05-003375 Tarsha Seay, D/B/A Seay Family Day Care Home vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, February 24, 2006.

Summary: Petitioner was denied renewal of her license for violations of Florida Administrative Code Rule 65C-20.10(1)(f). However, before entry of the Recommended Order Petitioner changed her address, effectively withdrawing her petition for renewal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TARSHA SEAY, d/b/a SEAY FAMILY )

DAY CARE HOME, )

)

Petitioner, )

)

vs. ) Case No. 0 5 - 3375

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, and in accordance with Section 120.57,

Florida Statutes (2005), a final hearing was held in this case

on November 7, 2005, in Lakeland, Florida, before Fred L.

Buckine, the designated Administrative Law J udge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Tarsha Seay, pro se

Seay Family Day Care Home

7354 Beaumont Drive

Lakeland, Florida 33810

For Respondent: Jac k Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

STATEMENT OF THE ISSUE

Th e issue is whether the renewal application for a family

day care home license filed by Petitioner should be denied based

upon alleged violations of Florida Administrative Code

Rule 65C - 20.10(1)(f) , stated in Respondent 's letter of proposed

denial dated August 3, 2005.

PRELIMIN ARY STATEMENT

By letter dated August 3, 2005, Respondent, Department of

Children and Famil y Services, notified Petitioner, Tarsha Seay ,

d /b/a/ Seay Family Day Care Home , located at 2829 Kathryn

Avenue, Lakeland, F lorida , of the proposed denial of her

appli cation based upon her inability to ensure the safety of

children in her care. Respondent alleged that the family day

care home of Petitioner located at 2 829 Kathryn Avenue,

Lakeland, Florida , was found to be out of compliance in regard

to the fencing requ irements as stated in Florida Administrative

Code Rule 65C - 20.10(1)(f) on July 28 , 20 03 ; March 22 , 20 04 ;

January 12 , 20 05 ; and June 10, 2005 . Petitioner timely disputed

the allegations and petitioned for a f inal administrative

hearing involving disputed issues of material fact.

On September 19, 2005, this case was referred to the

Division of Administrative Hearings , a nd , on September 20, 2005,

the Initial Order was entered. On September 23, 2005, the Joint

Response to the Initial Order was filed . On Sep tember 29, 2005,

a Notice of Hearing, scheduling the final hearing for

November 7, 2005, in Lakeland, Florida, and an Order of

Pre - hearing Instructions were entered.

At the final hearing on November 7, 2005, Respondent

presented the testimony of three wit nesses: William Wright,

c hild c are l icensing i nspector; Sheila Novels, c ertified c hild

p rotection i nvestigator ; and Patricia Hamilton, c hild c are

l icensing s upervisor. Respondent offered ten exhibits in

evidence , of which seven exhibits ( 1 and 5 through 10 ) were

received in evidence. 1 The request of Respondent for official

recognition of Section s 402.301 through 402.319, Florida

Statutes (2005) , and Florida Administrative Code Chapter 65C - 20

was granted.

Petitioner appeared pro se , did not give sworn tes timony ,

and offered testimony of one character witness, Barbara Giles.

On November 22, 2005, the one - volume T ranscript was filed . On

November 28, 2005, Petitioner filed a Notice of Change of

Address to 7354 Beaumont Drive, Lakeland, F lorida , and

Respond ent filed its Proposed Recommended Order. On

November 30, 2005, Petitioner filed a request for extension of

time to file proposed recommended order. On December 1, 2005,

an Order extending the filing date to December 23, 2005 , was

entered . Petitioner f iled a Proposed Recommended Order on

December 21, 2005. The Proposed Recommended Orders filed by the

parties were considered by the undersigned.

FINDINGS OF FACT

Based upon the observation of and the demeanor of the

witnesses while testifying, documentary materials in evidence,

stipulations of the parties, and evidentiary ruling s during the

hearing, the following relevant, material, and substantial facts

are determined:

1. Petitioner was initially granted her first family day

care home license to operate a family day care home at

2829 Kathryn Drive, Lakeland, Florida 33805 , on August 3, 2003,

and her family day care home l icense was renewed by Respondent

for operation at the above address for one additional year on

August 3, 2004. At the time of the 200 4 family day care home

license renewal, Petitioner was in compliance , with no

noncompliant items noted in her record from 2003 through 2004

that would have justified denial of the license renewal .

