09-003515 Best Family Day Care Home vs. Department Of Children And Family Services
 Status: Closed
Recommended Order on Tuesday, February 9, 2010.


View Dockets  
Summary: Recommend denial of family day care home license because Petitioner's swimming pool did not meet applicable standards. The abuse/neglect report is not ground for denial where the facts in the report were not proven.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8BEST FAMILY DAY CARE HOME, )

14)

15Petitioner, )

17)

18vs. ) Case No. 09-3515

23)

24DEPARTMENT OF CHILDREN AND )

29FAMILY SERVICES, )

32)

33Respondent. )

35)

36RECOMMENDED ORDER

38Pursuant to notice, a formal hearing was held on

47September 15, 2009, by video teleconference at sites in Lakeland

57and Tallahassee, Florida, before Administrative Law Judge

64Carolyn S. Holifield of the Division of Administrative Hearings.

73APPEARANCES

74For Petitioner: Jeremy Best

78(Husband of Marcela Best)

824062 State Road 60 East

87Bartow, Florida 33830

90For Respondent: Stacy N. Robinson, Esquire

96Department of Children and

100Family Services

1024720 Old Highway 37

106Lakeland, Florida 33813

109STATEMENT OF THE ISSUE

113The issue is whether Petitioner's application for licensure to operate a family day care home should be denied.

131PRELIMINARY STATEMENT

133By certified letter dated May 8, 2009, Respondent,

141Department of Children and Family Services ("Department"),

150notified Marcela Best, owner of Petitioner, Best Family Day Care

160Home (collectively referred to as "Petitioner"), that the

169Department proposed denying her application for licensure to

177operate a family day care home. The letter alleged the

187following grounds for the denial: (1) a documented verified

196abuse/neglect report; (2) the alarm on a door leading to the

207swimming pool was not working in violation of Florida

216Administrative Code Rule 65C-20.010(1)(i) 1 ; the swimming pool was

225unsanitary in violation of Florida Administrative Code Rule

23365C-20.010(1)(j); and the local criminal history of a member of

243Petitioner's household had not been provided to the Department.

252An Investigative Summary of the abuse/neglect report was

260attached to the denial letter.

265Petitioner challenged the Department's decision and

271requested an administrative hearing. The Department forwarded

278the matter to the Division of Administrative Hearings on

287June 22, 2009, for assignment of an Administrative Law Judge to

298conduct the hearing.

301At hearing, Petitioner testified on her own behalf and

310presented the testimony of her husband, Jeremy Best. Petitioner

319offered no exhibits into evidence. The Department presented the

328testimony of four witnesses: (1) Patricia Step, a family safety

338counselor; (2) Terri Lynne Reinhardt, a child protective

346investigator; (3) Vickie Richmond, a family safety counselor;

354and (4) Sheila Nobles, circuit administrator for child care

363licensing. The Department's Exhibits A through M were received

372into evidence. Pursuant to Subsections 39.202(2)(a) and (j),

380Florida Statutes (2009), 2 abuse/neglect reports are confidential.

388Accordingly, the abuse/neglect report admitted into evidence as

396Exhibit L 3 is sealed.

401Prior to the evidentiary part of the hearing, the

410Department requested that the undersigned take official

417recognition of the Department's Operating Procedure CFOP 175-28

425("CFOP 175-28"). That request was denied pending presentation

435of competent evidence regarding that operating procedure. 4

443The one-volume Transcript was filed on October 5, 2009. At

453the conclusion of the hearing, the parties were given ten days

464from the date the Transcript was filed to submit proposed

474recommended orders. The parties timely filed their Proposed

482Recommended Orders which have been considered in preparation of

491this Recommended Order.

494FINDINGS OF FACT

4971. On June 6, 2008, Petitioner applied for a license to

508operate a family day care home in Bartow, Florida.

5172. As part of the licensure process, the Department is

527required to conduct an inspection of the home where Petitioner's

537proposed family day care would be operated. The inspections are

547conducted by the Department's family safety counselors.

5543. Patricia Step was the family safety counselor initially

563responsible for conducting the licensure inspection of

570Petitioner's home.

5724. On February 20, 2009, prior to conducting the actual

582inspection, Ms. Step completed a preliminary walk-through of

590Petitioner's home. The purpose of the walk-through was to

599advise Petitioner of areas of her home and property that were

610not in compliance with required standards and needed to be

620corrected or addressed prior to the licensure inspection.

6285. After completing the initial walk-through, Ms. Step

636listed the areas that needed to be corrected or addressed prior

647to the licensure inspection in preliminary review notes, which

656she gave to Petitioner. Those areas were as follows: (1) a

667fence at least four feet high was needed around the playground

678area in the backyard; (2) the alarm on one of the two doors in

692the master bedroom, specifically, the master bathroom door

700leading to the pool, needed to be repaired; (3) the screen door

712needed to be locked from the inside so that a child playing

724outside could not access the swimming pool 5 ; and (4) locks needed

736to be placed on kitchen cabinets containing cleaning supplies

745and other harmful items, and knives needed to be placed in upper

757cabinets.

7586. On February 27, 2009, a week after the initial

768walk-through, Ms. Step conducted a licensure inspection of

776Petitioner's home. This date was mutually agreed upon by

785Petitioner and Ms. Step on February 20, 2009, after Petitioner

795indicated that she could have the four areas of non-compliance

805corrected or addressed in a week. During the licensure

814inspection, Ms. Step determined that Petitioner had addressed

822and/or corrected three of the four items listed in the

832preliminary review. The one item that had not been addressed

842was the "pool alarm on the [master bathroom] door" leading to

853the swimming pool.

