corrected while the inspector

2060was still on-site. Of those not immediately corrected but which

2070were given a deadline for correction, there is no evidence that

2081those were not corrected by the deadline.

208820. Section 402.310, Florida Statutes, authorizes the

2095Department to take disciplinary action for violations of the

2104Department's statutes and rules. There are no specific statutes

2113alleged in the Addendum to have been violated by Respondents.

2123As to rule violations, the Department offered no testimony

2132regarding the inspections conducted in October and December but

2141simply relied on the inspection checklists themselves. The

2149checklists indicate that the violations noted were either

2157corrected during the inspection or were to be corrected by a

2168date certain, and there is no evidence that any violation was

2179not corrected.

218121. Since the Department presented no testimony regarding

2189the two inspections covered by the sole charging document in

2199this cause and simply relied upon the inspection checklists, it

2209is not possible to understand the severity of the violation or

2220even what the violation was. For example, the October 30, 2007,

2231checklist and the Addendum to the Amended Intent to Revoke

2241License both allege that: "The facility's storage of linens was

2251not sanitary." Although these words quote Florida

2258Administrative Code Rule 65C-22.002(5)(c), standing alone, they

2265do not describe what Respondents were doing wrong or how serious

2276or minor the infraction was.

228122. After listing all items from both inspections, whether

2290corrected during the inspection or the subject of a deadline for

2301correction, the Addendum simply concludes that there is an

2310immediate and serious danger to the health, safety, and welfare

2320of the children served by God's Little Angels and that

2330revocation is appropriate. Since the only charging document in

2339this cause is the Addendum and the inspection checklists

2348constitute the entirety of the Department's evidence regarding

2356the inspections, the Department has failed to prove any of its

2367allegations by even a preponderance of the evidence let alone

2377the clear and convincing evidence standard the Department is

2386required to meet. Moreover, the Department has failed to show

2396that any item listed on the checklists presented an immediate or

2407serious danger to anyone.

241123. Lastly, most of the Department's exhibits are well

2420outside the time period covered in the Addendum to the Amended

2431Intent to Revoke License and cannot be used as a basis for

2443disciplinary action in this proceeding even though testimony was

2452offered regarding some of those exhibits. Only Exhibits

2460numbered 63-65 relate to the time period covered by the Addendum

2471to the Amended Intent to Revoke License, and Exhibits 66-68 are

2482the checklists for subsequent inspections, outside the time

2490period covered in the Addendum.

2495RECOMMENDATION

2496Based on the foregoing Findings of Fact and Conclusions of

2506Law, it is

2509RECOMMENDED that a final order be entered finding that the

2519Department failed to prove the allegations in its Addendum to

2529the Amended Intent to Revoke License and dismissing the Addendum

2539filed against Respondents in this cause.

2545DONE AND ENTERED this 2nd day of July, 2008, in

2555Tallahassee, Leon County, Florida.

2559S

2560LINDA M. RIGOT

2563Administrative Law Judge

2566Division of Administrative Hearings

2570The DeSoto Building

25731230 Apalachee Parkway

2576Tallahassee, Florida 32399-3060

2579(850) 488-9675 SUNCOM 278-9675

2583Fax Filing (850) 921-6847

2587www.doah.state.fl.us

2588Filed with the Clerk of the

2594Division of Administrative Hearings

2598this 2nd day of July, 2008.

2604COPIES FURNISHED:

2606Robert A. Butterworth, Secretary

2610Department of Children and

2614Family Services

2616Building 1, Room 202

26201317 Winewood Boulevard

2623Tallahassee, Florida 32399-0700

2626John J. Copelan, General Counsel

2631Department of Children and

2635Family Services

2637Building 2, Room 204

26411317 Winewood Boulevard

2644Tallahassee, Florida 32399-0700

2647Gregory Venz, Agency Clerk

2651Department of Children and

2655Family Services

2657Building 2, Room 204B

26611317 Winewood Boulevard

2664Tallahassee, Florida 32399-0700

2667Robin Whipple-Hunter, Esquire

2670Department of Children and

2674Family Services

2676Post Office Box 2417

2680Jacksonville, Florida 32231-0083

2683Randall A. Schmidt, Esquire

2687620 West 37th Street

2691Savannah, Georgia 31415

2694NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2700All parties have the right to submit written exceptions within

271015 days from the date of this Recommended Order. Any exceptions

2721to this Recommended Order should be filed with the agency that

2732will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/05/2008
Proceedings: Final Order filed.
PDF:
Date: 11/03/2008
Proceedings: Agency Final Order
PDF:
Date: 07/02/2008
Proceedings: Recommended Order
PDF:
Date: 07/02/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/02/2008
Proceedings: Recommended Order (hearing held April 14, 2008). CASE CLOSED.
PDF:
Date: 06/16/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 05/16/2008
Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by June 16, 2008).
PDF:
Date: 05/15/2008
Proceedings: Motion for Extension of Time to File Proposed Recommended Orders filed.
Date: 05/12/2008
Proceedings: Transcript (Volumes 1&2) filed.
Date: 04/14/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/14/2008
Proceedings: Pre-hearing Stipulation filed.
PDF:
Date: 04/14/2008
Proceedings: Notice of Filing; Addendum to the Amended Intent to Revoke License Nature of the Case (exhibits not available for viewing) filed.
PDF:
Date: 04/11/2008
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for April 14, 2008; 10:00 a.m.; Jacksonville and Tallahassee, FL; amended as to time of hearing).
PDF:
Date: 02/15/2008
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 14, 2008; 1:00 p.m.; Jacksonville and Tallahassee, FL).
PDF:
Date: 02/11/2008
Proceedings: Letter to Judge Rigot from R. Schmidt regarding hearing dates in April filed.
PDF:
Date: 01/28/2008
Proceedings: Order Granting Continuance (parties to advise status by February 11, 2008).
PDF:
Date: 01/25/2008
Proceedings: Petitioner`s Response to Respondent`s Motion for Continuance filed.
PDF:
Date: 01/25/2008
Proceedings: Motion for Continuance filed.
PDF:
Date: 01/24/2008
Proceedings: Notice of Transfer.
PDF:
Date: 01/24/2008
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for January 29, 2008; 1:00 p.m.; Jacksonville and Tallahassee, FL; amended as to location).
PDF:
Date: 11/26/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/26/2007
Proceedings: Notice of Hearing (hearing set for January 29, 2008; 1:00 p.m.; Jacksonville, FL).
PDF:
Date: 11/07/2007
Proceedings: Initial Order.
PDF:
Date: 11/06/2007
Proceedings: Intent to Revoke License filed.
PDF:
Date: 11/06/2007
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 11/06/2007
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
LINDA M. RIGOT
Date Filed:
11/06/2007
Date Assignment:
01/24/2008
Last Docket Entry:
11/05/2008
Location:
Jacksonville, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

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Related Florida Statute(s) (3):

Related Florida Rule(s) (1):