03-001228PL Department Of Children And Family Services vs. Rashida Alli Status: Closed Recommended Order on Thursday, June 12, 2003.

Summary: Family day care home license should be revoked because operator left children at facility unsupervised and then tried to conceal the children from the Department`s inspector.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1228PL

)

RASHIDA ALLI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 9, 2003, by video teleconference between sites in Orlando

and Tallahassee, Florida, before T. Kent Wetherell, II, the

designated Administrative Law Judge of the Division of

Administrative H earings.

APPEARANCES

For Petitioner: Richard Cato, Esquire

Department of Children

and Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

For Respondent: L. Todd Budgen, Esquire

Budgen Law Firm, P.L.

1800 Pembrook Drive, Suite 300

Orlando, Florida 32810

STATEMENT OF THE ISSUE

The issue is whether Respondent's license to operate a

family day care home should be revoked.

PRELIMINARY STATEMENT

By certified letter dat ed February 28, 2003, the Department

of Children and Family Services (Department) informed Respondent

that her license to operate a family day care home was being

revoked. The proposed revocation was based upon the results of

the Department's inspection o f Respondent's home on February 27,

2003, as well as Respondent's prior history of noncompliance

with the applicable licensing statutes and rules.

Respondent disputed the facts underlying Department's

decision, and on March 20, 2003, she timely requested a formal

administrative hearing. On April 3, 2003, the Department

referred the matter to the Division of Administrative Hearings

(Division) for the assignment of an administrative law judge to

conduct the hearing requested by Respondent. 1

The final hearing was scheduled for and held on May 9,

2003. At the hearing, the Department presented the testimony of

Brandi Blanchard, a family service counselor in the Department's

day care licensing division, and Patricia Richardson, a

supervisor in the Department's d ay care licensing division. The

Department's Exhibits A, C, D, and E were received into

evidence. Exhibit B was offered but not received. 2

Respondent testified in her own behalf at the hearing and

also presented the testimony of her neighbor, Annette Rod gers.

Respondent proffered the testimony of Wesley McDonald, a

construction worker who had done work at Ms. Rodgers' home and

would have testified as to the fencing in Ms. Rodgers' backyard.

Mr. McDonald was not permitted to testify because he had not

be en disclosed by Respondent as a potential witness in advance

of the hearing and because his testimony would have been

repetitious of that of Respondent's other witnesses. See Binger

v. King Pest Control , 401 So. 2d 1310, 1313 - 14 (Fla. 1981);

Section 120.5 69(2)(g), Florida Statutes. Respondent's Exhibits

1 - A through 1 - F and 2 were received into evidence. 3

No Transcript of the hearing was filed with the Division.

The original exhibits introduced by Respondent at the hearing

were filed with the Division on May 22, 2003. The original

exhibits introduced by the Department were filed with the

Division on May 29, 2003.

The parties were initially given ten days from the date of

the hearing to file their proposed recommended orders (PROs).

However, the partie s subsequently requested and were granted an

extension of time through May 23, 2003, to file their PROs. As

a result, the parties waived the deadline for entry of this

Recommended Order. See Rule 28 - 106.216(2), Florida

Administrative Code. The parties' PROs were timely filed and

were given due consideration by the undersigned in preparing

this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following findings are made:

A. Parties

1. The Departme nt is the state agency responsible for

licensing and regulating child care facilities, including family

day care homes.

2. The Department routinely conducts inspections of

licensed family day care homes to determine whether the home is

in compliance with the applicable statutes and rules. Any

problems found during the inspection are noted on a report which

is provided to the home's operator immediately following the

inspection. When appropriate, the inspection report provides a

time frame within which th e problems must be corrected.

3. Regular inspections are conducted approximately twice a

year. More frequent inspections -- monthly or every six weeks -

- are conducted on family day care homes which have a

provisional license rather than a standard licen se.

4. The Department also conducts inspections in response to

complaints it receives, and it has the authority to inspect

family day care homes at any time with or without notice.

5. Respondent is the owner and operator of a licensed

family day care home located at 1218 Jordan Avenue in Orlando,

Florida (hereafter "Respondent's facility" or "the facility").

Respondent and her husband reside at that address as well.

6. Respondent has operated day care homes in Florida since

1992, and she has been inv olved in child care for approximately

21 years. As a result, she is or should be familiar with the

rules regulating family day care homes.

