10-008248 Department Of Children And Family Services vs. North Florida Daycare, Inc., D/B/A Alachua County Child Care Center Status: Closed Recommended Order on Thursday, November 18, 2010.

Summary: Petitioner proved that it properly imposed a $50 fine on Respondent for submitting a license renewal application in an untimely manner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8248

)

NORTH FLORIDA DAYCARE, INC., )

d/b/a ALACHUA COUNTY CHILD CARE )

CENTER , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 28,

2010, by video teleconference, with hearing sites in

Tallahassee, Florida, and Gainesville, Florida, before Suzanne

F. Hood, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Lucy Goddard - Teel, Esquire

Department of Children and Family Services

1000 North East 16th Avenue

B uilding J, No. 3

Gainesville, Florida 32601

For Respondent: Tami Hixon, President/Owner

North Florida Daycare, Inc. d/b/a

Alachua County Child Care Center

4138 No rth West 13th Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue is whether Petitioner properly imposed a fine of

$50 against Respondent for failing to timely file an application

for license renewal.

PRELIMINARY STATEMENT

On or about July 27, 2010, Petitioner Department of

Children and Family Services (Petitioner) filed an

Administrative Complaint against Respondent North Florida

Daycare, Inc. d/b/a Alachua County Child Care Center

(Respondent). The complaint al leged that Respondent violated

Florida Administrative Code Rule 65C - 22.001(1)(d) by not filing

for renewal of its license at least 45 days before its license

expired. The complaint alleged that Respondent had to pay a $50

fine pursuant to Florida Administ rative Code Rule 65C -

22.010(2)(d).

On July 29, 2010, Respondent filed a request for an

administrative hearing to contest the allegations in the

Administrative Complaint. Petitioner referred the hearing

request to the Division of Administrative Hearings o n August 24,

2010.

On September 1, 2010, the undersigned issued a Notice of

Hearing by Video Teleconference. The notice scheduled the

hearing for October 28, 2010.

During the hearing, Petitioner presented the testimony of

two witnesses. Petitioner offered four exhibits that were

accepted as evidence.

Respondent presented the testimony of one witness.

Respondent did not offer any exhibits for admission into the

record.

A transcript of the proceeding was not filed. Petitioner

filed a Proposed Recommended Order on November 3, 2010. As of

the date that this Recommended Order was issued, Respondent had

not filed a proposed order.

Except as otherwise noted, all references hereinafter shall

be to Florida Statutes 2010.

FINDINGS OF FACT

1. Pet itioner is the state agency that is responsible for

receiving and a pproving applications for child care facility

licenses and for monitoring, regulating, and if necessary,

suspendin g or revoking child care facility licenses for a

violation of any provision o f Sections 402.301 through 402.319,

Florida Statutes, or the rules adopted thereunder.

2. The following facts are undisputed by the parties:

a. Respondent is licensed by Pe titioner to

operate a child care facility at 4138 North

West Street, Gainesvil le, Florida 32609.

b. By letter dated May 1, 2010, Petitioner

notified Respondent that its renewal

application was due June 21, 2010.

Respondent knew that June 21, 2010, was the

deadline for timely submission of the

renewal application.

c. Respon dent mailed her renewal

application to Petitioner on June 21, 2010.

d. The United States Post Office track and

confirm notice shows that the application

was accepted by mailing on June 21, 2010, at

4:05 p.m.

e. Petitioner received Respondent's renewa l

application in Lake City, Florida, on

June 28, 2010.

3. Tami Hixon, Respondent's director/owner, testified that

she telephoned Petitioner's office in Lake City, Florida, on

June 21, 2010. According to Ms. Hixon, she spoke with Hannah

Hall, Petition er's Administrative Assistant. Ms. Hixon claims

that Ms. Hall gave her permission to mail Respondent's renewal

application instead of driving to Lake City, Florida, to file it

by hand delivery on June 21, 2010.

4. Ms. Hixson claims she had been sick w ith bronchitis and

had not completed the renewal application until June 21, 2010.

Ms. Hixson asserts that she reli ed on the conversation with

Ms. Hall in mailing the renewal application to Petitioner on

June 21, 2010. Ms. Hixson's testimony in this regar d is not

persuasive.

