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.
Recommended Order on Friday, February 24, 2006.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8TARSHA SEAY, d/b/a SEAY FAMILY )
14DAY CARE HOME, )
18)
19Petitioner, )
21)
22vs. ) Case No. 0 5 - 3375
30)
31DEPARTMENT OF CHILDREN AND )
36FAMILY SERVICES, )
39)
40Respondent. )
42)
43RECOMMENDED ORDER
45Pursuant to notice, and in accordance with Section 120.57,
54Florida Statutes (2005), a final hearing was held in this case
65on November 7, 2005, in Lakeland, Florida, before Fred L.
75Buckine, the designated Administrative Law J udge of the Division
85of Administrative Hearings.
88APPEARANCES
89For Petitioner: Tarsha Seay, pro se
95Seay Family Day Care Home
1007354 Beaumont Drive
103Lakeland, Florida 33810
106For Respondent: Jac k Emory Farley, Esquire
113Department of Children and
117Family Services
1194720 Old Highway 37
123Lakeland, Florida 33813 - 2030
128STATEMENT OF THE ISSUE
132Th e issue is whether the renewal application for a family
143day care home license filed by Petitioner should be denied based
154upon alleged violations of Florida Administrative Code
161Rule 65C - 20.10(1)(f) , stated in Respondent 's letter of proposed
172denial dated August 3, 2005.
177PRELIMIN ARY STATEMENT
180By letter dated August 3, 2005, Respondent, Department of
189Children and Famil y Services, notified Petitioner, Tarsha Seay ,
198d /b/a/ Seay Family Day Care Home , located at 2829 Kathryn
209Avenue, Lakeland, F lorida , of the proposed denial of her
219appli cation based upon her inability to ensure the safety of
230children in her care. Respondent alleged that the family day
240care home of Petitioner located at 2 829 Kathryn Avenue,
250Lakeland, Florida , was found to be out of compliance in regard
261to the fencing requ irements as stated in Florida Administrative
271Code Rule 65C - 20.10(1)(f) on July 28 , 20 03 ; March 22 , 20 04 ;
285January 12 , 20 05 ; and June 10, 2005 . Petitioner timely disputed
297the allegations and petitioned for a f inal administrative
306hearing involving disputed issues of material fact.
313On September 19, 2005, this case was referred to the
323Division of Administrative Hearings , a nd , on September 20, 2005,
333the Initial Order was entered. On September 23, 2005, the Joint
344Response to the Initial Order was filed . On Sep tember 29, 2005,
357a Notice of Hearing, scheduling the final hearing for
366November 7, 2005, in Lakeland, Florida, and an Order of
376Pre - hearing Instructions were entered.
382At the final hearing on November 7, 2005, Respondent
391presented the testimony of three wit nesses: William Wright,
400c hild c are l icensing i nspector; Sheila Novels, c ertified c hild
414p rotection i nvestigator ; and Patricia Hamilton, c hild c are
425l icensing s upervisor. Respondent offered ten exhibits in
434evidence , of which seven exhibits ( 1 and 5 through 10 ) were
447received in evidence. 1 The request of Respondent for official
457recognition of Section s 402.301 through 402.319, Florida
465Statutes (2005) , and Florida Administrative Code Chapter 65C - 20
475was granted.
477Petitioner appeared pro se , did not give sworn tes timony ,
487and offered testimony of one character witness, Barbara Giles.
496On November 22, 2005, the one - volume T ranscript was filed . On
510November 28, 2005, Petitioner filed a Notice of Change of
520Address to 7354 Beaumont Drive, Lakeland, F lorida , and
529Respond ent filed its Proposed Recommended Order. On
537November 30, 2005, Petitioner filed a request for extension of
547time to file proposed recommended order. On December 1, 2005,
557an Order extending the filing date to December 23, 2005 , was
568entered . Petitioner f iled a Proposed Recommended Order on
578December 21, 2005. The Proposed Recommended Orders filed by the
588parties were considered by the undersigned.
