07-005100
Department Of Children And Family Services vs.
God`s Little Angels And Vickie Olopade
Status: Closed
Recommended Order on Wednesday, July 2, 2008.
Recommended Order on Wednesday, July 2, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF CHILDREN AND )
13FAMILY SERVICES, )
16)
17Petitioner, )
19)
20vs. ) Case No. 07-5100
25)
26GOD'S LITTLE ANGELS and VICKIE OLOPADE, )
33)
34)
35Respondents. )
37)
38RECOMMENDED ORDER
40Pursuant to notice, this cause was heard by Linda M. Rigot,
51the assigned Administrative Law Judge of the Division of
60Administrative Hearings, on April 14, 2008, by video
68teleconference with sites in Jacksonville and in Tallahassee,
76Florida.
77APPEARANCES
78For Petitioner: Robin Whipple-Hunter, Esquire
83Department of Children and
87Family Services
89Post Office Box 2417
93Jacksonville, Florida 32231-0083
96For Respondents: Randall A. Schmidt, Esquire
102620 West 37th Street
106Savannah, Georgia 31415
109STATEMENT OF THE ISSUE
113The issue presented is whether Respondents' license to
121operate a child care facility should be revoked.
129PRELIMINARY STATEMENT
131In response to the Department's undated Intent to Revoke
140License alleging that Respondents had violated certain statutes
148and rules regulating the operation of a child care facility,
158Respondents requested an administrative hearing regarding the
165Department's allegations by correspondence dated October 22,
1722007. On November 6, 2007, the Department transmitted its
181undated Intent to Revoke License and Respondents' request for a
191hearing to the Division of Administrative Hearings to conduct
200the evidentiary proceeding.
203By Order of Pre-hearing Instructions entered November 26,
2112007, the parties were ordered to file a pre-hearing stipulation
221no later than 20 days before the final hearing in this cause.
233The Department never complied with that Order.
240On April 14, 2008, the day of the final hearing in this
252cause, Respondents filed a unilateral statement, erroneously
259entitled "Pre-hearing Stipulation." In that document,
265Respondents admitted that the Department's Intent to Revoke
273License had been amended. Although an amended intent to revoke
283license would replace the intent to revoke license it was
293amending and would become the charging document/administrative
300complaint, no amended intent to revoke license was ever filed
310with the Division. Further, the Department never requested
318leave to amend the charges in this cause. Accordingly, it
328cannot be determined which, if any, allegations contained in the
338Department's original Intent to Revoke License survived in the
347amended intent to revoke license.
352Also on April 14, 2008, the day of the final hearing in
364this cause, the Department filed its Addendum to Amended Intent
374to Revoke License dated January 16, 2008, neglecting still to
384file the document to which the Addendum referred. Since the
394Intent to Revoke License was apparently replaced by an amended
404document not filed in this proceeding, the only charging
413document at issue in this proceeding is the Addendum to the
424Amended Intent to Revoke License filed on April 14, 2008.
434At the final hearing the Department presented the
442testimony of Pauline Miller, Pamela Buckham, and Pamela Jett.
451Respondent Vickie Olopade testified on behalf of the Respondents
460and presented the testimony of Amanda Woodridge, Keisha McGriff,
469Antoinette Jones, Dorothy Daniels, Nichol Rogers, and
476Lynette Blair.
478The Department's Exhibits numbered 5, 6, 8-14, the third
487page of 15, 16-19, and 36-68 and Respondents' Exhibits numbered
4971-6 were admitted in evidence without objection. Ruling was
506reserved on the admissibility of the Department's Exhibits
514numbered 1-4, 7, and the first two pages of 15, subject to the
527parties filing post-hearing memorandum on the issue of whether
536the Department could take disciplinary action for violations
544remote in time and for which disciplinary action had already
554been imposed and resolved and which pre-date the issuance of
564subsequent annual licenses. Since the Department's Proposed
571Recommended Order contained no legal argument on this issue but
581merely asserted that it could do so, the Department's Exhibits
591numbered 1-4, 7, and the first two pages of 15 are rejected.
603The Transcript of the final hearing was filed on May 12,
6142008. By agreed motion, the parties requested that their
623deadline for filing proposed recommended orders be extended to
632June 12, 2008, and that request was granted. Although both
642parties were afforded leave to file proposed recommended orders,
651only the Department did so.
656FINDINGS OF FACT
6591. The Department first issued a child care facility
668license to Respondent God's Little Angels in 1999.
