04-003698 Sherrell Lanier, D/B/A Lanier Family Day Care Home vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, April 18, 2005.

Summary: Respondent failed to prove allegations contained in its letter denying Petitioner`s license renewal application. Recommend issuance of a provisional license until certain conditions are met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERRELL LANIER, d/b/a LANIER )

FAMILY DAY CARE HOME, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3698

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice and in accordance with Section 120.569

and Subsection 120.57(1), Florida Statutes (2004), a final

hearing was held on January 14, 2005, in Lakeland, Florida,

before Fred L. Buckine, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

For Respondent: Keith Peterson, Esquire

Law Offices of Peterson, P.A.

170 North Florida Avenue

Post Office Box 1675

Bartow, Florida 33830

STATEMENT OF THE ISSUE

Whether Respondent proved by clear and convincing evidence

the allegations contained in its August 27, 2004, letter denying

Petitioner's licensure renewal application.

PRELIMINARY STATEMENT

The Department of Children and Family Services (Respondent

or Department) notified Sherrell Lanier, d/b/a/ Lanier Family

Day Care Home (Petitioner or Ms. Lanier), of its intent to deny

renewal of her family day care home application, for renewal of

license number F14PO02 66, for repeated violations cited in three

inspection reports, dated March 31, 2004; April 29, 2004; and

August 11, 2004.

Ms. Lanier timely requested an administrative hearing on

the Department's proposed action, and, on January 14, 2005, the

matter was he ard by the undersigned.

At the final hearing in Lakeland, Florida, the Department

presented the testimony of Tim Graddy, child care licensing

inspector; Patricia Hamilton, child care licensing supervisor;

and Nianza Green, child care licensing inspector. The

Department's seven exhibits: Inspection Reports dated August 7,

2003; August 18, 2003; March 31, 2004; April 29, 2004; and

August 11, 2004; Inspection Report Log; and the denial letter

were accepted in evidence. The Department's request for

official recognition of Sections 402.310 and 402.313, Florida

Statutes (2004), and Florida Administrative Code Chapter 65C - 22

was granted.

Ms. Lanier testified on her own behalf and presented the

testimony of Angela Lisbon, daughter and representative of her

father , the landlord of the facility where Lanier Family Day

Care Home is housed. Ms. Lanier tendered one exhibit, the

Department's letter of May 6, 2004, levying a $330 fine against

Ms. Lanier for Florida Administrative Code violations on

August 7 and 18, 200 3, and March 31 and April 29, 2004, which

was accepted as ALJ's Exhibit A.

No transcript of the proceeding was ordered. The parties

were given until February 16, 2005, to submit proposed

recommended orders. Proposed Recommended Orders filed by the

parti es were considered in rendering this Recommended Order.

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor

while testifying; exhibits admitted into evidence; stipulations

and arguments of the parties; evidentiary rulings made pursu ant

to Section 120.57, Florida Statutes (2004); and the record

complied herein, the following relevant and material facts are

determined:

The Parties

1. Respondent is the state agency responsible for

licensing, inspecting, and regulating child care facil ities,

including family day care homes.

2. Respondent is authorized to inspect a family day care

home at any time. Regular and routine inspections, as well as

inspections resulting from complaints received, are conducted of

licensed family day care homes to ascertain whether the home is

in compliance with applicable statutes and promulgated rules.

3. Violations (or "non - compliances") of statutes and rules

and/or other problematic situations found during inspections are

noted on a hand - written inspection report. The inspector takes

those noted non - compliance items back to the office and

transfers them to Respondent's "Family Child Care Home

Inspection Checklist" (Inspection Checklist). 1 Inspectors may or

may not discuss each non - compliance item with the home operator

at the time of the inspection. On those occasions non -

compliance items are discussed with the home operator, those

items capable of instant correction are corrected before the

inspector departs the premises. When appropriate, the

Inspection Checklist provides a time frame within which the

operator must correct the cited non - compliance item(s) indicated

on the Inspection Checklist.