2 . On an unspecified date prior to August 3, 2005,

Petit ioner made an application to renew her family day care home

license. On August 3, 2005, Respondent notified Petitioner by

letter of the proposal to deny her application for renewal of

her family day care home license. Petitioner contested the

proposed de nial resulting in this administrative hearing on

November 7, 2005.

3. The denial letter of Respondent indicated that the

decision was based upon, " [y] our inability to ensure the safety

of children in your care."

4. The letter continued stating: "Your F a mily Day Care

Home was found to be out of compliance in regards to the fencing

r equirements as stated in 65C - 20. 10(1)(f), Florida

Administrative Code (F.A.C.), on 07/ 28 / 03, 03/ 22 / 04, 01/ 12 / 05,

01/ 20 / 05, and 06/10/ 05." Petitioner acknowledged that th e fenc e

was missing a few boards during the above period.

5. It is undisputed that the January 12, 2005, inspection

by Timothy Graddy, child care licensing inspector, found

numerous violations. Upon reinspection by Mr. Gra d dy on

January 20, 2005, the violatio ns noted during his January 12,

2005, inspection were corrected, but for repair of the fence

around the home and the und ated fire extinguisher inspection

certification. Mr. Graddy was not called to testify regarding

the severity of the noncompliance viola tions, the probability of

harm to health or safety of the children nor actions taken by

Petitioner to correct the cited violations. No other witness

testified regarding these mandatory items.

6. It is likewise undisputed that Respondent imposed an

admini strative fine on Petitioner for noncompliance item s

identified during an undated inspection in 2004. Petitioner,

without requesting a Chapter 120 , Florida Statutes, hearing,

paid the administrative fine of $100 on December 9, 2004, for

violations noted in compliance inspections that occurred between

January and December of 2004.

7. It is likewise undisputed that the Department imposed a

second administrative fine on Petitioner for those violations

noted from inspections that occurred between January 1, 20 05,

and June 21, 2005. Again, and without requesting a Chapter 120 ,

Florida Statutes, hearing, Petitioner paid the administrative

fine of $250 on June 1, 2005.

8. William Wright, c hild c are l icensing i nspector and a

member of the license application revi ew committee, reviewed the

relicensing application filed by Petitioner, voiced as his

primary concern a July 2005 central abuse hotline report of an

incident that occurred July 11, 2005. In the abuse report, a

two - year - old male child was reported to have had bruises on both

facial cheeks. The allegations narrative reflected the child

received the bruises by falling / tripping over his shoes.

Petitioner called the father of the child , who came by, observe d

the bruise on his child's cheek s , signed an inciden t statement

prepared by Petitioner , and took his child home. The father did

not return his child to Petitioner's family day care home.

During the subsequent investigation of the abuse incident ,

bruises were found on the child's thigh(s).

9. Two or three days after the July 11, 2005 , incident

report, a subsequent investigation by local law enforcement and

follow - up investigation by Respondent's personnel resulted in

conflicting and unresolved accounts of how the child received

the bruises, where the child received the bruises , and who was

at fault for the bruises. It was unclear to the investigators

where and how the child received the bruises on his thighs.

What is clear is that the child did not receive t h igh bruises

while in Petitioner's family day ca re home . Respondent closed

the abuse report with "[S]ome indicator of bruises, welts and

marks. No intervention services were needed." There is

insufficient evidence to conclude, infer o r establish that while

in Petitioner's care the child sustained bru ises on his thighs

that were discovered several days after the July 11, 2005, abuse

report and , thus , to conclude the child's safety was at risk

while in Petitioner's family day care home.

10. Another review committee member, Patricia Hamilton,

child care licensing supervisor, opined the proposed denial was

based upon "the Department's belief" that Petitioner was not

able to operate a day care without violating one or more Florida

A dministrative C ode rules. It is her belief that children in

Petitioner's f amily day care home would not be safe because the

historical inspection record compiled by Respondent , in her

opinion, demonstrated Petitioner could not consistently comply

with the rules of operating a safe family day care home. This

is a reasonable infe rence drawn from a historical review of

Petitioner 's family day care home inspection record.

