09-003515 Best Family Day Care Home vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, February 9, 2010.

Summary: Recommend denial of family day care home license because Petitioner's swimming pool did not meet applicable standards. The abuse/neglect report is not ground for denial where the facts in the report were not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEST FAMILY DAY CARE HOME, )

)

Petitioner, )

)

vs. ) Case No. 09-3515

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on

September 15, 2009, by video teleconference at sites in Lakeland

and Tallahassee, Florida, before Administrative Law Judge

Carolyn S. Holifield of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jeremy Best

(Husband of Marcela Best)

4062 State Road 60 East

Bartow, Florida 33830

For Respondent: Stacy N. Robinson, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813

STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for licensure to operate a family day care home should be denied.

PRELIMINARY STATEMENT

By certified letter dated May 8, 2009, Respondent,

Department of Children and Family Services ("Department"),

notified Marcela Best, owner of Petitioner, Best Family Day Care

Home (collectively referred to as "Petitioner"), that the

Department proposed denying her application for licensure to

operate a family day care home. The letter alleged the

following grounds for the denial: (1) a documented verified

abuse/neglect report; (2) the alarm on a door leading to the

swimming pool was not working in violation of Florida

Administrative Code Rule 65C-20.010(1)(i) 1 ; the swimming pool was

unsanitary in violation of Florida Administrative Code Rule

65C-20.010(1)(j); and the local criminal history of a member of

Petitioner's household had not been provided to the Department.

An Investigative Summary of the abuse/neglect report was

attached to the denial letter.

Petitioner challenged the Department's decision and

requested an administrative hearing. The Department forwarded

the matter to the Division of Administrative Hearings on

June 22, 2009, for assignment of an Administrative Law Judge to

conduct the hearing.

At hearing, Petitioner testified on her own behalf and

presented the testimony of her husband, Jeremy Best. Petitioner

offered no exhibits into evidence. The Department presented the

testimony of four witnesses: (1) Patricia Step, a family safety

counselor; (2) Terri Lynne Reinhardt, a child protective

investigator; (3) Vickie Richmond, a family safety counselor;

and (4) Sheila Nobles, circuit administrator for child care

licensing. The Department's Exhibits A through M were received

into evidence. Pursuant to Subsections 39.202(2)(a) and (j),

Florida Statutes (2009), 2 abuse/neglect reports are confidential.

Accordingly, the abuse/neglect report admitted into evidence as

Exhibit L 3 is sealed.

Prior to the evidentiary part of the hearing, the

Department requested that the undersigned take official

recognition of the Department's Operating Procedure CFOP 175-28

("CFOP 175-28"). That request was denied pending presentation

of competent evidence regarding that operating procedure. 4

The one-volume Transcript was filed on October 5, 2009. At

the conclusion of the hearing, the parties were given ten days

from the date the Transcript was filed to submit proposed

recommended orders. The parties timely filed their Proposed

Recommended Orders which have been considered in preparation of

this Recommended Order.

FINDINGS OF FACT

1. On June 6, 2008, Petitioner applied for a license to

operate a family day care home in Bartow, Florida.

2. As part of the licensure process, the Department is

required to conduct an inspection of the home where Petitioner's

proposed family day care would be operated. The inspections are

conducted by the Department's family safety counselors.

3. Patricia Step was the family safety counselor initially

responsible for conducting the licensure inspection of

Petitioner's home.

4. On February 20, 2009, prior to conducting the actual

inspection, Ms. Step completed a preliminary walk-through of

Petitioner's home. The purpose of the walk-through was to

advise Petitioner of areas of her home and property that were

not in compliance with required standards and needed to be

corrected or addressed prior to the licensure inspection.

5. After completing the initial walk-through, Ms. Step

listed the areas that needed to be corrected or addressed prior

to the licensure inspection in preliminary review notes, which

she gave to Petitioner. Those areas were as follows: (1) a

fence at least four feet high was needed around the playground

area in the backyard; (2) the alarm on one of the two doors in

the master bedroom, specifically, the master bathroom door

leading to the pool, needed to be repaired; (3) the screen door

needed to be locked from the inside so that a child playing

outside could not access the swimming pool 5 ; and (4) locks needed

to be placed on kitchen cabinets containing cleaning supplies

and other harmful items, and knives needed to be placed in upper

cabinets.

6. On February 27, 2009, a week after the initial

walk-through, Ms. Step conducted a licensure inspection of

Petitioner's home. This date was mutually agreed upon by

Petitioner and Ms. Step on February 20, 2009, after Petitioner

indicated that she could have the four areas of non-compliance

corrected or addressed in a week. During the licensure

inspection, Ms. Step determined that Petitioner had addressed

and/or corrected three of the four items listed in the

preliminary review. The one item that had not been addressed

was the "pool alarm on the [master bathroom] door" leading to

the swimming pool.

