09-001241 Shirley Carter vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, October 5, 2009.

Summary: Petitioner failed to prove that she had obtained all required child-safety related compliances. She made a misrepresentation on her license application, which with the history of previous re-license denial justified denial this time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY CARTER, )

)

Petitioner, )

)

vs. ) Case No. 09-1241

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before P. Michael

Ruff, a duly-designated Administrative Law Judge of the Division

of Administrative Hearings Leesburg, Florida, on May 8, 2009.

The appearances were as follows:

APPEARANCES

For Petitioner: Shirley Carter, pro se

241 Mont Clair Road

Leesburg, Florida 34748

For Respondent: Joyce L. Miller, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner's licensure to operate a child-care

facility in Leesburg, Florida, should be denied, under relevant

authority cited below.

PRELIMINARY STATEMENT

This cause arose when the Petitioner submitted an

application for a license to operate a child-care facility at

1329 Marshall Drive, in Leesburg, Florida. That application was

denied by a letter issued by the Department of Children and

Family Services (Department), the Respondent, on January 16,

2009.

Upon receiving the notice that the application was to be

denied by the Respondent, the Petitioner sought an opportunity

to have a formal proceeding and hearing to contest the matter.

The dispute was thereafter duly transmitted to the Division of

Administrative Hearings and the undersigned Administrative Law

Judge for adjudication.

The cause came on for hearing as noticed. At the hearing,

the Petitioner presented her testimony and one exhibit which was

admitted into evidence. The Respondent presented the testimony

of one witness and submitted four exhibits which were admitted

into evidence. Upon conclusion of the proceeding, the Agency

elected to order a transcript thereof and the parties were given

an opportunity to submit proposed recommended orders. On

July 31, 2009, an order was entered extending the time for

submission of proposed recommended orders. This was because, as

explained in more detail in that order, it had become apparent,

by a post-hearing filing by the unrepresented Petitioner that

the Petitioner may have been confused and may have misunderstood

the procedure for obtaining a transcript, and for filing a

proposed recommended order. Accordingly, by that Order, the

Petitioner was given additional time, until August 20, 2009, in

the event that she wanted a copy of the transcript and wished to

submit a proposed recommended order. Ultimately, only the

Respondent submitted a Proposed Recommended Order, which has

been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. This dispute arose when the Department notified the

Petitioner, by letter of January 16, 2009, that the application

submitted by the Petitioner to authorize operation of a child-

care facility was denied. The facility was to be located at

1329 Marshall Drive in Leesburg, Florida. The application was

submitted on October 23, 2008. Upon being informed of the

intended denial of the Application for Licensure, the Petitioner

requested an administrative hearing and the dispute was

transferred to the Division of Administrative Hearings for

adjudication.

2. The Department had denied the application based on a

history of serious violations of statutes and rules, related to

the safety of children, during the Petitioner's previous

operation of Small Fries Daycare Center in 2004. The renewal of

licensure for Small Fries, as well as an application for

licensure to operate a second facility, "The Learning Tree," was

denied after a hearing before an Administrative Law Judge, by a

Final Order entered by the Department on December 12, 2005.

3. The Petitioner offered no credible evidence to show why

the previous, serious violations would not re-occur if the

subject facility was granted licensure. The Petitioner's

testimony was somewhat contradictory and she appeared focused on

the wrongs she believes were done with regard to her licensure

and her facilities in the 2004 dispute, as much as on the

present application dispute. She offered no evidence of

additional training or rehabilitation since her flawed operation

of the Small Fries facility, other than her own self-serving

statements. Although she testified that she would be a good

operator and follow all relevant rules, she testified in a

misleading fashion as to her credentials and training. It

became apparent that she was reading from a list of available,

relevant educational courses for operators for daycare

facilities, but provided no proof that she had actually

completed the courses. She also admitted that she did not have

the required Director's credentials to operate a child-care

facility.

4. She offered no employment history and testified that

she had, in fact, not worked since the closure of the Small

Fries facility, in 2005, by the above-referenced Final Order.

The findings in the Recommended Order in that case, as adopted

in the Final Order, entered in 2005, established that the

Petitioner was responsible for a number of violations of

statutes and rules pertaining to licensure and safe operation of

her child care facility. 1

5. The Petitioner made a misrepresentation of a critical

fact on her application. The primary reason the Respondent took

the position that licensure in this case should be denied was

the past operational and licensure history of the Petitioner and

her facility, which culminated in the referenced Recommended and

Final Orders denying licensure. There were multiple legal

violations which resulted in her loss of licensure. On the

subject application the Petitioner misrepresented a critical

fact by failing to acknowledge that she had her licensure denied

in the past. Ultimately, the Petitioner admitted in testimony

that she had not been truthful on her application when she

answered the question at issue and did not disclose a previous

licensure denial.