7. Respondent keeps children in the back portion of her

home. The children also play in Respondent's backyard, whi ch is

enclosed by an approximately six - foot high wooden fence.

8. A wooden gate in the fence connects Respondent's

backyard to the backyard of the house immediately behind

Respondent's home. That house has been rented by Annette

Rodgers since November 20 02.

9. Respondent does not have a pool in her yard.

Ms. Rodgers' yard does have a pool, which at the time of the

Department's February 27, 2003 inspection (discussed below),

was only partially filled with water. Ms. Rodgers' pool is not

visible from Res pondent's back yard because of the wooden fence

and gate.

10. The photographs and videotape received into evidence

show that Ms. Rodgers' pool is now completely enclosed by a

series of fences. 4 The evidence does not clearly and

convincingly establish tha t the fences were not in place on

February 27, 2003. Indeed, the weeds and high grass which can

be seen along the base of and around the posts of the chain - link

fence and the discoloration on some of the fence posts indicate

that at least that fence has b een in place for quite some time. 5

B. Previous Inspections of Respondent's Facility

and Actions Taken by the Department

11. Respondent's facility was inspected on May 28,

June 14, and September 30, 2002. Several areas of noncompliance

were identified during each of those inspections, including

inadequate supervision of children, unsafe storage of chemicals,

evidence of roaches in the home, and incomplete enrollment and

health records for the children at the home. On each occasion,

Respondent was given a period of time within which to correct

the areas of noncompliance.

12. The inadequate supervision for which Respondent was

cited in June 14, 2002, involved several children playing

unsupervised in Respondent's carport area, which has access to

the stre et; several children playing in the backyard under the

"supervision" of Respondent's mother, who was not an authorized

caregiver; and several children playing unsupervised on the

porch area in the vicinity of tools and small screws.

13. The Department iss ued Respondent a provisional license

on October 28, 2002, presumably as part of the license renewal

process. The provisional license was based upon Respondent's

history of noncompliance with the Department's minimum

standards, and it was valid through Apr il 2, 2003, unless

Respondent applied for an received a change in license status

(which she apparently did not) or "if the license is suspended

or revoked by the Department."

14. A provisional license is issued where the Department

has continued concerns regarding the day care home's compliance

with the applicable statutes and rules. A provisional license

is issued in lieu of denying a license renewal or suspending or

revoking the home's license. A provisional license gives the

licensee an opportunity to correct the areas of noncompliance,

and because such homes are inspected more frequently, the

Department has an opportunity to monitor the licensee's

progress.

15. On October 29, 2002, Respondent was assessed an

administrative fine of $100.00 based upon deficiencies

identified during the May 28 and June 14, 2002, inspections.

The fine was based primarily upon the incident described above

involving inadequate supervision of the children at the home.

16. Respondent apparently did not contest the

administr ative fine or the issuance of the provisional license

rather than a standard license.

17. Despite the provisional license and the administrative

fine, the Department's inspections continued to identify areas

of noncompliance at Respondent's facility.

18. For example, the November 14, 2002, inspection

identified "evidence of rodents/vermin in the home" as well as

incomplete enrollment and immunization records for the children

in the home. The December 18, 2002, inspection identified these

same deficienci es, including "live roaches in the children's

area and the kitchen," as well as the storage of plastic

shopping bags and chemicals which can pose dangers to children

in an unlocked cabinet accessible to the children.

19. These violations were the same as or similar to those

for which Respondent had been previously cited and which led to

the imposition of the administrative fine and issuance of the

provisional license.

20. The Department did not take immediate action to

suspend or revoke Respondent's licen se based upon the results of

the November 14 and December 18, 2002, inspections. Instead,

the Department continued to give Respondent an opportunity to

bring her home into compliance with the minimum standards in the

Department's licensing rules and statu tes.

C. Inspection of Respondent's Facility

on February 27, 2003

21. The Department next inspected Respondent's facility on

February 27, 2003. That inspection was conducted by Department

employee Brandi Blanchard.

22. Ms. Blanchard had been respons ible for inspecting

Respondent's facility since at least September 2002, so she was

familiar with the layout of the facility and its history of

noncompliance. Respondent testified that Ms. Blanchard, unlike

the prior inspector, had been "very good to her. "

23. Ms. Blanchard arrived at Respondent's facility by car

between 8:30 a.m. and 8:45 a.m. As she arrived, Respondent was

pulling her car into the driveway/carport at the facility.

