02-001224
Kimberly Strange-Bennett vs.
Department Of Children And Family Services
Status: Closed
Recommended Order on Friday, July 12, 2002.
Recommended Order on Friday, July 12, 2002.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8KIMBERLY STRANGE - BENNETT, )
13)
14Petitioner, )
16)
17vs. ) Case No. 02 - 1224
24)
25DEPARTMENT OF CHILDREN AND )
30FAMILY SERVICES, )
33)
34Respondent. )
36)
37RECOMMENDE D ORDER
40A final hearing was conducted in this case on May 23, 2002,
52in Ocala, Florida, before Suzanne F. Hood, Administrative Law
61Judge with the Division of Administrative Hearings.
68APPEARANCES
69For Petitioner: Kimberly Strange - Bennett, pro se
77Post Office Box 58
81Orange Lake, Florida 32681
85For Respondent: Ralph J. McMurphy, Esquire
91Department of Children and
95Family Services
971601 West Gulf Atlantic Highway
102Wildwood, Florida 34785
105STATEMENT OF THE ISSUE
109The issue is whether Respondent should approve Petitioners
117application for a family day care home license.
125PRELIMINARY STATEMENT
127By letter dated February 6, 2002, Respondent Department of
136Children and Family Services (Respondent) advised Petitioner
143Kimberly Strange - Bennett (Petitioner) that her application for a
153license to operate a family day care home was denied. The
164letter stated that the denial was based on a confirmed Florida
175Abuse Hotline Inf ormation System report (abuse report). The
184letter also advised Petitioner to cease and desist operation of
194her family day care home, First Step Learning Center, until such
205time as Petitioner procures a license from Respondent.
213Petitioner requested an admi nistrative hearing to contest
221the denial of her licensure application in a letter dated
231February 14, 2002. Respondent received Petitioners letter on
239February 20, 2002.
242By letter dated March 14, 2002, Respondent provided
250Petitioner with the details of the charges in the abuse report.
261The letter stated that the abuse report was based on a hotline
273complaint that Petitioner had used excessive corporal punishment
281on her stepchildren. According to the letter, Petitioner
289admitted during the ensuing investigatio n that she had
298administered corporal punishment, bruising and disfiguring the
305children. The letter states that Petitioner and her husband
314admitted to using physical discipline on the children.
322On March 22, 2002, Respondent referred the case to the
332Divisio n of Administrative Hearings. Subsequently, the Division
340of Administrative Hearings issued an Initial Order on March 25,
3502002.
351Petitioner filed a response to the Initial Order on
360April 1, 2002. Respondent filed its response on April 2, 2002.
371Based on these responses, Administrative Law Judge P. Michael
380Ruff issued a Notice of Hearing dated April 12, 2002. The
391Notice of Hearing scheduled the hearing for May 23, 2002.
401On May 21, 2002, Respondent filed a Motion for Continuance.
411The motion alleged that the appearance of Respondents counsel
420in the instant case conflicted with his appearance in another
430case that was scheduled for the same date and time at a
442different location. That same day, the Division of
450Administrative Hearings transferred the case to the undersigned.
458An Amended Notice of Hearing dated May 21, 2002, changed
468the time and location of the hearing to eliminate any scheduling
479conflict with another case. Accordingly, Respondents Motion
486for Continuance was denied by Order dated May 22, 20 02.
497During the hearing, Petitioner testified on her own behalf
506and presented the testimony of two witnesses. Petitioner
514offered one composite exhibit consisting of three written
522hearsay statements that were excluded for lack of
530authentication.
531Responden t presented the testimony of two witnesses.
539Respondent offered the above - referenced abuse report as its only
550exhibit. The abuse report is not admissible as an exception to
561the rule against hearsay pursuant to Section 90.803(8), Florida
570Statutes, relating to public records and reports. Additionally,
578Sections 39.202(2)(a) and 39.202(2)(j), Florida Statutes, do not
586create an exception to the rule against hearsay so as to allow
598the undersigned to rely on the hearsay within hearsay contained
608in the report to establish the facts of the instant case.
619However, the abuse report is admissible under the limited
628circumstances set forth in Section 120.57(1)(c), Florida
635Statutes.
636The parties did not file a transcript of the proceeding.