8567. The alarm on the master bathroom door was part of

867Brinks' alarm system that included all the other doors in the

878house which led outside or to the pool area. Petitioner and her

890husband had this "high tech" alarm system installed after the

900April 23, 2006, incident discussed below. The alarm system

909could be programmed to allow each interior door to cause either

920the alarm to sound or a "chiming sound" when anyone opened the

932interior door to exit the house. At the time of the inspection,

944all the interior doors leading to the pool were programmed so

955that when the alarm system was turned on, the alarm would sound

967if anyone opened those doors. 6 Except for the master bathroom

978door, the alarm on all the other doors leading to the pool were

991working properly.

9938. Ms. Step recorded the results of the February 27, 2009,

1004inspection on the Department's Inspection Checklist form

1011("Inspection Checklist"). Of the 38 areas listed on the

1022Inspection Checklist, Ms. Step indicated that Petitioner's

1029application and/or home were non-compliant in two areas--

1037background screening and swimming pools. In the area of

1046background screening, Ms. Step noted that there was no local

1056criminal background check on file for Carlos Granados,

1064Petitioner's cousin who was temporarily living in Petitioner's

1072household. In the area of swimming pools, Ms. Step noted two

1083areas of non-compliance: (1) the swimming pool at Petitioner's

1092home was not properly maintained; and (2) the "pool alarm" was

1103inoperable.

11049. Although the Inspection Checklist noted that the "pool

1113alarm" was inoperable, Ms. Step never told Petitioner that a

"1123pool alarm" needed to be in the swimming pool. Rather,

1133Ms. Step spoke to Petitioner only about the need to repair the

1145alarm on the master bathroom door that led to the pool. 7 Based

1158on Ms. Step's statements to Petitioner about the "alarm" and her

1169preliminary review notes, both Ms. Step and Petitioner

1177understood the reference to "pool alarm" on the Inspection

1186Checklist to mean the alarm on the master bathroom door.

119610. The Inspection Checklist completed on February 27,

12042009, specified that the "due date" to correct the non-compliant

1214areas was April 3, 2009.

121911. After completing the licensure inspection on

1226February 27, 2009, Ms. Step intended to return to Petitioner's

1236home to determine if the non-compliant areas had been brought

1246into compliance. However, Ms. Step never returned to

1254Petitioner's home. Instead, Vicki Richmond, a family safety

1262counselor, followed up on Petitioner's progress in addressing

1270the non-compliant areas 8 while she was at Petitioner's home

1280conducting a complaint investigation. 9

128512. On March 13, 2009, nine months after Petitioner

1294submitted her licensure application, Ms. Richmond conducted a

1302Central Abuse Hotline search on Petitioner and her husband as

1312part of the application review process. The Department is

1321required to search the records of the Central Abuse Hotline for

1332reports of abuse, neglect, or abandonment. This search provides

1341information as to whether Petitioner's name appears in those

1350records, and, if so, whether there were "verified" indicators of

1360maltreatment of children. Both Petitioner and her husband

1368consented to this search.

137213. The Central Abuse Hotline search revealed a verified

1381report for inadequate supervision by Petitioner and her husband

1390and some indicators of maltreatment, asphyxiation. The report

1398involved an incident that occurred on April 23, 2006, in which

1409Petitioner and her husband's then three-year-old daughter almost

1417drowned.

141814. On or about March 13, 2009, Ms. Richmond notified

1428Ms. Step of the report and advised her that the verified

1439findings needed to be addressed prior to proceeding with the

1449license.

145015. On March 20, 2009, while driving across Highway 60 in

1461the Bartow area, Ms. Richmond saw a sign with the name of

1473Petitioner's prospective family day care home and her address

1482and telephone number. Concerned that the sign did not include a

1493license number, Ms. Richmond contacted the licensing office to

1502verify whether Petitioner's home was a licensed family day care

1512home. She was advised that Petitioner's licensure application

1520was "pending" and had not been approved. Ms. Richmond then

1530called Ms. Step to check the status of Petitioner's licensure

1540application. During that conversation, Ms. Step reminded

1547Ms. Richmond that this was the applicant for whom she (Richmond)

1558had recently done the Central Abuse Hotline search.

156616. On March 23, 2009, as part of the complaint

1576investigation about Petitioner's sign, Ms. Richmond made an

1584unannounced visit to Petitioner's home. Ms. Richmond advised

1592Petitioner that it was illegal for her to post a sign

1603advertising her home as a family day care home before it was

1615licensed. In response, Petitioner informed Ms. Richmond that

1623after the February 27, 2009, licensure inspection, she

1631(Petitioner) had been told that she could put a sign up and

1643start a waiting list of people interested in day care services.

1654After hearing Petitioner's explanation, Ms. Richmond then told

1662Petitioner that "if" she put up a sign prior to licensure, the

1674sign had to "at least" include in bold letters, "License

1684Pending."

168517. On March 23, 2009, immediately after addressing the

"1694sign" issue, Ms. Richmond conducted an unannounced or

1702inspection walk-through of Petitioner's home and discussed

1709issues with Petitioner that Ms. Richmond believed were of

1718concern to the Department. During the walk-through, Petitioner

1726advised Ms. Richmond that the "door alarm" had not yet been

1737repaired. Among the issues Ms. Richmond raised and discussed

1746with Petitioner were: (1) the need to install either a pool

1757alarm or portable pool barriers; (2) the pool was not clean and

1769was only partially filled with water; (3) the spa in the

1780backyard needed a cover; (4) the local criminal background check

1790for Petitioner's cousin had not been received.

179718. Ms. Richmond described to Petitioner and her husband

1806two options related to the swimming pool--the "portable pool

1815barriers" and a "pool alarm." In describing the "pool alarm,"

1825Ms. Richmond indicated that it was a device that was placed in

1837the pool. She further explained that with this type of "pool

1848alarm," if a child fell in the swimming pool, the alarm would

1860sound.

