04-001139 Kozette King vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, April 1, 2005.

Summary: Respondent revoked Petitioner`s license; however, it failed to establish the basis for the revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KOZETTE KING, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1139

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on February 24, 2005, in Orlando, Florida.

APPEARANCES

For Petitioner: Kozette King , pro se

avati Street

Orlando, Florida 32839

For Respondent: Beryl Thompson - McClary, Esquire

Department of Children and

Family Services

400 West Robinson Street, S - 1106

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent properly

revoked Petitioner's license to operate a family day care home.

PRELIMINARY STATEMENT

On F ebruary 19, 2004, Respondent, Department of Children

and Family Services (Department), advised Petitioner, Kozette

King, by a letter titled "Notice of Revocation of Licensure"

that her license to operate a family day care home had been

revoked. The revoca tion was based on the Department's

evaluation of the complaint of a parent who arrived at the day

care center to find her child crying in a room in which an

unidentified male was sleeping. When asked, Petitioner

reportedly told the Department's investigat or that she had left

the children for about 15 to 20 minutes and that the children

were being supervised by a designated substitute. The

revocation letter further states, "[Y]our actions of leaving the

children in the family day care home totally unsuperv ised and in

the presence of an unscreened adult placed them at risk of harm.

Because your actions demonstrate an inability to ensure the

safety of children to the level necessary to be licensed as a

family day care home, the Department is unable to propos e lesser

sanctions than the revocation of your license."

Petitioner disputed the allegations by letter of March 8,

2004, and requested an administrative hearing. In her letter,

Petitioner maintained that "an adult was supervising the

children" and that "n o one was sound asleep as stated."

The Department forwarded the case to the Division of

Administrative Hearings on or about April 2, 2004. An Initial

Order was mailed to both parties that same day. On April 14,

2004, a final hearing was scheduled for Jun e 7, 2004. The

Department filed Respondent's Motion for Continuance on May 21,

2004; the continuance was granted by Order dated May 24, 2004.

In the Order Granting Continuance, the parties were directed to

advise of dates of availability for a final hear ing. On

January 5, 2005, the Department advised of dates of

availability. On January 14, 2005, the case was rescheduled for

final hearing on February 24, 2005.

The final hearing took place as rescheduled on February 24,

2005. At hearing, Petitioner tes tified on her own behalf. The

Department presented the testimony of three witnesses: Brandi

Blanchard, Chevelle Washington, and Patricia Richardson, all

Department employees. Neither the complaining parent nor the

substitute child caregiver was called a s a witness. The

Department offered six exhibits which were admitted into

evidence and marked as Respondent's Exhibits 1 through 6. At

the Department's request, official recognition was taken of

Florida Administrative Code Rule 65C - 20.009(3)(a).

No tran script of proceedings was ordered. The Department

filed a "Limited Recommended Order."

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Petitioner is the owner and op erator of a family day

care home and, until the revocation which is the subject of this

action, held license number 07C696L.

2. In response to a parent's complaint that she had

arrived at the family day care home to find her child crying in

a room in whic h an unidentified man was sleeping, the

Department's investigator, Brandi Blanchard, made an unscheduled

visit to Petitioner's family day care home immediately following

receipt of the complaint.

3. The only evidence that this event occurred as portrayed

by the complaining parent is contained in the Department reports

and testimony by Department employees who were not present when

the event occurred.

4. When questioned regarding the parent's complaint,

Petitioner advised that she had left the children f or about 15

to 20 minutes in the care of Sibyl Dexter, an authorized

substitute caregiver.

5. In addition, there was some discussion about the

identity of an adult male sleeping in the family day care home

who had been reported by the complaining parent . Other than the

hearsay report of the complaining parent, no corroborative

evidence was received regarding the identify of this adult male,

nor did any witness testify as to having seen this adult male.

It was suggested that the "adult male" was Petitio ner's husband;

this was denied by Petitioner.

6. In her investigative report, Ms. Blanchard indicates

that the substitute caregiver stated that she had not been at

the family day care home on the particular day in question;

however, Mrs. Dexter, the subst itute caregiver, did not testify,

and, therefore, this hearsay statement by Ms. Blanchard is not

being considered.

7. In her testimony, as in her letter contesting the

license revocation and requesting this hearing, Petitioner

maintained that the substit ute caregiver, Mrs. Dexter, was

present. In the absence of testimony by the complaining parent

or the substitute caregiver, Petitioner's testimony is credible.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the partie s to and subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2004).

9. Chapter 402, Florida Statutes (2004), governs licensure

and registration of child care facilities, including family day

care homes. Subsection 402.310(1)(a), Florida Statutes ,

authorizes the Department to deny, suspend, or revoke a license

or impose an administrative fine for the violation of provisions

of Sections 402.301 through 401.319, Florida Statutes.

10. Issuance of a professional or occupational license

confers a vest ed property right in the person to whom the

license is issued. State ex rel. Estep v. Richardson , 148 Fla.

48, 3 So 2d. 512 (1941).

11. The Department revoked Petitioner's family day care

home license. As the party asserting the affirmative of an

issue, the Department has the burden of proof. Florida

Department of Transportation v. J.W.C. Company , 396 So. 2d 778

(Fla. 1st DCA 1981).

12. The Department must prove the allegations of its

Notice of Revocation of Licensure by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern

and Company, Inc. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

13. The "clear and convincing" standard requires:

[T]hat the evidence must be found to be

credible; the fa cts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the t rier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In Re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

14. Statutes t hat authorized the imposition of penal

sanctions must be strictly construed, and any ambiguity must be

construed in favor of Petitioner. Elmariah v. Department of

Business and Professional Regulation , 574 So. 2d 164, 165

(Fla. 1st DCA 1990).

15. The Dep artment has failed to prove the allegations

upon which the licensure revocation is predicated. No primary

evidence was presented regarding the absence of the authorized

substitute caregiver or the unidentified male purportedly found

sleeping in the family day care home.

16. In the Department's Notice of Revocation of Licensure,

the Department refers to Florida Administrative Code Rule 65C -

20.009(3)(a); at the final hearing, the Department requested

that official notice be taken of the same Florida Adminis trative

Code rule. Florida Administrative Code Rule 65C - 20.009(3)(a),

reads as follows:

(3) Annual In - Service Training.

(a) All family day care home operators,

must complete a minimum of 10 - clock - hours of

in - service training or 1 CEU, annually

duri ng the state's fiscal year beginning

July 1 and ending June 30.

No evidence was presented regarding Petitioner's failure to

comply with this Rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a fina l order be entered reinstating

Petitioner's license to operate a family day care home.

DONE AND ENTERED this 1st day of April, 2005, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 1st day of April, 2005.

COPIES FURNISHED :

Kozette King

avati Street

Orlando, Florida 32839

Beryl Thompson - McClary, Esquire

Department of Children and Family Services

400 West Robinson Street, S - 1106

Orlando, Florida 32801

Gregory D. Venz, Agenc y Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Tallahassee, Florida 32 399 - 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 F inal Order in this case.