02-000987 Betty Baumstark vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, August 30, 2002.

Summary: The Department failed to prove the alleged factual basis for denial of family day care home license. In addition, the Department failed to approve or deny application within the 90-day time period required by Section 120.60(1), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY BAUMSTARK, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0987

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on June 10, 2002, in Brooksville, Florida, before

Carolyn S. Holifield, a duly - assigned Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Davi d P. Rankin, Esquire

14502 North Dale Mabry Boulevard

Suite 300

Tampa, Florida 33618

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 case is whether Petitioner is entitled to

have her home licensed and registered as a family day care home

under the provision of Chapters 402 and 435, Florida Statutes.

PRELIMINARY STATEMENT

On October 17, 2001, Petitioner, Betty Baumstark, submitted

an application for a license to operate a family day care home

pursuant to the provisions of Chapter 402, Florida Statutes. In

a letter issued February 8, 2002, Respondent, the Department of

Children and Family Services (Department) denied Petitioner's

application. According to the letter, the application was

denied for the following four reasons: (1) Abuse Report 2000 -

045218 indicated that Petitioner gave temporary custody of her

son to friends on or about Au gust 8, 1999, and her friends

stated that Petitioner could not and would not care for him; (2)

Abuse Report 1999 - 095828 was closed with some indicators of

inadequate supervision with caretaker present; (3) a Florida Law

Enforcement check showed a 1997 dome stic violence injunction

against Petitioner's fiancé; and (4) a 1998 report stated that

Petitioner had experimented with drugs in the past. Petitioner

requested a formal hearing to contest the Department's decision.

The request was forwarded to the Divis ion of Administrative

Hearings on March 12, 2002.

At hearing, Petitioner testified on her own behalf and

called two witnesses, Michael Canty and Greg Davis. Petitioner

had four exhibits received into evidence. The Department called

two witnesses, Donna Stucchio, a protective investigation

supervisor with the Department, and JoAnne K. Fuller, the

Department's day care licensing counselor for Hernando County.

The Department had four exhibits received into evidence.

A Transcript of the hearing was filed o n June 28, 2002.

Both parties submitted proposed recommended orders which have

been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. On October 17, 2001, Petitioner, Betty Baumstark,

submitted an application for a license to opera te a family day

care home at her residence.

2. On November 29, 2001, the Department conducted an

institutional staffing meeting to consider Petitioner's

application. During the institutional staffing, the staff

recommended that Petitioner's application for a license to

operate a family day care home at her residence be denied.

3. Although the institutional staffing committee made a

recommendation regarding Petitioner's application, the

Department's licensing specialist and supervisor made the final

dec ision regarding the family day care home license.

4. More than two months after the Department's

institutional staffing, on February 8, 2002, the Department

notified Petitioner by letter that her application to operate a

family day care home was denied.

5. The denial letter advised Petitioner that the family

day care home license was denied based on the following grounds:

(a) Abuse Report 2000 - 045218 indicated that Petitioner gave

temporary custody of her son to friends on or about August 8,

1999, and t hat Petitioner's friends stated that they asked for

the child because Petitioner "could not and would not care" for

him; (b) Abuse Report 1999 - 095828 was closed with some

indicators of inadequate supervision with caretaker present;

(c) a domestic violenc e injunction was issued in 1997 against

Petitioner's fiancé, Michael Canty; and (d) Petitioner had

stated that she had experimented with drugs. The Department

does not allege any other basis for denial of the license.

Accordingly, it is found that, excep t for any requirements and

minimum standards covered by those allegations, Petitioner met

all the requirements and minimum standards necessary for

licensure as a family day care home.

6. With regard to the allegations in the 2000 Abuse

Report, Petitioner did, in fact, give temporary custody of her

son to Greg Davis in August 1999, while she was pregnant with

her second child. The reason Petitioner gave Mr. Davis

temporary custody was because her son acted out his hostility

and became unmanageable. Concer ned about her son, Petitioner

actively sought assistance from various community resources to

help her son, but was unsuccessful in doing so. After becoming

aware of the situation with Petitioner's son, Mr. Davis, a

friend of Petitioner and Michael Canty, offered to allow

Petitioner’s son to live with him in an effort to improve the

boy’s behavior and performance is school.

7. Because Petitioner had been unsuccessful in obtaining

any assistance to address her son's problems, she agreed to

allow him to stay with Mr. Davis because she believed it was in

her son’s best interests. In fact, during the time Petitioner’s

son has lived with Mr. Davis, there has been a significant and

positive improvement in the boy’s behavior and his grades in

school. Petitioner' s son is still living with Mr. Davis and has

continued to do well in that setting. Given her son's progress

and improvement, Petitioner has allowed him to remain with Mr.