186119. Although the alarm on the master bathroom door was not

1872working on March 23, 2009, Petitioner's husband was making

1881efforts to get the door alarm repaired. However, that day,

1891Ms. Richmond told Petitioner and her husband that even if the

1902alarm on the master bathroom door was repaired, they still

1912needed to have an alarm in the pool. In response to this

1924directive, Petitioner agreed that they would install a "pool

1933alarm" in the swimming pool.

193820. After completing the March 23, 2009, walk-through,

1946Ms. Richmond informed Petitioner that the items she had

1955discussed needed to be corrected prior to a license being

1965granted. However, no written documentation was provided to

1973Petitioner regarding the areas of non-compliance discussed

1980during the walk-through or inspection.

198521. Ms. Richmond returned to Petitioner's home on

1993March 27, 2009, for her second unannounced visit, which was

2003described as a follow-up to her "complaint investigation." Once

2012there, Ms. Richmond observed that the sign advertising the

2021family day care home was still displayed. However, Petitioner's

2030husband came home while Ms. Richmond was there and immediately

2040took down the sign.

204422. During the March 27, 2009, unannounced complaint

2052investigation visit, Petitioner told Ms. Richmond that the alarm

2061on the master bathroom door was not working. About that time,

2072Petitioner's husband arrived and told Ms. Richmond that he had

2082purchased a pool alarm and even showed her the alarm. The "pool

2094alarm" was purchased in response to Ms. Richmond's directive

2103during the March 23, 2009, walk-through but had not been put in

2115the pool, because the pool had not yet been cleaned. 10

212623. At the end of the March 27, 2009, unannounced visit,

2137Ms. Richmond talked to Petitioner and her husband about the

2147verified abuse/neglect report regarding the April 23, 2006,

2155incident in which their daughter almost drowned. The findings

2164in the report were "verified" for inadequate supervision by

2173Petitioner and her husband. Given the implications of the

2182abuse/neglect report, Ms. Richmond explained that although

2189Petitioner needed to address the areas of non-compliance, the

2198most pressing and immediate concern was the abuse/neglect

2206report.

220724. Petitioner's husband testified credibly that during

2214the conversation described in paragraph 23, Ms. Richmond told

2223him and Petitioner that because of the abuse/neglect report,

2232there was "no way" Petitioner would get a family day care home

2244license. Based on that comment, Petitioner and her husband

2253reasonably believed that Petitioner's application would be

2260denied because of the abuse/neglect report.

226625. On March 27, 2009, after being told about the

2276abuse/neglect report and the ramifications of that report,

2284Petitioner and her husband "stopped moving forward" on the areas

2294of non-compliance related to the swimming pool (i.e., cleaning

2303the pool and installing the pool alarm). 11

231126. Believing the abuse/neglect report would result in

2319denial of her licensure application, Petitioner and her husband

2328began to focus on issues related to the report. They were also

2340concerned and had questions about the Department's licensing

2348process as it related to the abuse/neglect report.

235627. Ms. Richmond's third visit to Petitioner's home was on

2366April 7, 2009. The sole purpose of that visit was to answer the

"2379real" questions that Petitioner and her husband had about the

2389abuse/neglect report and the licensing process. Ms. Richmond

2397answered their questions as best she could, but recommended that

2407they schedule an appointment with the licensing supervisor at

2416the licensing office. 12 That same day, Petitioner and her

2426husband scheduled a meeting and met with Sheila Nobles,

2435administrator and supervisor for child care licensing, to

2443discuss, ask questions about, and review the abuse/neglect

2451report.

245228. On April 8, 2009, Ms. Richmond finalized her "report"

2462on the complaint investigation regarding the sign.

2469Ms. Richmond's notes in the "comment" section of the pre-printed

"2479Notice to Cease and Desist" form described the events of

2489March 20, 23 and 27, 2009, as they related to the sign issue. 13

2503Decision to Deny Application

250729. As the family safety counselor responsible for

2515reviewing Petitioner's application and conducting the licensure

2522inspections, Ms. Step recommended to Ms. Nobles that

2530Petitioner's license be denied. Ms. Step's recommendation was

2538based on the verbal reports provided to her by Ms. Richmond,

2549which indicated that the areas of non-compliance on the

2558Inspection Checklist had not been corrected.

256430. Prior to making a decision about Petitioner's

2572application, Ms. Nobles reviewed the application file, the

2580abuse/neglect report, the Inspection Checklist and the

2587preliminary review notes. Ms. Nobles testified that she

2595considered the "five different inspections" 14 of Petitioner's

2603home and property by the two licensing counselors, the areas of

2614non-compliance that had not been corrected, and the

2622abuse/neglect report with a "verified" finding of inadequate

2630supervision.

2631The Central Abuse Hotline Report

263631. Applicants seeking licensure to operate a family day

2645care home are required to undergo a Level II screening. That

2656screening included a check to determine if the applicant had a

2667report in the Central Abuse Hotline.

267332. Due to concern for the safety of children, the

2683Department is authorized to deny a family day care home license

2694if the applicant has a verified abuse/neglect report.

270233. Because of its concern about the safety of children in

2713Petitioner's care, the Department alleges that the abuse/neglect

2721report revealed during a Central Abuse Hotline search is ground

2731for denying Petitioner's license. As it relates to the

2740abuse/neglect report, the denial letter states in relevant part:

2749The Department has documented a verified

2755abuse neglect report whereby your then

27613-year-old daughter was not supervised

2766correctly on June 21, 2006.[sic] [15] These

2773actions allowed your child to wonder [sic]

2780outside the family swimming pool were [sic]

2787she was found after an undetermined time

2794under water and not breathing. During the

2801investigation it was determined that the

2807lock to get access [presumably to the pool]

2815had been broken for a few days.