5. Ms. Hall receives numerous telephone calls from

childcare providers. She does not have an independent

recollection of speaking with Ms. Hixson on June 21, 2010.

6. Ms. Hall testified that she does not have authority to

exte nd the time for filing renewal applications and would never

have done so for any childcare provider, including Respondent.

Ms. Hall's testimony in this regard is most persuasive.

7. Sha'Leda Mirra is Petitioner's Child Care Licensing

Supervisor. Ms. Mirra testified that the rule imposing a fine

for late submission of renewal applications is strictly enforced

on all providers. Only in extreme cases, such as a provider

being in the hospital, has she ever waived the fine.

8. According to Ms. Mirra, Ms. Hixson telephoned after

receiving the Administrative Complaint. Ms. Hixson did not

mention having bronchitis as a reason for the late filing during

the telephone call.

9. Receipt of renewal application 45 days before the

license expiration date is necessary because licensing staff

must check numerous documents for compliance. Additionally,

childcare providers often must make corrections to their renewal

applications. Receipt of renewal applications a few days before

license expiration causes disr uption to families when a facility

must be temporarily closed because the renewal is not complete

or cannot be processed.

10. Respondent's untimely license renewal application was

processed and the fee paid before Respondent's license expired.

Petitio ner's staff was able to complete the process , even th ough

the application was missing a fire inspection certificate and

despite Respondent's check being returned for insufficient

funds.

11. Ms. Mirra and another licensing supervisor are the

only indivi duals who could have approved a late renewal

application on June 21, 2010. Neither of them was in the office

on that day. Petitioner's support staff, including Ms. Hall,

has been well trained and knows not to tell anyone that it is

acceptable to submit a late application.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

13. Petitioner has the burden of proving by clear and

convincing evidence that Respondent should be fined for failing

to file it license renewal application in a timely manner. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Com pany , 670 So. 2d 932

(Fla. 1996). Petitioner has met this burden.

14. Section 402.310(1), Florida Statutes, authorizes

Petitioner to impose disciplinary action for violation of

childcare licensing rules.

15. Florida Administrative Code Rule 65C - 22.0 01(1)(d)

states as follows:

(d) A completed CF - FSP Form 5017 for

renewal of an annual license must be

submitted to the licensing authority at

least 45 days prior to the expiration date

of the current license to ensure that a

lapse of licensure does not occur. Failure

to submit a completed CF - FSP Form 5017 at

least 45 days prior to the expiration date

of the current license constitutes a

licensing violation as defined in paragraph

65C - 22.010(2)(d), F.A.C.

16. Florida Administrative Code Rule 65C - 22.010(2)(d)

states as follows:

(d) Failure to submit a completed CF -

FSP Form 5017, Application for License to

Operate a Child Care Facility, which is

incorporated by reference in paragraph 65C -

22.001(1)(a), F.A.C. for renewal of an

annual license at least 45 days prior to the

expiration date of the current license

constitutes a licensing violations. The

department shall issue an administrative

complaint imposing a fine of $50.00 for the

first occurrence, $100.00 for the second

occurrence, and $200 .00 for each subsequent

occurrence within a five - year period.

17. In this case, Petitioner properly determined that

Respondent should be fined $50.00 for failing to file its

license renewal in a timely manner. RespondentÓ s explanation

for its untimely submission is not persuasive and is therefore

insufficient to avoid the fine. Respondent has proved by clear

and convincing evidence that it had good cause to impose a

$50.00 fine on Respondent for the untimely submission.

RECOMMENDATION

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order imposing a $50.00 fine on Respondent.

DONE AND ENT ERED this 18th day of November , 2010 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of November , 2010 .

COPIES FURNISHED :

Lucy Goddard - Teel, Esquire

Department of Children

and Family Services

1000 Nort heast 16th Avenue

Building J, No. 3

Gain esville, Florida 32601

Tami Hixon

Alachua County Child Care Center

4138 Northwest 13th Street

Gainesville, Florida 32609 - 1864

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahas see, Florida 32399 - 0700

George Sheldon, Secretary

Department of Children

and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gerald B. Curington, General Counsel

Department of Children

and Family Services

Bui lding 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommende d Order should be filed with the agency that

will issue the Final Order in this case.