99-003501 Yolanda Cheesmon vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, January 26, 2000.

Summary: Making a false statement on an application is sufficient ground for denying an application for a family day care center.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOLANDA CHEESMON, )

)

Petitioner, )

)

vs. ) Case No. 99-3501

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 5, 1999, in Blountstown, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Yolanda Cheesmon, pro se

1012A Yates Avenue

Blountstown, Florida 32424

For Respondent: John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street, No. 252-A

Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for a license

to operate a family day care home should be granted.

PRELIMINARY STATEMENT

This matter began on July 2, 1999, when Respondent,

Department of Children and Family Services, issued a letter

advising Petitioner, Yolanda Cheesmon, that her application for a

license to operate a family day care home had been denied on the

grounds she had been previously denied a license; she had

operated a facility without being properly registered; she had

operated a facility without a telephone; and she had provided the

agency with false information and a forged letter. By letter

dated July 23, 1999, Petitioner requested a formal hearing under

Section 120.569, Florida Statutes, to contest the proposed

action.

The matter was referred by Respondent to the Division of

Administrative Hearings on August 18, 1999, with a request that

an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated August 27, 1999, a final

hearing was scheduled on October 5, 1999, in Blountstown,

Florida.

At the final hearing, Petitioner testified on her own

behalf. Respondent offered Respondent's Exhibits 1-5, which were

received in evidence. Exhibit 5 is the transcript of the final

hearing in Case No. 98-5593, which involved a prior application

by Petitioner.

There is no transcript of the hearing. At the request of

the parties, this cause was temporarily abated pending the

issuance of a final order in Case No. 98-5593, in which a

Recommended Order was entered on June 14, 1999. A Final Order in

that case was eventually filed on December 27, 1999, and the

undersigned became aware of its rendition on January 14, 2000.

Thereafter, Proposed Findings of Fact and Conclusions of Law were

filed by Respondent on January 20, 2000, and they have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. This licensure proceeding involves a request by

Petitioner, Yolanda Cheesmon, for a license to operate a family

day care home at 1012 Yates Avenue, Blountstown, Florida. On

July 2, 1999, Respondent, Department of Children and Family

Services (Department), denied the application on the grounds that

Petitioner was "previously denied an application to operate a

Licensed Day Care Home"; that she had begun "operating at a Day

Care Home at 920 Thomas Avenue without being properly

registered"; that she had operated for "an unknown period of

time" without a telephone, "which is a requirement"; and that she

had "requested to become a licensed home and provided [the

Department] with false information and a forged letter." The

denial of the application prompted Petitioner to request a

hearing.

2. The Department regulates three types of day care

facilities. In descending order of regulatory oversight, they

are a licensed family day care facility, a licensed family day

care home, and a registered family day care center. While the

first two categories of facilities require annual on-site

Department inspections, background screening for all personnel,

training, and more extensive paperwork, a registered family day

care center involves no Department inspections and only requires

that the operator undergo background screening, complete a

training course, and provide to the Department certain paperwork,

including shot records of the children, in order to secure the

registration.

3. On August 19, 1998, Petitioner filed the necessary

paperwork to operate a registered family day care center at

1012 Yates Avenue, Blountstown, Florida. She received a

registration the same month. In its post-hearing submission, the

Department represents that the registration was subsequently

"terminated." As noted above, a registered home is the least

restrictive type of day care facility, and it only required that

Petitioner file an application with the Department, undergo

background screening, and provide the Department with certain

paperwork. Petitioner was, however, required to conform with

certain Department "standards," one of which required that she

have a working telephone on the premises of the facility, so that

Department personnel could always contact her, if necessary.

Whether this requirement is based upon a rule or an informal

regulation was not disclosed.

4. In September 1998, a Department licensing counselor,

Michelle Barsanti (Barsanti), attempted to contact Petitioner by

telephone and learned that the telephone had been disconnected,

which violated the unidentified Department requirement. Barsanti

then sent a registered letter to Petitioner on October 7, 1998,

advising that Petitioner must provide a telephone number.

5. By letter dated October 12, 1998, Petitioner advised

Barsanti that after she had received her registration from the

Department, she had moved the day care center to 920 Thomas

Avenue, Blountstown, Florida, and that she had a new telephone

number. This move was made because Petitioner says the Yates

property "wasn't properly fixed up and all to pass for the

inspection." However, an operator must re-register each time the

facility is moved; by operating at the new location without a

valid registration, Petitioner contravened a statute which

prohibits any person from operating a registered family day care

center without a registration. It is fair to infer from the

evidence that Petitioner was unaware of this requirement and that

the violation was unintentional.

6. On October 23, 1998, Barsanti met with Petitioner to

assist her in obtaining a registration for the new location.

During that meeting, Barsanti learned that Petitioner now desired

to operate a licensed, as opposed to a registered, family day

care home at her new address, and that Petitioner leased the

property from Judy A. Davis (Davis), an absentee landlord who

resided in Riviera Beach, Florida. At some point during this

process, Petitioner was also advised that she must close her day

care center at 920 Thomas Avenue until she obtained the

appropriate license.

7. Rule 65C-20.009(1)(a), Florida Administrative Code,

provides that if the operator leases the property on which the

facility will be located, "[w]ritten approval from the owner of

the property must be secured prior to issuance of the license."

Accordingly, Petitioner was required to comply with this

requirement since she intended to lease the Davis property.

8. In response to the foregoing requirement, Petitioner

provided Barsanti with a letter dated October 7, 1998,

purportedly written by Davis, and which stated that Davis "[gave]

Yolanda Cheesmon permission to operate a Daycare at my appointed

residence."

