09-004310 Jacqueline Ritchie And Royal Family Child Care And Christian Academy vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, December 1, 2009.

Summary: The evidence fails to establish that the application for child care facility license should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE RITCHIE AND ROYAL )

FAMILY CHILD CARE AND CHRISTIAN )

ACADEMY, )

)

Petitioners, )

)

vs. ) Case No. 09-4310

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 8, 2009, a formal administrative hearing in this

case was held by video teleconference in Orlando and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioners: Jacqueline Ritchie, pro se

Royal Family Child Care

and Christian Academy

1440 Pine Hills Road

Orlando, Florida 32808

For Respondent: Tesha S. Ballou, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S-1114

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in the case are whether the suspension of the

Petitioner's child care facility license should be terminated,

and whether the Petitioner's application for license renewal

should be approved.

PRELIMINARY STATEMENT

By certified letter dated June 25, 2009, the Department

of Children and Family Services (Respondent) notified

Ms. Jacqueline Ritchie (Petitioner) that her application to

operate the Royal Family Child Care and Christian Academy was

denied. The Petitioner filed a request for hearing with the

Respondent. The request was referred to the Division of

Administrative Hearings, which scheduled and conducted the

hearing.

At the hearing, the Petitioner testified on her own behalf.

The Respondent presented the testimony of two witnesses and had

Exhibits identified as A through N admitted into evidence.

A Transcript of the hearing was filed on October 26, 2009.

The Respondent filed a Proposed Recommended Order that has been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. In June 2008, the Petitioner received a license to

operate the Royal Family Child Care and Christian Academy. The

Petitioner was the sole owner and operator of the facility.

2. Soon after becoming licensed, inspections of the

facility revealed operational deficiencies that were revealed

during seven inspections, dated October 15, 2008; February 9,

2009; February 25, 2009; March 4, 2009; March 23, 2009; March

27, 2009; and April 3, 2009.

3. The specific deficiencies were set forth on inspection

reports provided to the Petitioner at the time of each

inspection.

4. During the April 3, 2009, inspection, the Petitioner

voluntarily relinquished the license for the facility. Shortly

thereafter, the parties apparently entered negotiations

regarding the continued operation of the facility.

5. By a settlement agreement (agreement) dated April 7,

2009, the Petitioner admitted the deficiencies noted in the

seven inspection reports, and the Respondent returned the

license to the Petitioner.

6. The agreement imposed a "30 day suspension" of

operations and required the Petitioner to fully comply with

relevant requirements of the Florida Administrative Code rules

governing operation of child care facilities, to hire a

credentialed director to operate the facility, to perform

background screening on employees, and to ensure that the

employees were properly trained and certified in first-aid/cpr

techniques. The agreement also provided for a six-month

probationary period to commence upon the expiration of the

suspension.

7. Because the agreement provided that the 30-day

suspension period could be reduced or enlarged based upon

whether or not the Petitioner complied with the requirements in

the agreement, the suspension was essentially indefinite, at

least until the license expired.

8. The agreement further provided that the Respondent

could revoke the license and deny an application for a new

license based upon any failure of the Petitioner to comply with

the agreement.

9. On April 17, 2009, the Petitioner submitted a request

to the Respondent to resume operation of the facility and renew

the license and provided various documents to the Petitioner.

The Respondent did not submit a current and completed

application form.

10. By two separate letters dated April 27, 2009, the

Respondent advised the Petitioner that the submission was

incomplete. One letter addressed the request to resume

operation, and a second letter addressed the renewal request,

but there were issues common to both.

11. The letters specifically identified the information to

be submitted, including: information related to background

screening and central abuse registry records searches;

employment histories, training documentation, credentials, and

fingerprint cards for specified staff members; corporate

documentation; fire, food, and health inspection documentation;

documentation that the deficiencies referenced in the April 7,

2009, agreement had been corrected; and a completed application

on a current form. Both letters advised that assistance was

available and provided a telephone number for a child care

licensing counselor to respond to questions.

12. By letter dated May 15, 2009, the Respondent advised

the Petitioner that the deficiencies referenced in the agreement

had not been corrected and that the suspension of the facility's

license remained in effect. The letter explicitly noted the

remaining deficiencies in staff documentation and the facility

itself and advised that technical assistance was available to

assist in "understanding the rules and regulations" relevant to

the facility.

13. On May 26, 2009, the Petitioner submitted additional

information to the Respondent.

14. By two separate letters dated June 3, 2009, the

Respondent advised the Petitioner that the submission remained

incomplete. The letters identified the information to be

submitted, including: information related to background

screening, employment histories, and training documentation for

specified staff members; corporate documentation; and a

completed application form. The Respondent also noted that

vehicle inspection and registration information was required, as

well as payment of current and delinquent licensure fees. Both

letters again advised that assistance was available and provided

the telephone number for the child care licensing counselor.

15. On June 11, 2009, the Petitioner submitted another

renewal application and information in response to the

deficiencies identified in the April 7, 2009, agreement.

