02-000694 Linda Stewart D/B/A Stewart Family Day Care vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, June 4, 2002.

Summary: Where Petitioner clearly and convincingly proves basis for license non-renewal is invalid, application for license renewal should be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA STEWART d/b/a )

STEWART FAMILY DAY CARE, )

)

Petitioner, )

) Case No. 02 - 0 694

vs. )

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings, held a final hearing in the

above - styled case on Wednesday, May 15, 2002, in Inverness,

Florida.

APPEARANCES

For Petitioner: E. Eric Rubi o, Esquire

2407 East Bloomingdale Avenue

Valrico, Florida 33594 - 6404

For Respondent: Ralph McMurphy, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

STATEMENT O F THE ISSUE

The issue to be resolved in this proceeding is whether

Petitioner, a family day care center owner/operator, committed

violations of the Florida Statutes and the Florida

Administrative Code, as alleged by Respondent, sufficient to

justify R espondent's refusal to renew Petitioner's license.

PRELIMINARY STATEMENT

Petitioner was notified by letter dated January 22, 2002,

from Respondent's representative that Petitioner's day care

license would not be renewed. A conviction for the offense of

Driving Under the Influence of Alcohol on September 24, 2000,

and an allegation of a domestic violence dispute on May 13,

2000, were the reasons stated in the letter for the refusal to

renew.

Petitioner timely sought an administrative proceeding to

con test Respondent's decision not to renew, and the dispute was

transferred to the Division of Administrative Hearings.

At the final hearing, Respondent presented one witness and

three exhibits. Petitioner presented five exhibits and

testimony of five witnes ses.

No transcript was provided. Petitioner timely submitted a

Proposed Recommended Order, but no such order has been submitted

on behalf of the Respondent. Petitioner's Proposed Recommended

Order has been reviewed and utilized in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner Linda Stewart, on behalf of Stewart Family

Day Care (Petitioner), received the business’ first license to

operate a family day care center for no more than 10 children on

December 20, 1996. Annual rene wals of the license followed

until January 2002, following Stewart Family Day Care’s renewal

application filed the first of that month.

2. On January 22, 2002, Petitioner was notified that the

Department of Children and Family Services (Respondent) had

de clined to renew Stewart Family Day Care’s license to operate

as a family day care. Denial was based on Petitioner’s

September 24, 2000, arrest and subsequent conviction for Driving

Under the Influence of Alcohol (DUI).

3. License denial was also based on a report made to

Respondent of domestic violence (Report No. 2000 - 075894) in the

home in which Petitioner operated the Stewart Family Day Care.

An additional report, Report No. 2001 - 04761, which made

allegations that Petitioner was intoxicated while cari ng for

children was closed as unfounded.

4. At the time of both occurrences for which Respondent

had concerns, there were no children in the care of Petitioner

Stewart with the exception of her son, who was at the time of

the alleged domestic violence 1 6 years of age.

5. As established by the evidence, Petitioner was not the

first aggressor and did not initiate the altercation that

occurred in her home when a guest, not a live - in as alleged in

the report, with too much to drink became violent, hitting

Petitioner. Petitioner’s son went next door at his mother’s

request and called law enforcement.

6. Following Respondent’s refusal to renew Petitioner’s

license, Petitioner has become actively involved with Alcoholics

Anonymous (AA). Petitioner’s sponso r in AA testified that

Petitioner attends meetings and is sincere in her commitment

to AA.

7. Petitioner, it is specifically found, has effectively

rebutted through clear and convincing evidence, the allegations

of domestic violence upon which Responde nt relied for denial of

re - licensure. Additionally, the evidence convincingly

establishes that the DUI offense committed by Petitioner, at

night, was unrelated in any way to her day care business.

8. Further, as established by testimony of parents at t he

final hearing, Petitioner enjoys their full confidence with

regard to the care afforded their children.

9. Licensure renewal has never been denied to Petitioner

in the past. Additionally, she has attended, through the years,

numerous seminars and sho rt courses to compliment and increase

her proficiency in the area of child care.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Stat utes.

11. Respondent seeks to deny renewal of Petitioner's

license due to the results of a domestic violence report, the

accuracy of which has been effectively rebutted by Petitioner.

Additionally, Respondent relies upon Petitioner’s DUI

conviction, whic h is unrelated to her day care business and has

also been effectively rebutted as a basis for license non -

renewal. Respondent, however, possesses a wide array of

authority with regard to denial, suspension, revocation, and/or

renewal of Petitioner's licen sure status. Section 402.305,

Florida Statutes, and Rule Chapter 65C - 22, Florida

Administrative Code.

12. Excepting Petitioner’s DUI conviction and the

requirement of Rule Section 65C - 22.001(6)(a), Florida

Administrative Code, that any vehicle used for tr ansportation by

a child care facility be operated by someone with a valid

driver’s license, no fact established by the evidence indicates

Petitioner should be disqualified from re - licensure. Further,

if Petitioner now possesses a valid license, that obsta cle falls

as well.

13. With regard to Petitioner’s DUI conviction, it must be

noted that to the extent that such conviction denotes an

alcoholism addiction on her part, she is now a member of AA and

confronting the problem. Such action is to be applauded.

14. In determining the severity of discipline to be

imposed on a licensee where the charges are effectively proven,

as opposed to the clear and convincing rebuttal in the present

matter, a review of a portion of Section 402.310, Florida

Statutes, is in order and reads as follows:

402.310 Disciplinary 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 administrat ive fine not

to exceed $100 per violation, per day, 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 violatio n 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 har m

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.

15. As noted, Petitioner has never before been subjected

to discipline of her license. A review of the factors set forth

in Section 402.310, Florida Statutes, above, which must be

considered in the determination of discipline to be imposed on a

licensee , shows conclusively that Petitioner should not be

denied re - licensure.

16. Petitioner has established that matters underlying

Respondent’s determination not to renew Petitioner’s license

were untrue or that improprieties have been corrected.

RECOMMENDA TION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, and the candor and

demeanor of the witnesses, it is

Recommended that a final order be entered granting renewal

of Petitioner’s license to operate a day care center.

DONE AND ENTERED this 4th day of June, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 4th day of June, 2002.

COPIES FURNISHED :

Ralph J. McMurphy, Esquire

Departm ent of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

R. Eric Rubio, Esquire

2407 East Bloomingdale Avenue

Valrico, Florida 33594 - 6404

Paul Flounlacker, Agency Clerk

Department of Children and

Family Services

1 317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUB MIT 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.