Ms. Blanchard parked her car directly behind Respondent's car.

24. Ms. Blanchard got out of her car as Respondent was

getting out of hers, and she said, "Hello, Ms. Alli," to

Respondent. Upon seeing Ms. Blanchard, Respondent quickly went

into the house through the carport door. Ms. Blanchard followed

Respondent into the fa cility.

25. Ms. Blanchard lost sight of Respondent as she went

down a hallway towards the back of the house where the children

were located. The backdoor of the house was open, and by the

time that Ms. Blanchard caught up with Respondent, Respondent

was directing the children through the facility's backyard

towards the back gate connecting Respondent's yard to

Ms. Rodgers' yard. Several of the children, led by Ms. Rodgers'

14 - year - old son carrying an infant in a car seat and

Ms. Rodgers' 13 - year - old son carrying a toddler had already

reached Ms. Rodgers' yard.

26. Ms. Blanchard told Respondent to stop and return to

the facility with the children, which she did. Ms. Blanchard

went through the open gate onto Ms. Rodgers' property and

directed Ms. Rodgers ' sons to return to Respondent's facility

with the children, which they did.

27. While on Ms. Rodgers' property, Ms. Blanchard saw a

partially - filled swimming pool and other ongoing construction.

Ms. Blanchard did not notice any fencing around the pool and saw

one of the children, which she estimated to be three or four

years old, walking in the construction area close to the edge of

the pool.

28. After the children had been returned, Ms. Blanchard

assessed the situation and commenced her inspection of the

remainder of Respondent's facility.

29. Ms. Blanchard found roach droppings in the bathtub and

in other locations in the facility. Respondent acknowledged a

roach problem, but claimed that she had an exterminator working

on the problem and that he was due to come out and treat the

facility. Respondent did not present any documentation to

Ms. Blanchard to corroborate her claims regarding the

exterminator, nor did she introduce such documentation at the

hearing.

30. Ms. Blanchard found plastic bags in an unlocked

cabinet accessible to the children. Respondent acknowledged at

the hearing that the bags were in the cabinet and further

acknowledged the suffocation danger that they posed to young

children.

31. Ms. Blanchard's review of the facility's r ecords

identified missing enrollment and immunization records for the

children in the home. However, Ms. Blanchard did not document

the children whose records were missing and she did not

determine whether, as Respondent claimed at the time and in her

tes timony at the hearing, any of the missing records were for

students who had enrolled in Respondent's facility within the

prior two weeks.

32. Ms. Blanchard documented the results of her

inspection, including the events surrounding the movement of the

chil dren to Ms. Rodgers' yard on her inspection report. The

inspection report identified each of the violations that she

observed, including inadequate supervision based upon

Respondent's absence from the facility, unsafe storage of

materials dangerous to chi ldren ( i.e. , plastic bags) in a

location accessible to the children, evidence of roaches,

incomplete enrollment and immunization records, and more than

the allowed number of children in the home. Ms. Blanchard also

cited Respondent's facility for the dang ers posed by Ms.

Rodgers' pool since the children were being taken onto Ms.

Rodgers' property.

33. With respect to the citation for having too many

children, Ms. Blanchard's inspection report did not include any

detailed information about the children suc h as their names (or

initials), ages, or descriptions. The report simply stated that

Ms. Blanchard counted seven children at the facility -- i.e. , "3

infants, 3 preschool and 1 school age child."

34. Ms. Blanchard's testimony at the hearing referred to

o nly two infants, which was consistent with Respondent's

testimony on that issue. As a result, the evidence is not clear

and convincing that there were seven children in Respondent's

care at the facility rather than the authorized six children.

35. Durin g the course of her inspection, Ms. Blanchard did

not see any adults (other than Respondent, who arrived as Ms.

Blanchard was arriving) at the facility. It is undisputed that

Respondent's husband, who is the designated substitute

caregiver, was not at the facility that morning.

36. There is no credible evidence that Respondent's 22 -

year - old son, Abdel, was at the facility that morning. He did

not testify at the hearing, and, if as Respondent claims, Abdel

was at the facility that morning, Ms. Blanchard w ould have seen

him at some point during the commotion surrounding Respondent's

rushing the children out the back door or during her subsequent

inspection of the facility.