Davis. However, Petitioner has not abandoned her son and is

still very involved in his life. Petitioner has a good

relationship with her son and has maintained contact with him

through regular visits and telephone conversations.

8. Petitioner never stated that she could not and would

not care for her son.

9. The 1999 Abuse Report of i nadequate supervision is

based on a limited portion of the investigation which reported

that Petitioner was called to pick up her son from a treatment

facility and that she failed to pick up her child. This report

makes no claim that anyone from the Depar tment or the treatment

facility ever spoke to Petitioner and told her to pick up her

son from the treatment facility. Moreover, the credible

testimony of Petitioner is that she was never contacted and told

her that her son was being discharged from the fa cility and

needed to be picked up. During the time period covered in the

1999 Abuse Report, as noted in that report, Petitioner’s son was

in the custody of his father and stepmother and not in the

custody of Petitioner.

10. The domestic violence injuncti on referenced in the

denial letter names Michael Canty as a party in that proceeding.

Mr. Canty was Petitioner’s fiancé at the time of the hearing

and, in the event the license was issued, Mr. Canty, who lived

with Petitioner, was listed as the person who would be present

at the family day care home to assist in Petitioner’s absence.

11. As alleged in the denial letter, a domestic injunction

was issued against Mr. Canty in 1997. However, there is no

indication of the underlying factual basis for issuance of that

injunction. Nothing in the domestic violence injunction, dated

November 6, 1997, mentions that any violence had occurred or

that the interests of the children in question had been harmed.

Moreover, in a subsequently issued order in that case, it is

noted that Mr. Canty's ex - fiancée, the person who initiated the

injunction proceedings, withdrew her supporting affidavit.

12. According to the credible testimony of Mr. Canty, his

ex - fiancée obtained an injunction so that she could take the

couple’s children to another city and not because he had

committed an act of violence against her. During the years Mr.

Canty and his ex - fiancée lived together, there were never any

complaints filed with the police that indicate that Mr. Canty

engaged in conduct t hat constitutes domestic violence nor were

the police ever called to their home. The Department presented

no evidence to the contrary.

13. At some point during one of the investigations, there

was an accusation that Petitioner used drugs. In response to a

question from someone from "HRS" who talked to her, Petitioner

told the person that she had experimented with drugs.

14. Petitioner's experimentation with drugs was limited to

smoking marijuana when she was fourteen years old, twelve or

thirteen years prior to the hearing in this proceeding. Since

that time, Petitioner has not experimented with or used illegal

drugs.

15. In 1999, Petitioner submitted to drug testing as a

condition of employment with the YMCA and both of the tests were

negative.

16. T he Department’s notification of denial of

Petitioner’s application was more than ninety (90) days from the

date the Department received Petitioner's application.

17. The Department made no written request to Petitioner

for any additional information conc erning her application, but

claims that the request for additional information was made by a

Department employee during a conversation that employee had with

Petitioner. However, the Department employee who allegedly

requested that Petitioner provide addi tional information on the

domestic violence injunction involving Mr. Canty did not testify

at hearing. Moreover, the Department employees who testified at

hearing had not requested any additional information from

Petitioner and did not know whether any ot her Department

employee had requested such information from Petitioner.

18. Contrary to the Department's claim, the credible

testimony of Petitioner was that the Department never requested

or asked her to provide additional information to supplement her

a pplication.

19. The Department failed to act on Petitioner’s

application within ninety days of receiving it. This statutory

time period was not extended because the Department did not

request that Petitioner provide additional information regarding

her a pplication. Having failed to timely act on Petitioner’s

application, the Department is required to grant a family day

care home license to Petitioner.

20. Even if the Department had timely acted on

Petitioner's application, the substantive bases upo n which it

seeks to deny the family day care home have not been established

in this record.

CONCLUSIONS OF LAW

21. The Division of Administration Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120.57, Florida Statutes.

22. Chapter 402, Florida Statutes, governs licensure and

registration of child care facilities, including family day care

homes. Subsections 402.308(3) and 402.313(1), Florida Statutes.

23. The Department seeks to deny Petitioner's application

for a family child care home license on the grounds stated in

the denial letter and in paragraph 5 above. However, the denial

letter does not indicate the statute or rule that proscribes the

alleged conduct or actions and/or constitutes a proper basis for

the denial.