7. The alarm on the master bathroom door was part of

Brinks' alarm system that included all the other doors in the

house which led outside or to the pool area. Petitioner and her

husband had this "high tech" alarm system installed after the

April 23, 2006, incident discussed below. The alarm system

could be programmed to allow each interior door to cause either

the alarm to sound or a "chiming sound" when anyone opened the

interior door to exit the house. At the time of the inspection,

all the interior doors leading to the pool were programmed so

that when the alarm system was turned on, the alarm would sound

if anyone opened those doors. 6 Except for the master bathroom

door, the alarm on all the other doors leading to the pool were

working properly.

8. Ms. Step recorded the results of the February 27, 2009,

inspection on the Department's Inspection Checklist form

("Inspection Checklist"). Of the 38 areas listed on the

Inspection Checklist, Ms. Step indicated that Petitioner's

application and/or home were non-compliant in two areas--

background screening and swimming pools. In the area of

background screening, Ms. Step noted that there was no local

criminal background check on file for Carlos Granados,

Petitioner's cousin who was temporarily living in Petitioner's

household. In the area of swimming pools, Ms. Step noted two

areas of non-compliance: (1) the swimming pool at Petitioner's

home was not properly maintained; and (2) the "pool alarm" was

inoperable.

9. Although the Inspection Checklist noted that the "pool

alarm" was inoperable, Ms. Step never told Petitioner that a

"pool alarm" needed to be in the swimming pool. Rather,

Ms. Step spoke to Petitioner only about the need to repair the

alarm on the master bathroom door that led to the pool. 7 Based

on Ms. Step's statements to Petitioner about the "alarm" and her

preliminary review notes, both Ms. Step and Petitioner

understood the reference to "pool alarm" on the Inspection

Checklist to mean the alarm on the master bathroom door.

10. The Inspection Checklist completed on February 27,

2009, specified that the "due date" to correct the non-compliant

areas was April 3, 2009.

11. After completing the licensure inspection on

February 27, 2009, Ms. Step intended to return to Petitioner's

home to determine if the non-compliant areas had been brought

into compliance. However, Ms. Step never returned to

Petitioner's home. Instead, Vicki Richmond, a family safety

counselor, followed up on Petitioner's progress in addressing

the non-compliant areas 8 while she was at Petitioner's home

conducting a complaint investigation. 9

12. On March 13, 2009, nine months after Petitioner

submitted her licensure application, Ms. Richmond conducted a

Central Abuse Hotline search on Petitioner and her husband as

part of the application review process. The Department is

required to search the records of the Central Abuse Hotline for

reports of abuse, neglect, or abandonment. This search provides

information as to whether Petitioner's name appears in those

records, and, if so, whether there were "verified" indicators of

maltreatment of children. Both Petitioner and her husband

consented to this search.

13. The Central Abuse Hotline search revealed a verified

report for inadequate supervision by Petitioner and her husband

and some indicators of maltreatment, asphyxiation. The report

involved an incident that occurred on April 23, 2006, in which

Petitioner and her husband's then three-year-old daughter almost

drowned.

14. On or about March 13, 2009, Ms. Richmond notified

Ms. Step of the report and advised her that the verified

findings needed to be addressed prior to proceeding with the

license.

15. On March 20, 2009, while driving across Highway 60 in

the Bartow area, Ms. Richmond saw a sign with the name of

Petitioner's prospective family day care home and her address

and telephone number. Concerned that the sign did not include a

license number, Ms. Richmond contacted the licensing office to

verify whether Petitioner's home was a licensed family day care

home. She was advised that Petitioner's licensure application

was "pending" and had not been approved. Ms. Richmond then

called Ms. Step to check the status of Petitioner's licensure

application. During that conversation, Ms. Step reminded

Ms. Richmond that this was the applicant for whom she (Richmond)

had recently done the Central Abuse Hotline search.

16. On March 23, 2009, as part of the complaint

investigation about Petitioner's sign, Ms. Richmond made an

unannounced visit to Petitioner's home. Ms. Richmond advised

Petitioner that it was illegal for her to post a sign

advertising her home as a family day care home before it was

licensed. In response, Petitioner informed Ms. Richmond that

after the February 27, 2009, licensure inspection, she

(Petitioner) had been told that she could put a sign up and

start a waiting list of people interested in day care services.

After hearing Petitioner's explanation, Ms. Richmond then told

Petitioner that "if" she put up a sign prior to licensure, the

sign had to "at least" include in bold letters, "License

Pending."

