98-005078 Sherill P. Gomez vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, May 7, 1999.

Summary: Despite training and warnings, Petitioner left children, including an infant, in the yard unattended when she went inside house. Deny provisional family day care home license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERILL P. GOMEZ , )

)

Petitioner, )

)

vs. ) Case No. 98-5078

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, Mary Clark, held

a formal hearing in the above-styled case on March 31, 1999, by

videoconference. The Administrative Law Judge presided from

Tallahassee, Florida; the parties, their witnesses, and the court

reporter participated from Orlando, Florida.

APPEARANCES

F or Petitioner: Sherill Gomez

3689 Penshurst Place

Kissimmee, Florida 34758

For Respondent: Carmen M. Sierra, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801

STATEMENT OF ISSUES

T he issue for disposition in this proceeding is whether

Petitioner is entitled to relicensure as a family day-care home.

PRELIMINARY STATEMENT

On October 13, 1998, the Department of Children and Family

Services (DCFS) notified Ms. Gomez that her application for a

family day-care home was denied for failure to meet minimum

standards required by Chapter 402, Florida Statutes.

Specifically, the notification letter cited violations regarding

supervision of children in the home.

M s. Gomez requested a formal evidentiary hearing and the

case was referred to the Division of Administrative Hearings.

At the hearing Ms. Gomez testified in her own behalf and

presented a single exhibit, a videotape of her home. That

exhibit, marked and received as Petitioner's Exhibit No. 1, has

been viewed and considered by the Administrative Law Judge.

DCFS presented the testimony of Barbara Ivey and Kathy

Swaggerty. DCFS also presented a copy of Ms. Gomez's prior

provisional license and Barbara Ivey's inspection report, marked

and received in evidence as Respondent's Exhibits Nos. 1 and 2.

Neither party filed a proposed recommended order nor filed

the transcript.

FINDINGS OF FACT

1. S herill Gomez resides in Kissimmee, Osceola County,

Florida, and had a provisional license to operate a family day-

care home at her residence. The license was issued on April 13,

1998, and expired six months later on October 13, 1998.

2. I n 1989, Ms. Gomez was involved in an incident of child

neglect. She had been babysitting in her home and left two

children under the age of 3 sleeping but unattended when she went

out shopping. In her absence a 2 1/2-year-old, Andre, got out

the door and was picked up by the police. When Ms. Gomez

returned she called the police and learned that they had Andre.

Apparently all she knew about the child's mother was that she

worked at Disney Village.

3. Ms. Gomez took a three-hour course for family day-care

and received explicit instructions regarding her duty to provide

adult supervision at all times, both inside and outside the

house. When she applied for licensure and assured DCFS that the

1989 incident never would occur again, the licensing supervisor,

Kathy Swaggerty, agreed to a six-month provisional license with

close agency scrutiny of the home during that period.

4. During the provisional license period, Barbara Ivey

inspected Ms. Gomez's home several times, both announced and

unannounced. She found several violations in July 1998 regarding

record-keeping, bedding for the children, and access to unsafe

items such as bleach, kitty litter, a weed-wacker, bicycles, and

barbeque grills. Concerned that Ms. Gomez did not understand her

obligation, Ms. Ivey spent about two and one-half hours with her

on that visit explaining the rules. Ms. Ivey also explained the

importance of adequate supervision.

5. Ms. Ivey returned on August 5, 1998, and found some

violations had been corrected, but there were still problems with

two of the children's records; the bicycles were still

accessible, and the carpet was dirty. On a subsequent visit in

August everything but a nutrition card for one infant had been

corrected. Ms. Ivey and Ms. Gomez discussed supervision again

and Ms. Ivey emphasized that with one adult caregiver all of the

children needed to be in the house or out in the play yard

together.

6. Ms. Gomez applied for relicensure and Ms. Ivey scheduled

another inspection visit on September 30, 1998, shortly before

the provisional license was due to expire.

7. Ms. Ivey arrived at the home and was admitted by

Ms. Gomez, who led her into the kitchen area where there was a

round table with chairs in front of a large picture window

looking onto the backyard. Through the window Ms. Ivey could see

two children, ages 3 and 4 years, playing in the yard. A 5-month

old infant was in a carry-all near the table in the kitchen.

Ms. Ivey told Ms. Gomez that the children needed to come in.

Ms. Gomez said that the children were all right, that they could

be watched through the window, but Ms. Ivey insisted that the

children should come in.

8. When Ms. Ivey went out the backdoor she found another

child, an infant, sitting alone on the patio out of view of the

window and unable to be observed from inside the house. The

backyard is not fenced and leads into a wooded area. The infant

could have crawled away into that area.

9. After the children were brought inside Ms. Ivey

continued with her inspection but explained that the lack of

supervision was a problem. Ms. Gomez also had six children

enrolled, a number which was in excess of her approved capacity

when her own child was home from school. In the October 13,

1998, license denial letter, inadequate supervision was the

specific basis for DCFS' finding that Ms. Gomez's home failed to

meet minimum standards.

10. At the hearing Ms. Gomez explained that the reason the

children were left alone is that she had to go the door when

Ms. Ivey arrived. This explanation does not justify her leaving

the infant alone unobserved on the patio nor does it justify

Ms. Gomez's delay in retrieving the children after Ms. Ivey's

arrival. Moreover, under DCFS standards, she should have brought

all of the children inside when she went into the house.

CONCLUSIONS OF LAW

11. T he Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

12. In this case, Ms. Gomez has the ultimate burden of

proving her entitlement to the license she seeks; DCFS has the

burden of proving that she committed the violations that would

make her unfit for licensure. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996).

13. Section 402.313, Florida Statutes, authorizes DCFS to

license family day-care homes. Rule 65C-20.009, Florida

Administrative Code, requires that operators of family day-care

homes must provide supervision of the children in their care and

must be able to respond to the emergencies and needs of children:

"During daytime hours of operation children shall have adult

supervision which means watching and directing children's

activities, both indoors and outdoors, and responding to each

child's needs."

14. DCFS met its burden of proving that Ms. Gomez failed to

provide adequate supervision when she left an infant unattended

on a patio. Ms. Gomez did not establish her entitlement to

licensure.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED: that the Department of Children and Family

Services enter its final order denying Sherill Gomez' application

for family day-care home licensure.

DONE AND ENTERED this 7th day of May, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

MARY CLARK

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 7th day of May, 1999.

COPIES FURNISHED :

Sherill Gomez

3689 Penshurst Place

Kissimmee, Florida 34758

Carmen M. Sierra, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801

Gregory D. Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, 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.