282234. The abuse/neglect report was initiated when a call was

2832received by the Central Abuse Hotline on April 23, 2006.

2842According to the intake-report, an incident occurred at

2850Petitioner's and her husband's home in which their then three-

2860year-old daughter ("child") almost drowned.

286735. Jermaine Turner, a child protective investigator

2874("CPI"), was assigned to investigate the incident. As the

2885investigator, CPI Turner was responsible for making contact with

2894the family of the child and other appropriate individuals.

290336. During the investigation, CPI Turner worked under the

2912supervision and direction of Terry Lynn Reinhardt, a child

2921protective supervisor. As CPI Turner's supervisor,

2927Ms. Reinhardt had contact with CPI Turner and gave him

2937directives related to follow-up activities on case-related

2944matters.

294537. The abuse/neglect report includes a summary of notes

2954which purport to summarize interviews CPI Turner conducted with

2963Petitioner and her husband on May 18, 2006, about a month after

2975the subject incident. Petitioner's husband recalled that this

2983interview was conducted by telephone.

298838. Ms. Reinhardt testified that CPI Turner interviewed

2996the child's parents and also made telephone contact with them to

3007follow-up on an issue involving a "broken door."

301539. Ms. Reinhardt was not present at the interviews that

3025CPI Turner conducted with Petitioner and her husband. Thus, she

3035had no first-hand knowledge of what, if anything, they said to

3046CPI Turner. Rather, Ms. Reinhardt relied on CPI Turner's verbal

3056reports to her and the notes and summaries in the abuse/neglect

3067report attributed to him.

307140. CPI Turner did not testify at this proceeding.

3080Moreover, no competent evidence was presented regarding any

3088entries (i.e., notes, comments, and/or interview summaries) in

3096the abuse/neglect report attributed to CPI Turner.

310341. The case was closed on June 21, 2006, and the findings

3115and conclusions in the matter were summarized in a two-page

3125document titled, Investigative Summary.

312942. The Investigative Summary includes an "updated" note

3137dated June 6, 2006, that provided: "The child . . . was left to

3151watch cartoons; however, she was found face down in a swimming

3162pool. The lock to get access from the pool to the house had

3175been broke [sic] for approximately two day [sic]. They stated

3185they planned to fix the lock but never got around to it."

319743. No evidence was presented as to who made the "updated"

3208note or the source of the information in that note.

321844. After the investigation was complete, Ms. Reinhardt

3226concluded that there were "some indicators" of maltreatment,

3234asphyxiation, and verified findings of inadequate supervision as

3242to both parents. In reaching that conclusion, Ms. Reinhardt

3251relied on information provided by Mr. Turner and then applied

3261the Department's CFOP 175-28 in reaching those conclusions.

326945. Florida Administrative Code Rule 65C-30.001(6)

3275incorporates by reference the "Allegation Matrix" set forth in

3284the Department's CFOP 175-28. Pursuant to that rule, the

"3293Allegation Matrix" is a document that defines specific types of

3303abuse, neglect or abandonment; guides staff in determining

3311whether abuse, neglect or abandonment has occurred; and assists

3320in ensuring that all factors are considered when assessing each

3330type of maltreatment.

333346. The Department's CFOP 175-28 was not offered into

3342evidence during this proceeding.

334647. Based on the conclusion reached by Ms. Reinhardt, the

3356abuse/neglect report was closed on June 21, 2006, with the

3366finding of some indicators of maltreatment, asphyxiation, and

3374verified findings of inadequate supervision. Notwithstanding

3380those findings, the Investigative Summary reflects that there

3388was no prior history of abuse or neglect and no criminal

3399history. Moreover, the Investigative Summary indicated that no

3407intervention services were needed, no placement outside the home

3416was required, and no judicial action was required. Finally,

3425Petitioner and her husband were not given any safety plan to

3436implement.

343748. The April 23, 2006, incident was also investigated by

3447the Polk County Sheriff's Office ("Sheriff's Office"). That

3457investigation included at least two or three detectives and/or

3466officers taking and tape recording sworn statements from

3474Petitioner, her husband, and her father-in-law. All of these

3483sworn statements were "in-person" interviews taken within 24

3491hours of the incident.

349549. Petitioner's husband testified credibly that the

3502written summaries of the sworn statements taken by the Sheriff's

3512Office detectives, particularly that of Detective Wharton,

3519accurately reflect not only the substance of the interviews, but

3529also what actually occurred on April 23, 2006.

353750. Petitioner's husband testified credibly about the

3544facts related to the April 23, 2006, incident and the accuracy

3555of written summaries of the tape-recorded sworn statements taken

3564by detectives as set forth below in paragraphs 51 through 60.

357551. On April 23, 2006, Petitioner was in the family pool

3586with her then three-year-old daughter. While Petitioner and her

3595daughter were in the pool, Petitioner's husband and his father

3605arrived at the house. Petitioner then went into the house to

3616prepare dinner and her husband stayed at the pool with the

3627child. Shortly thereafter, Petitioner's husband removed the

3634child from the pool, took off the floatation device the child

3645was wearing while in the pool, took her into the house, and then

3658closed and locked the bottom lock of the door. Once in the

3670house, Mr. Best put on a movie for his daughter in her bedroom

3683and then told his wife that the child was in the room watching a

3697movie. The child left the bedroom and went to the kitchen where

3709her mother was preparing dinner. For some time, the child went

3720back and forth between the kitchen, playing near her mother

3730and/or "helping" her mother, and the living room where she (the

3741child) was sitting on the floor watching cartoons on television.