37. In any event, Abdel was not the substitute caregiver

designated by Respondent. He was not even authorized to watch

the children because, although he had been background screened

by the Department, he had not taken the Department's mandatory

child care training program and was not certified in

cardiopulmonary resuscitation (CPR).

38. It is more likely than not that Ms. Rodgers' teenage

sons were actually left to supervise the children at

Respondent's facility during the time that Respondent was gone

on the morning of February 27, 2003. Indeed, that is the most

likely explanation of t heir presence at the facility and their

involvement in the movement of the children to Ms. Rodgers'

yard. However, the evidence on this issue is not clear and

convincing.

39. Respondent's explanation of her actions on the morning

of the inspection -- i.e . , that she hurried into the house upon

her arrival and directed all of the children to Ms. Rodgers'

yard so she could convey an important message to Ms. Rodgers --

is not credible. Her explanation of the roach droppings that

Ms. Blanchard found in the ba thtub -- i.e. , that it was actually

dirt from washing one of the children's feet -- is also not

credible.

40. By contrast, Respondent's explanation of the

incomplete records -- i.e. , that the missing records were for

those children who had enrolled in the facility within the prior

two weeks -- is reasonable. Because Ms. Blanchard's inspection

report did not identify the children whose records were missing

and did not document the date of their enrollment, the evidence

is insufficient to prove this violati on.

41. Respondent admitted at the hearing that she "was

taking a chance" by leaving the children at the facility without

her husband, the designated substitute caregiver, being present.

Respondent testified that she was gone only 15 minutes to drop

one of her children off at school, and that she follows that

same routine every day although her husband is usually at the

facility while she is gone.

42. After Ms. Blanchard completed her inspection, she

discussed the results with Respondent and provided Re spondent a

copy of the inspection report. Ms. Blanchard then went back to

her office and discussed the results of the inspection with her

supervisor, Patricia Richardson.

43. Based upon the results of the February 27, 2003,

inspection and the history of noncompliance at Respondent's

facility (both before and after the provisional license),

Ms. Richardson determined that Respondent's license should be

revoked.

44. Thereafter, on February 28, 2003, Ms. Richardson sent

a letter to Respondent informing her that her license was being

revoked and advising Respondent of her right to "appeal" that

decision through the administrative process.

CONCLUSIONS OF LAW

A. Jurisdiction and Burden of Proof

45. The Division of Administrative Hearings has

jurisdiction o ver the parties to and subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), 120.60(5),

and 402.310(2), Florida Statutes. (All references to Sections

are to the 2002 version of the Florida Statutes. All references

to Rules are to the current version of the Florida

Administrative Code.)

46. The Department has the burden to prove by clear and

convincing evidence the grounds for revocation of Respondent's

family day care home license. See Coke v. Dept. of Children &

Family Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998); Dept. of

Banking & Finance v. Osborne Stern & Co. , 670 So. 2d 932, 935

(Fla. 1996). Accord Marcia Edwards Family Day Care Home vs.

Dept. of Children & Family Servs. , DOAH Case No. 02 - 3784,

Recommended Order, at 20 (Feb. 5, 2003), adopted in toto , Order

No. DCF - 03 - 086 - FO (Mar. 4, 2003); Dept. of Children & Family

Servs. vs. Dorothy Dempsy Family Day Care Home , DOAH Case

No. 02 - 1435, Recommended Order, at 7 (Aug. 7, 2002), adopted in

toto , Order No. DCF - 02 - 305 - FO (Nov. 27, 20 02).

47. The clear and convincing evidence standard has been

described as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of th e allegations sought to be

established.

Inquiry Concerning Judge Davey , 645 So. 2d 398, 404 (Fla. 1994)

(quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)) (internal brackets omitted). Accord Westinghouse Elec.

Corp., Inc. v. Shuler B ros., Inc. , 590 So. 2d 986, 988 (Fla. 1st

DCA 1991) (“Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous.”), rev. denied , 599 So. 2d 1279 (Fla. 1992).

B. Violations of the Li censing Statutes and

Rules at Respondent's Facility

48. Section 402.310(1)(a) provides that the Department may

"deny, suspend, or revoke a license . . . for the violation of

any provision of ss. 402.301 - 402.319 or rules adopted

thereunder."

49. The rul es adopted by the Department to implement

Sections 402.301 through 402.319 are codified in Rule Chapter

65C - 20.

