08-003027 Robert`s Large Family Daycare Home vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, September 5, 2008.

Summary: Respondent Large family day care home`s application for renewal should be denied because of multiple violations, including operating over licensed capacity and allowing employee to work with children without undergoing background screening.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT’S LARGE FAMILY )

DAYCARE HOME, )

)

Petitioner, )

)

vs. ) Case No. 08-3027

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on August 15,

2008, in Wildwood, Florida.

APPEARANCES

For Petitioner: Kathleen Smith-Belton

611 Willard Avenue

Fruitland Park, Florida 34731

For Respondent: Joyce L. Miller, Esquire

Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISSUE

The issue is whether Petitioner’s large family day care home license should be renewed.

PRELIMINARY STATEMENT

By letter dated May 5, 2008, the Department of Children and

Family Services (Department) gave notice of its intent to deny

Petitioner’s application for a renewal license. Petitioner

disputed the facts upon which the denial was based and timely

requested a hearing.

On June 11, 2008, the Department referred this case to the

Division of Administrative Hearings (DOAH) for the assignment of

an Administrative Law Judge to conduct the hearing requested by

Petitioner. The referral was received by DOAH on June 20, 2008.

The final hearing was scheduled for and held on August 15,

2008. Petitioner was represented at the hearing by Kathleen

Smith-Belton, a non-lawyer. Ms. Smith-Belton was authorized in

an Order entered on July 25, 2008, to appear as Petitioner’s

qualified representative.

The Department was twice permitted to amend the letter

denying Petitioner’s renewal license, and Petitioner was given

an opportunity to respond to the amended letters. The case

proceeded to final hearing on the second amended letter dated

August 7, 2008.

At the final hearing, Petitioner presented the testimony of

Clarissa Roberts, and the Department presented the testimony of

Voncia Council, John DeLong, Lorna Susan Rominger, Leighton

Edwards, Glenda McDonald, and Marsha Carpenter. Exhibits DCF-1

through DCF-5, DCF-7, DCF-8, DCF-12, and DCF-13 were received

into evidence. Official recognition was taken of Florida

Administrative Code Rule Chapter 65-20. 1 /

No Transcript of the final hearing was filed. The parties

were given 10 days from the date of the hearing to file proposed

recommended orders (PROs). Petitioner filed a PRO on August 21,

2008, and the Department filed a PRO on August 25, 2008. The

PROs have been given due consideration.

FINDINGS OF FACT

1. Petitioner is a large family day care home owned and

operated by Clarissa Roberts since 2000.

2. Petitioner’s license number is L05LA001. The license

was issued on June 7, 2007, and expired on June 6, 2008.

3. Petitioner timely submitted an application for a

renewal license, and after the Department gave notice of its

intent to deny the renewal license, Petitioner was issued a

provisional license pending the outcome of this proceeding.

4. Petitioner’s licensed capacity is 12 children. The

maximum number of children that can be present at the facility

at any given time depends upon the children’s ages and the

number of staff present, but in no event can there ever be more

than 12 children at the facility.

5. Ms. Roberts or her designated substitute, and one other

staff person are required to be present at the facility during

all hours of operation. Additional staff may be required to

maintain the staff-to-child ratio, which varies based upon the

ages of the children present.

6. If only one staff person is present at a large family

day care home, it must be the owner or her designated

substitute, and the facility is limited to 10 children.

7. The Department conducted a routine inspection of

Petitioner on November 20, 2007. A number of areas of

“noncompliance” were observed during the inspection.

8. First, Ms. Roberts was not present at the facility, nor

was her designated substitute, Kathleen Smith-Belton.

Ms. Roberts had left town on an emergency that morning, and the

only staff person present at the facility was Ms. Roberts’ adult

daughter, Christy Troupe.

9. Second, Petitioner was “over capacity” since there were

11 children and only one staff person at the facility.

10. Third, Petitioner did not have documentation of any

fire drills having been conducted since April 2007. Monthly

fire drills are required.

11. Fourth, almost half of the children’s files were

missing current immunization records and/or current physical

records.

12. The Department’s inspector required Msoupe to

contact parents to arrange for children to be picked up. Two

children were picked up while the inspector was present, which

resolved the capacity issue.

13. The Department issued a “warning letter” to Petitioner

based upon the violations documented during the November 20,

2007, inspection. The letter, dated December 14, 2007, advised

Petitioner that further violations “will result in the

imposition of an administrative fine.”

14. Childhood Development Services, Inc. (CDS) conducted a

routine inspection of Petitioner on January 30, 2008. CDS

administers a federal-state program through which Petitioner

receives money for providing meals to eligible children at the

facility.