The Family Day Care Home Facility

4. Ms. Lanier is the provider and licensed owner of Lanier

Family Day Care H ome ("the care facility") located at

1039 Madison Avenue, Lakeland, Florida. Ms. Lanier is a tenant

at this location, and Angela Lisbon and/or her relatives are the

landlord.

The Inspections and Cited Violations

5. Tim Graddy conducted a re - licensure in spection of the

care facility on August 7, 2003. Re - licensure inspections are

conducted when the family child care owner's current license is

about to expire, and the owner's application for re - licensure

has been filed. The non - compliance items recorded on the

Inspection Checklist were: operator's training in first aid not

current, operator's CPR training not current, litter (foam cups)

in the children play area, access to a road and a four - foot

fence was "not provided" -- the gate needed repair, floor mat s not

covered with impermeable surface, evidence of rodents/vermin in

the home, one broken window needs replacement, no operative

landline telephone available - only cellular telephone available,

and supplies missing from first aid kit.

6. At the time of Mr . Graddy's re - inspection on August 18,

2003, all non - compliance items recorded on the Inspection

Checklist dated August 7, 2003, had been addressed and corrected

by Ms. Lanier, but for the vermin infestation. However,

Ms. Lanier's request of her landlord to exterminate the property

to address the reoccurring problem of vermin infestation had

occurred.

7. On March 31, 2004, Nianza Green, another inspector,

completed a routine child care licensing inspection of the child

care facility. The non - compliance items noted by Ms. Green on

the Inspection Checklist were: unsafe storage of materials

dangerous to children was observed in that cleaning supplies

were in an unlocked cabinet and in the bathroom; water hose,

dirty towels, and some mops on playground -- pla y areas in home

not clean; and evidence of rodents/vermin in home -- "most [sic]

have professional pest control before next visit. Copy of

inspection to be faxed or mailed to licensing office"; all parts

of the home and premises including furnishings and eq uipment

were not kept clean and sanitary; all parts of the home and

premises including equipment, furnishings and plumbing were not

kept in orderly condition; meals and snacks supplied by the

operator were not of a quantity and/or quality to meet the daily

nutritional needs of the children; soiled items were not

disposed of in a plastic lined, securely covered container;

potty chairs were not cleaned and sanitized after each use;

diaper changing surface was not cleaned with a sanitizing

solution after each use -- used as a storage, cords and other

harmful items on shelves of changing table; first aid kit

missing some supplies; monthly fire drills not conducted;

written record of fire drills not completed; operator did not

have record of drills for the past six months; and neither DH

Form 680, Certification of Immunization, nor DH Form 681,

Religious Exemption from Immunization, was on file for

child(ren).

8. On April 29, 2004, Mr. Graddy conducted a routine

inspection of the care facility. Mr. Graddy listed t he

following non - compliance items on the Inspection Checklist:

unsafe storage of materials dangerous to children was observed

in that disinfectant was left on lower shelf of changing table,

children in the outdoor play space had access to a trafficked

roa d/street, and fencing a minimum of four feet in height was

not provided -- top rail of fence broken in front corner of fence,

and evidence of rodents/vermin -- live bugs observed in kitchen.

9. On August 11, 2004, Mr. Graddy conducted a re - licensure

inspectio n of the care facility and listed the following non -

compliance items on the Inspection Checklist: front gate is not

in good repair and does not close properly, live bugs seen in

kitchen, loose pieces of ceramic title in kitchen, no operable

smoke detector , up - to - date and age - appropriate immunization

record missing, and DH Form 3040 not available.

10. On May 6, 2004, by certified mail, Respondent issued

an "Intent to Impose Administrative Action" letter, citing that

repeated violations were revealed during four inspections

conducted on August 7, 2003; August 18, 2003; March 31, 2004;

and April 29, 2004. For those repeated violations, Respondent

levied a $330 fine. 2

Respondent's Cross - Examination re: Inspection Checklist

11. Regarding his August 7, 2003, i nspection, Mr. Graddy

acknowledged that the inspection report indicated no children

were present during the inspection, and, thus, no children were

in any immediate danger as a result of the cited non -

compliances. The cited non - compliance, fence was "not

provided," was, in fact, the gate itself closed but the latch

did not close properly. Therefore, no children were in

immediate danger.