594FINDINGS OF FACT
597Based upon the observation of and the demeanor of the
607witnesses while testifying, documentary materials in evidence,
614stipulations of the parties, and evidentiary ruling s during the
624hearing, the following relevant, material, and substantial facts
632are determined:
6341. Petitioner was initially granted her first family day
643care home license to operate a family day care home at
6542829 Kathryn Drive, Lakeland, Florida 33805 , on August 3, 2003,
664and her family day care home l icense was renewed by Respondent
676for operation at the above address for one additional year on
687August 3, 2004. At the time of the 200 4 family day care home
701license renewal, Petitioner was in compliance , with no
709noncompliant items noted in her record from 2003 through 2004
719that would have justified denial of the license renewal .
7292 . On an unspecified date prior to August 3, 2005,
740Petit ioner made an application to renew her family day care home
752license. On August 3, 2005, Respondent notified Petitioner by
761letter of the proposal to deny her application for renewal of
772her family day care home license. Petitioner contested the
781proposed de nial resulting in this administrative hearing on
790November 7, 2005.
7933. The denial letter of Respondent indicated that the
802decision was based upon, " [y] our inability to ensure the safety
813of children in your care."
8184. The letter continued stating: "Your F a mily Day Care
829Home was found to be out of compliance in regards to the fencing
842r equirements as stated in 65C - 20. 10(1)(f), Florida
852Administrative Code (F.A.C.), on 07/ 28 / 03, 03/ 22 / 04, 01/ 12 / 05,
86801/ 20 / 05, and 06/10/ 05." Petitioner acknowledged that th e fenc e
882was missing a few boards during the above period.
8915. It is undisputed that the January 12, 2005, inspection
901by Timothy Graddy, child care licensing inspector, found
909numerous violations. Upon reinspection by Mr. Gra d dy on
919January 20, 2005, the violatio ns noted during his January 12,
9302005, inspection were corrected, but for repair of the fence
940around the home and the und ated fire extinguisher inspection
950certification. Mr. Graddy was not called to testify regarding
959the severity of the noncompliance viola tions, the probability of
969harm to health or safety of the children nor actions taken by
981Petitioner to correct the cited violations. No other witness
990testified regarding these mandatory items.
9956. It is likewise undisputed that Respondent imposed an
1004admini strative fine on Petitioner for noncompliance item s
1013identified during an undated inspection in 2004. Petitioner,
1021without requesting a Chapter 120 , Florida Statutes, hearing,
1029paid the administrative fine of $100 on December 9, 2004, for
1040violations noted in compliance inspections that occurred between
1048January and December of 2004.
10537. It is likewise undisputed that the Department imposed a
1063second administrative fine on Petitioner for those violations
1071noted from inspections that occurred between January 1, 20 05,
1081and June 21, 2005. Again, and without requesting a Chapter 120 ,
1092Florida Statutes, hearing, Petitioner paid the administrative
1099fine of $250 on June 1, 2005.
11068. William Wright, c hild c are l icensing i nspector and a
1119member of the license application revi ew committee, reviewed the
1129relicensing application filed by Petitioner, voiced as his
1137primary concern a July 2005 central abuse hotline report of an
1148incident that occurred July 11, 2005. In the abuse report, a
1159two - year - old male child was reported to have had bruises on both
1174facial cheeks. The allegations narrative reflected the child
1182received the bruises by falling / tripping over his shoes.
1192Petitioner called the father of the child , who came by, observe d
1204the bruise on his child's cheek s , signed an inciden t statement
1216prepared by Petitioner , and took his child home. The father did
1227not return his child to Petitioner's family day care home.
1237During the subsequent investigation of the abuse incident ,
1245bruises were found on the child's thigh(s).
12529. Two or three days after the July 11, 2005 , incident
1263report, a subsequent investigation by local law enforcement and
1272follow - up investigation by Respondent's personnel resulted in
1281conflicting and unresolved accounts of how the child received
1290the bruises, where the child received the bruises , and who was
1301at fault for the bruises. It was unclear to the investigators
1312where and how the child received the bruises on his thighs.
1323What is clear is that the child did not receive t h igh bruises
1337while in Petitioner's family day ca re home . Respondent closed
1348the abuse report with "[S]ome indicator of bruises, welts and
1358marks. No intervention services were needed." There is
1366insufficient evidence to conclude, infer o r establish that while
1376in Petitioner's care the child sustained bru ises on his thighs
1387that were discovered several days after the July 11, 2005, abuse
1398report and , thus , to conclude the child's safety was at risk
1409while in Petitioner's family day care home.