15. Petitioner was over its licensed capacity at the time

of the CDS inspection. There were 13 children at the facility.

16. CDS conducted a follow-up inspection on February 25,

2008.

17. Petitioner was again over its licensed capacity at the

time of the follow-up inspection. There were 17 children at the

facility.

18. CDS reported these findings to the Department as it

was required to do. The Department treated the report as a

“complaint.”

19. The Department conducted an inspection of Petitioner

on February 28, 2008, in response to the complaint from CDS.

20. Petitioner was found to be over its licensed capacity

at this inspection. There were 15 children at the facility.

21. The Department issued an Administrative Complaint for

this violation. Petitioner did not contest the violation, and

paid a $100 fine.

22. The Department conducted another inspection of

Petitioner on March 19, 2008. This inspection was conducted as

a result of a complaint received by the Department alleging that

Petitioner was routinely over capacity and that some of the

children were being kept at a nearby house owned by Ms. Roberts.

23. Petitioner was found to be over its licensed capacity

at this inspection. There were 17 children at the facility,

including an infant in a stroller. There were also four other

“attempted drop-offs” of children during the time that the

Department’s inspectors were present.

24. A number of other areas of “noncompliance” were also

observed during this inspection.

25. First, one staff person, Lorna Susan Rominger, had not

undergone the required background screening even though she had

been working at the facility for well over a year.

26. Second, there were cleaning supplies on a counter that

the children could reach.

27. Third, the house “reaked” of smoke and Ms. Roberts

admitted to smoking in the house when the children were not

present, but the children’s files did not include the required

documentation showing that the parents had been notified that

someone living in the home smokes.

28. Fourth, the immunization records of one of the

children had expired.

29. Fifth, Petitioner did not have the required

transportation log for the van used to transport the children.

Five of the children were in the van when the Department’s

inspectors arrived, and none were in appropriate child restraint

seats.

30. Petitioner was also cited for keeping children at an

unlicensed facility, even though no children were observed

during the inspection at the nearby home owned by Ms. Roberts.

31. Petitioner fired Ms. Rominger on March 19, 2008, the

day of the Department’s inspection. Ms. Rominger claimed that

she was fired for reporting Petitioner to the Department.

Ms. Roberts claimed that Ms. Rominger was fired for her

continuing failure to submit the documentation necessary for the

background screening. Ms. Rominger’s testimony was more

persuasive on this issue, even taking into account the ongoing

dispute between her and Petitioner concerning unemployment

compensation.

32. Ms. Roberts acknowledged in her testimony that it was

her responsibility as Petitioner’s owner-operator to ensure that

all employees were screened. She also acknowledged that she

allowed Ms. Rominger to work for Petitioner for well over a year

without being screened even though she understood that the law

required employees who were not timely screened to be fired.

33. Ms. Roberts denied the allegations that she kept

children at the home that she owned near the licensed facility,

and no persuasive evidence was presented to corroborate

Ms. Rominger’s testimony on this issue. 2 /

34. The Department conducted an inspection of Petitioner

on April 30, 2008, as part of the license renewal process.

35. Petitioner was within its licensed capacity at the

time of this inspection, and except for the notice to the

parents concerning smoking in the home, the areas of

“noncompliance” documented during the prior inspections had been

corrected.

36. Ms. Roberts credibly testified that she prepared a

form and provided written notice to the parents about the

smoking in the home subsequent to the re-licensure inspection.

37. Ms. Roberts acknowledged in her testimony that

Petitioner was over its licensed capacity on those occasions

where more than 12 children were present at the facility.

38. Ms. Roberts testified that the over capacity issues

only occurred during “transition periods” involving the

voluntary pre-kindergarten program that she operated out of her

home and/or the school age kids that she took to school in the

mornings. This testimony was not persuasive.

39. The “transition periods” described by Ms. Roberts were

around 8:30 a.m. and around 11:30 a.m., but contrary to her

testimony, all of the inspections did not occur during those

periods. For example, the November 20, 2007, inspection

occurred between 1:27 p.m. and 3:02 p.m., and the February 28,

2008, inspection occurred between 12:10 p.m. and 12:57 p.m.

40. Ms. Roberts acknowledged in her testimony that it was

her responsibility as Petitioner’s owner-operator to be familiar

with the statutes and rules governing the operation of large

family day care homes.

41. The Department considers capacity and background

screening violations to be “serious” because they involve issues

of safety and supervision of the children at the facility.

Violations of these requirements put the children at risk of

harm.