12. Mr. Graddy acknowledged that the August 18, 2003, re -

inspection Inspection Checklist listed a non - compliance item

c ontained in the August 7, 2003, Inspection Checklist, and that

the August 7, 2003, non - compliance items had been corrected, but

for the vermin infestation. Mr. Graddy was informed by

Ms. Lanier that the exterminator (landlord) had been contacted

and that he/she would exterminate the care facility. No

children were present at the care facility during the August 18,

2003, inspection and, therefore, were not subjected to any harm

or immediate danger.

13. Ms. Green acknowledged that her March 31, 2004,

insp ection did not accurately reflect the conditions of the

daycare. Specifically, she described the non - compliance item as

the property was "cluttered up"; yet, she failed to describe in

the inspection report what she meant by that term. Ms. Green's

report indicated that the potty chair was not cleaned after each

use; however, upon cross - examination, Ms. Green admitted that

she never saw the potty chair being used by the one child in the

care facility at the time of her inspection. Likewise, she

reported th at the diaper changing table surface was not cleaned

after each use although she never saw the diaper changing table

being used and had no idea whether the allegation had a basis in

fact.

14. Ms. Green's Inspection Checklist noted, "[t]he center

was not s tocked with adequate supplies of food," but she never

checked the food cabinets and other storage areas. Ms. Green

testified that a bucket was present outside the facility and

presented a hazard to children, but she did not note this

particular non - compli ance on her Inspection Checklist.

Ms. Green was unable to confirm that Ms. Lanier was even aware

of the "bucket" non - compliance.

15. Ms. Green's Inspection Checklist noted fire drills

"had not" been conducted, when, in fact, she was fully aware

that fir e drills had been conducted on a monthly basis.

16. Ms. Green knew the approved capacity of the care

facility was ten children, but only one child was present during

her inspection. She could not articulate whether the "missing"

immunization records were missing for a particular child or

children, if any.

17. After her walk - through, Ms. Green spent little time in

the care facility and chose instead to "work" (list her non -

compliance items) in her car because she "was concerned about

bugs" she believed t o have been in the facility might adversely

affect her computer. When asked if she advised or discussed

with Ms. Lanier her problems and concerns, Ms. Green stated that

her job was to "inform the supervisor of the inspecting." At

the time of this inspect ion, Ms. Green had worked as an

inspector for only three months.

18. Regarding the April 29, 2004, inspection, Mr. Graddy

noted one child present and that child "did not have access to

disinfectant near the changing table." His notation, the "top

rail of the fence broken in the far corner," was not a repeated

violation of an existing problem previously noted. Mr. Graddy

also testified that any gaps that existed in the fence were not

in sections of the fence less than the required four feet

height; theref ore, no children were placed at risk or were

endangered in any manner by the alleged condition of the fence.

19. Regarding "vermin in the facility," Mr. Graddy

acknowledged that he only saw "more than two," acknowledging

more than two was not "infestation ."

20. Regarding the August 11, 2004, inspection, Mr. Graddy

testified that his notation, "the fence [gate] would not lock,"

on the Inspection Checklist was made without him actually

attempting to lock the gate, and, thus, he acknowledged his

notation was speculation. He added that this particular problem

was different from prior fence problems and did not constitute a

repeat violation. The "broken tile" problem noted on this

Inspection Checklist had not previously existed; likewise, this

non - compliance was not a repeat violation.

21. Mr. Gaddy's non - compliance notation, "smoke detector

missing," was that in reality the smoke detector was "present,"

but the battery may have run down. Mr. Graddy gave Ms. Lanier

until the next day to correct this problem, but he never checked

back for compliance. Likewise, Ms. Lanier contacted the

telephone company and had the landline telephone that was

present in the care facility activated which corrected the "no

landline telephone" non - compliance item.

22. Regarding the medical records for children non -

compliance items noted by Mr. Graddy, he did not check whether

the missing medical records on file were for the four children

present on the day he noted this item or other children who were

not present. Thus, he was u nable to identify any specific

medical records that were missing.