50. Ms. Blanchard's February 27, 2003, inspection report

which served as a basis of the Department's February 28, 2003,

revocation letter cited the following rules/statutes which

Respondent was allegedly in violation of: Rule 65C - 20.009(3)(a)

(relating to supervision of the children); Rule 65C - 20.010(1)(b)

and (1)(e) (relating to elimination of potential hazards);

Rule 65C - 20.010(1)(f) and (1)(g ) (relating to fencing around

swimming pools); Rule 65C - 20.010(1)(n) (relating to vermin

and pest control); Rule 65C - 20.011(1), (2)(a), and (4)

(relating to maintenance of health and enrollment records);

and Section 402.302(7) (relating to the maximum numb er of

children allowed at the facility). Each alleged violation

will be addressed in turn.

51. Rule 65C - 20.009(3)(a) provides:

At all times, which includes when the

children are sleeping, the operator shall

remain responsible for the supervision of

the c hildren in care and capable of

responding to the emergencies and needs of

the children. During the daytime hours of

operation, children shall have adult

supervision which means watching and

directing children's activities, both

indoors and outdoors, and r esponding to each

child's needs.

52. The evidence clearly and convincingly establishes

that Respondent was in violation of Rule 65C - 20.009(3)(a). It

is undisputed that Respondent was not at the facility when

Ms. Blanchard arrived on the morning of Febru ary 27, 2003, and

that her husband, the only authorized substitute caregiver, was

also not at the facility that morning. Respondent's

unsubstantiated testimony that her son, Abdel, was left in

charge of the facility and the children that morning is not

cr edible and, even if Abdel was there, he was not authorized to

supervise the children. As a result, even under Respondent's

version of the facts, the children were effectively left

unsupervised when Respondent left the facility that morning.

53. Responden t acknowledged at the hearing that she was

"taking a chance" by leaving the children at the facility

without her husband being present. Nevertheless, she did so.

Respondent had previously been cited and fined for noncompliance

in the area of supervision of children, albeit prior to the

issuance of the provisional license, so her actions on

February 27, 2003, represent a repeat violation.

54. Rule 65C - 20.010(1)(b) and (1)(e) provides:

(b) All areas and surfaces accessible to

children shall be free of t oxic substances

and hazardous materials. All potentially

harmful items including cleaning supplies,

flammable products, poisonous and toxic

materials must be labeled. These items as

well as knives, and sharp tools and other

potentially dangerous hazards shall be

stored in locations inaccessible to the

children in care.

* * *

(e) Play areas shall be clean, free of

litter, nails, glass and other hazards.

55. The evidence clearly and convincingly establishes that

Respondent violated Rule 65C - 20.01 0(1)(b) and (1)(e) by not

storing the plastic grocery bags, which Respondent conceded

posed a suffocation hazard to small children, in a location that

is inaccessible to children at the facility. Respondent had

previously been cited for this violation as well.

56. Rule 65C - 20.010(1)(f) and (1)(g) provides:

(f) The outdoor space shall be fenced, a

minimum of 4 feet in height, if the family

day care home property borders any of the

following:

* * *

5. lake, ditch, pond, brook, canal or

other wat er hazard.

Swimming pools shall be fenced, a minimum

of 4 feet in height, and locked to keep the

water hazard inaccessible to children,

except during the time water related

activities are being conducted as a program

function.

(g) If a family day ca re home uses a

swimming pool, it shall be maintained by

using chlorine or other suitable chemicals.

If the family day care home uses a swimming

pool, which exceeds three (3) feet in depth

at the family day care home site, one person

who has completed a ba sic water safety

course such as one offered by the American

Red Cross, YMCA or other organization, must

be present when children have access to the

swimming area. If the family day care home

uses swimming pools not at the site of the

family day care home, or takes the children

to beach or lake areas for swimming

activities, the family day care home

operator must provide one person with a

certified lifeguard certificate or

equivalent, who must be present when

children are in the swimming area, unless a

cert ified lifeguard is on duty.

57. The evidence fails to establish a violation of

Rule 65C - 20.010(1)(f) and (1)(g). It is undisputed that the

backyard of Respondent's facility is adequately fenced to keep

the children from accessing the pool in Ms. Rodgers ' yard, and

the evidence does not clearly and convincingly establish that

the gate on the back fence is routinely kept open or unlocked.

Moreover, while the evidence establishes that the children were

being taken into Ms. Rodgers' yard on the day of Ms. B lanchard's

inspection, they were not being taken there to swim and they

were generally under Respondent's supervision at the time.