17. On March 23, 2009, immediately after addressing the

"sign" issue, Ms. Richmond conducted an unannounced or

inspection walk-through of Petitioner's home and discussed

issues with Petitioner that Ms. Richmond believed were of

concern to the Department. During the walk-through, Petitioner

advised Ms. Richmond that the "door alarm" had not yet been

repaired. Among the issues Ms. Richmond raised and discussed

with Petitioner were: (1) the need to install either a pool

alarm or portable pool barriers; (2) the pool was not clean and

was only partially filled with water; (3) the spa in the

backyard needed a cover; (4) the local criminal background check

for Petitioner's cousin had not been received.

18. Ms. Richmond described to Petitioner and her husband

two options related to the swimming pool--the "portable pool

barriers" and a "pool alarm." In describing the "pool alarm,"

Ms. Richmond indicated that it was a device that was placed in

the pool. She further explained that with this type of "pool

alarm," if a child fell in the swimming pool, the alarm would

sound.

19. Although the alarm on the master bathroom door was not

working on March 23, 2009, Petitioner's husband was making

efforts to get the door alarm repaired. However, that day,

Ms. Richmond told Petitioner and her husband that even if the

alarm on the master bathroom door was repaired, they still

needed to have an alarm in the pool. In response to this

directive, Petitioner agreed that they would install a "pool

alarm" in the swimming pool.

20. After completing the March 23, 2009, walk-through,

Ms. Richmond informed Petitioner that the items she had

discussed needed to be corrected prior to a license being

granted. However, no written documentation was provided to

Petitioner regarding the areas of non-compliance discussed

during the walk-through or inspection.

21. Ms. Richmond returned to Petitioner's home on

March 27, 2009, for her second unannounced visit, which was

described as a follow-up to her "complaint investigation." Once

there, Ms. Richmond observed that the sign advertising the

family day care home was still displayed. However, Petitioner's

husband came home while Ms. Richmond was there and immediately

took down the sign.

22. During the March 27, 2009, unannounced complaint

investigation visit, Petitioner told Ms. Richmond that the alarm

on the master bathroom door was not working. About that time,

Petitioner's husband arrived and told Ms. Richmond that he had

purchased a pool alarm and even showed her the alarm. The "pool

alarm" was purchased in response to Ms. Richmond's directive

during the March 23, 2009, walk-through but had not been put in

the pool, because the pool had not yet been cleaned. 10

23. At the end of the March 27, 2009, unannounced visit,

Ms. Richmond talked to Petitioner and her husband about the

verified abuse/neglect report regarding the April 23, 2006,

incident in which their daughter almost drowned. The findings

in the report were "verified" for inadequate supervision by

Petitioner and her husband. Given the implications of the

abuse/neglect report, Ms. Richmond explained that although

Petitioner needed to address the areas of non-compliance, the

most pressing and immediate concern was the abuse/neglect

report.

24. Petitioner's husband testified credibly that during

the conversation described in paragraph 23, Ms. Richmond told

him and Petitioner that because of the abuse/neglect report,

there was "no way" Petitioner would get a family day care home

license. Based on that comment, Petitioner and her husband

reasonably believed that Petitioner's application would be

denied because of the abuse/neglect report.

25. On March 27, 2009, after being told about the

abuse/neglect report and the ramifications of that report,

Petitioner and her husband "stopped moving forward" on the areas

of non-compliance related to the swimming pool (i.e., cleaning

the pool and installing the pool alarm). 11

26. Believing the abuse/neglect report would result in

denial of her licensure application, Petitioner and her husband

began to focus on issues related to the report. They were also

concerned and had questions about the Department's licensing

process as it related to the abuse/neglect report.

27. Ms. Richmond's third visit to Petitioner's home was on

April 7, 2009. The sole purpose of that visit was to answer the

"real" questions that Petitioner and her husband had about the

abuse/neglect report and the licensing process. Ms. Richmond

answered their questions as best she could, but recommended that

they schedule an appointment with the licensing supervisor at

the licensing office. 12 That same day, Petitioner and her

husband scheduled a meeting and met with Sheila Nobles,

administrator and supervisor for child care licensing, to

discuss, ask questions about, and review the abuse/neglect

report.

28. On April 8, 2009, Ms. Richmond finalized her "report"

on the complaint investigation regarding the sign.

Ms. Richmond's notes in the "comment" section of the pre-printed

"Notice to Cease and Desist" form described the events of

March 20, 23 and 27, 2009, as they related to the sign issue. 13

Decision to Deny Application

29. As the family safety counselor responsible for

reviewing Petitioner's application and conducting the licensure

inspections, Ms. Step recommended to Ms. Nobles that

Petitioner's license be denied. Ms. Step's recommendation was

based on the verbal reports provided to her by Ms. Richmond,

which indicated that the areas of non-compliance on the

Inspection Checklist had not been corrected.

