07-004149 Oakcrest Early Education Center, Inc., And Joanne Jones vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, November 6, 2007.

Summary: The application for a child care license is denied; Petitioners did not meet the burden of proof.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OAKCREST EARLY EDUCATION )

CENTER, INC., AND JOANNE JONES , )

)

Petitioners , )

)

vs. ) Case No. 07 - 4149

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

matter on October 18, 2007, in Ocala, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings (DOAH).

APPEAR ANCES

For Petitioner: Joann Jones, pro se

Oakcrest Early Education Center, Inc.

7620 Northeast Jacksonville Road

Ocala, Florida 34479

For Respondent: Timothy M. Beasley, Esquire

Rochanda Mercier, Legal Intern

Department of Children and

Family Services

661 South Broad Street

Brooksville, Florida 34601

STATEMENT OF THE ISSUE

Th e issue in this case is whether Petitioners' application

for licensure of a child care facility should be approved or

denied.

PRELIMINARY STATEMENT

Petitioners filed an application for licensure of a child

care facility with the Department of Children and Family

Services (DCF) on June 14, 2007. The application was denied due

to serious violations of governing statutes by Petitioners when

previously licensed.

Petitioners timely filed a request for an administrative

hearing, which was then forwarded to DOA H on September 13, 2007.

At the final hearing, Petitioners offered the testimony of one

witness, Petitioner, Joanne Jones. Petitioners offered four

exhibits into evidence : Exhibits 1, 3, and 4 were accepted.

Respondent called one witness, Leighton Edwa rds, to testify at

the final hearing. Official recognition of Respondent's

Exhibits 1 through 6 was taken; Exhibits 7 and 8 were also

admitted into evidence.

The parties advised the undersigned that no transcript of

the final hearing would be ordered. Th ey were given ten days

from the date of the hearing to submit proposed recommended

orders. As of the date of this Recommended Order, only

Respondent had filed a Proposed Recommended Order, and it was

duly - considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Oakcrest Early Education Center, Inc.

(Oakcrest), is a formerly licensed child care facility located

at 1606 N ortheast 22nd Avenue, Ocala, Florida. Its license was

not renewed following an incident on June 7, 2005, to wit: A

three - year - old child was left unattended in an Oakcrest vehicle

for approximately three hours, resulting in harm to the child.

2. P etitioner, Joanne Jones (Jones ), is the owner of

Oakcrest.

3. DCF is the state agency responsible for, inter ali a ,

licensing and mon itoring child care facilities.

4. Oakcrest has not been licensed as a chi ld care facility

since the June 2005 incident. However, the Final Order in DOAH

Case No. 05 - 2616 gave Oakcrest the right to re - apply for a

license at any time. Based on that allowance, Jones filed an

application for a child care facility license with DCF on

June 17, 2007, some two years after the last license application

was denied. The basis for denying the latest application was

that Jones had done nothing to address the violations

precipitating the pr evious non - renewal of license.

5. At the final hearing in the current case, Jones

presented no evidence to convince DCF that prior violations

would not be repeated. In fact, Jones candidly admitted that

her onl y reason for seeking a license was so that she could sell

the building housing the child care facility for a higher price.

Jones admitted she had no intention of operating the child care

facility i f a license was issued to her.

6. The violations in 2005 were serious. The child who was

involved continues to suffer residual effects from the trauma

suffered at that time. He has on - going physical and

psychological issues directly related to being left in the hot

day care van for about three hours.

CONCLUSIO NS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2007). 1

8. DCF is the state agency charged with th e responsibility

of licensing child care facilities. See § 402.305, Fl a. Stat.

9. Subsection 402.3055(1)(a), Florida Statutes, requires

DCF to ascertain whether an applicant, owner or operator has

ever had its license denied, revoked or suspended or been the

subject of a disciplinary action. If so, DCF is then required

to review the nature of the denial and/or disciplinary action

before granting a new license. As set forth in that subsection,

"If the department or local licensing agency determines as a

result of such review that it is not in the best interest of the

state or local jurisdiction for the applicant to be licensed, a

license shall not be granted." DCF's determination that it is

not in the best interest of the state to grant Petitioners'

lice nse application was substantiated at final hearing.

10. The burden of persuasion in the instant case is on

Petitioners. They must show that they are entitled to a

license. See Department of Banking and Finance, Division of

Securities and Investor Protec tion, v. Osborne Stern and Co. ,

670 So. 2d 932, 934 (Fla. 1996), wherein the court emphasized

that while the burden of producing evidence may shift between

parties in an application dispute, the burden of persuasion

remains with the applicant.

11. Petitio ners have failed to meet their burden. The

fact that Jones has no intention of operating the facility even

if a license was to be granted is tantamount to fraud in the

application process. But even if her application was not

fraudulent, she did not prese nt any competent, substantial

evidence to prove her entitlement to a license. Rather, she

relied on her past experience. But her licensure history

contains an extremely serious violation that she did not

sufficiently address.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by DCF denying

the application for licensure of a child care facility to

Oakcrest and Jones.

DONE AND ENTERED this 6th day of November, 2007 , in

Tallahassee , Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of November , 2007 .

ENDNOTE

1/ Unless stated otherwise herein, all references to the Florida

Statutes shall be to the 2007 version.

C OPIES FURNISHED :

Joann Jones

Oakcrest Early Education Center, Inc.

7620 Northeast Jacksonville Road

Ocala, Florida 34479

Timothy M. Beasley, Esquire

Rochanda Mercier, Legal Intern

Department of Children and

Family Services

661 South Broad Street

Brook sville, Florida 34601

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Copelan, General Counsel

Department of Children and

Family Services

Build ing 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Robert Butterworth, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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.