04-002769 Tuskawilla Montessori School vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, November 2, 2004.

Summary: Respondent failed to show by clear and convincing evidence that Petitioner did not satisfy statutory director credentialing requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TUSKAWILLA MONTESSORI SCHOOL, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2769

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RE COMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on September 29, 2004, in

Orlando, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Terr y DeLong, pro se

Tuskawilla Montessori School

1625 Montessori Point

Oviedo, Florida 32765

For Respondent: Beryl Thompson - McClary, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent should revoke Petitioner's

license to operat e a child care facility for failure to

comply with the Director Credential requirements in

Subsection 402.305(2)(f), Florida Statutes (2003), and Florida

Administrative Code Rule 65C - 22.003(7).

PRELIMINARY STATEMENT

By letter dated January 15, 2004, Respondent notified

Petitioner that Respondent intended to revoke Petitioner's

license to operate a child care facility on the grounds that

Petitioner failed to document its compliance with the relevant

Director Credential requirements. Petitioner timely requested an

administrative hearing.

At the hearing, Petitioner testified and submitted three

exhibits for admission into evidence. Respondent presented the

testimony of two witnesses and submitted 11 exhibits for

admission into evidence. The iden tity of the witnesses and

exhibits and the rulings regarding each, are set forth in the

record of the hearing. Neither party requested a transcript of

the hearing. Petitioner filed a Proposed Recommended Order on

October 12, 2004. Respondent did not fil e a proposed

recommended order.

FINDINGS OF FACT

1. Respondent is the state agency responsible for

registering family day care homes in Florida. Petitioner is

licensed as a child care facility and has operated as a child

care facility since October 4, 1990.

2. It is undisputed that Petitioner has satisfied all of

the Director Credential requirements, except one. Respondent

alleges that Petitioner has not provided Respondent with written

verification that Petitioner successfully completed 20 hour s of

courses required to be certified as a Child Development

Associate (CDA).

3. Petitioner completed the courses required to be a CDA

in September 1988, but the record of completion is no longer

available from the former state agency responsible for

a dministering the program and maintaining those records.

Respondent admits that routine licensing inspection reports by

Respondent document that Petitioner completed the courses

necessary for the CDA certificate in September 1988, and

subsequent inspection s never cited Petitioner for failure to

comply with the CDA requirement. The testimony of Ms. Terry

DeLong, Petitioner's director, was credible and persuasive.

4. Petitioner has satisfied all of the Director Credential

requirements. Respondent should not revoke Petitioner's license

because another state agency failed to maintain its records. It

would be unreasonable to require Ms. Delong to repeat the

courses she has already completed in order to keep operating the

child care facility.

5. The sta tutory requirement for a CDA certificate is

intended to ensure minimal standards of competence. The

legislature did not intend to put competent child care

facilities out of business because state agencies are unable to

maintain records of completion.

CONCLUSIONS OF LAW

6. DOAH has jurisdiction over the parties and subject

matter of this case. §§ 120.569 and 120.57(1), Fla. Stat.

(2003). The parties received adequate notice of the

administrative hearing.

7. Respondent has the burden of proof i n this proceeding.

Respondent must show by clear and convincing evidence that

Ms. DeLong did not satisfy the CDA requirements. Department of

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

(Fla. 1996).

8. For the reasons stated in the fin dings of fact,

Respondent failed to satisfy its burden of proof. Rather, the

evidence is clear and convincing that Ms. DeLong satisfied the

CDA requirements, but was unable to provide a certificate

because another state agency failed to maintain the recor d of

completion. Respondent's own records adequately document

Ms. DeLong's successful completion of the CDA requirements.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent enter a f inal order finding

that Petitioner has satisfied the statutory Director Credential

requirements.

DONE AND ENTERED this 2nd day of November, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Jud ge

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 Heari ngs

this 2nd day of November, 2004.

COPIES FURNISHED :

Beryl Thompson - McClary, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801

Terry DeLong

Tuskawilla Montessori School

1625 Montessori Point

Oviedo, Florida 32765

Paul F. Flounlacker, Agency 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

Building 2, Room 204

1317 Winewood Boulevard

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.