6. Moreover, there is no dispute that the Petitioner's

application to operate the day care facility was incomplete at

the time it was submitted. The Petitioner ultimately, and

reluctantly, admitted in testimony that she did not have a

Certificate of Occupancy for the building, did not have the

required sanitation and environmental inspection from the Health

Department, nor an approved fire inspection. These are all

items that are required to be obtained before an application can

be considered complete and subject to being granted, under the

relevant Department rules. These were all items that the

Petitioner knew or should have known must be submitted for an

application to be complete.

7. The Department, as a routine procedure, reviews

applications for completeness and required documentation. If

items are missing, the Department sends a letter to the

applicant, within 30 days of receipt of the application, in

order to comply with Section 120.60(1), Florida Statutes (2009).

The Department Licensing Counselor, Ms. Burleson, sent the

letter containing the list of missing items to the Petitioner at

the address of record on November 19, 2008. This was well

within 30 days of the application submission (October 23, 2008)

in compliance with Section 120.60(1), Florida Statutes (2009).

8. The Petitioner was informed of the lack of information,

and the need to supply it, by the Department after the filing of

her application during the fall of 2008. She maintained that

she had faxed the information to the Department, which proved

not to be true. The Department never received any faxed

information prior to the letter sent by Ms. Burleson to the

Petitioner on November 19, 2008, specifically listing missing

items. Moreover, the Petitioner also admitted that the Fire

Department was requiring her to install additional sprinklers in

the second floor of the building she proposes to use for her

facility, before she could receive the necessary approval. She

stated that this was a large expense that she was not able to

complete at this time.

9. The Petitioner contended that had she known within 30

days which specific items were missing from her application, as

to compliance with licensure requirements, she would have had

time to complete them. That statement is not credible and,

indeed, the Petitioner's own testimony refutes it. The

Petitioner admitted that she did not have the required health

and fire inspections or the Certificate of Occupancy as late as

the date of the hearing. She claimed to have faxed the missing

CPR certificate to the Respondent in December 2008, after the

date of the letter, November 19, 2008, informing her of missing

items. In fact, the purported fax of the missing certificate

never happened.

10. The Petitioner also claimed to have taken some of the

missing items with her to a meeting she had with Ms. Burleson on

January 16, 2009. If she did not know what items were missing

from her application, because of purportedly not having received

the November 19, 2008, letter (even though she executed the

application herself) then she could not have known what to fax

to the Department or take with her to the meeting with Ms.

Burleson. In fact, however, the missing items referenced in

these findings of fact remain missing from the application,

rendering it non-compliant, as of the date of the hearing.

11. The Petitioner's testimony that she did not receive

the November 19, 2008, letter from the Department is not

credible. It is not supported by any evidence produced by the

Petitioner. The Petitioner admitted that the address on the

letter (241 Mont Clair Road, Leesburg, Florida) is her current

mailing address and the address where she currently receives

mail. She admitted receiving the September 8, 2008, letter from

the Department, as well as the Notice of Intent which she later

completed and returned to the Department. Her statement that

she did not receive the November 19, 2008, letter from the

Department, advising her of incomplete documentation is

inexplicable and not credible, given the evidence that she knew

what was missing from her application.

12. The Petitioner knew, or should have known, that at the

time she requested the hearing and at all times through the

hearing date that she could not possibly meet the requirements

for licensure. This is because she admittedly lacked the four

critical items required for licensure: a current Directors

Certificate; an Occupancy Permit for the building from the City

of Leesburg; an approved Health and Sanitation Report from the

Lake County Health Department; and an approved Fire Safety

Inspection and evidence of it. The Petitioner instead, admitted

at the hearing that she had chosen not to comply with the fire

inspection requirement, which would result in the addition of

more fire sprinklers, because they were too expensive.

13. The Petitioner's refusal to expend time and money to

comply with the licensing requirements, in essence, resulted in

her demanding a hearing when the inevitable Notice of Intent to

Deny Licensure was issued from the Department. This resulted in

the expenditure of resources by the Department and the Division

of Administrative Hearings, when such use of resources for the

formal hearing process might have been avoided. In essence, she

approached the hearing as an attempt to re-try the prior facts

which resulted in her loss of licensure in 2005, rather than

make a more affirmative showing of how she could comply with the

licensure and operational requirements attendant to the

potential grant of the subject application.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Sta. (2009).

15. The Petitioner has applied for licensure to operate a

new child-care facility. As the applicant for a new license,

the Petitioner has the burden of presenting evidence of the

facility's fitness for licensure. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Sterne, Inc. , 670 So. 2d 932, 934 (Fla. 1996). If the

Petitioner presents evidence supporting fitness for licensure,

the burden of going forward with evidence shifts to the

Department to show violation of statutes, rules or rule

interpretation supporting denial. The ultimate burden of

persuasion remains with the Petitioner however.