6762. On October 30, 2007, the Department's inspector went to
686Respondent God's Little Angels to conduct a routine inspection.
695Several items on the Department's form checklist are marked as
705being in "noncompliance." Those items are either given a date
715by which they must be corrected or are marked "complete."
725Although the Department presented no evidence as to the meaning
735of the notation "complete," a review of the types of items
746marked "complete" suggests that the item was corrected
754immediately and/or before the inspection was finished.
7613. Those items marked "complete" were four staff members
770in a room instead of five; no soap in one of the bathrooms; one
784child did not wash his or her hands after using the bathroom; a
797toy in the outdoor play area was broken; water was standing in
809toys and equipment outside; and one bottle was not labeled with
820the child's first and last name. As to the standing water in
832the outdoor toys, no information is provided as to whether it
843was raining or whether the sprinklers were operating at the time
854or whether any children were outside.
8604. A number of items on the October 30, 2007, form
871checklist are marked as being in "noncompliance" and have a
881deadline by which they must be corrected. They are: the
891facility's storage of linens was not sanitary, due date
900October 31, 2007; and outdoor toys need to be cleaned, due date
912November 5, 2007. There are also several recordkeeping items
921noted: 3 children out of 45 did not have a current physical
933examination record, due date November 9, 2007; 5 children did
943not have a current immunization record, one child's record did
953not have an expiration date, and 2 records had expired, due date
965November 10, 2007; and 19 children had incomplete enrollment
974information on file, due date November 3, 2007.
9825. The Department's inspector returned to the facility on
991November 30, 2007. The form checklist carries a notation that
1001the owner's spouse indicated that the Department and the
1010facility could only deal with each other through their
1019attorneys. When the inspector asked her supervisor for advice,
1028her supervisor told her to leave the facility. November 30,
10382007, is subsequent to the Department's referral of this case to
1049the Division of Administrative Hearings.
10546. On December 28, 2007, the Department conducted a
1063routine inspection of God's Little Angels. The form checklist
1072has attached to it a hand-written explanation of the visit of
1083November 30, 2007, by the inspector who went to the facility on
1095that date. Her explanation is more detailed and states that the
1106owner's spouse denied her access because the facility was "in
1116the process of revocation" and that his lawyer had told him that
1128everything now had to go through the facility's lawyer and the
1139Department's lawyer. The explanation also states that the
1147owner's spouse tried to contact his lawyer but was unable to.
1158The owner's spouse then called the inspector's supervisors and
1167talked to them; they then told the inspector not to do the
1179inspection that day.
11827. The items marked to be in "noncompliance" and
"1191complete" on the December 28, 2007, form checklist are as
1201follows: the back door did not have a screen and was open; some
1214outdoor toys were splashed with mud, some had standing water in
1225them, and two were cracked; the posted menu did not have the
1237date on it; and an evacuation plan was missing from "the back
1249room." The Inspection Checklist contains a notation that the
1258inspector came to the facility on December 28, 2007, but was
1269denied access by the owner's spouse. When the inspector
1278returned later that day, the owner's spouse and the Department's
1288program administrator had conferred, and the owner's spouse
1296advised the inspector that the inspection could take place.
13058. The items marked to be in "noncompliance" and which
1315have a deadline for correction are as follows: side fence is
1326not secure, due date January 7, 2008; the facility did not have
1338documentation to show completion of a five-hour literacy
1346training course for one staff member, due date January 7, 2008;
1357the facility did not have an Attestation of Good Moral Character
1368for that same staff member, due date January 4, 2008.
13789. The only item on the December 28, 2007, inspection
1388checklist that also appeared on the October 30, 2007, inspection
1398checklist is the standing water in the outdoor playground
1407equipment or toys. On both checklists that notation is marked
"1417complete" so it is assumed that the water was removed before
1428either of those inspections was completed.
143410. No item on the October checklist was found to remain
1445in non-compliance in December. Checklists for three inspections
1453after the December inspection were admitted in evidence but no
1463testimony explaining the entries or the actual inspections was
1472offered. The January 29, 2008, inspection checklist has an
1481entry related to the fence, but the description is different
1491than on the December inspection form. It cannot be assumed,
1501therefore, that the deficiency was the same. The February 28,
15112008, and the March 28, 2008, checklists indicate that
1520Respondents were in compliance with all statutory and rule
1529requirements.