375152. The kitchen and living room were adjacent rooms with a

3762large opening between them which allowed a person in one room to

3774see into the other room.

377953. When Mr. Best and his daughter went into the house,

3790his father (the child's grandfather) was taking a shower. A few

3801minutes later, after taking his shower and getting dressed, the

3811child's paternal grandfather got out his new video camera and

3821went to the kitchen/living room area to videotape his

3830granddaughter while she was playing. He videotaped her playing

3839for several minutes and then went to the bedroom to put away the

3852video camera.

385454. It took the child's grandfather about two or three

3864minutes to put away his video camera and return to the kitchen

3876area. When the grandfather returned to the kitchen/living room

3885area, he asked Petitioner where the child was. Believing the

3895child was in the living room, Petitioner told her father-in-law

3905that the child was in the living room looking at television.

3916Petitioner then went into the living room to look for the child

3928and discovered she was not there. Petitioner then immediately

3937went outside to the patio and saw the child laying face down in

3950the pool. Petitioner screamed for help, jumped in the pool and

3961lifted the child from the water.

396755. Petitioner's husband was close enough to the

3975kitchen/living room area that he heard the exchange between his

3985father and Petitioner about the child's whereabouts and

3993Petitioner's subsequent scream. Within a few seconds,

4000Petitioner's husband ran from the house, jumped in the pool,

4010removed his daughter from the pool, and placed her on the pool

4022deck.

402356. Once the child was on the pool deck, the child's

4034father and her grandfather immediately began administering CPR

4042while Petitioner called 911. They continued performing CPR on

4051the child until the emergency medical services and the fire

4061department arrived on the scene.

406657. Both parents reported to detectives investigating the

4074incident that the child knew how to open and unlock doors.

408558. Based on the facts established at or near the time of

4097the incident, it was concluded that the child slipped out of the

4109house and went undetected for about two or three minutes.

411959. Petitioner and her husband described the child's

"4127slipping out of the house" as unusual and something she had

4138never done prior to April 23, 2006. Until that day, the child

4150had never gone off on her own and had been fearful of and never

4164gotten into the swimming pool at that house. (Petitioner and

4174her family had moved to this house only two or three months

4186before the incident.)

418960. Based on its investigation, which included sworn

4197statements by Petitioner, her husband, and her father-in-law,

4205the Sheriff's Office concluded that the April 23, 2006, incident

4215was an accident.

421861. The Department does not disagree with the conclusion

4227reached by the Sheriff's Office (i.e., the April 23, 2006,

4237incident was an accident). Nevertheless, according to

4244Ms. Reinhardt, irrespective of whether the incident was an

4253accident or done on purpose, the Department still found

"4262verified" indicators of inadequate supervision, because the

4269child got out of the house and into the pool and almost drowned.

428262. The factual allegations in the report upon which the

4292Department relied were not established by competent and

4300substantial evidence. In absence of such evidence, the

4308Department's verified finding of inadequate supervision has not

4316been proven.

431863. The record in this case is devoid of any evidence to

4330establish the Department's finding of any indicators of

4338maltreatment. Therefore, the Department's findings that there

4345were "some" indicators of maltreatment has not been proven.

4354Alarm on the Master Bathroom Door

436064. The Department alleges that during the applicable time

4369period, the swimming pool at Petitioner's home did not comply

4379with the requirements in Florida Administrative Code Rule

438765C-20.010(1)(i). That rule requires that swimming pools at

4395least one-foot-deep have either a barrier at least four-feet-

4404high around the pool, separating the pool from the house, or a

4416pool alarm that is operable at all times when children are in

4428their care.

443065. There was conflicting and inconsistent information

4437provided to Petitioner as to whether a "pool alarm" that floats

4448in the swimming pool was required instead of a door alarm, which

4460is also apparently referred to as a pool alarm. Despite any

4471confusion that may have been caused by the different

4480representations made to Petitioner, it is undisputed that the

4489preliminary review notes and the Inspection Checklist clearly

4497indicate that Petitioner was required to repair the alarm on the

4508master bathroom door which led to the pool. It appears that

4519Florida Administrative Code Rule 65C-20.010(1)(i) refers to door

4527alarms as pool alarms.

453166. Petitioner's husband testified credibly that he

4538attempted to have the door repaired by service personnel of the

4549alarm company that installed the alarm system, but has been

4559unsuccessful in doing so. In light of these futile attempts,

4569Petitioner's husband purchased a battery-operated door.

4575However, it is unknown when the battery-operated door was

4584purchased, whether it has been installed, and, if so, how it

4595works.

459667. The alarm on the door of the master bathroom had not

4608been repaired by the April 3, 2009, "due date" or any time

4620thereafter, nor had any acceptable alternatives been installed.

4628Maintenance of the Swimming Pool

463368. The Department alleges that the swimming pool at

4642Petitioner's home was not clean and maintained as required by

4652Florida Administrative Code Rule 65C-20.010(1)(j). That Rule

4659requires that if a family day care home uses a swimming pool, it

4672shall be maintained by using chlorine and other suitable

4681chemicals.

468269. Petitioner acknowledges that, at all times relevant

4690hereto, the swimming pool at her home was not clean and properly

4702maintained.

470370. Some time after the denial letter was issued,

4712Petitioner's swimming pool was emptied, a full-processed

4719cleaning was completed, and the pool was filled with water.

4729However, a leak in a light in the pool was discovered. In order

4742to repair that leak, the pool had to be emptied. At the time of

4756this proceeding, the leak was being repaired. Once the leak is

4767fixed, the pool can be filled with water and the "pool alarm"

4779that floats in the pool can be installed.