23. According to Mr. Graddy, "he always goes over the

inspection report with the provider, gives them a date after

which the noted infractions need be corrected." His above self -

imposed in spection standard was later qualified by his admission

that he did not provide Ms. Lanier an opportunity to

correct/comply with non - compliances contained on his Inspection

Checklist before declining renewal of her current license number

F14PO0266. Immedia tely after the August 11, 2004, inspection,

the Department determined to deny Ms. Lanier's license renewal

application request.

24. The $330 fine issued against Ms. Lanier by the

Department on May 6, 2004, was based upon five facility

inspections that had occurred on August 7, 2003; August 18,

2003; March 31, 2004; April 29, 2004; and August 11, 2004.

Ms. Lanier paid the $330 fine on August 26, 2004. The

Department accepted and deposited Ms. Lanier's $330 fine despite

the obvious fact that the Departmen t had decided to deny

Ms. Lanier's pending license renewal application at the time it

levied the fine and accepted her $330 payment of the fine.

25. Ms. Lanier's testimony that she paid the $330 fine on

August 26, 2004, with the understanding that her li cense renewal

application would be granted, went unchallenged by the

Department. On this particular point, the lack of challenge by

the Department regarding this ambiguous statement, whether

Ms. Lanier's understanding was induced by suggestion or silence

or was assumed in the absence of explanation to the contrary by

accepting the $330 fine, is resolved in favor of Ms. Lanier.

26. Patricia Hamilton, child care licensing supervisor,

did not personally perform inspections of this facility. She

compiled th e five inspection reports submitted by the

inspectors, charted those inspections, and assumed each non -

compliance item on each subsequent inspection was a repeated

non - compliance item; when, in fact, they were not.

27. Ms. Lanier testified that upon notic e of vermin, she

contacted her landlord who sprayed for bugs on regular monthly

intervals. Ms. Lisbon, landlord's representative, confirmed

that Ms. Lanier made more than one request for additional

extermination of the property.

28. Ms. Lanier testified that she addressed/corrected non -

compliance items identified by the Department's inspector(s)

during their several inspections of her facility. Many small

items were corrected by the close of business on the day

noticed. Items such as floor mats were rep laced, foam cups and

other debris in play area were removed, food supplies were

available in storage in the house (during spring break the

kitchen itself was not stocked as it would be during a normal

school week), broken window was repaired, smoke detecto r battery

was replaced, and first aid supplies were replenished. The

continuous efforts demonstrated by Ms. Lanier evidenced a

sincere intent and cooperative desire to comply with the

Department's rules and regulations, noted and interpreted by the

severa l inspectors at the time they inspected the facility, to

provide a safe and necessary family day care home for working

parents in her immediate community.

29. The Department proved that the facility had a

reoccurring bug problem. Without more, a "reoccur ring bug

problem," common in many areas, does not, ipso facto , equate to

infestation. 3 When noticed, Ms. Lanier did not fail or refuse to

address this issue, she secured extermination and, from the

property owner, requested monthly treatments thereafter.

30. The Department did not allege nor introduce evidence

of any probability that death, serious harm to the health or

safety of any person would, could, or had resulted, nor evidence

of the severity, the actual or potential harm, and the extent to

which S ections 402.301 through 402.319, Florida Statutes (2004),

had been violated. There is no evidence of record whatsoever

that any child was harmed or evidence that a particular or a

combination of specific non - compliance items, not timely

corrected, present ed a hazard to the children observed in the

facility. The Department's post - hearing argument in vague terms

such as "understandably concerned" and "were justified in

expecting," "did not rehabilitate her or correct her propensity

to violate," and "Departm ent justifiably had enough" are

statements open to more than one interpretation and does not

constitute direct evidence of an objective standard by which to

evaluate appropriate conduct or lack thereof.

CONCLUSIONS OF LAW

31. The Division of Administrativ e Hearings has

jurisdiction over the subject matter of and the parties to these

proceedings pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes (2004).