CONCLUSIONS OF LAW

42. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2007). 3 /

43. The Department is the state agency responsible for

licensing and regulating large family day care homes and other

child care facilities. See §§ 402.301-402.319, Fla. Stat.

44. Section 402.308, Florida Statutes, provides in

pertinent part:

(1) ANNUAL LICENSING.-- Every child care

facility in the state shall have a license

which shall be renewed annually.

* * *

(3) STATE ADMINISTRATION OF LICENSING.--

In any county in which the department has

the authority to issue licenses, the

following procedures shall be applied.

* * *

(b) Prior to the renewal of a license,

the department shall reexamine the child

care facility . . . to determine that

minimum standards for licensing continue to

be met.

* * *

(d) The department shall . . . renew a

license upon receipt of the license fee and

upon being satisfied that all standards

required by §§ 402.301-402.319 have been met

45. Section 402.310(1)(a)3., Florida Statutes, authorizes

the Department to deny a license “for a violation of any

provision of §§ 402.301-402.319, or the rules adopted

thereunder.”

46. Generally, a license applicant has the burden to prove

that he or she is entitled to the license. See Dept. of Banking

& Finance v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla.

1996).

47. However, where, as here, the licensing agency proposes

to deny a renewal license based upon specific statutory and rule

violations, it has the burden to prove the violations. See

Osborne Stern & Co. , 670 So. 2d at 934; Coke v. Dept. of

Children & Family Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998);

Dubin v. Dept. of Business Regulation , 262 So. 2d 273, 274 (Fla.

1st DCA 1972) (explaining that the “refusal to renew a license

to a person who has once demonstrated that he possesses the

statutory prerequisites to licensure cannot be used as a

substitute for a license revocation proceeding”).

48. The Department argues in its PRO (at ¶¶ 23-24) that it

must prove the violations by a preponderance of the evidence,

rather than clear and convincing evidence as it stipulated in a

prior case involving the renewal of a family day care home

license. See Coke , 704 So. 2d at 726 (“The Department agrees

that in this proceeding it had the burden of proving [the family

day care home’s] lack of entitlement to a renewal . . . license

and that the evidence needed to be clear and convincing.”).

49. The Department’s reliance on Haines v. Department of

Children and Family Services , 983 So. 2d 602 (Fla. 5th DCA

2008), and M.H. v. Department of Children and Family Services ,

977 So. 2d 755 (Fla. 2d DCA 2008), to support this argument is

misplaced. Those cases involve foster care licenses, which are

not entitled to the same protections as professional licenses

such as the license at issue in this case. See Haines , 683 So.

2d at 604-06; § 409.175(2)(f), Fla. Stat.

50. That said, and even though Coke involved a renewal

license and Osborne Stern & Co. involved an initial license, the

undersigned agrees with the Department’s argument that the

stipulation referenced by the Court in Coke is inconsistent with

the unequivocal statement by the Florida Supreme Court in

Osborne Stern & Co. , 670 So. 2d at 934, that “we decline to

extend the clear and convincing evidence standard to license

application proceedings.” Therefore, consistent with the

Department’s argument in its PRO, the undersigned agrees that

the preponderance of the evidence standard applies in this case.

51. The Department met its burden of proof. Indeed,

although the preponderance of the evidence standard applies, the

evidence clearly and convincingly establishes the violations

discussed below.

52. A large family day care home must have at least two

full-time child care personnel at the facility during all hours

of operation. See § 402.302(8), Fla. Stat.

53. One of the child care personnel must be the owner or

occupant of the home in which the facility is operated, or the

owner’s designated substitute. See § 402.302(8), Fla. Stat.;

Fla. Admin. Code R. 65C-20.009(2), 65C-20.013(1), (4)(a).

54. The capacity of a large family day care home depends

upon the ages of the children at the facility, but in no event

can the facility have more than 12 children. See § 402.302(8),

Fla. Stat. (allowing for a maximum of eight children under the

age of two or a maximum of 12 children, with no more than four

under the age of two).

55. A large family day care home that only has one staff

person present is subject to the limitations imposed upon family

day care homes. The maximum capacity of a family day care home

is 10 children, although a lower number may apply depending upon

the ages of the children. See § 402.302(7), Fla. Stat.

56. Petitioner violated these requirements on November 20,

2007, in three separate, but related respects. First,

Petitioner’s owner, Ms. Roberts, was not present, nor was her

designated substitute, Ms. Smith-Belton. Second, Petitioner did

not have two child care personnel present as required for a

large family day care home. Third, Petitioner was over the

capacity for a family day care home since there were 11 children

and only one staff person present.