4787Local Law Enforcement Background Check

479271. The application process requires that each person

4800living in the home that will serve as the family day care home

4813have a background screening. Such background screening includes

4821a check by the Federal Bureau of Investigation ("FBI"), the

4833Florida Department of Law Enforcement (FDLE"), and a local

4843criminal history check.

484672. In February 2009, Petitioner's cousin, Carlos

4853Granados, was living with Petitioner and her husband.

4861Accordingly, Mr. Granados was required to have a local criminal

4871history check, and a copy of that criminal history check was to

4883be provided to the Department.

488873. Petitioner testified credibly that she submitted all

4896the documents for completion of Mr. Granados' background checks

4905and could not explain why the Department did not receive the

4916local criminal history check for Mr. Granados. 16

492474. The evidence established that Mr. Granados no longer

4933lives in Petitioner's home. Therefore, the Department does not

4942need, and is not required to have, a local criminal history

4953check for him.

4956CONCLUSIONS OF LAW

495975. The Division of Administrative Hearings has

4966jurisdiction over the parties to and the subject matter of this

4977proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

498476. The Department is the state agency charged with

4993licensure of child care facilities. § 402.305, Fla. Stat.

500277. Subsection 402.310(1)(a), Florida Statutes, provides

5008that the Department may "deny, suspend, or revoke . . . for

5020violation of any provision of ss. 402.301-402.319 or rules

5029adapted thereunder."

503178. The rules adopted by the Department to implement

5040Sections 402.301 through 402.319, Florida Statutes, are codified

5048in Florida Administrative Code Rule Chapter 65C-20.

505579. The Department shall issue a new license "upon being

5065satisfied that all standards required by ss. 402-301-402.319

5073have been met." § 402.308(3)(d), Fla. Stat.

508080. The May 8, 2009, denial letter cites the following

5090statutes and rules which Petitioner allegedly violated: Florida

5098Administrative Code Rule 65C-20.010(1)(i) (relating to barriers

5105around swimming pools and pool alarms); Florida Administrative

5113Code Rule 65C-20.0101(j) (relating to maintenance of swimming

5121pools); and Subsection 402.305(2), Florida Statutes (relating to

5129screening requirements for child care personnel). With respect

5137to that allegation, the Department cites Subsection 402.26(3),

5145Florida Statutes (relating to the legislative intent to develop

5154a regulatory framework for child care that facilitates the "safe

5164physical . . . development of the child"); and Section 402.301,

5176Florida Statutes (relating to the legislative intent to protect

5185the health, safety, and well-being of children in child care

5195facilities).

519681. In an application proceeding such as this, the

5205Department has the burden to prove the specific acts or

5215violations which it alleges are grounds for the denial by a

5226preponderance of evidence. Department of Banking and Finance v.

5235Osborne Stern & Co ., 670 So. 2d 932 (Fla. 1996).

524682. Lastly, the Department's proposed denial is based on

5255an alleged "verified abuse neglect report."

526183. Florida Administrative Code Rule 65C-20.010(1)(i)

5267provides in pertinent part:

5271(i) All in-ground swimming pools and above-

5278ground swimming pools more than one (1) foot

5286deep shall have either a fence or barrier on

5295all four sides, at a minimum of four (4)

5304feet in height, separating the home from the

5312swimming pool, or a pool alarm that is

5320operable at all times when children are in

5328care. . . .

533284. The Department established that Petitioner was in

5340violation of Florida Administrative Code Rule 65C-20.010(1)(i),

5347because as of the date of this proceeding, Petitioner admitted

5357that the alarm or the master bathroom door had not been

5368repaired. Although Petitioner has made attempts to have the

5377pool alarm repaired or to install a battery-operated door or

5387door alarm as an acceptable alternative, the door alarm is still

5398inoperable and no satisfactory alternative has been installed.

540685. Florida Administrative Code Rule 65C-20.010(1)(j)

5412provides in pertinent part:

5416(j) If a family day care home uses a

5425swimming pool, it shall be maintained by

5432using chlorine or other suitable

5437chemicals. . . .

544186. The evidence established that as of the date of this

5452proceeding, Petitioner's swimming pool had been cleaned, but was

5461still in disrepair and not maintained as required by Florida

5471Administrative Code Rule 65C-20.010(1)(j).

547587. Florida Administrative Code Rule 65C-20.008(3)

5481provides:

5482(3) A submitted CF-FSP Form 5133 will not

5490be considered complete until the licensing

5496authority receives proof of background

5501screening clearance on the operator of the

5508family day care home, substitutes, and on

5515all other household members who are subject

5522to background screening pursuant to Section

5528402.313(3), F.S. . . .

5533(a) Initial Screening includes all of the

5540following:

55411. Level 2 screening, which includes at a

5549minimum Federal Bureau of Investigation

5554(FBI), Florida Department of Law Enforcement

5560(FDLE), and local criminal records checks.

5566For the purpose of issuing a license, any

5574out-of-state criminal offense, which if

5579committed in Florida would constitute a

5585disqualifying felony offense, shall be

5590treated as a disqualifying felony offense

5596for licensing and screening purposes under

5602this rule. . . .

560788. It is undisputed that Mr. Granados is no longer a

5618member of Petitioner's household. Therefore, the screening

5625provisions are not applicable to him.

563189. In light of the foregoing determination, the

5639Department failed to establish a violation of Florida

5647Administrative Code Rule 65C-20.008(3).

565190. Subsection 39.201(6), Florida Statutes, provides that

5658information in the Central Abuse Hotline and the Department's

5667automated abuse information system "may be used by the

5676[D]epartment as part of the licensure or registration process

5685pursuant to ss. 402.301 through 402.319."

