01-003858 Tia Howard, Carmen Smith, And Diana Jones vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, February 15, 2002.

Summary: Evidence did not establish Department`s allegations of illegal operation of a day care center. Recommend dismissal of administrative complaints against Petitioners.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIA HOWARD, CARMEN SMITH, )

and DIANA JONES, )

)

Petitioners, )

)

vs. ) Case No. 01 - 3858

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

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

on January 4, 2002, in Ocala, Florida before the Division of

Administrative Hearings, by its designated Administrative Law

Judg e, Barbara J. Staros.

APPEARANCES

For Petitioners: Edward L. Scott, Esquire

Edward L. Scott, P.A.

409 Southeast Fort King Street

Ocala, Florida 34471

For Respondent: Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioners

committed the offenses described in the Administrative

Complaints and if so, wheth er the Department of Children and

Family Services should impose proposed fines.

PRELIMINARY STATEMENT

By letters dated July 2, 2001, the Department of Children

and Family Services (Department) issued Administrative

Complaints to Impose Fines to each of th e three Petitioners,

Carmen Smith, Tia Howard, and Diana Jones. The Administrative

Complaint letters charged Petitioners with the illegal operation

of a day care facility, caring for infants without authorization

or required equipment, serving meals from a facility unlicensed

and equipped to do so, and transporting children in vehicles

owned by an unlicensed facility in an unsafe manner. The

Administrative Complaints sought to impose fines of $26,000.00

on each Petitioner with an additional fine of $2,000 .00 per day

per Petitioner for each successive day the Petitioners operated

the day care facility.

Petitioners disputed the allegations of the administrative

complaints and jointly requested an administrative hearing. The

Department consolidated the thre e cases and forwarded them to

the Division of Administrative Hearings on or about October 3,

2001. A formal hearing was scheduled for January 3 and 4, 2002.

Prior to the hearing, the parties indicated that only one day

would be needed to conduct the hear ing.

At hearing, Petitioners presented the testimony of the

three Petitioners, Carmen Smith, Tia Howard, and Diana Jones,

and one witness, Reverend James Sykes. Petitioners' Exhibits 1

through 3 were admitted into evidence. Respondent presented the

te stimony of four witnesses, Luzonia Waters, Nancy Denmark,

Harmon S. "Stan" Blanchard, and Darnell Stewart. Respondent's

Exhibits 1 through 10 were admitted into evidence. Official

recognition was taken of Chapter 65C - 22, Florida Administrative

Code.

The hearing was not transcribed. The parties requested 10

days in which to file proposed recommended orders. However, on

January 14, 2002, the parties filed a Stipulated Motion for

Extension of Time to File Proposed Recommended Orders. This

motion was grant ed. The parties timely filed proposed

recommended orders on January 22, 2002, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Carmen Smith owned and operated Happy Days Day Care

Center (Happy Days) located i n Ocala, Florida. On June 17,

2001, the license to operate Happy Days expired and was not

renewed. 1/

2. Tia Howard is Carmen Smith's daughter. Ms. Howard was

not employed by Happy Days but volunteered there. She also was

never an employee of St. Paul 's A.M.E. Church Preschool. Around

the time that Happy Days' license was to expire, Ms. Howard

contacted the Department inquiring as to transferring the

license of Happy Days to Ocala Northwest Learning Center.

Ms. Howard was informed there was no valid license to transfer. 2/

Ms. Howard helped move equipment from Happy Days to St. Paul's

on June 17, 2001. Ms. Howard was in Savannah, Georgia, for

school and National Guard duty from June 18, 2001 until July 2,

2001.

3. On a date near in time to the expir ation of Happy Days'

license, Ms. Smith and Ms. Howard wrote an undated letter to

parents of children who attended Happy Days. The letter read as

follows:

HAPPY DAYS CHILD CARE CENTER

2345 N.W. 10th Street

Ocala Florida

Phone: 732 - 3848 or 732 - 8292

Ha ppy Days Child Care Center is suggesting

that all students (with the exception of

Protective Service Students) transfer to St.

Pauls Academy effective June 18, 2001.

Parents must notify Childhood Development of

their transfer before Monday June 18th.

Par ents on Protective Service Program we are

recommending Oakcrest Early Education Center

where transportation will be provided for

those who need it. This is only a temporary

placement of approximately 14 days or until

Happy Days can complete the transactio n of a

name change, from Happy Days to Ocala N.W.