24. Subsection 402.305(1), Florida Statutes, requires the

Department to establish minimum standards that all child care

facilities must meet. These licensing standards include minimum

standards for child ca re personnel as enunciated in Section

402.305(2), Florida Statutes, which provides the following:

Minimum standards for child care personnel

shall include minimum requirements as to:

(a) Good moral character based upon

screening. This screening shall b e

conducted as provided in Chapter 435, using

level 2 standards for screening set forth in

that chapter.

25. Section 402.313, Florida Statutes, authorizes the

Department to license family day care homes and to conduct

appropriate background screeni ngs to determine if child care

personnel meet the requisite qualifications to work with

children.

26. Subsection 402.313(3), Florida S tatutes, reads as

follows:

(3) Child care personnel in family day care

homes shall be subject to the applicable

scre ening provisions contained in ss.

402.305(2) and 402.3055. For purposes of

screening in family day care homes, the term

includes any member over the age of 12 years

of a family day care home operator's family,

or persons over the age 12 years residing

wit h the operator in the family day care

home. Members of the operator's family, or

persons residing with the operator, who are

between the ages of 12 and 18 years shall

not be required to be fingerprinted, but

shall be screened for delinquency records.

27. Chapter 435, Florida Statutes, Level 1 and 2 screening

standards disqualify anyone as a child care provider who has

committed an act that constitutes domestic violence as defined

in Section 741.30, Florida Statutes. See Subsections

435.03(3)(b) and 435.04(4)(b), Florida Statutes. Section

741.30, Florida Statutes, does not define domestic violence, but

creates a cause of action for an injunction for protection

against domestic violence. The term "domestic violence" is

defined in Subsection 741.28(1 ), Florida Statutes.

28. Subsection 741.28(1), Florida Statutes, defines

domestic violence as follows:

[A]ny assault, aggravated assault, battery,

aggravated battery, sexual assault, sexual

battery, stalking, kidnapping, false

imprisonment, or any cr iminal offense

resulting in physical injury or death of one

family or household member by another who is

or was residing in the same single dwelling.

29. Because Petitioner's fiancé, Mr. Canty, resides in the

home and is listed as a person who will serve as a child care

provider on an emergency basis and in her absence, he is subject

to the applicable screening standards in Chapter 235, Florida

Statutes, pursuant to Sections 402.305, Florida Statutes.

30. Petitioner established that Mr. Canty neve r committed

an act of domestic violence and, accordingly, should not be

disqualified as a child care provider. The Department failed to

present any evidence to the contrary. Thus, the allegation that

Mr. Canty committed such acts can not be the basis of the

Department's denying Petitioner's application for licensure.

31. In this case, the Department also alleged as grounds

for denial of Petitioner's application limited parts of two

abuse reports. First, it was alleged that, based on the 2000

Abuse Repo rt, Petitioner gave custody of her son to a friend and

said she would not and could not keep and/or care for her son.

Second, it is alleged that, based on the 1999 Abuse Report,

Petitioner refused to pick up her son from a treatment center,

once he was di scharged.

32. Section 39.202(2)(a)4., Florida Statutes, allows the

Department's employees to have access to abuse reports in that

they are responsible for licensure or approval of child care

facilities. Pursuant to that provision, the Department may

cons ider abuse reports and their underlying facts in deciding

whether to issue a license to operate a family day care home.

33. Similarly, Section 39.202(2)(j), Florida Statutes,

allows the Division of Administrative Hearings to have access to

the reports fo r purposes for any administrative challenge.

However, the statute does not provide authority for an

administrative law judge to treat such reports as sufficient in

themselves to support findings of fact. Section 120.57(1)(c),

Florida Statutes.

34. The Department properly considered the abuse reports

in reviewing Petitioner's application. However, in this

proceeding, Petitioner established that the allegations relative

to the abuse reports were not true.

35. With regard to the 2000 Abuse Report, the un disputed

evidence was that Petitioner never said that she could not and

would not care for her son. While the evidence established that

Petitioner made the difficult decision to give temporary custody

of her son to a friend, it was established that she di d so

because it was in her son's best interest. Likewise, the

evidence established Petitioner did not refuse to pick up her

son from the treatment facility as alleged in the denial letter.

The undisputed evidence established that Petitioner was never

con tacted and told that her son was discharged and ready to be

picked up from the facility.

36. The factual allegations in the denial letter relative

to the 1999 Abuse Report and the 2000 Abuse Report were not

established. Therefore, the grounds for denial associated with

those abuse reports cannot be the basis for denial of

Petitioner's application.