30. Prior to making a decision about Petitioner's

application, Ms. Nobles reviewed the application file, the

abuse/neglect report, the Inspection Checklist and the

preliminary review notes. Ms. Nobles testified that she

considered the "five different inspections" 14 of Petitioner's

home and property by the two licensing counselors, the areas of

non-compliance that had not been corrected, and the

abuse/neglect report with a "verified" finding of inadequate

supervision.

The Central Abuse Hotline Report

31. Applicants seeking licensure to operate a family day

care home are required to undergo a Level II screening. That

screening included a check to determine if the applicant had a

report in the Central Abuse Hotline.

32. Due to concern for the safety of children, the

Department is authorized to deny a family day care home license

if the applicant has a verified abuse/neglect report.

33. Because of its concern about the safety of children in

Petitioner's care, the Department alleges that the abuse/neglect

report revealed during a Central Abuse Hotline search is ground

for denying Petitioner's license. As it relates to the

abuse/neglect report, the denial letter states in relevant part:

The Department has documented a verified

abuse neglect report whereby your then

3-year-old daughter was not supervised

correctly on June 21, 2006.[sic] [15] These

actions allowed your child to wonder [sic]

outside the family swimming pool were [sic]

she was found after an undetermined time

under water and not breathing. During the

investigation it was determined that the

lock to get access [presumably to the pool]

had been broken for a few days.

34. The abuse/neglect report was initiated when a call was

received by the Central Abuse Hotline on April 23, 2006.

According to the intake-report, an incident occurred at

Petitioner's and her husband's home in which their then three-

year-old daughter ("child") almost drowned.

35. Jermaine Turner, a child protective investigator

("CPI"), was assigned to investigate the incident. As the

investigator, CPI Turner was responsible for making contact with

the family of the child and other appropriate individuals.

36. During the investigation, CPI Turner worked under the

supervision and direction of Terry Lynn Reinhardt, a child

protective supervisor. As CPI Turner's supervisor,

Ms. Reinhardt had contact with CPI Turner and gave him

directives related to follow-up activities on case-related

matters.

37. The abuse/neglect report includes a summary of notes

which purport to summarize interviews CPI Turner conducted with

Petitioner and her husband on May 18, 2006, about a month after

the subject incident. Petitioner's husband recalled that this

interview was conducted by telephone.

38. Ms. Reinhardt testified that CPI Turner interviewed

the child's parents and also made telephone contact with them to

follow-up on an issue involving a "broken door."

39. Ms. Reinhardt was not present at the interviews that

CPI Turner conducted with Petitioner and her husband. Thus, she

had no first-hand knowledge of what, if anything, they said to

CPI Turner. Rather, Ms. Reinhardt relied on CPI Turner's verbal

reports to her and the notes and summaries in the abuse/neglect

report attributed to him.

40. CPI Turner did not testify at this proceeding.

Moreover, no competent evidence was presented regarding any

entries (i.e., notes, comments, and/or interview summaries) in

the abuse/neglect report attributed to CPI Turner.

41. The case was closed on June 21, 2006, and the findings

and conclusions in the matter were summarized in a two-page

document titled, Investigative Summary.

42. The Investigative Summary includes an "updated" note

dated June 6, 2006, that provided: "The child . . . was left to

watch cartoons; however, she was found face down in a swimming

pool. The lock to get access from the pool to the house had

been broke [sic] for approximately two day [sic]. They stated

they planned to fix the lock but never got around to it."

43. No evidence was presented as to who made the "updated"

note or the source of the information in that note.

44. After the investigation was complete, Ms. Reinhardt

concluded that there were "some indicators" of maltreatment,

asphyxiation, and verified findings of inadequate supervision as

to both parents. In reaching that conclusion, Ms. Reinhardt

relied on information provided by Mr. Turner and then applied

the Department's CFOP 175-28 in reaching those conclusions.

45. Florida Administrative Code Rule 65C-30.001(6)

incorporates by reference the "Allegation Matrix" set forth in

the Department's CFOP 175-28. Pursuant to that rule, the

"Allegation Matrix" is a document that defines specific types of

abuse, neglect or abandonment; guides staff in determining

whether abuse, neglect or abandonment has occurred; and assists

in ensuring that all factors are considered when assessing each

type of maltreatment.

46. The Department's CFOP 175-28 was not offered into

evidence during this proceeding.

47. Based on the conclusion reached by Ms. Reinhardt, the

abuse/neglect report was closed on June 21, 2006, with the

finding of some indicators of maltreatment, asphyxiation, and

verified findings of inadequate supervision. Notwithstanding

those findings, the Investigative Summary reflects that there

was no prior history of abuse or neglect and no criminal

history. Moreover, the Investigative Summary indicated that no

intervention services were needed, no placement outside the home

was required, and no judicial action was required. Finally,

Petitioner and her husband were not given any safety plan to

implement.