646On June 12, 2002, Petitioner filed an unopposed Motion for
656Extension of Time. On June 17, 2002, the undersigned issued an
667Order extending the time for the parties to file their proposed
678recommended order.
680Petitioner filed a Proposed Recommended Order on June 21,
6892002. Respondent f iled a Proposed Recommended Order on June 22,
7002002.
701FINDINGS OF FACT
7041. In 1996, Petitioner lived with her husband, their
713newborn child, three of her husband's children from a former
723marriage, and two of her children from a former marriage.
733Petitioner' s stepchildren were: (a) I.M.B., a 15 - year - old male;
746(b) S.J.B., a 14 - year - old male; and (c) S.Y.B., a 13 - year - old
764female. Petitioner's children by her former marriage were:
772(a) R.D.F., a six - year - old male; and (b) D.F., a five - year - old
790female.
7912. At the end of the school year in 1996, Petitioner
802spanked her stepdaughter for reasons related to her school work.
812She also spanked her stepsons for school - related reasons.
822However, the physical punishment of the stepchildren by
830Petitioner was not excess ive. There is no competent evidence
840that Petitioner beat the stepchildren leaving bruises, scars, or
849other disfigurement.
8513. Petitioner's husband spanked his children at times,
859using a switch or an extension cord. After one such occasion,
870Petitioner' s stepdaughter asked for some rubbing alcohol to
879treat a bruise. Petitioner has no first - hand knowledge about
890the bruise. There is no persuasive evidence that Petitioner's
899husband ever disciplined his children so severely as to scar or
910disfigure them.
9124. Since 1996, Petitioner completed her training as a
921licensed practical nurse. She continues to work part - time in
932that capacity. Petitioner has also earned money babysitting for
941other parents. Petitioner has never used corporal punishment of
950any kind to discipline other people's children.
9575. Petitioner has completed all necessary training to
965operate a family day care home. She knows that corporal
975punishment is not an acceptable way to discipline children in a
986day care facility. She understands th at when children do not
997behave appropriately, she may do one of the following: (a) talk
1008to the child; (b) place the child in time - out for one minute per
1023year of age; or (c) call the child's parent.
10326. Petitioner currently lives with her husband, their son,
1041and Petitioner's children from her former marriage.
1048Petitioner's stepdaughter also lives with Petitioner.
1054Petitioner's stepdaughter is 18 years of age and will be
1064available to serve as a substitute caretaker if Petitioner is
1074licensed to operate a f amily day care home facility.
10847. One of Petitioner's stepsons, I.M.B., is deceased. The
1093other stepson, S.J.B., is in jail. S.J.B.'s son lives with
1103Petitioner.
1104CONCLUSIONS OF LAW
11078. The Division of Administrative Hearings has
1114jurisdiction over the pa rties and the subject matter of this
1125proceeding. Sections 120.569, 120.57(1), and 402.310(2),
1131Florida Statutes.
11339. Petitioner has the burden of proving that she is
1143entitled to a license to operate a family day care home
1154facility. Florida Department of T ransportation v. J. W. C.
1164Company , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.
1175Department of Health and Rehabilitative Services , 348 So. 2d 349
1185(Fla. 1st DCA 1977).
118910. Respondent has authority to issue a license to operate
1199a child care facility "upon r eceipt of the license fee and upon
1212being satisfied that all standards required by ss. 402.301 -
1222402.319 have been met." Section 402.308(3)(d), Florida
1229Statutes.
123011. Section 402.305(12), Florida Statutes, provides as
1237follows in pertinent part:
1241(2) PE RSONNEL. -- Minimum standards for
1248child care personnel shall include minimum
1254requirements as to:
1257(a) Good moral character based upon
1263screening. This screening shall be
1268conducted as provided in chapter 435, using
1275the level 2 standards for screening set
1282fo rth in that chapter.
128712. Section 435.04, Florida Statutes, sets forth the
1295Level 2 screening standards. This statute does not include
1304having a confirmed Florida Protective Service System (FPSS)
1312abuse report as a disqualifying offense.
131813. Section 39.202(2)(a)4., Florida Statutes, allows
1324Respondent's employees to have access to FPSS abuse reports if
1334they are responsible for licensure or approval of child care
1344facilities. The statute provides Respondent with an opportunity
1352to consider abuse reports in deciding whether to license a
1362family day care home facility.