569191. The Department proposed to deny Petitioner's license

5699because of a verified finding of inadequate supervision as to

5709Petitioner and her husband. According to the letter, "[t]hese

5718actions allowed the child to wander outside to the family pool

5729where she was found after an undetermined amount of time under

5740water and not breathing. During the investigation, it was

5749determined that the lock to get access [presumably to the pool]

5760had been broken for a few days."

576792. Where, as in this case, an abuse report is ground for

5779a challenged administrative action, Subsection 39.202(2)(j),

5785Florida Statutes, allows the Division of Administrative Hearings

5793to have access to the subject abuse report. However, that

5803statutory provision does not authorize or mandate the

5811Administrative Law Judge to treat such abuse reports as

5820competent evidence (evidence that is sufficient in itself to

5829support findings of fact). See Smith v. Department of Children

5839and Family Services , Case No. 02-0401 (DOAH July 24, 2002)(Final

5849Order October 16, 2002); 2002 Fla. Div. Adm. Hear. Lexis 974.

586093. The Department's denial letter and the testimony it

5869presented in this proceeding makes it clear that the

5878Department's proposed decision is based on the "verified abuse

5887neglect" report and the investigation which is part of the abuse

5898report. Therefore, to prevail, the Department must prove the

5907factual allegations 17 in the abuse/neglect report, upon which it

5917relies, by a preponderance of evidence. The Department must

5926then show that those facts, if proven, are a reasonable basis

5937for its verified finding. In this case, the Department has

5947failed to meet that burden.

595294. The abuse/neglect report was the only evidence

5960presented to establish the factual allegations that resulted in

5969the "verified findings" of inadequate supervision. Even though

5977the abuse/neglect report included written entries attributable

5984to several individuals, none of those individuals, including the

5993CPI assigned to investigate the case, testified at this

6002proceeding.

600395. The only Department witness who testified about the

6012abuse/neglect report was the supervisor of the person assigned

6021to investigate the report. Here, the record established that

6030the supervisor had no personal knowledge of the incident, did

6040not interview Petitioner, her husband, or her father-in-law.

6048Moreover, that supervisor never went to Petitioner's home to

6057view and inspect the property in connection with the

6066investigation. In determining that the report should be closed

6075with a verified finding of inadequate supervision, the

6083Department witness relied solely on information communicated to

6091her by the investigator assigned to the case.

609996. The abuse/neglect report, including the written

6106entries which are the substance of the Department's factual

6115allegations, is hearsay. See § 90.803(1), Fla. Stat.

612397. Pursuant to Subsection 120.57(1)(c), Florida Statutes,

"6130hearsay evidence may be used for the purpose of supplementing

6140or explaining other evidence, but shall not be sufficient in

6150itself to support a finding unless it would be admissible over

6161the objections in a civil action." In this case, no competent

6172evidence was presented regarding the factual allegations in the

6181abuse report and upon which the Department relied in its denial

6192letter. Thus, the abuse report did not supplement or explain

6202other evidence and cannot be the basis of a finding in this

6214proceeding.

621598. Even if the Department proved the material factual

6224allegation, it failed to establish by competent evidence its

6233assertion that the "verified" finding of inadequate supervision

6241was required by the Department policy. The Department contends

6250that application of CFOP 175-28, and the Allegation Matrix

6259included therein, i.e., mandated this "verified finding."

6266Nevertheless, the Department did not produce a copy of that

6276document at this proceeding. Hence, even if the factual

6285allegations had been proven, no determination could be made as

6295to whether the operating procedure was properly applied.

630399. With regard to the abuse/neglect report, the

6311Department failed to prove the allegations upon which its

6320proposed denial of licensure is predicated. Therefore, the

"6328verified abuse neglect report" is not a proper basis to deny

6339Petitioner's application for licensure as a family day care home

6349operator.

6350100. Because Petitioner has not complied with the

6358standards in Florida Administrative Code Rule 65C-20.010(1)(i)

6365and (j), the Department should deny her license to operate a

6376family day care home. However, the Department's denial for the

6386aforementioned grounds does not preclude Petitioner from

6393applying for a license in the future.

6400RECOMMENDATION

6401Based on the foregoing Finding of Fact and Conclusions of

6411Law, it is

6414RECOMMENDED that Respondent, Department of Children and

6421Family Services, enter a final order: (1) finding that

6430Petitioner, Best Family Day Care Home, failed to meet the

6440standards in Florida Administrative Code Rule 65C-20.010(1)(i)

6447and (j); and (2) denying Petitioner's application for a family

6457day care home on those grounds.

6463DONE AND ENTERED this 9th day of February, 2010, in

6473Tallahassee, Leon County, Florida.

6477S

6478CAROLYN S. HOLIFIELD

6481Administrative Law Judge

6484Division of Administrative Hearings

6488The DeSoto Building

64911230 Apalachee Parkway

6494Tallahassee, Florida 32399-3060

6497(850) 488-9675

6499Fax Filing (850) 921-6847

6503www.doah.state.fl.us

6504Filed with the Clerk of the

6510Division of Administrative Hearings

6514this 9th day of February, 2010.

6520ENDNOTES

65211/ At the hearing, the Department advised that the denial letter

6532mistakenly cites Florida Administrative Code Rule 65C-22.010(1)

6539as the rule setting forth the requirements for swimming pools

6549and noted that the correct rule is Florida Administrative Code

6559Rule 65C-20.010(1).

65612/ All statutory references are to Florida Statutes (2009),

6570unless otherwise noted.

65733/ Exhibit L consists of the Intake Report, the Investigative

6583Summaries and Investigation Report, and includes pages 114

6591through 142.