48. The April 23, 2006, incident was also investigated by

the Polk County Sheriff's Office ("Sheriff's Office"). That

investigation included at least two or three detectives and/or

officers taking and tape recording sworn statements from

Petitioner, her husband, and her father-in-law. All of these

sworn statements were "in-person" interviews taken within 24

hours of the incident.

49. Petitioner's husband testified credibly that the

written summaries of the sworn statements taken by the Sheriff's

Office detectives, particularly that of Detective Wharton,

accurately reflect not only the substance of the interviews, but

also what actually occurred on April 23, 2006.

50. Petitioner's husband testified credibly about the

facts related to the April 23, 2006, incident and the accuracy

of written summaries of the tape-recorded sworn statements taken

by detectives as set forth below in paragraphs 51 through 60.

51. On April 23, 2006, Petitioner was in the family pool

with her then three-year-old daughter. While Petitioner and her

daughter were in the pool, Petitioner's husband and his father

arrived at the house. Petitioner then went into the house to

prepare dinner and her husband stayed at the pool with the

child. Shortly thereafter, Petitioner's husband removed the

child from the pool, took off the floatation device the child

was wearing while in the pool, took her into the house, and then

closed and locked the bottom lock of the door. Once in the

house, Mr. Best put on a movie for his daughter in her bedroom

and then told his wife that the child was in the room watching a

movie. The child left the bedroom and went to the kitchen where

her mother was preparing dinner. For some time, the child went

back and forth between the kitchen, playing near her mother

and/or "helping" her mother, and the living room where she (the

child) was sitting on the floor watching cartoons on television.

52. The kitchen and living room were adjacent rooms with a

large opening between them which allowed a person in one room to

see into the other room.

53. When Mr. Best and his daughter went into the house,

his father (the child's grandfather) was taking a shower. A few

minutes later, after taking his shower and getting dressed, the

child's paternal grandfather got out his new video camera and

went to the kitchen/living room area to videotape his

granddaughter while she was playing. He videotaped her playing

for several minutes and then went to the bedroom to put away the

video camera.

54. It took the child's grandfather about two or three

minutes to put away his video camera and return to the kitchen

area. When the grandfather returned to the kitchen/living room

area, he asked Petitioner where the child was. Believing the

child was in the living room, Petitioner told her father-in-law

that the child was in the living room looking at television.

Petitioner then went into the living room to look for the child

and discovered she was not there. Petitioner then immediately

went outside to the patio and saw the child laying face down in

the pool. Petitioner screamed for help, jumped in the pool and

lifted the child from the water.

55. Petitioner's husband was close enough to the

kitchen/living room area that he heard the exchange between his

father and Petitioner about the child's whereabouts and

Petitioner's subsequent scream. Within a few seconds,

Petitioner's husband ran from the house, jumped in the pool,

removed his daughter from the pool, and placed her on the pool

deck.

56. Once the child was on the pool deck, the child's

father and her grandfather immediately began administering CPR

while Petitioner called 911. They continued performing CPR on

the child until the emergency medical services and the fire

department arrived on the scene.

57. Both parents reported to detectives investigating the

incident that the child knew how to open and unlock doors.

58. Based on the facts established at or near the time of

the incident, it was concluded that the child slipped out of the

house and went undetected for about two or three minutes.

59. Petitioner and her husband described the child's

"slipping out of the house" as unusual and something she had

never done prior to April 23, 2006. Until that day, the child

had never gone off on her own and had been fearful of and never

gotten into the swimming pool at that house. (Petitioner and

her family had moved to this house only two or three months

before the incident.)

60. Based on its investigation, which included sworn

statements by Petitioner, her husband, and her father-in-law,

the Sheriff's Office concluded that the April 23, 2006, incident

was an accident.

61. The Department does not disagree with the conclusion

reached by the Sheriff's Office (i.e., the April 23, 2006,

incident was an accident). Nevertheless, according to

Ms. Reinhardt, irrespective of whether the incident was an

accident or done on purpose, the Department still found

"verified" indicators of inadequate supervision, because the

child got out of the house and into the pool and almost drowned.

62. The factual allegations in the report upon which the

Department relied were not established by competent and

substantial evidence. In absence of such evidence, the

Department's verified finding of inadequate supervision has not

been proven.

63. The record in this case is devoid of any evidence to

establish the Department's finding of any indicators of

maltreatment. Therefore, the Department's findings that there

were "some" indicators of maltreatment has not been proven.

