05-002363 Bambi Day Care I vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, December 27, 2005.

Summary: Petitioner, who did not have a director who was properly credientialed, should be denied permission to continue operating.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAMBI DAY CARE I, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2363

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_ ________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

September 21, 2005, by video teleconference at sites in Miami

and Tallahassee, Florida, before Stuart M. Lerner, a duly -

designated Administra tive Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Mercedes Arabi, Director

Bambi Day Care Center and Nursery

19204 Northwest 48th Avenue

Carol City, Florida 3 3055

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether Respondent should co ntinue to allow the Bambi Day

Care I child care facility to remain open for business.

PRELIMINARY STATEMENT

By letter dated July 2, 2004, Respondent advised Mercedes

Arabi, the operator of Bambi Day Care I, that it "intended

to revoke [her] license to op erate a Child Care Facility . . .

based on the facility's failure to comply with s. 402.305(2)(f)

[Florida Statutes] and 65C - 22.003(7)(a), Florida Administrative

Code." Ms. Arabi subsequently filed a written request for a

hearing on the matter. On June 1 0, 2005, the case was referred

to DOAH for the assignment of an administrative law judge to

conduct the hearing Ms. Arabi had requested.

As noted above, the hearing was held on September 21, 2005. 1

Three witnesses testified at the hearing: Colleen Mauer,

Mercedes Arabi, and Elena Arabi. In addition, four exhibits

(Respondent's Exhibits 1 through 4) were offered and received

into evidence.

At the close of the taking of evidence, the undersigned

established a deadline (10 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on December 2, 2005.

On December 12, 2005, Respondent filed a Motion for

Additional Time to S ubmit Proposed Recommended Order. By Order

issued December 13, 2005, the motion was granted and the parties

were given until December 22, 2005, to file their proposed

recommended orders.

Respondent filed its Proposed Recommended Order on

December 22, 200 5. To date, Ms. Arabi has not filed any post -

hearing pleading.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Bambi Day Care I (Facility) is a child care facility

locate d in Miami - Dade County.

2. At all times material to the instant case, Mercedes

Arabi has been the director of the Facility.

3. Ms. Arabi does not now have, nor has she ever

possessed, a director credential issued by Respondent.

4. Although she has attem pted to obtain such a credential,

she has not been able to meet the credentialing requirements.

5. On or about August 13, 2003, Respondent sent to the

Facility (by certified mail, return receipt requested) a form

letter advising of the following:

The dea dline for the Director's Credential

is January 1, 2004. This is mandated by

Chapter 65C - 22, Florida Administrative Code.

Each child care facility must have a

director that meets this requirement by

January 1, 2004.

Failure to comply will affect your lic ensure

status seriously.

If you have already completed the Director

Credential requirement, please disregard

this letter and mail or fax immediately a

copy of your certificate for your licensing

record. (Include the name of your

facility.)

The same lett er was sent to all other licensed child care

facilities having an uncredentialed director.

6. The letter was delivered to the Facility on August 21,

2003.

7. Not having received any indication that Ms. Arabi had

obtained the required director credential , Respondent, on or

about January 16, 2004, changed the Facility's licensure status

by issuing a provisional license, effective from January 2,

2004, through July 2, 2004, authorizing the Facility's

operation.

8. As of July 2, 2004, Ms. Arabi still had no t become

credentialed. Accordingly, on that date, Respondent advised her

that it "intended to revoke [her] license to operate [the

Facility]."

9. Ms. Arabi requested an administrative hearing on the

matter.

10. Notwithstanding that the expiration date o n the

Facility's provisional license was July 2, 2004, Respondent has

affirmatively allowed the Facility to continue to operate

pending the outcome of Ms. Arabi's challenge to the revocation

action announced in Respondent's July 2, 2004, letter. In doing

so, it has effectively extended the life of the Facility's

provisional license (which, for all intents and purposes,

remains in existence).

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes (2005).

12. Section 402.308, Florida Statutes (2005), mandates

that "[e]very child care facility[ 2 ] in the state shall have a

license which shall be renewed annually."

13. Respondent is responsible for the licen sing of child

care facilities, except in those counties where there is a local

licensing agency (that has been approved by Respondent). See

§ 402.308, Fla. Stat. (2005).

14. To be licensed, child care facilities must meet

certain "minimum standards." Se e § 402.305, Fla. Stat. (2005).

15. For instance, Section 402.305(2)(f), Florida Statutes

(2005), provides:

PERSONNEL. -- Minimum standards for child care

personnel shall include minimum requirements

as to:

By January 1, 2000, a credential for child

care f acility directors. By January 1,

2004, the credential shall be a required

minimum standard for licensing.

Florida Administrative Code Rule 65C - 22.003(8)(a)1. elaborates

on this "minimum standard." It provides, in pertinent part, as

follows:

Director Cre dential.

Pursuant to Section 402.305(2)(f), F.S.,

every child care facility director must have

a director credential by January 1, 2004,

which consists of the foundational level or

the advanced level. As of January 1, 2004,

every applicant for a license to operate a

child care facility or a license for a

change of ownership of a child care facility

must document that the facility director has

a director credential prior to issuance of

the license to operate the facility.