32. The burden of proof is on the party asserting the

affirmative of an issue before and administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). The extension of the clear

and convincing evidence standard is warranted. Department of

Banking and Finance, Division of Secur ities and Investor

Protection v. Osborne Stern Company , 670 So. 2d 932 (Fla. 1996);

Accord Marcia Edwards Family Day Care Home v. Department of

Children and Family Services , Case No. 02 - 3784 (DOAH February 5,

2003), adopted in toto , DCF Case No. 03 - 086 - FO (March 4, 2003);

Department of Children and Family Services v. Dorothy Dempsey

Family Day Care Home , Case No. 02 - 1435 (DOAH August 7, 2002),

adopted in toto , DCF Case No. 02 - 305 - FO (November 27, 2002).

33. The clear and convincing evidence standard has be en

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 lac king 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 the allegations sought to be

established.

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

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

1983)) (internal brackets omitted). Accord Westinghouse

Electric Corporation, Inc. v. Shuler Brothers, Inc. , 590 So. 2d

986 988 (Fla. 1st DCA 1991), rev. denied , 599 So. 2d 1279

(Fla. 1992)("Although this standard of proof may be met where

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

that is ambiguous.").

34. Subsection 402.310(1)(a), Florida Statutes (2004),

provides in pertinent part that Petitioner may "deny, suspend,

or revoke a license . . . for the violation of any provision of

ss. 402.301 - 402.319 or rules adopted thereunder."

35. The rules adopted by the Department to implement

Sections 402.301 through 402.319, Florida Stat utes (2004), are

codified in Florida Administrative Code Chapter 65C - 20.

36. The Department contends that the incidents set forth

in its letter of August 27, 2004, constituted violations of

Section 402.310, Florida Statutes (2004), regarding licensing

sta ndards for child care facilities.

37. Florida Administrative Code Rule 65C - 22.002(1)

provides in pertinent part:

(1) General Requirements.

(a) All child care facilities must be in

good repair, free from health and safety

hazards, clean, and free fr om vermin

infestation. During the hours that the

facility is in operation, no portion of the

building shall be used for any activity,

which endangers the health and safety of the

children.

(b) All areas and surfaces accessible to

children shall be fre e of toxic substances

and hazardous materials.

* * *

(d) All potentially harmful items

including cleaning supplies, flammable

products, poisonous, toxic, and hazardous

materials must be labeled. These items as

well as knives and sharp tools shall be

stored in locations inaccessible to the

children in care.

38. Florida Administrative Code Rule 65C - 22.002(2)(c) and

(d) provides in pertinent part:

(2) Rooms Occupied by Children.

* * *

(c) All rooms shall be kept clean,

adequate ly ventilated and in good repair.

Cleaning shall not take place while rooms

are occupied by children except for general

clean - up activities which are a part of the

daily routine.

(d) Rodents and vermin shall be

exterminated. Pest control shall not ta ke

place while rooms are occupied by children.

39. The "more than two" vermin noted by Mr. Graddy were

exterminated, and the vermin noted by Ms. Green were

exterminated. The Department did not prove, clearly and

convincingly, that vermin were not exterm inated.

40. Florida Administrative Code Rule 65C - 22.002(4)(c),

(d), and (e) provides in pertinent part:

(4) Outdoor Play Area.

* * *

(c) The outdoor play area shall be clean,

free of litter, nails, glass and other

hazards. . . .

(d) Th e facility's outdoor play area

shall be fenced in accordance with accepted

safety practices and local ordinances to

prevent access by children to all water

hazards, within or adjacent to outdoor play

areas, such as pools, ditches, retention and

fish ponds.

(e) The outdoor play area shall have and

maintain safe and adequate fencing or walls

a minimum of four (4) feet in height.

Fencing, including gates, must be continuous

and shall not have gaps that would allow

children to exit the outdoor play area. T he

base of the fence must remain at ground

level, free from erosion or build - up, to

prevent inside or outside access by children

or animals.

41. The "gate" issue was corrected, and the "gap" in the

fence was corrected. At no time prior to correction of t hose

two items could children have exited the outdoor play area. The

Department failed to prove the fence was in violation of Florida

Administrative Code Rule 65C - 22.002(4)(e). There was no

testimony that the fence was "of inadequate height, allowed

chil dren access to water hazards, had gaps, was not continuous,

or had an improperly maintained base."