57. Petitioner also violated these requirements on the

four other occasions that it was found to be “over capacity”:

January 30, 2008, when there were 13 children at the facility;

February 25, 3008, when there were 17 children at the facility;

February 28, 2008, when there were 15 children at the facility;

and March 19, 2008, when there were 17 children at the facility.

58. Ms. Roberts did not dispute the number of children at

the facility on these dates, but rather argued at the hearing

that Section 402.305(15), Florida Statutes, allowed Petitioner

reliance on this statute is misplaced, as she effectively

concedes in her PRO. 4 /

59. Section 402.305(15), Florida Statutes, states:

TRANSITION PERIODS.-- During the periods of

time in which children are arriving and

departmenting from the child care facility,

. . . the provisions of subsection (6) are

suspended for a period of time not to exceed

30 minutes. (Emphasis supplied)

60. The subsection referred to in this statute establishes

the minimum square footage standards for child care facilities.

See § 402.305(6), Fla. Stat. That subsection has nothing to do

with a facility’s capacity or the required staff-to-child ratio,

and those requirements are not affected during “transition

periods.”

61. Section 402.305(2), Florida Statutes, requires all

child care personnel to undergo background screening in

accordance with Chapter 435, Florida Statutes.

62. Section 435.05(1), Florida Statutes, requires that any

person subject to background screening must submit the required

information to his or her employer within five days after

starting work, and requires the employer to submit the

information to the Florida Department of Law Enforcement within

five days after receiving it.

63. Petitioner violated these requirements by allowing

Ms. Rominger to supervise children at the facility for well over

a year without being screened. Ms. Roberts’ testimony that she

tried to unsuccessfully to get the necessary information from

Ms. Rominger does not excuse the violation because Section

435.06(3), Florida Statutes, requires the employer to fire any

employee who refuses to submit the information necessary for

background screening or fails to cooperate in the screening.

64. Florida Administrative Code Rule 65C-20.010 provides

in pertinent part:

(1) General Requirements.

* * *

(b) All areas and surfaces accessible to

children shall be free from toxic substances

and hazardous materials. All potentially

harmful items including cleaning supplies,

flammable products, poisonous, toxic, and

hazardous materials must be labeled. These

items, as well as knives, sharp tools and

other potentially dangerous hazards, shall

be stored separately and locked or out of a

child’s reach.

(c) All family day care home operators

shall inform custodial parents or legal

guardian in writing, if someone living in

the home smokes. Pursuant to Chapter 386,

F.S., while children are in care, smoking is

prohibited within the family day care home,

on all outdoor play areas and in vehicles

when transporting children.

* * *

(3) First Aid Kit and Emergency

Procedures.

* * *

(b) Emergency Procedures and

Notification.

* * *

4. Fire drills shall be conducted monthly

and shall be conducted at various times when

children are in care. A written record

shall be maintained showing the date, time,

number of children in attendance and time

taken to evacuate the home. This record

shall be maintained for six (6) months.

65. Florida Administrative Code Rule 65C-20.011 provides

in pertinent part:

(1) Children’s Health Requirements.

(a) The family day care home provider is

responsible for obtaining, for each child in

care, a current, complete and properly

executed Florida Certification of

Immunization form . . . from the custodial

parent or legal guardian. . . . .

(b) The family day care home operator is

responsible for obtaining, for each child in

care, a current, complete and properly

executed Student Health Examination form . .

. or a signed statement by an authorized

professional that indicates the results of

the components of the form are included in

the health examination from the custodial

parent or legal guardian, within 30 days of

enrollment.

(c) The Student Health Examination form or

signed statement is valid for two (2) years

from the date the physical was performed and

must be on file as long as the child is in

care.

(d) School-aged children attending public

or nonpublic schools are not required to

have student health examination and

immunization records on file at the family

day care home as such records are on file at

the school where the child is enrolled.

* * *

(f) Medical records in this section are

the property of the custodial parent or

legal guardian and must be returned when the

child is no longer in care. . . . . .

66. Florida Administrative Code Rule 65C-20.013(11)(d)2.

requires large family day care homes to “maintain and retain a

record of monthly fire drills as specified in subparagraph 65C-

20.010(3)(b)4., F.A.C.”

67. Petitioner was in violation of these rule requirements

at the time of the Department’s inspections on November 20,

2007, and March 19, 2008, as detailed in the Findings of Fact.

68. These violations had been corrected as of the time of

the Department’s re-licensure inspection on April 30, 2008, with

the exception of the violation concerning notice to the parents

about the smoking in the home, and as to that violation,

Ms. Roberts credibly testified that she subsequently provided

the required written notice to each parent.

