02-003760 Cynthia Moore Family Day Care Home vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, June 25, 2003.

Summary: Petitioner showed she was qualified. The Agency showed two violations, one of which was minor, and the other which was serious; however, given the passage of time, Petitioner should be licensed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA MOORE FAMILY DAY CARE )

HOME, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3760

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on April 25, 2003,

by Stephen F. Dean, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Cynthia Moore, pro se

Cynthia Moore Family Day Care Home

1222 Essex Road

Daytona Beach, Florida 32117

For Respondent: George P. Beckwith, Jr., Esquire

Department of Children

and Family Services

210 North Palmetto Avenue, Suite 412

Daytona Beach, Florida 32114 - 3269

STATEMENT OF THE ISSUE

By stipulation of the parties, the issue to be decided is

whether the Petitioner's application for re gistration of a

family day care facility should be approved.

PRELIMINARY STATEMENT

The factual predicate for this case is complicated by the

series of revocations of the Petitioner's registration and

applications for registration filed by the Petitione r. After

the hearing was underway, it was stipulated that the evidence

adduced at the hearing would be considered in relationship to

the application for registration which the Petitioner had filed

in the Fall of 2002.

As it relates to that application, the Department of

Children and Family Services (Department) seeks to deny the

application on the basis of the prior conduct of the Petitioner

which includes permitting her teenage son to care for an infant

while the Petitioner delivered papers in June 2002 , operating

without a license in December 2002, and failing to properly

supervise a child in her care in December 2002.

The testimony of the Department's employees, Dianna Vece,

Rick Holdman, and "Skeeter" Surguine was presented by the

Department which int roduced Department's Exhibit 1 (Composite),

containing the letter and reports pertaining to the Petitioner's

file. The Petitioner testified in her own behalf. A transcript

was not filed.

After the hearing, the Department filed a Proposed

Recommended Orde r on May 5, 2003, which was read and considered.

The Petitioner filed a letter outlining the facts to which she

had testified in support of her application for registration.

Her letter was read and considered.

FINDINGS OF FACT

1. The Petitioner operat ed a family day care home (FDCH)

for three years prior to the application in question. Prior to

that, she had cared for children at her church; and prior to the

incidents discussed below, the Petitioner had had no problems of

record in the operation of he r FDCH.

2. In June 2002, the Petitioner was owner and operator of

a FDCH located at 1222 Essex Road, Daytona Beach, Volusia

County, Florida. In June 2002, Diana Vece received a report

from an employee of the federally funded program that the

employee had visited the FDCH to check attendance and found the

Petitioner's teenage son alone at the facility. The employee

called Vece, who called the police and proceeded to the FDCH.

The Petitioner, Vece, and the police arrived at the home at

virtually the same time. The Petitioner had the day care

children with her in her car when she arrived. Vece asked for

access to the home, and Moore let her in, entering with her and

the children.

3. Upon entering, Vece observed the Petitioner's teenage

son looking after the Petitioner's own children and an infant.

The name and status of the infant was not established. Vece

proceeded to conduct a spot inspection of the FDCH which

revealed that five of the children being cared for did not have

current immunizations.

4. Vece checked with her supervisor, "Skeeter" Surguine,

regarding the situation, and they closed the FDCH.

5. The Department informed the Petitioner by letter in

July 2002 that she must cease and desist operation of her FDCH

immediately. The Petitioner voluntarily ceased operations as a

result of the letter and in August or September 2002, reapplied

to reopen her FDCH. It appears that the Department denied this

application and the Petitioner requested an informal hearing.

After the informal hearing, t he Department determined that it

had insufficient basis to deny the application and approved the

application in December, retroactive to November 25, 2002.

6. The Petitioner explained that her required back - up

person was being inspected for licensure of h er own facility on

the day when her teenager was left to attend the sleeping

infant.

7. On December 3, 2002, the Petitioner had car trouble and

asked one of the parents of a child, whom she cared for, to use

her car. The parent came to the FDCH, the Pe titioner placed all

the children in the car, and the parent drove them to the

parent's home where the Petitioner got out of the passenger's

seat and walked around the car to the driver's seat and drove

her children to their school. The parent got out of t he car and

walked into the house followed by one of the children for whom

the Petitioner was caring.