42. Florida Administrative Code Rule 65C - 22.002(7)(b)

and (c) provides in pertinent part:

(7) Fire Safety.

* * *

(b) There shall be at leas t one corded

telephone in the child care facility which

is neither locked nor located at a pay

station and is available to all staff during

the hours of operation.

(c) Fire drills shall be conducted

monthly and shall be conducted when children

are in c are. A current attendance record

must accompany staff out of the building

during a drill or actual evacuation and be

used to account for all children.

43. Ms. Lanier, as is currently common practice and habit

of many citizens, used her cellular telephon e. However, upon

notice, she connected the landline telephone that had always

been present in the facility.

44. Records of fire drills were kept and available after

notice, and no inspector returned to review and confirm the

current attendance records. Ms. Green was aware that Ms. Lanier

conducted monthly fire drills.

45. Florida Administrative Code Rule 65C - 22.002(9)(b)4.

provides in pertinent part:

All equipment, fences, and objects on the

facility's premises shall be free of sharp,

broken and jagge d edges and properly placed

to prevent overcrowding of safety hazards in

any one area.

46. The Department did not prove that Ms. Lanier operated

the facility after notice and correction of the non - compliance

items. These non - compliance items were noted and were timely

corrected. Any perceived hazard, after notice, was removed and

remedied by Ms. Lanier. Finally, the Department failed to prove

that a child was at risk in any manner whatsoever due to or as a

result of the alleged violations herein noted.

Penalty

47. Subsection 402.310(1)(b), Florida Statutes (2004),

requires consideration of the following factors by the

Department in determining appropriate disciplinary action for

violation of Subsection 402.310(1)(a), Florida Statutes.

Subsections 402. 310(1)(a) and (b) provide:

(1)(a) The department or local licensing

agency may deny, suspend, or revoke a

license or impose an administrative find not

to exceed $100 per violation, per day, for

the violation of any provision of ss.

402.301 - 402.319 or ru les adopted thereunder.

However, where the violation could or does

cause death or serious harm, the department

or local licensing agency may impose an

administrative fine, not to exceed $500 per

violation per day.

(b) In determining the appropriate

di sciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation,

including the probability that death or

serious harm to the health or safety of any

person will res ult 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.

48. Based upon the Findings of Fact herein, the

Department's failure to carry the burden of proof regarding

whether a child was at risk in any manner whatsoever due to or

as a result of the alleged violations, and the range of

penalties from a fine, suspension, provisional license, to a

denial, denial is not an appropriate penalty.

49. Giving due consideration to the Department's

"concerns" for the overall welfare of children in care, coupled

with Ms. Lanier's ongoing correcti ve cooperation with noted non -

compliance items, a provisional license is deemed appropriate.

50. A provisional license would accommodate the

Department's concerns regarding the family day care home's full

and continuous compliance with applicable statutes and rules.

51. A provisional license would provide the licensee an

opportunity to continue day care service to her community

thereby enabling parents to be gainfully employed. The licensee

is afforded an opportunity to become accustomed to "continuous

inspections" and the need for ongoing corrections of non -

compliance items stemming from normal wear and tear.

52. A provisional license would entail more frequent

inspections by the Department affording an opportunity to

monitor Ms. Lanier's progress.

RE COMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order issuing to

Petitioner a provisional license until the following conditions

are met to the satisfaction of Respondent:

a. Pe titioner provides documentation that a licensed

extermination service has serviced the facility for vermin.

b. Petitioner provides documentation of a quarterly, semi -

annually, or monthly service agreement between Petitioner and a

licensed extermination se rvice.

DONE AND ENTERED this 18th day of April, 2005, in

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, 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 18th day of April, 2005.