141610. Another review committee member, Patricia Hamilton,
1423child care licensing supervisor, opined the proposed denial was
1432based upon "the Department's belief" that Petitioner was not
1441able to operate a day care without violating one or more Florida
1453A dministrative C ode rules. It is her belief that children in
1465Petitioner's f amily day care home would not be safe because the
1477historical inspection record compiled by Respondent , in her
1485opinion, demonstrated Petitioner could not consistently comply
1492with the rules of operating a safe family day care home. This
1504is a reasonable infe rence drawn from a historical review of
1515Petitioner 's family day care home inspection record.
152311. Petitioner, as of November 28, 2005, filed a Notice of
1534Change of Address. Petitioner now resides at 7354 Beaumont
1543Drive, Lakeland, Florida. By moving to a n ew residence,
1553Petitioner effectively withdrew the family day care home license
1562application for license of the residence at 2829 Kathryn Avenue,
1572Lakeland, Florida 33805, the subject of this case.
1580CONCLUSIONS OF LAW
158312. The Division of Administrative Hearin gs has
1591jurisdiction over the parties and subject matter in this case.
1601§ 120.57(1), Fla . Stat . (2005).
160813. Section 402.310, Florida Statutes (2005), states:
1615(1)(a) The departmen t or local licensing
1622agency may deny, suspend, or revoke a
1629license or impos e an administrati ve fine not
1638to exceed $100 per violation, per day, for
1646the violation of any provision of ss.
1653402.301 - 402.319 or rules adopted there
1660under . However, where the violation could
1667or does cause death or serious harm, the
1675dep artment or local lic ensing agency may
1683impose an administrative fine, not to exceed
1690$500 per violation per day.
1695(b) In determining the appropriate
1700disciplinary action to be taken for a
1707violation as provided in paragraph (a), the
1714following factors shall be considered:
17191 . The severity of the violation,
1726including the probability that death or
1732serious harm to the health or safety of any
1741person will result or has resulted, the
1748severity of the act ual or potential harm,
1756and the extent to which the provisions of
1764ss. 402. 301 - 40 2.319 have been violated.
17732. Actions taken by the licensee to
1780correct the violation or to remedy
1786complaints.
17873. Any previ ous violations of the
1794licensee.
1795(2) When the department has reasonable
1801cause to believe that grounds for the
1808denial, susp ension, or revocation of a
1815license or imposition of an administrative
1821fine exist, it shall determine the matter in
1829accordance with procedures prescribed in
1834chapt er 120. When the local licensing
1841agency has reasonable cause to believe that
1848grounds for the d enial, suspension, or
1855revocation of a license or imposition of an
1863administrative fine exist, it shall notify
1869the applicant or licensee in writing,
1875stating the grounds upon whic h the license
1883is being denied, suspended, or revoked or an
1891administrative fine i s being imposed. I f
1899the applicant or licensee makes no written
1906request for a hearing to the local licensing
1914agency within 15 days from receipt of such
1922notice, the license shall be deemed denied,
1929suspended, or revoked or an administrative
1935fine shall be imp osed.
194014. The party asserting the affirmative of an issue has
1950the burden of proof. Department of Banking and Finance v.
1960Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Balino v.
1972Department of Health and Rehabilitative Services , 348 So. 2d
1981349, 350 (Fla . 1st DCA 1977).
198815. The denial of an application for a family day care
1999home license is met by a preponderance of substantial evidence
2009in the record.
201216. Respondent provided a preponderance of substantial
2019evidence supporting the stated reasons for denyin g Petitioner's
2028application for family day care home relicensure.
203517. Pursuant to Florida Administrative Code Rule 65C -
204413.004(4), "A license is issued for a specific location, is not
2055transferable, and is valid for one year from the date of
2066issuance." P eti tioner, by moving to a new residence after
2077commencing th is proceeding , effectively withdrew her renewal
2085application and her challenge to the denial by Respondent, which
2095i s the subject of this proceeding.
2102RECOMMENDATION
2103Based upon the foregoing f inding s of f act and c onclusions
2116of l aw hereinabove, it is
2122RECOMMENDED that the Department of Children and Famil y
2131Servic es ente r a final order dismissing the p etition filed by
2144T arsha S eay , d/b/a S eay F amily D ay C are H ome .