69. Florida Administrative Code Rule 65C-20.013(8)

provides in pertinent part:

(8) Transportation.

(a) When any vehicle is regularly used by

a large family child care home to provide

transportation, the driver shall have a

current Florida driver’s license in

accordance with Sections 322.01-.70, F.S.

* * *

(d) Each child, when transported, must be

in an individual factory installed seat belt

or federally approved child safety

restraint, unless the vehicle is excluded

from this requirement by Florida Statute.

* * *

(f) Prior to transporting children and

upon the vehicle(s) arrival at its

destination the following shall be conducted

by the driver(s) of the vehicle(s) used to

transport the children:

1. Driver’s Log. A log shall be

maintained for all children being

transported in the vehicle. The log shall

be retained for a minimum of six (6) months.

The log shall include each child’s name,

date, time of departure and time of arrival,

signature of driver and signature of second

staff member to verify driver’s log and the

fact that all children have left the

vehicle.

* * *

(g) Smoking is prohibited in all vehicles

being used to transport children.

70. These requirements apply to any vehicle regularly used

to transport the children at the facility, and not just vehicles

of a certain size or seating capacity ( e.g. , 15-passenger vans)

as Petitioner seemed to believe.

71. Petitioner was in violation of these requirements at

the time of the Department’s inspection on March 19, 2008, as

detailed in the Findings of Fact.

72. Section 402.310(1)(b), Florida Statutes, requires the

Department to consider the following factors in determining what

action to take for violations of the statutes and rules

governing child care facilities:

1. The severity of the violation,

including the probability that death or

serious harm to the health or safety of any

person will result or has resulted, the

severity of the actual or potential harm,

and the extent to which the provisions of

ss. 402.301-402.319 have been violated.

2. Actions taken by the licensee or

registrant to correct the violation or to

remedy complaints.

3. Any previous violations of the

licensee or registrant.

73. Denial of Petitioner’s application for a renewal

license is appropriate based upon these factors due to the

numerous and repeated violations committed by Petitioner during

the past year; the seriousness of the capacity and background

screening violations; and the fact that the capacity violations

continued to occur notwithstanding the progressive discipline

imposed by the Department through the written warning issued in

December 2007 and the $100 fine imposed in February 2008. 5 /

74. Petitioner argues in its PRO (at pages 1-2) that

Ms. Roberts has “a long history of compliance,” that she “has

learned from her mistakes,” that she “has worked diligently to

rectify and prevent any further ratio issues,” that she “has

come a long way in better understanding the statutes that govern

her business,” and that “[o]nly by virtue of being out of

compliance did she know what was required or needed to be

rectified.” These considerations have not been overlooked, but

under the circumstances, the undersigned agrees with the

assurances of future compliance are not sufficient to overcome

the clear and repeated violations established in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department issue a final order denying

Petitioner’s application for a renewal license.

DONE AND ENTERED this 5th day of September, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 5th day of September, 2008.

ENDNOTES

1 / All references to rules are to the version filed by the

Department pursuant to the Order entered on August 21, 2008,

except for the reference in Endnote 5, which is to the current

version of the Department’s rules.

2 / In making this finding, the undersigned did not overlook the

testimony of Department witness Glenda McDonald that Ms. Roberts

was observed with four children at that home during an

inspection on August 8, 2008. That inspection is not referenced

in the second amended letter that framed the issues for this

proceeding, and insufficient evidence was presented to

contradict Ms. Roberts’ testimony that the children observed by

Ms. McDonald were her grandchildren and nephews.

3 / All statutory references are to the 2007 version of the

Florida Statutes.

4 / See Petitioner’s PRO, at 2 (“Until late in the hearing on

8/15/08, we felt our understanding of the statute was solid.

. . . I was able to call and reach a man that explained it in a

way it should have been written. Ratio is never waivered. The

misunderstanding of the statutes [sic] intent is fairly common.

We apologize for our misunderstanding of this statute.”).

5 / The progressive discipline approach followed by the

Department with Petitioner is consistent with the rules adopted

by the Department to implement Section 402.310(1)(c), Florida

Statutes, even though those rules did not take effect until

May 1, 2008. See Fla. Admin. Code R. 65C-20.012(3).

COPIES FURNISHED :

Joyce L. Miller, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Kathleen Smith-Belton

611 Willard Avenue

Fruitland Park, Florida 34731

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

George Sheldon, Interim Secretary

Department of Children

and Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, General Counsel

Department of Children

and Family Services

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.