ENDNOTES

1/ This form report is divided into five m ajor sections:

I. STAFFING REQUIREMENTS 65C - 20009 & (.013)

PERSONNEL

1. Operator/Occupant (1)(a)

2. Substitute Written Plan/Minimum Age (1)(b)

3. Background Screening Requirements 402.13(3)

STAFFING TRAINING

4. Staff Training

SUPERVISION BY STAF F

5. Indoors and Outdoors Supervision Provided (3)

II. HEALTH REQUIREMENTS (65C - 20.010)

GENERAL REQUIREMENTS

6. Animals Property Immunized (1)(a)

7. No Toxic/Hazardous Materials/Hazard (1)(b) 65C - 20.010(1)(b)

8. Smoking on Premise 65C - 010(1) (c)

9. Firearms 65C - 010(1)(d)

10. Play Areas Clean and Free of Litter 65C - 20.010(1)(e)

11. Outdoor Space Fenced, If applicable 65C - 20.010(1)(f)

12. Swimming Pools 65C - 20.010(1)(g)

13. Appropriate, Safe and Sanitary Bedding 65C - 20.010(1)(h) - (I)

14. D rinking Water Available 65C - 20.010(1)(m)

15. Vermin/Pest Control 65C - 20.010(i)(n)

16. Home, Furnishing, Toys, Equipment are Sanitary, Free of

Hazards and in Good Repair. 65C - 20.010(1)(o)

17. Smoke Detector, Fire Extinguisher, Telephone, adequate

Ventila tion, Lighting, Temperature 65C - 20.010(1)(o)

18. Nutritious Meals and Snacks Provided 65C - 20.010(1)(p)

HYGIENE AND SANITATION

19. Handwashing 65C - 20.010(2)(a)

20. Soiled Items are Properly Handled 65C - 20.010(2)(b)

21. Potty Chairs Cleaned and Saniti zed After Each Use, If

Applicable 65C - 20.010(2)(c)

22. Individual Towels and Wash Cloths Provided 65C - 20.010(2)(d)

23. Diapering Area Clean and Sanitized After Each Use, If

Applicable 65C - 20.010(2)(e)

FIRST AID KIT AND EMERGENCY PROCEDURES

24. First A id Kit Complete 65C - 20.010(3)(a)

25. Emergency Telephone Numbers Posted 65C - 20.010(3)(b)1

26. Accidents, Incidents, Health Related Symptoms Documented

and Shared with Parents 65C - 20.010(3)(b) 2&3

27. Fire Drills Conducted and Recorded Monthly 65C - 20 -

010 (3)(b)4

COMMUNICABLE DISEASE CONTROL

28. Isolation Area Available 65C - 20.010(4)(a) - (c)

MEDICATION

29. Prescription and Non - prescription Medication in the

Original Container 65C - 20.010(5)(a) - (c)

30. Documentation of Dispensed Medication Maintained a s

Required 65C - 20.010(5)(a)(d)(e)

III HEALTH RECORDS (65C - 20.011)

IMMUNIZATIONS

31. Current Immunization Records Maintained 65C - 20.011(1)

CHILDREN'S STUDENT HEALTH EXAMINATION

32. Current Physicals Maintained 65C - 20.011(2)

ENROLLMENT

33. Current Enrollment Information Maintained 65C - 20.010(4)

IV. ENFORCEMENT (65C - 20.012)

34. Access to the Premises Allowed 65C - 20.012(3)

V. CAPACITY/RATIO

35. Within Limits Capacity 402.302(7)

COMMENTS

ANY REPEAT VIOLATION MAY RESULT IN ADMINISTRATIVE ACTION , WHICH

MAY INCLUDE A FINE AND OR REVOCATION OF LICENSE.

Due Date: Correction made (date entered if known)

Under each major heading and subsection the inspector lists non -

compliance items discovered during each inspection. A full

explanation is rarely w ritten in the report; it is usually left

to recollection testimony of each inspector.

2/ Petitioner's relevance objection to Respondent's proffer of

Petitioner's May 6, 2004, letter was overruled upon

consideration that inspections listed in the letter, as the

basis for the fine, are the identical inspections Petitioner

alleged as the basis for its intended licensure renewal denial.

3/ Infestation -- To inhabit or overrun in large numbers so as

to be harmful or unpleasant. Page 673, American Heritage

D ictionary .

COPIES FURNISHED :

Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

Keith Peterson, Esquire

Law Offices of Peterson, P.A.

170 North Florida Avenue

Post Office Box 1675

B artow, Florida 33830

Gregory Venz, 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

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.