Child care facility owners must n otify the

licensing authority within five (5) working

days of when the facility loses a

credentialed director or when there is a

change of director. The licensing authority

will then issue a provisional license for a

period not to exceed six (6) months. The

provisional license will have an effective

date of the first day the facility was

without a credentialed director.

16. "Provisional licenses" issued by Respondent are

discussed in Section 402.309, Florida Statutes (2005), which

provides, in pertinent part, as follows:

Provisional license. --

(1) The . . . department . . . may issue a

provisional license to applicants for a

license or to licensees who are unable to

conform to all the standards provided for in

ss. 402.301 - 402.319.

(2) No provisiona l license may be issued

unless the operator or owner makes adequate

provisions for the health and safety of the

child. . . .

(3) The provisional license shall in no

event be issued for a period in excess of 6

months; however, it may be renewed one time

f or a period not in excess of 6 months under

unusual circumstances beyond the control of

the applicant.

(4) The provisional license may be

suspended if periodic inspection made

by . . . the department indicates that

insufficient progress has been made t oward

compliance.

17. Section 402.310(1)(a), Florida Statutes (2005),

authorizes Respondent to " deny, suspend, or revoke a license or

impose an administrative fine . . . for the violation of any

provision of ss. 402.301 - 402.319 or rules adopted thereund er."

18. "No revocation [or] suspension . . . of any [child

care facility] license is lawful unless, prior to the entry of a

final order, [Respondent] has served, by personal service or

certified mail, an administrative complaint which affords

reasonable notice to the licensee of facts or conduct which

warrant the intended action and unless the licensee has been

given an adequate opportunity to request a proceeding pursuant

to ss. 120.569 and 120.57." § 120.60(5), Fla. Stat. (2005).

19. The licensee must be afforded an evidentiary hearing

if, upon receiving such written notice, the licensee disputes

the alleged facts set forth in the administrative complaint.

See §§ 120.569(1) and 120.57, Fla. Stat. (2005).

20. At the hearing, Respondent bears the burde n of proving

that the licensee engaged in the conduct, and thereby committed

the violation(s), alleged in the written notice. Proof greater

than a mere preponderance of the evidence must be presented.

Clear and convincing evidence of the licensee's viola tion(s) is

required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of Central Florida

v. Department of Business Regulation , 601 So. 2d 245, 249 (Fla.

1st DCA 1992); Coke v. Department of Children and Family

Services , 704 So. 2d 726 (Fla. 5th DCA 1998) ; and §

120.57(1)(j), Fla. Stat. (2005)("Findings of fact shall be based

upon a preponderance of the evidence, except in penal or

licensure disci plinary proceedings or except as otherwise

provided by statute . . . .").

21. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 6 96

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimo ny 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 trier

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, with approval,

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

1983).

22. In determining whether Respondent has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific factual allegation(s) made

in the written notice. Due process prohibits an agency from

taking penal action against a licensee based on matters not

specifically alleged in the w ritten notice, unless those matters

have been tried by consent. See Shore Village Property Owners'

Association, Inc. v. Department of Environmental Protection , 824

So. 2d 208, 210 (Fla. 4th DCA 2002); and Lusskin v. Agency for

Health Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA

1999).

23. The written notice in the instant case alleges that

the Facility is in continuing violation of the requirement of

Section 402.305, Florida Statutes (2005), and Florida

Administrative Code 65C - 22.003 that it have a duly credentialed

director.

24. The evidence offered and received at the hearing held

in this case clearly and convincingly establishes that at no

time since January 1, 2004, has the Facility had a director

possessing the director credential required by Section

402.305(2)(f), Florida Statutes (2005), and Florida

Administrative Code 65C - 22.003 (8)(a)1 .

25. Accordingly, the Facility should not continue to be

licensed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that Respondent issue a Final Order revoking

its permission allowing the Facility to operate as a child care

facility.

DONE AND ENTERED this 27th day of December, 2005, in

Tallahassee, Leon County, Florida.

S

__________________________ _________

STUART M. LERNER

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 C lerk of the

Division of Administrative Hearings

this 27th day of December, 2005.

ENDNOTES

1 / The hea ring was originally scheduled to commence on

September 9, 2005, but was continued due to Ms. Arabi's illness.

2 / According to Section 402.302(2), Florida Statutes (2005), a

"child care facility," as that term is used in Section 402.308,

Florida Statutes (2005), "includes any child care center or

child care arrangement which provides child care for more than

five children unrelated to the operator and which receives a

payment, fee, or grant for any of the children receiving care,

wherever operated, and whe ther or not operated for profit."

COPIES FURNISHED :

Mercedes Arabi

Bambi Day Care Center and Nursery

19204 Northwest 48th Avenue

Carol City, Flori da 33055

Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N - 1014

Miami, Florida 33128

John Slye, Acting General Counsel

Department of Children and Family Services

Building 2, Room 204

1317 Winewood Bou levard

Tallahassee, Florida 32399 - 0700

Gregory Venz, Agency Clerk

Department of Children and Family Services

Building 2, Room 204A

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

N OTICE OF RIGHT TO SU BMIT EXCEPTIONS

All parties have the rig ht 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.