Learning Center

4. Childhood Development Services (CDS) contracts with the

Department to administer the enrollment in and payment for

subsidized daycare in the Ocala area. When the Department

notifie d Ms. Smith that the license would not be renewed, CDS

sent a letter dated April 11, 2001, to all parents with children

enrolled in Happy Days advising them that they would have to

make other arrangements for daycare because Happy Days would no

longer be l icensed or eligible to provide subsidized childcare.

5. St. Paul's A.M.E. Church Preschool (St. Paul's) held

child care facility license number 130852 effective October 20,

2000 through October 21, 2001. Reverend James Sykes is the

Pastor of St. Paul's A.M.E. Church, where the preschool was

located. Ms. Smith and her daughter, Ms. Howard, were and are

members of St. Paul's A.M.E. Church.

6. Sometime before June 17, 2001, Ms. Smith approached

Reverend Sykes about St. Paul's taking the children who att ended

Happy Days. St. Paul's child care facility was vacant at the

time despite the license to operate remaining current at all

times material hereto. There was also a modular unit on

St. Paul's property that had been leased to CDS but had been

vacated by June 18, 2001.

7. Reverend Sykes agreed to provide child care to the

children whose parents wanted to transfer their children from

Happy Days to his child care facility. Many of the children who

attended Happy Days moved to St. Paul's which reopened on

June 18, 2001. The Board of Trustees of his church was aware of

this arrangement and either approved it or agreed to it.

Reverend Sykes rented vans and other equipment for St. Paul's

daycare center from Ms. Smith for a nominal sum. The vans and

equipmen t had been used at Happy Days. Reverend Sykes explained

that his motivation in providing child care to the children was

to help out Ms. Smith because she was a member of his church,

and to help out the parents by offering continuity of childcare

for the c hildren.

8. The Happy Days name and telephone number remained on

the vans for a week to ten days until the vans were spray

painted to cover the Happy Days name. The record is unclear as

to whether the telephone number and/or license number of Happy

Day s remained on the vans after the name was covered by spray

paint.

9. Except for the payment of nominal rent for the vans and

the equipment, there is no evidence that Reverend Sykes or

St. Paul's paid any money to Ms. Smith or her daughter,

Ms. Howard. N either Ms. Smith or Ms. Howard were employees of

St. Paul's.

10. Mr. Stan Blanchard is employed by the Marion County

Health Department. One of his responsibilities is to conduct

inspections of daycare centers. He received information that

Happy Days o r Ocala Northwest moved operations to St. Paul's and

was operating illegally there. He went to St. Paul's on

June 18, 2001, and found persons he described as staff from

Happy Days and Ocala Northwest. He was familiar with Ms. Smith

and Ms. Howard because of contact he had with them over time at

Happy Days. He saw Ms. Smith bringing food into the building.

He found children in the modular building that had been occupied

by CDS. Additionally, he found what he determined to be

violations of standards for child care facilities.

11. At the time of his inspection of St. Paul's,

Mr. Blanchard was not certain that St. Paul's had a valid

license to operate a daycare facility, and did not know whether

Ms. Smith was as employee of St. Paul's. He wrote two report s

while at St. Paul's that day. One report identifies the

facility as "St. Paul's AME Christian Daycare". At the top of

the report, Mr. Blanchard wrote, "DCF to determine the legality

of this arrangement." His report noted three violations: that

St. Pa ul's allowed Ocala Northwest to use their facility; that

infants were not allowed due to lack of hand - washing facilities

and, therefore, the infants must be sent home; and that food

comes in from Ocala Learning Center which "has lost its license"

and that food must come from St. Paul's kitchen. Ms. Smith

arrived during his inspection and signed this report, according

to Mr. Blanchard, because she was bringing food into the

facility at the time of his inspection. Mr. Blanchard presumed

the food came from O cala Northwest.

12. The second report of Mr. Blanchard's identifies the

facility as "Ocala NW Learning Center". At the top of the

report, Mr. Blanchard wrote, "Immediate Closure Required." The

report stated that Ocala Northwest was illegally occupying the

former CDS St. Paul's Headstart Center, which had been housed in

the modular unit on St. Paul's property, and cannot reopen until

licensed by the Department. The report noted that the children

had been moved from the former CDS center to the St. Paul 's

daycare next door "which may still have an active license."

This report was signed by Diana Jones.