153011. Respondents have obtained assistance from the
1537grandmother of one of the children attending God's Little
1546Angels. That lady has assisted Respondents to organize the
1555required paperwork, has given Respondents computer programs to
1563track the required paperwork, and has created spreadsheets to
1572handle Respondents' finances. Since she is also a state-
1581certified firefighter, she has inspected the facility regarding
1589safety issues and made suggestions for improvements. Those
1597suggestions have been implemented.
160112. Respondents have also hired a woman to be the
1611operations manager at God's Little Angels. She will computerize
1620God's Little Angels' records and ensure that all of the
1630Department's rules and regulations are being met by Respondents
1639and by the parents of children attending the facility. Her
1649background is as a medical office supervisor, overseeing 12
1658facilities, and, according to her testimony at the final
1667hearing, has never failed an inspection by the State regarding
1677those facilities.
167913. Respondents have made a number of physical changes to
1689the facility and organizational changes to the required
1697recordkeeping in their attempt to avoid revocation of their
1706license.
1707CONCLUSIONS OF LAW
171014. The Division of Administrative Hearings has
1717jurisdiction over the subject matter hereof and the parties
1726hereto. §§ 120.569 and 120.57(1), Fla. Stat.
173315. The Department seeks to take disciplinary action
1741against Respondents in this proceeding. The burden of proof,
1750therefore, is on the Department, and the Department must prove
1760the allegations in its Administrative Complaint by clear and
1769convincing evidence. Dept. of Banking & Finance, Division of
1778Securities & Investor Protection v. Osborne Stern & Co. , 670 So.
17892d 932 (Fla. 1996).
179316. Since the Department's Intent to Revoke License has
1802been replaced by an amended notice of intent to revoke license
1813which was never filed in this case, the only charging document
1824remaining in this proceeding is the Addendum to the Amended
1834Intent to Revoke License which was filed the day of the final
1846hearing in this cause.
185017. The Addendum alleges that Respondents have violated
1858Chapter 402, Florida Statutes, and Chapter 65C-22, Florida
1866Administrative Code. The Addendum recites the violations found
1874during the October 30, 2007, inspection and the December 28,
18842007, inspection. It also curiously alleges that the Department
1893received a complaint from a parent on December 18, 2007,
1903investigated the complaint, and found that Respondents were in
1912compliance. It also alleges that on November 30, 2007, the
1922Department was prevented from making a routine inspection by the
1932owner's spouse. It fails to explain, as the Department's
1941November 30 notes attached to the December checklist explained,
1950that the owner's spouse said his attorney had told him that
1961contact with the Department should only go through the
1970attorneys, that the owner's spouse spoke with the inspector's
1979supervisor's supervisor, and that that Department employee told
1987the inspector not to inspect the facility that day.
199618. The parent complaint that the Department found to be
2006without merit and the inspection that was not performed upon
2016orders of the inspector's superior are not alleged in the
2026Addendum to be statutory or rule violations and warrant no
2036further discussion in this Recommended Order.
204219. As to the violations found during the October and
2052December inspections, many were corrected while the inspector
2060was still on-site. Of those not immediately corrected but which
2070were given a deadline for correction, there is no evidence that
2081those were not corrected by the deadline.
208820. Section 402.310, Florida Statutes, authorizes the
2095Department to take disciplinary action for violations of the
2104Department's statutes and rules. There are no specific statutes
2113alleged in the Addendum to have been violated by Respondents.
2123As to rule violations, the Department offered no testimony
2132regarding the inspections conducted in October and December but
2141simply relied on the inspection checklists themselves. The
2149checklists indicate that the violations noted were either
2157corrected during the inspection or were to be corrected by a
2168date certain, and there is no evidence that any violation was
2179not corrected.
218121. Since the Department presented no testimony regarding
2189the two inspections covered by the sole charging document in
2199this cause and simply relied upon the inspection checklists, it
2209is not possible to understand the severity of the violation or
2220even what the violation was. For example, the October 30, 2007,
2231checklist and the Addendum to the Amended Intent to Revoke
2241License both allege that: "The facility's storage of linens was
2251not sanitary." Although these words quote Florida
2258Administrative Code Rule 65C-22.002(5)(c), standing alone, they
2265do not describe what Respondents were doing wrong or how serious
2276or minor the infraction was.
228122. After listing all items from both inspections, whether
2290corrected during the inspection or the subject of a deadline for
2301correction, the Addendum simply concludes that there is an
2310immediate and serious danger to the health, safety, and welfare
2320of the children served by God's Little Angels and that
2330revocation is appropriate. Since the only charging document in
2339this cause is the Addendum and the inspection checklists
2348constitute the entirety of the Department's evidence regarding
2356the inspections, the Department has failed to prove any of its
2367allegations by even a preponderance of the evidence let alone
2377the clear and convincing evidence standard the Department is
2386required to meet. Moreover, the Department has failed to show
2396that any item listed on the checklists presented an immediate or
2407serious danger to anyone.