Alarm on the Master Bathroom Door

64. The Department alleges that during the applicable time

period, the swimming pool at Petitioner's home did not comply

with the requirements in Florida Administrative Code Rule

65C-20.010(1)(i). That rule requires that swimming pools at

least one-foot-deep have either a barrier at least four-feet-

high around the pool, separating the pool from the house, or a

pool alarm that is operable at all times when children are in

their care.

65. There was conflicting and inconsistent information

provided to Petitioner as to whether a "pool alarm" that floats

in the swimming pool was required instead of a door alarm, which

is also apparently referred to as a pool alarm. Despite any

confusion that may have been caused by the different

representations made to Petitioner, it is undisputed that the

preliminary review notes and the Inspection Checklist clearly

indicate that Petitioner was required to repair the alarm on the

master bathroom door which led to the pool. It appears that

Florida Administrative Code Rule 65C-20.010(1)(i) refers to door

alarms as pool alarms.

66. Petitioner's husband testified credibly that he

attempted to have the door repaired by service personnel of the

alarm company that installed the alarm system, but has been

unsuccessful in doing so. In light of these futile attempts,

Petitioner's husband purchased a battery-operated door.

However, it is unknown when the battery-operated door was

purchased, whether it has been installed, and, if so, how it

works.

67. The alarm on the door of the master bathroom had not

been repaired by the April 3, 2009, "due date" or any time

thereafter, nor had any acceptable alternatives been installed.

Maintenance of the Swimming Pool

68. The Department alleges that the swimming pool at

Petitioner's home was not clean and maintained as required by

Florida Administrative Code Rule 65C-20.010(1)(j). That Rule

requires that if a family day care home uses a swimming pool, it

shall be maintained by using chlorine and other suitable

chemicals.

69. Petitioner acknowledges that, at all times relevant

hereto, the swimming pool at her home was not clean and properly

maintained.

70. Some time after the denial letter was issued,

Petitioner's swimming pool was emptied, a full-processed

cleaning was completed, and the pool was filled with water.

However, a leak in a light in the pool was discovered. In order

to repair that leak, the pool had to be emptied. At the time of

this proceeding, the leak was being repaired. Once the leak is

fixed, the pool can be filled with water and the "pool alarm"

that floats in the pool can be installed.

Local Law Enforcement Background Check

71. The application process requires that each person

living in the home that will serve as the family day care home

have a background screening. Such background screening includes

a check by the Federal Bureau of Investigation ("FBI"), the

Florida Department of Law Enforcement (FDLE"), and a local

criminal history check.

72. In February 2009, Petitioner's cousin, Carlos

Granados, was living with Petitioner and her husband.

Accordingly, Mr. Granados was required to have a local criminal

history check, and a copy of that criminal history check was to

be provided to the Department.

73. Petitioner testified credibly that she submitted all

the documents for completion of Mr. Granados' background checks

and could not explain why the Department did not receive the

local criminal history check for Mr. Granados. 16

74. The evidence established that Mr. Granados no longer

lives in Petitioner's home. Therefore, the Department does not

need, and is not required to have, a local criminal history

check for him.

CONCLUSIONS OF LAW

75. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

76. The Department is the state agency charged with

licensure of child care facilities. § 402.305, Fla. Stat.

77. Subsection 402.310(1)(a), Florida Statutes, provides

that the Department may "deny, suspend, or revoke . . . for

violation of any provision of ss. 402.301-402.319 or rules

adapted thereunder."

78. The rules adopted by the Department to implement

Sections 402.301 through 402.319, Florida Statutes, are codified

in Florida Administrative Code Rule Chapter 65C-20.

79. The Department shall issue a new license "upon being

satisfied that all standards required by ss. 402-301-402.319

have been met." § 402.308(3)(d), Fla. Stat.

80. The May 8, 2009, denial letter cites the following

statutes and rules which Petitioner allegedly violated: Florida

Administrative Code Rule 65C-20.010(1)(i) (relating to barriers

around swimming pools and pool alarms); Florida Administrative

Code Rule 65C-20.0101(j) (relating to maintenance of swimming

pools); and Subsection 402.305(2), Florida Statutes (relating to

screening requirements for child care personnel). With respect

to that allegation, the Department cites Subsection 402.26(3),

Florida Statutes (relating to the legislative intent to develop

a regulatory framework for child care that facilitates the "safe

physical . . . development of the child"); and Section 402.301,

Florida Statutes (relating to the legislative intent to protect

the health, safety, and well-being of children in child care

facilities).

81. In an application proceeding such as this, the

Department has the burden to prove the specific acts or

violations which it alleges are grounds for the denial by a

preponderance of evidence. Department of Banking and Finance v.

Osborne Stern & Co ., 670 So. 2d 932 (Fla. 1996).

82. Lastly, the Department's proposed denial is based on

an alleged "verified abuse neglect report."