8. The parent became immediately aware of the child and

took care of the child with whom the parent was acquainted;

however, the parent was unable to co ntact the Petitioner to let

her know about the child because she did not know to which

school the Petitioner was going.

9. The Petitioner went to her child's school and got out

of the car. When she got ready to leave, she counted noses and

realized she was short one child. She looked around the school

and sought the help of an off - duty police officer who worked at

the school to search for the child. When they were unable to

find the child, the police officer put in a report. Shortly

afterward, they c hecked with the parent and discovered she had

the child.

10. It is unclear what, if any, action was taken against

the Petitioner's registration; however, it is stipulated that

this hearing is to be treated as an application case and that

the grounds for d enial of the license are the incident in

June 2002 and the incident in December 2002.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

12. The Department has cited no law f or its authority to

license or deny licensure of FDCHs. A search of Chapter 402,

Florida Statutes, which was referenced at the hearing reveals

several applicable provisions. The definition of child care

facilities applies to facilities taking care of fiv e or more

children without regard to age. The definition of FDCH includes

facilities taking care of between four children and ten

children, dependent upon age. It appears that the licensing

requirement for FDCHs differ subtly from those of child care

fac ilities.

13. Specifically, Section 402.313, Florida Statutes,

provides that FDCHs shall be licensed under this act if they are

participating in the subsidized child care program. In this

case, evidence was presented collaterally that the Petitioner

was p articipating in such a program. She is, therefore, subject

to licensure.

14. Section 402.310, Florida Statutes, provides in

pertinent part that the Department may deny licensure for the

violation of any provision of Sections 402.301 to 402.319,

Florida Statutes. However none of the cited provisions address

the leaving of an infant with a teenage son or failing to

properly supervise a child in one's care. The Department has

cited no rules implementing the statutes which might provide

further guidance.

15. Contrary to the representations made at the hearing,

the minimum age for child care personnel is 16 years of age and

not 18 years of age. See Section 402.305(2)(c), Florida

Statutes, which states, ". . . minimum standards shall prohibit

a person . . . under the age of 16 from being employed at such

facility unless such person is under direct supervision and is

not counted for the purposes of computing the personnel - to - child

ratio." The age of the teenager was not developed during the

hearing.

16. Th ere are provisions regarding the transport of

children; however, these were specifically mentioned as not

being the principal concerns of Vece, although the absence of

child restraints and car seats was mentioned in the letter of

revocation, which followed the June 2002 incident.

17. FDCHs are required to maintain immunization records to

prove that immunizations are current.

18. Contrary to the allegations, the Petitioner was

licensed at the time of the December 2002 incident.

19. Section 402.310(1)(b)1 ., Florida Statutes, provides in

pertinent part that the severity of the violation, including the

probability that death or serious harm to the health or safety

of any person will result from the violation, should be

considered in determining the severity of the action.

20. While nothing happened to the child who followed the

parent into her house, in other circumstances this could have

been tragic. The June 2002 is of minor impact in considering

the issue of the Petitioner's licensing. The age of the

Pe titioner's son was not established, and he may have been old

enough to watch the child, whose status was also not

established. Both incidents arose out of car trouble issues,

and the Petitioner testified that she had purchased a new

vehicle and child seat s.

21. Considering the time that the Petitioner has been

precluded from participating in this program and considering her

previously good record, the Petitioner's license should be

approved; but she should be monitored closely for the first six

months of operation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order approving the Petitioner's application.

DONE AND ENTERED this 25th day of June, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 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 25th day of June, 2003.

COPIES FURNISHED :

George P. Beckwith, Jr., Esquire

Department of Children and

Family Services

210 North Palmetto Avenue, Suite 412

Daytona Beach, Florida 32114 - 3269

Cynthia Moore

Cynthia Moore Family Day Care Home

1222 Essex Road

Daytona Beach, Florida 32117

Paul F. Flounlacker, 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 - 0 700

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.