02-000820 Jean Thompson vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, July 18, 2002.

Summary: Respondent should renew Petitioner`s license to operate a family day care despite violations of Section 402.305(12), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEAN THOMPSON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0820

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 12,

2002, in Ocala, Florida, before Suzanne F. Hood, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward L. Scott, Esquire

Edwa rd 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

STATEMENT OF THE ISSUE

The issue is whether Respondent should renew Petitioner's

license to operate a large family child care home.

PRELIMINARY STATEMENT

By letter dated February 1, 2002, Respondent Department of

Children and Family Services (Respondent) advised Petitioner

Jean Thompson (Petitioner) that her license to operate Jeannie's

Child Care at 4339 Southeast 138th Lane, Summerfield, Florida,

would not b e renewed. The letter states that the denial was

based on confirmed Florida Abuse Hotline Information System

reports.

According to the letter, Petitioner was responsible for the

following inappropriate discipline of children in her care:

(a) putting ho t sauce in the mouth of children; (b) requiring

excessive exercise, such as running laps and doing push ups;

(c) threatening children with spanking; (d) spanking children

with hand, paddle, and belts; (e) having children stand in time

out with hands in th e air; and (f) having staff members grab

children hard enough to leave bruises.

On February 13, 2002, Petitioner filed a Petition for

Administrative Hearing. Respondent referred the petition to the

Division of Administrative Hearings on February 25, 2002.

The Division of Administrative Hearings issued an Initial

Order on February 26, 2002. Respondent filed a Response to

Initial Order on March 18, 2002.

A Notice of Hearing dated March 18, 2002, scheduled the

case for hearing on May 1, 2002. However, on Ap ril 26, 2002,

Respondent filed an unopposed Motion for Continuance. On May 1,

2002, the undersigned issued an order granting a continuance and

re - scheduling the hearing for May 23, 2002.

During the hearing, Petitioner testified on her own behalf

and prese nted the testimony of nine witnesses. Petitioner

offered two exhibits that were accepted into evidence.

Respondent presented the testimony of five witnesses but offered

no exhibits for admission into evidence.

A transcript of the proceeding was not filed with the

Division of Administrative Hearings.

On June 12, 2002, Respondent filed an Agreed Upon Motion

for Extension of Time. An order granting the parties additional

time to file proposed recommended orders was issued on June 20,

2002. Both parties fil ed Proposed Findings of Fact and

Conclusions of Law on June 21, 2002.

FINDINGS OF FACT

1. Petitioner has owned and operated Jeannie's Child Care

in her home as a licensed 24 - hour facility since 1988.

Petitioner's license allows her to keep up to 12 child ren at a

time. She also owns another offsite daycare center that is not

at issue here.

2. Petitioner's license to operate a large family child

care home expired on December 2, 2001. Prior to the expiration

of the license, Respondent designated Petitione r's facility as a

Gold Seal Quality Care Program.

3. There is no credible evidence that Petitioner is

responsible for any child being spanked with a paddle or a belt.

She normally puts children in the corner for time out when they

misbehave. However, co mpetent evidence indicates that

Petitioner sometimes threatens to spank children that are

difficult to control.

4. On at least one occasion, Petitioner spanked third and

fourth grade sisters with a rolled up newspaper, telling them

that if they behaved li ke dogs, she would treat them like dogs.

On other occasions, Petitioner spanked C.F. and F.D. by hand.

Because C.F. was particularly hard to manage, his mother and her

boyfriend gave Petitioner permission to spank C.F.

5. The children in Petitioner's ca re sometimes bite other

children. Usually these children are toddlers. To discourage

biting, Petitioner told her staff to put a drop of hot sauce on

a finger then put the finger in the child's mouth and on the

gum. Petitioner used hot sauce in the manne r described on F.D.

and at least one other toddler.

6. Petitioner's adult son drove the facility's vans. He

also played with the children in the yard. At times, he would

let the children exercise with him by doing push ups or sit ups

and running laps. Occasionally, Petitioner's son or teachers at

the facility would encourage C.F. or other school - aged children

to exercise and run laps. The purpose of the exercise was to

burn excess energy. To the extent that exercise was used to

control the behavior of the children, there is no persuasive

evidence that it was excessive.