9. Shortly thereafter, Barsanti received an anonymous

letter which caused her to question the authenticity of the Davis

letter. After Barsanti contacted Petitioner and requested the

address and telephone number of Petitioner's landlord, on

October 29, 1998, Petitioner sent Barsanti a letter stating in

part as follows:

I regret to have to tell you that I lied

about the letter. I'm very sorry but I was

desperate to go ahead without any delay to be

licensed so that I can get the insurance

policy that my landlord needs.

. . . Please forgive me and I hope this

doesn't affect my case in any way. . . . And

again, I'm very sorry that I thought I had to

lie to you.

10. The foregoing admission confirms the Department's

allegation that Petitioner provided the Department "with false

information and a forged letter," as charged in the letter of

denial.

11. Notwithstanding the foregoing admission, Petitioner

pursued her application for a license at the Davis property. The

application was preliminarily denied on the ground that

Petitioner had provided the Department with a forged document.

Petitioner requested a formal hearing, and the matter was

assigned Case No. 98-5593.

12. After a formal hearing was conducted on April 22, 1999,

Administrative Law Judge Steven F. Dean issued a Recommended

Order on June 14, 1999, in which he recommended that Petitioner's

application be denied, not on the ground that she had made a

false statement as alleged by the Department, but rather because

the application was moot by virtue of "the passage of time" since

Petitioner had by then moved back to her former residence at

1012 Yates Avenue and desired to operate her facility from that

location. In addition, at the conclusion of the evidentiary

hearing, Judge Dean advised Petitioner to file a new application

for licensure using her most current address. Based on that

advice, Petitioner filed the instant application. As noted in

Finding of Fact 1, the Department has preliminarily denied the

second application on numerous grounds.

13. In a Final Order Reversing Recommended Order and

Denying Application for Licensure filed on December 27, 1999, the

Department rejected the conclusion that the application was moot

and instead denied the application on the ground that Petitioner

had failed to "meet all of the Department's requirements for

licensure." Therefore, Petitioner has had a prior application

denied, as alleged in the Department's letter denying her

application.

14. In summary, the foregoing facts establish the

Department's contentions that Petitioner operated for a short

period of time as a family day care home without an appropriate

registration; that she operated without a telephone on the

registered premises; that she gave false information to the

Department when attempting to secure a license; and that she has

had a prior application for licensure denied.

15. At the hearing, Petitioner again apologized for filing

a forged document; stated it was based on "bad judgment"; argued

that the forged document alone is not a sufficient basis to

disqualify her from licensure;, and established that she

sincerely desires to engage in the day care business. Petitioner

has requested that if the license is denied, that she be allowed

to retain her registration previously issued in August 1998.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.57 and 120.569, Florida Statutes (1999).

17. Section 402.305, Florida Statutes (1999), sets forth

the licensing standards for child care facilities. Among other

things, paragraph (1)(c) authorizes the Department to adopt by

rule the minimum standards for licensure. In addition,

Section 402.310(1)(a), Florida Statutes (1999), provides that the

Department may deny a license "for the violation of any provision

of ss.402.301-402.319 or rules adopted thereunder."

18. In its proposed agency action dated July 2, 1999, the

Department proposes to deny the application on four grounds. It

does not, however, cite the corresponding source of authority

(statute, rule, or informal regulation) for those grounds.

During the course of the hearing, Rule 65C-20.009(1)(a), Florida

Administrative Code, was cited as being the basis for the

requirement that the operator of a licensed family day care

center who leases property secure the approval of the owner of

the property prior to the issuance of a license. That ground,

however, pertains to Case No. 98-5593, and not this case. No

other sources of authority have been cited.

19. A less than exhaustive examination of governing

statutes and agency rules reveals that Section 402.312(1)(c),

Florida Statutes (1999), makes it unlawful to "[o]perate or

attempt to operate a family cay care home without a license or

without registering with the department," while Section

402.319(1)(a), Florida Statutes (1999), makes it unlawful for any

person to knowingly "fail, by false statement, misrepresentation,

impersonation, or other fraudulent means, to disclose in an

application . . . for licensure regulated under ss. 402.301-

402.318 all information required under those sections." The

undersigned is unaware, however, of any rule or statute which

authorizes the Department to deny an application on the ground

that the applicant has previously had one denied. While this

ground may be used to deny other types of licenses, see, for

example, Section 400.314(3), Florida Statutes (1999), pertaining

to assisted living facilities, it does not appear in Chapter 402,

Florida Statutes (1999). At the same time, there is no cited

source of authority for the requirement that an operator have a

telephone on the registered premises. Therefore, the latter two

grounds have been disregarded.

20. The evidence clearly shows that Petitioner operated a

facility without properly registering with the Department,

although this violation was probably unintentional, and on a

prior application she made a false statement regarding certain

information required by an agency rule. The latter violation is

especially important here since it bears on the issue of whether

the Department should entrust children to an operator who has

made a false statement in seeking to secure a license. Under

these circumstances, the application for licensure should be

denied.

21. Finally, Petitioner has asked that she be allowed to

continue using the registration which she obtained in August 1998

for 1012 Yates Avenue, Blountstown, Florida. According to the

Department, however, this registration has been "terminated," and

assuming Petitioner can meet all criteria, she must file another

application.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Department of Children and Family

Services enter a final order denying Petitioner's application for

a license to operate a family day care center at 1012 Yates

Avenue, Blountstown, Florida.

DONE AND ENTERED this 26th day of January, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

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 26th day of January, 2000.

COPIES FURNISHED:

Virginia Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

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

Yolanda Cheesmon

1012A Yates Avenue

Blountstown, Florida 32424

John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street, No. 252-A

Tallahassee, Florida 32399-2949

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days to this Recommended Order. Any exceptions to this

Recommended Order should be filed with the agency that will issue

the final order in this case.