83. Florida Administrative Code Rule 65C-20.010(1)(i)

provides in pertinent part:

(i) All in-ground swimming pools and above-

ground swimming pools more than one (1) foot

deep shall have either a fence or barrier on

all four sides, at a minimum of four (4)

feet in height, separating the home from the

swimming pool, or a pool alarm that is

operable at all times when children are in

care. . . .

84. The Department established that Petitioner was in

violation of Florida Administrative Code Rule 65C-20.010(1)(i),

because as of the date of this proceeding, Petitioner admitted

that the alarm or the master bathroom door had not been

repaired. Although Petitioner has made attempts to have the

pool alarm repaired or to install a battery-operated door or

door alarm as an acceptable alternative, the door alarm is still

inoperable and no satisfactory alternative has been installed.

85. Florida Administrative Code Rule 65C-20.010(1)(j)

provides in pertinent part:

(j) If a family day care home uses a

swimming pool, it shall be maintained by

using chlorine or other suitable

chemicals. . . .

86. The evidence established that as of the date of this

proceeding, Petitioner's swimming pool had been cleaned, but was

still in disrepair and not maintained as required by Florida

Administrative Code Rule 65C-20.010(1)(j).

87. Florida Administrative Code Rule 65C-20.008(3)

provides:

(3) A submitted CF-FSP Form 5133 will not

be considered complete until the licensing

authority receives proof of background

screening clearance on the operator of the

family day care home, substitutes, and on

all other household members who are subject

to background screening pursuant to Section

402.313(3), F.S. . . .

(a) Initial Screening includes all of the

following:

1. Level 2 screening, which includes at a

minimum Federal Bureau of Investigation

(FBI), Florida Department of Law Enforcement

(FDLE), and local criminal records checks.

For the purpose of issuing a license, any

out-of-state criminal offense, which if

committed in Florida would constitute a

disqualifying felony offense, shall be

treated as a disqualifying felony offense

for licensing and screening purposes under

this rule. . . .

88. It is undisputed that Mr. Granados is no longer a

member of Petitioner's household. Therefore, the screening

provisions are not applicable to him.

89. In light of the foregoing determination, the

Department failed to establish a violation of Florida

Administrative Code Rule 65C-20.008(3).

90. Subsection 39.201(6), Florida Statutes, provides that

information in the Central Abuse Hotline and the Department's

automated abuse information system "may be used by the

[D]epartment as part of the licensure or registration process

pursuant to ss. 402.301 through 402.319."

91. The Department proposed to deny Petitioner's license

because of a verified finding of inadequate supervision as to

Petitioner and her husband. According to the letter, "[t]hese

actions allowed the child to wander outside to the family pool

where she was found after an undetermined amount of time under

water and not breathing. During the investigation, it was

determined that the lock to get access [presumably to the pool]

had been broken for a few days."

92. Where, as in this case, an abuse report is ground for

a challenged administrative action, Subsection 39.202(2)(j),

Florida Statutes, allows the Division of Administrative Hearings

to have access to the subject abuse report. However, that

statutory provision does not authorize or mandate the

Administrative Law Judge to treat such abuse reports as

competent evidence (evidence that is sufficient in itself to

support findings of fact). See Smith v. Department of Children

and Family Services , Case No. 02-0401 (DOAH July 24, 2002)(Final

Order October 16, 2002); 2002 Fla. Div. Adm. Hear. Lexis 974.

93. The Department's denial letter and the testimony it

presented in this proceeding makes it clear that the

Department's proposed decision is based on the "verified abuse

neglect" report and the investigation which is part of the abuse

report. Therefore, to prevail, the Department must prove the

factual allegations 17 in the abuse/neglect report, upon which it

relies, by a preponderance of evidence. The Department must

then show that those facts, if proven, are a reasonable basis

for its verified finding. In this case, the Department has

failed to meet that burden.

94. The abuse/neglect report was the only evidence

presented to establish the factual allegations that resulted in

the "verified findings" of inadequate supervision. Even though

the abuse/neglect report included written entries attributable

to several individuals, none of those individuals, including the

CPI assigned to investigate the case, testified at this

proceeding.

95. The only Department witness who testified about the

abuse/neglect report was the supervisor of the person assigned

to investigate the report. Here, the record established that

the supervisor had no personal knowledge of the incident, did

not interview Petitioner, her husband, or her father-in-law.

Moreover, that supervisor never went to Petitioner's home to

view and inspect the property in connection with the

investigation. In determining that the report should be closed

with a verified finding of inadequate supervision, the

Department witness relied solely on information communicated to

her by the investigator assigned to the case.

96. The abuse/neglect report, including the written

entries which are the substance of the Department's factual

allegations, is hearsay. See § 90.803(1), Fla. Stat.

