11-000916
Department Of Children And Families vs.
Davis Family Day Care Home
Status: Closed
Recommended Order on Tuesday, October 25, 2011.
Recommended Order on Tuesday, October 25, 2011.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF CHILDREN AND )
13FAMILIES , )
15)
16Petitioner , )
18)
19vs. ) Case No. 11 - 0916
26)
27DAVIS FAMILY DAY CARE HOME , )
33)
34Respondent . )
37)
38DAVIS FAMILY DA Y CARE HOME, )
45)
46Petitioner, )
48)
49vs. ) Case No. 11 - 2242
56)
57DEPARTMENT OF CHILDREN AND )
62FAMILIES, )
64)
65Respondent. )
67)
68RECOMMENDED ORDER
70Pursuant to notice, a final hearing was conducted by video
80tele conference in th e s e case s on July 28, 2011, in Lakeland and
96Tallahassee, Florida, before Administrative Law Judge Lynne A.
104Quimby - Pennock of the Division of Administrative Hearings
113(Division).
114APPEARANCES
115For the Department of Children and Families:
122Stacy N. Robinson, Esquire
126Department of Children and Families
1311055 Highway 17, North
135Bartow, Florida 33830
138For Davis Family Day Care Home:
144Charlann Jackson Sanders, Esquire
148Charlann Jackson Sanders, P.A.
152Post Office Box 7752
156Lakeland, Florida 33807
159STATEMENT OF THE ISSUE S
164The issues in th e s e case s are: whether the Davis Family
178Day Care Home violated provisions of c hapter 402, Florida
188Statutes , 1/ and Florida Administrative Code Chapter 65C - 20 , 2/ and,
200if so, what penalty should be imposed; whether the Davis Family
211Day Care Home ' s renewal application for a license to operate a
224regular family day care center should be approved or denied; and
235whether the Davis Family Day Care Home ' s initial application for
247a license to operate as a large family child care hom e should be
261approved or denied.
264PRELIMINARY STATEMENT
266The Department o f Children and Families (hereinafter the
"275Department " or " DCF " ) issued a " Proposed Fine of Family Day
286Care Home License No. F10PO0720 " (hereinafter " AC 1 " ) on
296October 29, 2010, to the Davis Family Day Care Home (hereinafter
307the " Davis Day Care " or the " fac ility " ). AC 1 alleged a single
321violation (August 3, 2010) of the regulations governing the
330operation of a family day care home and imposed an
340administrative fine of $500.00. The Davis Day Care filed a
350response to AC 1 , which was accepted by the Departmen t as a
363petition for a formal administrative hearing. On February 2 1,
3732011, AC 1 and the facility ' s response were forwarded to the
386Division , assigned Case No. 11 - 0916, and assigned to
396Administr ative Law Judge J. D. Parrish.
403On March 23, 2011, the Departmen t issued a " Proposed Denial
414Application to Operate a Family Day Care Home " ( hereinafter
" 424AC 2 " ) to the Davis Day Care. AC 2 alleged five violations of
438the regulations governing the operation of a family day care
448home and denied the facility ' s renewal app lication.
458On April 11, 2011, the Department issued a " Proposed Denial
468Application to Operate a Large Family Day Care Home "
477( hereinafter " AC 3 " ) to the Davis Day Care. AC 3 also alleged
491the same five allegations as set forth in AC 2 for the renewal
504denial. On April 19, 2011, the Davis Day Care filed a " Petition
516for Administrative Hearing " (hereinafter the " P etition " ) ,
524disputing all the allegations in the Department ' s AC 2 and
536AC 3. On May 4, 2011, the Department forwarded the facility ' s
549request for a hear ing to the Division . 3/ Administrative Law
561Judge William F. Quattlebaum was assigned to hear the P etition
572under one Division case number , Case No. 11 - 2242 . On May 11,
5862011, the Davis Day Care filed a " Motion for Consolidation of
597Related Cases " involving A C 1, AC 2 and AC 3. By Order dated
611May 18, 2011, the Division consolidated both Division cases
620involving the Davis Day Care. Pursuant to notice , the
629consolidated cases were noticed for video teleconference hearing
637for July 28, 2011. The consolidated cas es were transferred to
648Administrative Law Judge Lynne A. Quimby - Pennock for the final
659hearing.
660At the beginning of the hearing, the Department announced
669that with respect to AC 2 and AC 3, it was not presenting
682evidence on either of the alleged abuse inves tigations that
692occurred in 2007 and 2008 as outlined in each administrative
702complaint.