136714. Similarly, Section 39.202(2)(j), Florida Statutes,
1373allows the Division of Administrative Hearings to have access to
1383the reports for purposes of any administrative challenge.
1391However, t he statute does not provide authority for an
1401Administrative Law Judge to treat such reports as sufficient in
1411themselves to support findings of fact. Section 120.57(1)(c),
1419Florida Statutes.
142115. Section 39.01(2), Florida Statutes, states as follows:
1429(2) "Abuse" means any willful act or
1436threatened act that results in any physical,
1443mental, or sexual injury or harm that causes
1451or is likely to cause the child's physical,
1459mental, or emotional health to be
1465significantly impaired. Abuse of a child
1471includes acts or omissions. Corporal
1476discipline of a child by a parent or legal
1485custodian for disciplinary purposes does not
1491in itself constitute abuse when it does not
1499result in harm to the child.
150516. Petitioner and her husband occasionally disciplined
1512their children by spanking them. There is no persuasive
1521evidence that either one of them ever abused their children or
1532anyone else's children. Petitioner has met her burden of
1541proving that she is entitled to a license to operate a family
1553day care home.
1556RECO MMENDATION
1558Based on the foregoing Findings of Fact and Conclusions of
1568Law, it is
1571RECOMMENDED:
1572That Respondent enter a final order granting Petitioner a
1581license to operate a family day care home.
1589DONE AND ENTERED this 12th day of July, 2002, in
1599Tallahas see, Leon County, Florida.
1604___________________________________
1605SUZANNE F. HOOD
1608Administrative Law Judge
1611Division of Administrative Hearings
1615The DeSoto Building
16181230 Apalachee Parkway
1621Tallahassee, Florida 32399 - 3060
1626(850) 488 - 9675 SUNCOM 278 - 9675
1634Fax Fil ing (850) 921 - 6847
1641www.doah.state.fl.us
1642Filed with the Clerk of the
1648Division of Administrative Hearings
1652this 12th day of July, 2002.
1658COPIES FURNISHED :
1661Ralph J. McMurphy, Esquire
1665Department of Children and
1669Family Services
16711601 West Gulf Atlantic Highw ay
1677Wildwood, Florida 34785
1680Kimberly Strange - Bennett
1684Post Office Box 58
1688Orange Lake, Florida 32681
1692Paul F. Flounlacker, Jr., Agency Clerk
1698Department of Children and
1702Family Services
17041317 Winewood Boulevard
1707Building 2, Room 204B
1711Tallahassee, Florida 32399 - 0700
1716Josie Tomayo, General Counsel
1720Department of Children and
1724Family Services
17261317 Winewood Boulevard
1729Building 2, Room 204
1733Tallahassee, Florida 32399 - 0700
1738NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1744All parties have the right to submit written excep tions within
175515 days from the date of this Recommended Order. Any exceptions
1766to this Recommended Order should be filed with the agency that
1777will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 07/12/2002
- Proceedings: Recommended Order issued (hearing held May 23, 2002) CASE CLOSED.
- PDF:
- Date: 07/12/2002
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 06/21/2002
- Proceedings: Respondent`s Proposed Findings and Conclusions (filed via facsimile).
- PDF:
- Date: 06/17/2002
- Proceedings: Order issued. (motion is granted; proposed final orders shall be due by June 21, 2002)
- PDF:
- Date: 06/12/2002
- Proceedings: Motion for Extension of Time (filed by Respondent via facsimile).
- Date: 05/23/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 05/21/2002
- Proceedings: Amended Notice of Hearing issued. (hearing set for May 23, 2002; 2:00 p.m.; Ocala, FL, amended as to time and location).
- PDF:
- Date: 04/12/2002
- Proceedings: Notice of Hearing issued (hearing set for May 23, 2002; 10:30 a.m.; Ocala, FL).
Case Information
- Judge:
- SUZANNE F. HOOD
- Date Filed:
- 03/22/2002
- Date Assignment:
- 05/21/2002
- Last Docket Entry:
- 10/04/2002
- Location:
- Ocala, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Ralph J McMurphy, Esquire
Address of Record -
Kimberly Strange-Bennett
Address of Record