Finally, the evidence does not clearly and convincingly

establish that the fencing shown in the photographs of

Ms. Rogers' y ard was not in place at the time of Ms. Blanchard's

inspection.

58. In light of the foregoing determinations, it is

unnecessary to address Respondent's contention that

Ms. Blanchard violated Section 402.311 by going onto

Ms. Rodgers' property without perm ission or a warrant. 6 Nor is

it necessary to address whether a day care may be cited for

deficiencies existing on property which is not part of the

licensed facility.

59. Rule 65C - 20.010(1)(n) provides:

Rodents and vermin shall be exterminated.

Pest con trol shall not take place while

rooms are occupied by children.

60. The evidence clearly and convincingly establishes that

Respondent violated Rule 65C - 20.010(1)(n), because Ms. Blanchard

found roach droppings at Respondent's facility on February 27,

200 3. Respondent has been cited for this violation on prior

occasions, both before and after the provisional license, and

her unsubstantiated testimony at hearing that she has been

through several exterminators in an effort to eliminate the

roaches was not c redible.

61. Rule 65C - 20.011(1), (2)(a), and (4) provides:

(1) Immunizations. Within 30 days of

enrollment, each child must have on file and

keep current a completed DH Form 680,

Florida Certification of Immunization, Part

A - 1, B, or C (Aug. 1998 or A ug. 2000), or DH

Form 681, Religious Exemption from

Immunization (May 1999), which is

incorporated by reference in Rule 64D -

3.011(5), F.A.C. . . . . The DH Form 680,

Florida Certification of Immunization Parts

A - 1, Certification of Immunization for K - 12

Excluding 7th Grade Requirements or Part B,

Temporary Medical Exemption, shall be signed

by a physician or authorized personnel

licensed under the provisions of Chapter

458, 459, or 460, Florida Statutes, and

shall document vaccination for the

prevention o f diphtheria, pertussis,

tetanus, poliomyelitis, rubeola, rubella,

mumps, Haemophilus influenzae type B (HIB),

and effective July 1, 2001, completion of

the varicella vaccination. The DH Form 680,

Florida Certification of Immunization Part

C, Permanent Me dical Exemptions, shall be

dated and signed by a physician licensed

under the provisions of Chapter 458 or 459,

Florida Statutes.

(2) Children's Student Health

Examination.

(a) Within 30 days of enrollment, each

child must have on file a completed DH Form

3040 (Oct. 96), Student Health Examination,

which is incorporated by reference, and

copies of which are available from the local

county health department or the child's

pediatrician. The student health

examination shall be completed by a person

gi ven statutory authority to perform health

examinations.

* * *

(4) Enrollment and Medical Authorization.

(a) The operator shall obtain enrollment

information from the child's custodial

parent or legal guardian, prior to accepting

the child in c are. This information shall

be documented on CF - FSP Form 5219, Dec 97,

Child Care Application for Enrollment, which

can be obtained from the local Department of

Children and Families district service

center or the local licensing agency, and is

incorporat ed by reference, or an equivalent

that contains all the information required

by the department's form.

(b) Enrollment information shall be kept

current and on file for each child in care.

62. The Department failed to prove a violation of

Rule 65C - 20. 011(1) or (2)(a) because Ms. Blanchard's inspection

report and her testimony did not clearly and convincingly

demonstrate which children's records were missing or that those

children were enrolled in the facility for more than 30 days,

which is the timefra me allowed by the rule to obtain that

information. Similarly, the Department failed to establish a

violation of Rule 65C - 20.011(4) because Ms. Blanchard's

inspection report and her testimony did not clearly and

convincingly demonstrate which children's re cords were missing.

63. Section 402.302(7) provides in relevant part that:

A family day care home shall be allowed to

provide care for one of the following groups

of children, which shall include those

children under 13 years of age who are

related to t he caregiver:

(a) A maximum of four children from birth

to 12 months of age.

(b) A maximum of three children from

birth to 12 months of age, and other

children, for a maximum total of six

children.

(c) A maximum of six preschool children

if all are older than 12 months of age.

(d) A maximum of 10 children if no more

than 5 are preschool age and, of those 5, no

more than 2 are under 12 months of age.