16. Florida Administrative Code Rule 65C-22.002(7)(a)

requires, for licensure or re-licensure, that child care

facilities undergo an annual fire inspection and submit an

inspection report showing that the facility complies with

relevant standards for child care facilities adopted by the

State Fire Marshall. The Petitioner conceded at hearing that

she had never obtained a favorable fire inspection report

because she did not want to expend money to upgrade the

sprinkler system in the building she proposes to use for her

facility. This was shown to have been a requirement in order

for her and her facility to comply with the relevant fire safety

code. Because she failed to secure the fire safety report,

there was no way to establish entitlement to licensure. Because

she failed to establish that her facility was suitable for the

safe care of children, in terms of fire safety, the Department,

on that basis alone, had a reason to deny licensure.

17. Moreover, the Petitioner's failure to submit required

reports and documentation extended to her never obtaining the

necessary approval and health and sanitation report from the

Lake County Health Department, as required by Florida

Administrative Code Rule 65C-22.005(2); Section 381.006(16),

Florida Statutes (2008), and Section 381.0072, Florida Statutes

(2008). The Petitioner contended that she took some of the

missing documentation to the January 16, 2009, meeting with

Ms. Burlson and some representatives of the Department. She

also represented that she left that meeting with the documents

in her possession and never actually submitted them to the

Department for consideration. More importantly, she did not

submit them at the de novo hearing, where she had an opportunity

to prove her compliance with the relevant rule standards for

licensure.

18. Pursuant to Section 402.3055(1), Florida Statutes

(2008), the Department's application form includes a question

concerning whether the applicant, owner, or director of the

proposed facility has ever had a license denied, revoked, or

suspended in any state or jurisdiction. The Petitioner answered

that question in the negative, despite the fact that she was

well aware that she had been denied re-licensure for Small Fries

Day Care Center and a new licensure for the "The Learning Tree"

facility, in the prior-referenced consolidated case. The

Petitioner did not attempt to really justify this negative

answer as an honest misunderstanding of the question during her

testimony at the hearing. Instead, she seemed to take the

position that she had been wronged in the previous proceeding

and that her licensure had been wrongly denied. She apparently

felt that she was free to contend that she had never been denied

licensure for any facility, simply because she disagreed with

the prior result. Section 402.319(1)(a), Florida Statutes,

(2008), provides that if any person knowingly fails to disclose

or misrepresents any information in an application for

licensure, required under the applicable statutes, that such act

or omission is a first degree misdemeanor.

19. The Department has discretion, pursuant to Section

402.310(1)(a), Florida Statutes (2008), to revoke, suspend, or

deny licensure for any violation of applicable statutes or

rules. The Petitioner failed to comply with a number of

statutes and rules, including Section 402.319(1)(a) (a criminal

misdemeanor). The Petitioner presented no corresponding

significant evidence to demonstrate that a denial in this

situation would result in an abuse of the Department's

discretion. The severity of the past infractions, the

Petitioner's history with the D11epartment, as well as the

omissions related to her failure to establish compliance with

licensure standards relevant to this application, clearly

support denial of licensure.

20. Section 402.3055(1)(a), Florida Statutes (2008), gives

the Department discretion to determine, after review of any

prior licensure denial, whether it will be in the best interest

of the state, and the children of the state, for the applicant

to be licensed again. The Department made a determination,

based upon its review of prior history, that it was not in the

state's interest for the Petitioner to be licensed again on the

basis of the present application. It presented evidence

justifying that position, based upon prior history, in this

de novo proceeding. The Petitioner presented no persuasive,

credible evidence to demonstrate that her ability to operate a

safe child-care facility, compliant with the relevant statutes

and rules, had improved since the prior licensure denials.

21. The Petitioner's own admissions at hearing, showing

that she had never gotten the referenced approved items

necessary for a grant of the application, show that licensure

denial is justified under the state of the evidence in this

case.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties it is

RECOMMENDED:

That a final order be entered by the State of Florida,

Department of Children and Family Services denying the

application in its entirety.

DONE AND ENTERED this 5th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of October, 2009.

ENDNOTE

1/ Small Fries Daycare, Inc. v. Department of Children and

Family Services ; The Growing Tree Learning Center and Nursery v.

Department of Children and Family Services , Case No. 04-3046 and

04-3892 (consolidated) (DOAH September 12, 2005; Final Order

December 12, 2005).

COPIES FURNISHED :

Joyce L. Miller, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Shirley Carter

241 Mont Clair Road

Leesburg, Florida 34748

Gregory Venz, Agency Clerk

Department of Children and Family Services

Building 2, Room 204B

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.