13. Diana Jones was an employee of Happy Days for 10

years. When Happy Days ceased operations, she was offered

employment by Reverend Sykes and becam e employed as his

assistant director of the facility. She was not an owner of

either Happy Days or St. Paul's but was employed by each. She

gave Mr. Blanchard's report which she had signed to Reverend

Sykes. She continued to work at St. Paul's until it ceased

operations on July 2, 2001.

14. Upon receiving a complaint that Happy Days was

operating illegally at St. Paul's, Mary Carpenter, a Department

counselor, went to St. Paul's to investigate. Her report

indicates that she went to St. Paul's on June 1 8, 2001, and that

no one would answer the locked door. Ms. Carpenter did not

testify and it is unclear from her report and from the record

why she received no answer at the door of St. Paul's when

Mr. Blanchard was able to go inside on the same day and wr ite

two reports while there. A second report of Ms. Carpenter's was

written on June 29, 2001, and referenced the same problems

brought up by Mr. Blanchard regarding infants being at the

facility and food preparation.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

16. The Department of Children and Family Services is the

agency charged with the responsibility of licensing ch ild care

facilities in the state of Florida. Chapter 402, Florida

Statutes.

17. The Department seeks to impose administrative fines on

each of the Petitioners. Accordingly, as the party asserting

the affirmative of an issue before this administrative t ribunal,

the Department has the burden of proof. Florida Department of

Transportation v. J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA

1981). The Department must establish facts which support its

position of imposing administrative fines by clear and

conv incing evidence. Department of Banking and Finance v.

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

18. The Administrative Complaint charges Petitioners with

violating Section 402.312, Florida Statutes, which reads in

pertinent part as follows:

402. 312 License required; injunctive

relief. --

(1) The operation of a child care facility

without a license is prohibited. If the

department or the local licensing agency

discovers that a child care facility is

being operated without a license, the

departme nt or local licensing agency is

authorized to seek an injunction in the

circuit court where the facility is located

to enjoin continued operation of such

facility. When the court is closed for the

transaction of judicial business, the

department or local licensing agency is

authorized to seek an emergency injunction

to enjoin continued operation of such

unlicensed facility, which injunction shall

be continued, modified, or revoked on the

next day of judicial business.

(2) Other grounds for seeking an i njunction

to close a facility are that:

(a) There is any violation of the standards

applied under ss. 402.301 - 402.319 which

threatens harm to any child in the child

care facility.

(b) A licensee has repeatedly violated the

standards provided for under ss. 402.301 -

402.319.

(c) A child care facility continues to have

children in attendance after the closing

date established by the department or the

local licensing agency.

(3) The department may impose an

administrative fine on any child care

facility operating without a license,

consistent with the provisions of s.

402.310.

19. The Administrative Complaints also charge Petitioners

with violating the standards imposed on child care facilities

pursuant to Section 402.305, Florida Statutes, and Chapter 65C -

22, Florida Administrative Code, 3/ by caring for infants without

a license or appropriate facilities to do so; providing meals

from an unlicensed facility and contrary to the license of

St. Paul's; and transporting children in vehicles owne d by an

unlicensed facility and in an unsafe manner.

20. The Administrative Complaints seek to impose an

administrative fine on each Petitioner pursuant to Section

402.310, Florida Statutes, 4/ which reads in pertinent part as

follows:

402.310 Disciplinar y actions; hearings upon

denial, suspension, or revocation of

license; administrative fines. --

(1)(a) The department or local licensing

agency may deny, suspend, or revoke a

license or impose an administrative fine not

to exceed $100 per violation, per da y, for

the violation of any provision of

ss.402.301 - 402.319 or rules adopted

thereunder. However, where the violation

could or does cause death or serious harm,

the department or local licensing agency may

impose an administrative fine, not to exceed

$500 per violation per day.

(b) 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 to correct

the violation or to remedy complaints.

3. Any previous violations of the licensee.

21. The Department interprets the language of Section

402.310, Florida Statutes, as not being limited to the actual

holder of the license, but to include any one who participates in

the violation in a significant way. Accordingly, the Department

seeks to impose the maximum fine of $500.00 per day on each

Petitioner.

22. However, this interpretation is inconsistent with the

language of Section 402.310, Flori da Statutes, which expressly

refers to denial, suspension or revocation of a license,

repeatedly refers to "the licensee" and does not appear to

contemplate applicability to persons other than a licensee. On

the other hand, Section 402.312(3), Florida Sta tutes, which is

also cited in the Administrative Complaints, expressly allows

the Department to impose a fine on any child care facility

operating without a license.