241123. Lastly, most of the Department's exhibits are well
2420outside the time period covered in the Addendum to the Amended
2431Intent to Revoke License and cannot be used as a basis for
2443disciplinary action in this proceeding even though testimony was
2452offered regarding some of those exhibits. Only Exhibits
2460numbered 63-65 relate to the time period covered by the Addendum
2471to the Amended Intent to Revoke License, and Exhibits 66-68 are
2482the checklists for subsequent inspections, outside the time
2490period covered in the Addendum.
2495RECOMMENDATION
2496Based on the foregoing Findings of Fact and Conclusions of
2506Law, it is
2509RECOMMENDED that a final order be entered finding that the
2519Department failed to prove the allegations in its Addendum to
2529the Amended Intent to Revoke License and dismissing the Addendum
2539filed against Respondents in this cause.
2545DONE AND ENTERED this 2nd day of July, 2008, in
2555Tallahassee, Leon County, Florida.
2559S
2560LINDA M. RIGOT
2563Administrative Law Judge
2566Division of Administrative Hearings
2570The DeSoto Building
25731230 Apalachee Parkway
2576Tallahassee, Florida 32399-3060
2579(850) 488-9675 SUNCOM 278-9675
2583Fax Filing (850) 921-6847
2587www.doah.state.fl.us
2588Filed with the Clerk of the
2594Division of Administrative Hearings
2598this 2nd day of July, 2008.
2604COPIES FURNISHED:
2606Robert A. Butterworth, Secretary
2610Department of Children and
2614Family Services
2616Building 1, Room 202
26201317 Winewood Boulevard
2623Tallahassee, Florida 32399-0700
2626John J. Copelan, General Counsel
2631Department of Children and
2635Family Services
2637Building 2, Room 204
26411317 Winewood Boulevard
2644Tallahassee, Florida 32399-0700
2647Gregory Venz, Agency Clerk
2651Department of Children and
2655Family Services
2657Building 2, Room 204B
26611317 Winewood Boulevard
2664Tallahassee, Florida 32399-0700
2667Robin Whipple-Hunter, Esquire
2670Department of Children and
2674Family Services
2676Post Office Box 2417
2680Jacksonville, Florida 32231-0083
2683Randall A. Schmidt, Esquire
2687620 West 37th Street
2691Savannah, Georgia 31415
2694NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2700All parties have the right to submit written exceptions within
271015 days from the date of this Recommended Order. Any exceptions
2721to this Recommended Order should be filed with the agency that
2732will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 07/02/2008
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 05/16/2008
- Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by June 16, 2008).
- PDF:
- Date: 05/15/2008
- Proceedings: Motion for Extension of Time to File Proposed Recommended Orders filed.
- Date: 05/12/2008
- Proceedings: Transcript (Volumes 1&2) filed.
- Date: 04/14/2008
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 04/14/2008
- Proceedings: Notice of Filing; Addendum to the Amended Intent to Revoke License Nature of the Case (exhibits not available for viewing) filed.
- PDF:
- Date: 04/11/2008
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for April 14, 2008; 10:00 a.m.; Jacksonville and Tallahassee, FL; amended as to time of hearing).
- PDF:
- Date: 02/15/2008
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 14, 2008; 1:00 p.m.; Jacksonville and Tallahassee, FL).
- PDF:
- Date: 02/11/2008
- Proceedings: Letter to Judge Rigot from R. Schmidt regarding hearing dates in April filed.
- PDF:
- Date: 01/28/2008
- Proceedings: Order Granting Continuance (parties to advise status by February 11, 2008).
- PDF:
- Date: 01/25/2008
- Proceedings: Petitioner`s Response to Respondent`s Motion for Continuance filed.
- PDF:
- Date: 01/24/2008
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for January 29, 2008; 1:00 p.m.; Jacksonville and Tallahassee, FL; amended as to location).
Case Information
- Judge:
- LINDA M. RIGOT
- Date Filed:
- 11/06/2007
- Date Assignment:
- 01/24/2008
- Last Docket Entry:
- 11/05/2008
- Location:
- Jacksonville, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Randall A Schmidt, Esquire
Address of Record -
Robin Whipple-Hunter, Esquire
Address of Record -
Randall A. Schmidt, Esquire
Address of Record