37. Finally, the Department alleges that another basis for

denial of Petitioner's license is that at some time in the past,

Petitioner stated she had experimen ted with drugs. The

undisputed evidence established that Petitioner's

experimentation and experience with illegal drugs was limited to

Petitioner's smoking marijuana when she was about 14 years old

and that she has not used drugs since that time.

38. Giv en that Petitioner's experimentation with drugs

occurred when she was only fourteen and that she has not used

them since that time, Petitioner's statement that she

experimented with or used drugs cannot be the basis of denying

her license to operate a fami ly day care home.

39. The grounds for which the Department denied

Petitioner's license were successfully refuted by the evidence

presented at hearing. Accordingly, the allegations in the

denial letter can not properly serve as the basis for denying

Petit ioner's license.

40. In addition to the foregoing reasons, in this case,

the Department is required to approve the application based on

mandate in Section 120.60(1), Florida Statutes.

41. Subsection 120.60(1), Florida Statutes, governs the

processing of licensing applications by an agency and provides

for the circumstances under which a "default" license must be

issued. That provision states:

(1) Upon receipt of an application for a

license, an agency shall examine the

application and, within 30 days after such

receipt, notify the applicant of any apparent

errors or omissions and request any

additional information the agency is

permitted by law to require. An agency shall

not deny a license for failure to correct an

error or omission or to supply addi tional

information unless the agency timely notified

the applicant within this 30 - day period. An

application shall be considered complete upon

receipt of all requested information and

correction of any error or omission for which

the applicant was timely notified or when the

time for such notification has expired.

Every application for a license shall be

approved or denied within 90 days after

receipt of a completed application unless a

shorter period of time for agency action is

provided by law. The 90 - day time period

shall be tolled by the initiation of a

proceeding under ss. 120.569 and 120.57. An

application for a license must be approved or

denied within the 90 - day or shorter time

period, within 15 days after the conclusion

of a public hearing held on the application,

or within 45 days after a recommended order

is submitted to the agency and the parties,

whichever is later. The agency mus t approve

any application for a license or for an

examination required for licensure if the

agency has not approved or denied the

application within the time periods

prescribed by this subsection.

42. Subsection 120.60(1), Florida Statues, provides a 90 -

day time frame within which after receipt of an application for

a license, the agency must examine the application, notify the

applicant of any apparent omissions or errors, request

additional information permitted by law, and either approve or

deny the application. According to that provision, within 30

days after the agency receives the application, the agency must

notify the applicant of any apparent errors or omissions and

request any additional information the agency is permitted by

law to requi re.

43. Pursuant to Subsection 120.60(1), Florida Statutes,

the agency "shall not deny a license for failure to correct an

error or omission or to supply additional information unless the

agency timely notified the applicant within this 30 - day period."

A n application submitted to an agency is considered complete

when the requested information and corrections have been

received by the agency or when the time for such notification

has expired. If the agency does not approve or deny the

application within t he time period prescribed by statute, the

agency must approve the application for a license.

44. The evidence established that the Department received

Petitioner's application on October 17, 2001, held an

institutional staffing on the application on November 29, 2001,

and during that meeting, Department staff decided to recommend

that Petitioner's application be denied. The evidence also

established that the Department employees attending the

institutional staffing did not make the final decision rel ative

to Petitioner's application, but that decision was made by

others in the Department. The undisputed evidence established

that the Department notified Petitioner of its decision to deny

her application in a Notice of Denial of License dated

February 8, 2002, more than 90 days after it received her

application.

45. The Department claims that the 90 - day time period

established in Subsection 120.60(1), Florida Statutes, is

extended because it requested additional information from

Petitioner. Howev er, that assertion is not supported by the

record. In order for the time period to be extended, the

Department has to establish that it, in fact, requested

additional information from Petitioner and that it did so within

30 days after receiving the applic ation. The Department has

failed to establish that such a request was made and/or when it

was made.

46. Having failed to notify Petitioner of any apparent

errors or omissions or to request any additional information, in

accordance with Subsection 120 .60(1), Florida Statutes, the

Department was required to approve or deny the application for

licensure within 90 days of receiving it. Because the

Department did not act on the application within the statutorily

prescribed time period, it is required to a pprove Petitioner's

application.

RECOMMENDATION

Base on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order granting Petitioner a license to operate a family

day care home.

DONE AND ENTERED this 30th day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

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 30th day of August, 2002.

COPIES FURNISHED :

David P. Rankin, E squire

14502 North Dale Mabry Boulevard

Suite 300

Tampa, Florida 33618

Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

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 3239 9 - 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 fi nal order in this case.