09-003515
Best Family Day Care Home vs.
Department Of Children And Family Services
Status: Closed
Recommended Order on Tuesday, February 9, 2010.
Recommended Order on Tuesday, February 9, 2010.
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.
- Date
- Proceedings
- 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 (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: 09/21/2009
- Proceedings: Respondent's Exhibits (exhibit K, exhibit not available for viewing) filed.
- Date: 09/15/2009
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- 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: 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: Notice of Hearing (hearing set for August 26, 2009; 9:30 a.m.; Lakeland, FL).
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
-
Marcela Best
Address of Record -
Stacy Robinson Nickerson, Esquire
Address of Record