64. The Department failed to prove a violation of

Section 402.302(7). Indeed, the prepond erance of the evidence

establishes that, as allowed by Section 402.302(7)(b),

Respondent had a total of six children at the facility on

February 27, 2003, consisting of two infants (12 months or

younger) and four other children under the age of five.

C. A ppropriate Penalty

65. Section 402.310(1)(b) directs the Department to

consider the following factors in determining the appropriate

disciplinary action for a violation of Section 402.310(1)(a):

1. The severity of the violation,

including the probabi lity that death or

serious harm 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.

66. Because Petitioner held a provisional license at the

time of the February 27, 2003, inspection, Section 402.309 is

also implicated. Subsecti on (4) of that statute provides that:

The provisional license may be suspended if

periodic inspection made by . . . the

department indicates that insufficient

progress has been made toward compliance.

67. Respondent argues that the Department should not

and/or could not revoke her license under Section 402.310(1)(a)

without giving her a chance to bring her facility in compliance

pursuant to Section 402.309(4). Alternatively, Respondent

argues that revocation is not appropriate under the

circumstances of this case, and that less severe sanctions (such

as suspension) were available to the Department.

68. Section 402.309(4) authorizes the Department to

suspend a provisional license if the licensee is making

insufficient progress towards compliance with the licensing

statutes and rules. However, that statute does not preclude the

Department from taking other disciplinary action against the

licensee, including revocation under Section 402.310(1) if the

circumstances warrant. Indeed, the provisional license issued

to Respondent on October 28, 2003, stated that the license would

be valid though April 3, 2003, unless it is "suspended or

revoked by the Department" (emphasis supplied).

69. The circumstances of this case involve more than just

"insufficient progr ess . . . towards compliance" by Respondent;

they involve Respondent's blatant disregard for the safety of

the children in her care. Not only did Respondent leave six

children under the age of five at her facility without adult

supervision, but she active ly attempted to conceal that

deficiency from the Department's inspector by moving the

children to Ms. Rodgers' yard.

70. Supervision is a cornerstone of child care. See

Section 402.302(1) (defining "child care" to mean "the care,

protection, and supervis ion of a child . . ."). Respondent's

failure to supervise the children in her care by leaving the

facility to take her own child to school is inexcusable and is a

serious violation of the licensing statutes and rules. The

violation created a real possibi lity of death or serious harm

for the children at the facility in light of their young age,

the roach droppings in the facility, and the plastic bags which

were accessible to the children.

71. While there is no evidence that any of the

children suffered actual harm, such evidence is not required

under Section 402.310(1)(b)1. Indeed, it is not necessary for

the Department to wait until a child is seriously injured or

dies before it revokes a license for statutory or rule

violations.

72. Respondent has a long history of violations, both

before and after she received a provisional license, and she has

been previously cited for inadequate supervision. The

Department has given Respondent ample opportunity to bring her

facility into compliance, but she has failed to do so. Indeed,

even though Respondent has made some efforts towards compliance

over time, she continues to be cited for the same deficiencies,

including roaches and the storage of dangerous materials.

73. Respondent acknowledged at the hearing that she was

"taking a chance" when she left the facility and the children

unsupervised on the morning of February 27, 2003. Not only was

she taking a chance with her license, but she was taking a

chance with the lives of the children in her care. Respo ndent

is fortunate that her actions that morning did not result in

harm to the children, but she is not so fortunate with respect

to her license.

74. Indeed, even under Respondent's version of events, her

decision to leave the facility and the children i n her care

under the supervision of a person without CPR training and the

necessary Department certification is sufficient grounds for

revocation of Respondent's license. In light of the

undersigned's rejection of Respondent's version of events, it is

eve n more evident that revocation is the appropriate penalty in

this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Children and Family

Services issue a final order revoking Re spondent's license to

operate a family day care home.

DONE AND ENTERED this 12th day of June, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Heari ngs

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 12th day of June, 2003.

ENDNOTES

1/ The "notice" by which this case was referred to the Division

designated Rashada Alli as the Petitioner and the Department as

the Respondent. Those designations were changed by the Clerk of

the Division as reflected in the case style above. T hat change

was presumably based upon the fact that this is a license

revocation proceeding in which the Department is the party

seeking the affirmative relief.