11. Petitioner, as of November 28, 2005, filed a Notice of

Change of Address. Petitioner now resides at 7354 Beaumont

Drive, Lakeland, Florida. By moving to a n ew residence,

Petitioner effectively withdrew the family day care home license

application for license of the residence at 2829 Kathryn Avenue,

Lakeland, Florida 33805, the subject of this case.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearin gs has

jurisdiction over the parties and subject matter in this case.

§ 120.57(1), Fla . Stat . (2005).

13. Section 402.310, Florida Statutes (2005), states:

(1)(a) The departmen t or local licensing

agency may deny, suspend, or revoke a

license or impos e an administrati ve fine not

to exceed $100 per violation, per day, for

the violation of any provision of ss.

402.301 - 402.319 or rules adopted there

under . However, where the violation could

or does cause death or serious harm, the

dep artment or local lic ensing agency may

impose an administrative fine, not to exceed

$500 per violation per day.

(b) In determining the appropriate

disciplinary 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 result or has resulted, the

severity of the act ual or potential harm,

and the extent to which the provisions of

ss. 402. 301 - 40 2.319 have been violated.

2. Actions taken by the licensee to

correct the violation or to remedy

complaints.

3. Any previ ous violations of the

licensee.

(2) When the department has reasonable

cause to believe that grounds for the

denial, susp ension, or revocation of a

license or imposition of an administrative

fine exist, it shall determine the matter in

accordance with procedures prescribed in

chapt er 120. When the local licensing

agency has reasonable cause to believe that

grounds for the d enial, suspension, or

revocation of a license or imposition of an

administrative fine exist, it shall notify

the applicant or licensee in writing,

stating the grounds upon whic h the license

is being denied, suspended, or revoked or an

administrative fine i s being imposed. I f

the applicant or licensee makes no written

request for a hearing to the local licensing

agency within 15 days from receipt of such

notice, the license shall be deemed denied,

suspended, or revoked or an administrative

fine shall be imp osed.

14. The party asserting the affirmative of an issue has

the burden of proof. Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d

349, 350 (Fla . 1st DCA 1977).

15. The denial of an application for a family day care

home license is met by a preponderance of substantial evidence

in the record.

16. Respondent provided a preponderance of substantial

evidence supporting the stated reasons for denyin g Petitioner's

application for family day care home relicensure.

17. Pursuant to Florida Administrative Code Rule 65C -

13.004(4), "A license is issued for a specific location, is not

transferable, and is valid for one year from the date of

issuance." P eti tioner, by moving to a new residence after

commencing th is proceeding , effectively withdrew her renewal

application and her challenge to the denial by Respondent, which

i s the subject of this proceeding.

RECOMMENDATION

Based upon the foregoing f inding s of f act and c onclusions

of l aw hereinabove, it is

RECOMMENDED that the Department of Children and Famil y

Servic es ente r a final order dismissing the p etition filed by

T arsha S eay , d/b/a S eay F amily D ay C are H ome .

DONE AND ENTERED this 2 4th day of February , 2 006 , in

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 2 4th day of February, 2006 .

ENDNOTE

1/ Exhibit 1 is a copy of the denial letter . Exhibits 2, 3,

and 4 ar e charts compiled fr om records of violations from years

past of which there is no information regarding the inspectors

who conducted the inspection and noted the violation, the

outcome of each inspection, the correction of noted violations,

the severity of the violation, or t he impact on the care of

children to each subsequent family day care license renewals in

2003 and 2004 and to the application for the 2005 renewal .

These charts were not self authenticating, were not required by

law to be kept , the information source for each document was not

identified , and contain ed unsupported hearsay upon hearsay

intended to establish fact not based upon any promulgated rule

or specified criteria in effect at the time such information was

compiled or when the denial letter was posted. Simply put, a

Petitioner licensee would have no means to challenge allegations

the Department maintains "establish a pattern" for future

violations when the inspectors, of necessity, make subjective

determination whether an item is in compliance o r not.

Respondent's counsel did not provide a copy of Exhibit 10, i.e.

a second abuse report on an unidentified two - year - old child in

Petitioner's family day care home.

COPIES FURNISHED :

Jack Emory Farley, Esquire

Department of Children and

Family Services

4 720 Old Highway 37

Lakeland, Florida 33813 - 2030

Tarsha Seay

Seay Family Day Care Home

7354 Beaumont Drive

Lakeland, Florida 33810

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tall ahassee, Florida 32399 - 0700

John Copeland, 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 su bmit 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.