16. On June 16, 2009, the Respondent conducted an

inspection to determine compliance with the agreement and for

the purposes of the license renewal application.

17. The inspection revealed that employee documentation,

including employment applications, hire dates, histories, and

background screening, was not available. Such documentation was

specifically required by the terms of the agreement as well as

for renewal of the license.

18. In addition to the lack of background information on

employees, the inspection revealed other problems at the

facility.

19. There was no shade available in the outdoor play area.

The swing set s-hooks were open, and the plastic coating on the

chains was missing, presenting the possibility of injury to

children.

20. A "Little-Tykes" play-set was located against a fence,

providing the possibility of escape by a child climbing over the

fence from atop the play-set.

21. The water fountain was not securely attached to the

wall and, despite an attempt to correct the deficiency during

the inspection, could not be repaired. A child could have

pulled the water fountain away from the wall and caused injury.

22. Some floor mats provided for napping were torn, and

the interior foam was exposed, preventing adequate sanitation

and presenting a health hazard to children sleeping on the mats.

23. The First-Aid kit located in the facility was

incomplete and was missing various items, including a

thermometer.

24. Medical supplies, including various creams and

ointments, were stored in an open area under a changing table

less than one foot above the floor. A child could access and

ingest the supplies.

25. The inspection also noted the absence of daily

attendance sheets used to account for children present at the

facility; however, because the license had been suspended, the

facility had not been in operation, and no children had been

present.

26. At the hearing, the Petitioner testified that there

had been attempts to comply with the Respondent's requirements,

but that the requirements were unclear. She opined that she

should have been provided assistance to understand what was

necessary to re-open the facility and renew the license.

27. At all times material to this case, the Respondent

provided assistance to licensees and applicants through personal

contacts and various workshops, and such assistance was

available to the Petitioner.

28. The Petitioner registered for, but did not attend,

several workshops related to licensure and operation of child

care facilities. Additionally, the Petitioner was specifically

advised as to the documentation necessary to comply with the

agreement and failed to submit the materials.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

30. The Respondent is the state agency charged with

licensure of child care facilities. The Respondent is

authorized to issue such licenses when specified requirements

are met. § 402.308(3)(d), Fla. Stat. (2009).

31. The Petitioner has the burden of establishing

entitlement to the licensure sought in this proceeding by a

preponderance of the evidence. See Department of Banking &

Finance, Division of Securities & Investor Protection v. Osborne

Stern & Company , 670 So. 2d 932, 934 (Fla. 1966); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). In this case, the

burden has not been met.

32. Section 402.310, Florida Statutes (2009), provides for

denial, suspension, or revocation of a license based upon a

violation of relevant statute. Subsection 402.310(1)(b),

Florida Statutes (2009), provides as follows:

In determining the appropriate disciplinary

action to be taken for a violation as

provided in paragraph (a), the following

factors shall be considered:

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.

33. The evidence establishes that the Petitioner failed to

comply with the terms of the settlement agreement under which

the license had been initially suspended. The evidence further

establishes that there were deficiencies revealed during an

inspection conducted on June 16, 2009, that were sufficient to

warrant denial of the Petitioner's application for renewal of

the license.

34. Sections 435.04 and 435.05, Florida Statutes (2009),

require specified employers to screen employees for criminal

history. Florida Administrative Code Rule 65C-22.006 requires

that the Petitioner make such information available to the

Respondent. The purpose of the requirement is to protect the

children attending the child care facility from potential harm

by unsuitable employees. The Petitioner failed to comply with

these requirements.

35. Florida Administrative Code Rule 65C-22.002 sets forth

detailed requirements related to the physical environment of a

child care facility. The rule specifically requires: that

outdoor play areas include shade from the sun; that children be

provided safe and sanitary bedding for naps and that floor mats

be covered with an impermeable surface; and that all equipment

in the facility be maintained in a safe condition. Florida

Administrative Code Rule 65C-22.004 requires that a First-Aid

kit, including a thermometer and other specified items, be

maintained at the facility and further requires that medical

supplies be located out of the reach of children. The general

purpose of the requirements is to protect the health and safety

of the children in the facility. The Petitioner failed to

comply with these requirements.

36. At the hearing, the Petitioner admitted the

deficiencies set forth herein, but opined that assistance should

have been provided so that she could operate the facility. The

evidence established that such assistance was made available to

the Petitioner, but that the deficiencies remained uncorrected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner's request to

terminate the suspension of the child care facility license and

for renewal of the license be denied.

DONE AND ENTERED this 1st day of December, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 1st day of December, 2009.

COPIES FURNISHED :

Tesha S. Ballou, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S-1114

Orlando, Florida 32801

Jacqueline Ritchie

Royal Family Child Care

and Christian Academy

1440 Pine Hills Road

Orlando, Florida 32808

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

George H. Sheldon, Secretary

Department of Children and

Family Services

Building 1, Room 202

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.