2160DONE AND ENTERED this 2 4th day of February , 2 006 , in
2172Tallahassee, Leon County, Florida.
2176S
2177FRED L. BUCKINE
2180Administrative Law Judge
2183Division of Administrative Hearings
2187The DeSoto Building
21901230 Apalachee Parkway
2193Tallahassee, Florida 32399 - 3060
2198(850) 488 - 9675 SUNCOM 278 - 9675
2206Fax Filing (850) 921 - 6847
2212www.doah.state.fl.us
2213Filed with the Clerk of the
2219Division of Administrative Hearings
2223this 2 4th day of February, 2006 .
2231ENDNOTE
22321/ Exhibit 1 is a copy of the denial letter . Exhibits 2, 3,
2246and 4 ar e charts compiled fr om records of violations from years
2259past of which there is no information regarding the inspectors
2269who conducted the inspection and noted the violation, the
2278outcome of each inspection, the correction of noted violations,
2287the severity of the violation, or t he impact on the care of
2300children to each subsequent family day care license renewals in
23102003 and 2004 and to the application for the 2005 renewal .
2322These charts were not self authenticating, were not required by
2332law to be kept , the information source for each document was not
2344identified , and contain ed unsupported hearsay upon hearsay
2352intended to establish fact not based upon any promulgated rule
2362or specified criteria in effect at the time such information was
2373compiled or when the denial letter was posted. Simply put, a
2384Petitioner licensee would have no means to challenge allegations
2393the Department maintains "establish a pattern" for future
2401violations when the inspectors, of necessity, make subjective
2409determination whether an item is in compliance o r not.
2419Respondent's counsel did not provide a copy of Exhibit 10, i.e.
2430a second abuse report on an unidentified two - year - old child in
2444Petitioner's family day care home.
2449COPIES FURNISHED :
2452Jack Emory Farley, Esquire
2456Department of Children and
2460Family Services
24624 720 Old Highway 37
2467Lakeland, Florida 33813 - 2030
2472Tarsha Seay
2474Seay Family Day Care Home
24797354 Beaumont Drive
2482Lakeland, Florida 33810
2485Gregory Venz, Agency Clerk
2489Department of Children and
2493Family Services
2495Building 2, Room 204B
24991317 Winewood Boulevard
2502Tall ahassee, Florida 32399 - 0700
2508John Copeland, General Counsel
2512Department of Children and
2516Family Services
2518Building 2, Room 204
25221317 Winewood Boulevard
2525Tallahassee, Florida 32399 - 0700
2530NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2536All parties have the right to su bmit written exceptions within
254715 days from the date of this Recommended Order. Any exceptions
2558to this Recommended Order should be filed with the agency that
2569will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/24/2006
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 12/01/2005
- Proceedings: Order Granting Extension of Time to File Proposed Recommended Orders (parties shall file their proposed recommended orders on or before December 23, 2005).
- PDF:
- Date: 11/30/2005
- Proceedings: Letter to Judge Buckine from T. Seay regarding request for extension of time to file proposed recommended order.
- Date: 11/22/2005
- Proceedings: Transcript of Proceedings filed.
- PDF:
- Date: 11/10/2005
- Proceedings: Letter to Judge Buckine from C. Bowman regarding ordering of the Transcript filed.
- Date: 11/07/2005
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 10/31/2005
- Proceedings: Letter to T. Seay from J. Farley regarding exhibits and witnesses to be used at the Hearing filed.
- PDF:
- Date: 09/29/2005
- Proceedings: Notice of Hearing (hearing set for November 7, 2005; 9:30 a.m.; Lakeland, FL).
- PDF:
- Date: 09/19/2005
- Proceedings: Proposed Denial of Renewal Application for a Family Day Care Home filed.
Case Information
- Judge:
- FRED L. BUCKINE
- Date Filed:
- 09/19/2005
- Date Assignment:
- 09/20/2005
- Last Docket Entry:
- 06/09/2006
- Location:
- Lakeland, Florida
- District:
- Middle
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
James Domineck, Jr., Esquire
Address of Record -
Jack Emory Farley, Esquire
Address of Record -
Tarsha Seay
Address of Record