97. Pursuant to Subsection 120.57(1)(c), Florida Statutes,

"hearsay evidence may be used for the purpose of supplementing

or explaining other evidence, but shall not be sufficient in

itself to support a finding unless it would be admissible over

the objections in a civil action." In this case, no competent

evidence was presented regarding the factual allegations in the

abuse report and upon which the Department relied in its denial

letter. Thus, the abuse report did not supplement or explain

other evidence and cannot be the basis of a finding in this

proceeding.

98. Even if the Department proved the material factual

allegation, it failed to establish by competent evidence its

assertion that the "verified" finding of inadequate supervision

was required by the Department policy. The Department contends

that application of CFOP 175-28, and the Allegation Matrix

included therein, i.e., mandated this "verified finding."

Nevertheless, the Department did not produce a copy of that

document at this proceeding. Hence, even if the factual

allegations had been proven, no determination could be made as

to whether the operating procedure was properly applied.

99. With regard to the abuse/neglect report, the

Department failed to prove the allegations upon which its

proposed denial of licensure is predicated. Therefore, the

"verified abuse neglect report" is not a proper basis to deny

Petitioner's application for licensure as a family day care home

operator.

100. Because Petitioner has not complied with the

standards in Florida Administrative Code Rule 65C-20.010(1)(i)

and (j), the Department should deny her license to operate a

family day care home. However, the Department's denial for the

aforementioned grounds does not preclude Petitioner from

applying for a license in the future.

RECOMMENDATION

Based on the foregoing Finding of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Department of Children and

Family Services, enter a final order: (1) finding that

Petitioner, Best Family Day Care Home, failed to meet the

standards in Florida Administrative Code Rule 65C-20.010(1)(i)

and (j); and (2) denying Petitioner's application for a family

day care home on those grounds.

DONE AND ENTERED this 9th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 9th day of February, 2010.

ENDNOTES

1/ At the hearing, the Department advised that the denial letter

mistakenly cites Florida Administrative Code Rule 65C-22.010(1)

as the rule setting forth the requirements for swimming pools

and noted that the correct rule is Florida Administrative Code

Rule 65C-20.010(1).

2/ All statutory references are to Florida Statutes (2009),

unless otherwise noted.

3/ Exhibit L consists of the Intake Report, the Investigative

Summaries and Investigation Report, and includes pages 114

through 142.

4/ Lynne Reinhardt testified about CFPO 175-28, but a copy of

the procedure was not offered into evidence.

5/ Ms. Step testified that Petitioner's husband corrected this

problem during the February 20, 2009, walk-through.

6/ At the time of the inspections, the alarm system was working;

however, Petitioner and her husband did not have the service

that automatically notified law enforcement or other appropriate

officials each time the alarm went off.

7/ The February 20, 2009, preliminary review references only

"alarms on [a] door to [the] swimming pool." Also see

paragraph 5 of the Findings of Fact.

8/ Ms. Richmond learned of these concerns from her supervisor

and/or Ms. Step prior to going to Petitioner's home.

9/ Ms. Richmond's primary job responsibilities were monitoring

child care facilities with the primary emphasis on handling

complaints.

10/ According to the February 27, 2009, Inspection Checklist,

the non-compliance issue with the pool (i.e., cleaned and

properly maintained) was to be corrected by April 3, 2009.

11/ Petitioner and her husband considered the swimming pool

concerns as "minor" compared to the concern about the "verified"

report. The reason was that they could easily resolve the

former issue, but could do nothing to change the "verified"

report.

12/ One of the reasons for this recommendation was that the

verified abuse/neglect report was available at that office and

could be reviewed by Petitioner and her husband.

13/ The Notice to Cease and Desist form indicates that

Petitioner "was visited on March 23, 2009[,] and found to be

providing child care services without a license or proper

registration." That statement is inconsistent with other

information on the form which expressly notes that there

were "0" children in her care.

14/ There was no evidence presented that an "inspection" or

walk-through was conducted during the fifth visit (on April 7,

2009) to Petitioner's home.

15/ This is the date the abuse/neglect report was closed. The

day of the incident was April 23, 2006.

16/ The Department received the FBI and FDLE fingerprint results

in or about early February 2009. Both reports indicated that

nothing was found to disqualify Mr. Granados from working in a

family day care home (or in this case, living in a family day

care home).

17/ Those factual allegations include the following: (1) the

child was found in the water after an "undetermined amount of

time"; the "lock to get access" had been broken for a "few

days."

COPIES FURNISHED :

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

Stacy N. Robinson, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813

Jeremy Best

Marcela Best

Best Family Day Care Home

4062 State Road 60 East

Bartow, Florida 33830

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.