7. It is acceptable to discipline children by placing them

in time - out. It is not acceptable to require the children to

hold their hands up in the air or to hold books in their hands

d uring a time - out period. There is no persuasive evidence that

Petitioner was responsible for children having to hold their

hands in the air or to hold books in their hands while they were

in time - out.

8. Petitioner's method of disciplining children varie d

depending on how difficult it was to control them. In some

cases, the parents of the children approved Petitioner's

unorthodox discipline. However, there is no evidence that any

child in Petitioner's home facility were bruised or physically

injured as a result of punishment.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 402.310(2),

Florida Statutes.

10. Respondent has the burd en of proving by clear and

convincing evidence that Petitioner is not entitled to renewal

of her license to operate a family day care home facility.

Coke v. Department of Children and Family Services , 704 So. 2d

726 (Fla. 5th DCA 1998).

11. Respondent h as authority to issue or renew a license

to operate a child care facility "upon receipt of the license

fee and upon being satisfied that all standards required by

ss. 402.301 - 402.319 have been met." Section 402.308(3)(d),

Florida Statutes.

12. Section 402.305, Florida Statutes, provides as follows

in pertinent part:

(2) PERSONNEL. -- Minimum standards for

child care personnel shall include minimum

requirements as to:

(a) Good moral character based upon

screening. This screening shall be

conducted a s provided in chapter 435, using

the level 2 standards for screening set

forth in that chapter.

* * *

(12) CHILD DISCIPLINE. --

(a) Minimum standards for child

discipline practices shall ensure that age -

appropriate, constructive disciplinary

pra ctices are used for children in care.

Such standards shall include at least the

following requirements:

1. Children shall not be subjected to

discipline which is severe, humiliating, or

frightening.

2. Discipline shall not be associated

with food, r est, or toileting.

3. Spanking or any other form of physical

punishment is prohibited.

13. Section 435.04, Florida Statutes, sets forth the

Level 2 screening standards. This statute does not include

having a confirmed Florida Protective Service Sys tem (FPSS)

abuse report as a disqualifying offense.

14. Section 39.01(2), Florida Statutes, states as follows:

(2) "Abuse" means any willful act or

threatened act that results in any physical,

mental, or sexual injury or harm that causes

or is likely t o cause the child's physical,

mental, or emotional health to be

significantly impaired. Abuse of a child

includes acts or omissions. Corporal

discipline of a child by a parent or legal

custodian for disciplinary purposes does not

in itself constitute abus e when it does not

result in harm to the child.

15. There is clear and convincing evidence that Petitioner

spanked one child with her hand and two children with a rolled -

up newspaper. The children were especially difficult to manage,

but Petitioner shou ld have sent them home if spanking was the

only way she could control their behavior. However, there is no

evidence that Petitioner's actions were abusive or done in

anger.

16. Clear and convincing evidence indicates that

Petitioner occasionally used ho t sauce to discourage toddlers

from biting other children. This practice is not acceptable,

but there is no evidence that Petitioner's actions were abusive.

17. Petitioner has operated a family day care in her home

for 14 years. She also owns another of fsite child care facility

that is not at issue here. At the hearing, many parents

testified about their satisfaction with Petitioner's care of

their children over the years. These witnesses related

instances where Petitioner had a positive impact on the lives of

the parents and children.

18. Respondent has never charged Petitioner with violation

of any of the provisions of Sections 402.301 - 402.319, Florida

Statutes. In fact, Respondent issued Petitioner a certificate

for operating a Gold Seal Quality Ca re Program that is valid

until June 27, 2004.

19. Petitioner violated Section 402.305(12), Florida

Statutes, when she spanked the children or used hot sauce to

discourage biting. However, based on the above - referenced

mitigating factors, Respondent shoul d renew Petitioner's license

provided that she retakes the courses in Rule 65C - 20.013(5)(a),

Florida Administrative Code, as Respondent determines to be

appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

REC OMMENDED:

That Respondent enter a final order renewing Petitioner's

license to operate a large family day care home subject to

appropriate terms and conditions.

DONE AND ENTERED this 18th day of July, 2002, in

Tallahassee, Leon County, Florida.

_________ __________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

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 18th day of July, 2002.

COPIES FURNISHED :

Ralph J. McMurphy, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Edward L. Scott, Esquire

Edward L. Scott, P.A.

409 Southeast Fort King Street

Ocala, Florida 34471

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and

Family Services

1317 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 SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions with in

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.