65934/ Lynne Reinhardt testified about CFPO 175-28, but a copy of

6604the procedure was not offered into evidence.

66115/ Ms. Step testified that Petitioner's husband corrected this

6620problem during the February 20, 2009, walk-through.

66276/ At the time of the inspections, the alarm system was working;

6639however, Petitioner and her husband did not have the service

6649that automatically notified law enforcement or other appropriate

6657officials each time the alarm went off.

66647/ The February 20, 2009, preliminary review references only

"6673alarms on [a] door to [the] swimming pool." Also see

6683paragraph 5 of the Findings of Fact.

66908/ Ms. Richmond learned of these concerns from her supervisor

6700and/or Ms. Step prior to going to Petitioner's home.

67099/ Ms. Richmond's primary job responsibilities were monitoring

6717child care facilities with the primary emphasis on handling

6726complaints.

672710/ According to the February 27, 2009, Inspection Checklist,

6736the non-compliance issue with the pool (i.e., cleaned and

6745properly maintained) was to be corrected by April 3, 2009.

675511/ Petitioner and her husband considered the swimming pool

6764concerns as "minor" compared to the concern about the "verified"

6774report. The reason was that they could easily resolve the

6784former issue, but could do nothing to change the "verified"

6794report.

679512/ One of the reasons for this recommendation was that the

6806verified abuse/neglect report was available at that office and

6815could be reviewed by Petitioner and her husband.

682313/ The Notice to Cease and Desist form indicates that

6833Petitioner "was visited on March 23, 2009[,] and found to be

6845providing child care services without a license or proper

6854registration." That statement is inconsistent with other

6861information on the form which expressly notes that there

6870were "0" children in her care.

687614/ There was no evidence presented that an "inspection" or

6886walk-through was conducted during the fifth visit (on April 7,

68962009) to Petitioner's home.

690015/ This is the date the abuse/neglect report was closed. The

6911day of the incident was April 23, 2006.

691916/ The Department received the FBI and FDLE fingerprint results

6929in or about early February 2009. Both reports indicated that

6939nothing was found to disqualify Mr. Granados from working in a

6950family day care home (or in this case, living in a family day

6963care home).

696517/ Those factual allegations include the following: (1) the

6974child was found in the water after an "undetermined amount of

6985time"; the "lock to get access" had been broken for a "few

6997days."

6998COPIES FURNISHED :

7001Gregory Venz, Agency Clerk

7005Department of Children and

7009Family Services

7011Building 2, Room 204B

70151317 Winewood Boulevard

7018Tallahassee, Florida 32399-0700

7021John J. Copelan, General Counsel

7026Department of Children and

7030Family Services

7032Building 2, Room 204

70361317 Winewood Boulevard

7039Tallahassee, Florida 32399-0700

7042Stacy N. Robinson, Esquire

7046Department of Children and

7050Family Services

70524720 Old Highway 37

7056Lakeland, Florida 33813

7059Jeremy Best

7061Marcela Best

7063Best Family Day Care Home

70684062 State Road 60 East

7073Bartow, Florida 33830

7076NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

7082All parties have the right to submit written exceptions within

709215 days from the date of this Recommended Order. Any exceptions

7103to this Recommended Order should be filed with the agency that

7114will issue the Final Order in this case.

Select the PDF icon to view the document.
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Date
Proceedings
PDF:
Date: 06/11/2010
Proceedings: Agency Final Order
PDF:
Date: 06/11/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 02/12/2010
Proceedings: Transmittal letter from Claudia Llado forwarding an extra copy of the one-volume Transcript, along with extra copies of exhibits to the agency.
PDF:
Date: 02/09/2010
Proceedings: Recommended Order
PDF:
Date: 02/09/2010
Proceedings: Recommended Order (hearing held September 15, 2009). CASE CLOSED.
PDF:
Date: 02/09/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/12/2009
Proceedings: Respondent Department of Children and Family Services' Proposed Recommended Order filed.
Date: 10/05/2009
Proceedings: Transcript filed.
PDF:
Date: 10/05/2009
Proceedings: Notice of Filing (of transcript) filed.
PDF:
Date: 09/23/2009
Proceedings: (Petitioner's Proposed Recommended Order) filed.
PDF:
Date: 09/21/2009
Proceedings: Respondent's Exhibits (exhibit K, exhibit not available for viewing) filed.
Date: 09/15/2009
Proceedings: CASE STATUS: Hearing Held.
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Date: 09/15/2009
Proceedings: Respondent's Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 09/11/2009
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for September 15, 2009; 9:30 a.m.; Lakeland and Tallahassee, FL; amended as to change to video hearing).
PDF:
Date: 09/11/2009
Proceedings: Respondent's Amended Pre-hearing Statement filed.
PDF:
Date: 09/08/2009
Proceedings: Respondent's Pre-hearing Statement filed.
PDF:
Date: 07/23/2009
Proceedings: Amended Notice of Hearing (hearing set for September 15, 2009; 9:30 a.m.; Lakeland, FL; amended as to date and location of hearing).
PDF:
Date: 07/15/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/15/2009
Proceedings: Notice of Hearing (hearing set for August 26, 2009; 9:30 a.m.; Lakeland, FL).
PDF:
Date: 07/06/2009
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 06/29/2009
Proceedings: Initial Order.
PDF:
Date: 06/29/2009
Proceedings: Request for a hearing filed.
PDF:
Date: 06/29/2009
Proceedings: Notice of Denial of an Application to License and Operate a Family Day Care Home filed.
PDF:
Date: 06/29/2009
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
CAROLYN S. HOLIFIELD
Date Filed:
06/29/2009
Date Assignment:
06/29/2009
Last Docket Entry:
06/11/2010
Location:
Lakeland, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

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