2/ Exhibit B summarizes a complaint from an anonymous caller to

a Department "hot line" regard ing the operation of Respondent's

family day care home. The exhibit was offered to show the

reason that Ms. Blanchard went to Respondent's home on

February 27, 2003. The exhibit was rejected because the

undersigned concluded that the Department had not e stablished

the necessary foundation for admission of the document as a

business record or a public record pursuant to Sections

90.803(6) or (8), Florida Statutes, and because the reason that

Ms. Blanchard went to Respondent's home was irrelevant. Upon

ref lection, the Department did establish the necessary

foundation under Section 90.803(6), Florida Statutes, although

the statements of the anonymous complainant within the exhibit

are still hearsay to the extent they were offered for their

truth. See Reiche nberg v. Davis , 2003 WL 21297232, at *1 (Fla.

5th DCA June 6, 2003); Harris v. Game & Fresh Water Fish Comm'n ,

495 So. 2d 806, 808 - 09 (Fla. 1st DCA 1986). Nevertheless,

Exhibit B is still inadmissible because what it was offered to

show is not relevant an d/or because any probative value of the

exhibit is outweighed by its prejudicial effect. See Section

402.311 (Department may inspect family day care homes at any

time with or without notice; it does not need a reason to

conduct an inspection); Keen v. Sta te , 775 So. 2d 263, 274 - 76

(Fla. 2000) (discussing the immateriality and irrelevance of the

substantive aspects of "tips" received by the police which lead

to an investigation or arrest); State v. Baird , 572 So. 2d 904,

908 (Fla. 1990) ("[W]hen the only pu rpose for admitting

testimony relating accusatory information received from an

informant is to show a logical sequence of events leading up to

an arrest, . . . the better practice is to allow the officer to

state that he acted upon a 'tip' or 'information received,'

without going into the details of the accusatory information.").

Exhibit B is also inadmissible because it is unduly repetitious

of Ms. Blanchard's unobjected - to testimony that she went to

Respondent's family day care home in response to a comp laint

that the Department received. See Section 120.569(2)(g),

Florida Statutes.

3/ Respondent's Exhibit 2 is a videotape which was played at

the hearing on a hand - held camcorder. Because the hearing was

conducted by video teleconference, the undersign ed was not able

to view the videotape during the hearing. As directed at the

conclusion of the hearing, Respondent converted the camcorder

videotape to a normal, VCR - size videotape for filing with the

Division. The undersigned viewed the videotape in cam era in

advance of the preparation of this Recommended Order.

4/ The fences include the wooden fence which runs between

Respondent's yard and Ms. Rodgers' yard, an approximately eight -

foot high chain - link fence, and a three - to four - foot high metal

mesh f ence. The mesh fence is attached to the studs of an

addition that is being constructed on the back of Ms. Rodgers'

house. The chain - link fence runs from the wooden fence along

the back of Respondent's yard to the addition. There is a gate

in the chain - l ink fence which must be used to access the pool

area. That gate is located at the intersection of the chain -

link fence and the wooden fence, near where the gate in the

wooden fence is located.

5/ Respondent testified that the photographs and videotape w ere

both taken on February 28, 2003, the day after the Department's

inspection. However, a close examination of the photographs and

videotape conclusively shows that they were not taken on the

same day. Specifically, the level of the pool in the videotap e

is considerably higher than it was in the photographs, and

several of the trees which can be seen in the background of the

photographs without leaves or with brownish - yellow leaves (as

would be expected in late February) can be seen in the videotape

with green leaves (as would be expected later in the year).

These discrepancies undermine Respondent's credibility and also

affected the weight given by the undersigned to the photographs

and the videotape.

6/ Section 402.311 provides in relevant part:

A licensed child care facility shall accord

to the department . . ., the privilege of

inspection, including access to facilities

and personnel and to those records required

in s. 402.305, at reasonable times during

regular business hours, to ensure complian ce

with the provisions of ss. 402.301 - 402.319.

The right of entry and inspection shall also

extend to any premises which the department

. . . has reason to believe are being

operated or maintained as a child care

facility without a license, but no such

en try or inspection of any premises shall be

made without the permission of the person in

charge thereof unless a warrant is first

obtained from the circuit court authorizing

same. . . . .

(Emphasis supplied).

COPIES FURNISHED :

L. Todd Budgen, Esquire

B udgen Law Firm, P.L.

1800 Pembrook Drive, Suite 300

Orlando, Florida 32810

Richard Cato, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

Paul Flounlacker, Agency Clerk

Department o f 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

Jerry Regier, Secretary

Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399 - 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 Final Order in this case.