23. The parameters of St. Paul's license were not clearly

established in the record. Wh ile there is reference in

Ms. Carpenter's and Mr. Blanchard's reports and Mr. Blanchard's

testimony to infants not being allowed to be there due to lack

of hand - washing facilities and reference to food coming from

outside the facility, the Administrative C omplaints in this

proceeding were not brought against St. Paul's, which held a

valid license at all times material to this case.

24. As to Petitioner Carmen Smith, the evidence in the

record shows that she was not an employee of St. Paul's and,

with the e xception of receiving nominal rent money for

equipment, was not paid by St. Paul's. While she was the

director of Happy Days, it ceased to operate on June 17, 2001.

25. As to Petitioner Tia Howard, the extent of her

involvement appears to be helping move furniture and equipment

from Happy Days to St. Paul's. Otherwise, she was in Savannah,

Georgia, and therefore, was not a participant in any fashion in

the operation of St. Paul's.

26. As to Petitioner Diana Jones, the evidence shows that

she was employe d by St. Paul's and signed for the report

requiring that the children be moved from the modular building

to the church building, which was done. However, Reverend Sykes

established that he was the Director of St. Paul's, and that it

was his decision to mo ve the children to the modular building

before moving them to the church building. While Ms. Jones may

fit within the definition of "operator" in Section 402.302(11),

Florida Statutes, in that she was the assistant director, the

allegations in the Adminis trative Complaint regarding infants

being in the facility and improper provision of food to the

children are within the context of an "illegal daycare" being

operated at St. Paul's. Any deficiency that may exist in

St. Paul's compliance with relevant stat utes and rules would

need to be brought within the context of an administrative

complaint addressed to the license holder, St. Paul's A.M.E.

Church Preschool. Such an Administrative Complaint was issued

to Reverend Sykes on the same day as the Administrat ive

Complaints in this proceeding. However, Reverend Sykes is not

a party to this proceeding and this Recommended Order makes no

findings related to the Administrative Complaint brought against

Reverend Sykes.

27. As to the allegation that children were being

transported in vehicles owned by an unlicensed facility and in

an unsafe manner, the evidence presented shows that the vans

were leased at a nominal rate for use by St. Paul's and the name

of Happy Days was spray painted in a week to 10 days to cove r

the Happy Days name. Moreover, there is no evidence in the

record regarding the allegation in the Administrative Complaints

that the children were transported in an unsafe manner when the

vans were being used to transport children to St. Paul's. 5/

28. The Department argues that the Petitioners acted in

collusion to continue the operation of Happy Days after Happy

Days' license expired. However, the letter written by

Petitioners Smith and Howard suggested two child care facilities

to the parents, not j ust St. Paul's. Regardless of the

intentions of Petitioners regarding former clients of Happy

Days, they did not operate an illegal daycare facility in that

St. Paul's was licensed to operate at all times material to this

proceeding.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order dismissing the Administrative Complaints against

Petitioners Carmen Smith, Diana Jones, and Tia Howard.

DONE AND ENTERED this 15th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearin gs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of February , 2002.

ENDNOTES

1/ The expiration and nonrenewal of the license was the result

of prior litigation between Happy Days and the Department.

2/ The record is unclear as to whethe r Ms. Howard formally

applied for a license or simply inquired about transferring a

license. There is no evidence in the record that Ocala

Northwest ever existed beyond Ms. Howard's inquiry of the

Department regarding possible licensure.

3/ No specific provision of Chapter 65C - 22, Florida

Administrative Code, is cited in the Administrative Complaints.

4/ The Administrative Complaint actually cites Section 302.10,

Florida Statutes, which is apparently a typographical error.

5/ That issue was raised in a Complaint for and Notice of

License - Renewal against Happy Days in DOAH Case No. 01 - 1811. In

that case, Happy Days filed a Voluntary Dismissal of its request

for administrative hearing and the case was closed without

hearing. The allegations in that ca se resulted from a licensure

inspection of Happy Days that occurred in February of 2001,

which is prior in time to the facts that are involved in this

proceeding. Those specific allegations cannot be promoted in

this case.

COPIES FURNISHED:

Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

Edward L. Scott, Esquire

Edward L. Scott, P.A.

409 Southeast Fort King Street

Ocala, Flor ida 34471

Peggy Sanford, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children

and F amily Services

1317 Winewood Boulevard

Building 2, Room 204

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.