703At the final hearing, the Department called seven
711witnesses: Marva Brooks, program manager for a child care food
721program; Natalie Barton (mother of E.B.); Connie Flemin g, nurse
731practitioner with the child protection team; Deanna McCain,
739child protection investigator; Vicki Richmond, children and
746family counselor; Sheila Nobles, child care licensing
753administrator; and Donald M. Giorgano, child care licensing
761counselor , wh o was called as a rebuttal witness. The Department
772offered 14 exhibits into evidence , and all were admitted. 4/
782The Davis Day Care called five witnesses including:
790LaShandra Davis; Sarah Stafford; Suzanne Williams; Alexis Webb;
798and LaToya Wilson. The fac ility offered 19 exhibits into
808evidence. As the exhibits had been pre - numbered, the following
819facility exhibits were admitted: 1 through 16, 18, 19 and 21.
830At the conclusion of the hearing , the parties requested and
840were granted leave to file their propo sed recommended orders
850(PROs) by the close of business on the 30 th day after the
863transcript was filed. The two - volume T ranscript of the hearing
875was filed on August 15, 2011. The parties filed a " Joint
886Request for Extension of Time to File Proposed Recomm ended
896Orders " before the filing deadline. The request was granted ,
905and the parties were directed to file their PROs no later than
917the close of business on September 30, 2011. Both parties
927timely filed their PROs, and each has been considered in the
938prepa ration of this Recommended Order.
944FINDINGS OF FACT
947A. The Parties
9501. The Department is responsible for inspecting, licensing
958and monitoring child care facilities such as the one operated by
969the Davis Day Care. It is also the Department ' s responsibility
981to e nsure that all such facilities are safe and secure for the
994protection of the children utilizing those facilities.
10012. The Department routinely conducts inspections of
1008licensed family day care homes to determine whether the home is
1019in compliance with th e applicable statutes and rules. Following
1029such inspections , a report is provided to the operator which
1039provides a time frame to correct any outstanding deficiencies.
10483. The Department also conducts inspections or
1055investigations of child care facilities in response to
1063complaints it receives.
10664. LaShandra Davis (Ms. Davis) owns and operates the Davis
1076Day Care, a family day care facility licensed by the Department.
1087The Davis Day Care was initially licensed in April 2007 and was
1099in continuous operation at all times material to these issues.
1109No testimony was offered that the facility had prior
1118disciplinary actions against it.
11225. Ms. Davis is a nurse, has an associate of science
1133(A.S.) degree in nursing from Polk Community College, and is
1143attending college to obtain an A.S. degree in e arly c hildhood
1155e ducation. Additionally, Ms. Davis has five sons and one
1165daughter. Their names include (from youngest to oldest): Layla
1174Davis, Steven Davis, Devondrae Davis, Deshawn Williams, Daniel
1182Williams, and Rafael Davis . No testimony was received regarding
1192Ms. Davis using any other name or names from August 3, 2010,
1204through December 2, 2010. 5/
12096. On February 23, 2011, Ms. Davis submitted an
1218application to obtain a license to operate a large family day
1229care home at her current location.
12357. On March 15, 2011, Ms. Davis submitted her renewal
1245application to retain her license to operate a family day care
1256home at her current location.
1261B. October 29, 2010, AC 1 (August 3, 2010 , Inspection)
12718. On August 3, 2010, the Davis Day Care was subjected to
1283an inspection based on a complaint that it was " over - ratio. "
1295This over - ratio issue involves the number of children in the
1307care of a family day care operation to the number of adults
1319providing that care. The Department received a complaint that
1328the facility was seeking meal reimbursements for more children
1337than were allowed for the type of child care license it held.
1349Vicki Richmond (Ms. Richmond) testified that she conducted the
1358inspection on August 3, 2010, and cited the facilit y for being
1370over the licensed capacity ratio by more than two children.
1380Because the facility was over ratio by more than two children,
1391it was a Class I violation.
13979. At that August inspection, Ms. Davis explained to
1406Ms. Richmond that she (Ms. Davis) had a license to provide child
1418care for ten children, and she had ten children in her care.
1430Ms. Richmond explained the ratio requirement to Ms. Davis.
1439Based on the age of the children, Ms. Davis was authorized to
1451have a maximum of ten children provided no mo re than five were
1464preschool age, and , of those five, no more than two were under
147612 months of age. At this August inspection, Ms. Davis was
1487over - ratio by two children. Ms. Davis executed and received a
1499copy of the complaint report prepared on August 3, 2 010, that
1511discussed the over - ratio limitations. Three other technical
1520violations were brought to Ms. Davis ' s attention during that
1531inspection, and two of those violations were corrected
1539immediately. Ms. Davis was given a two - week extension to
1550correct the third violation involving an expired fire
1558extinguisher. 6/
156010. Additionally, Ms. Richmond testified that Ms. Davis ' s
1570mother ( " Ms. Jones " ) 7/ was visiting the facility while
1581Ms. Richmond was conducting this August inspection. According
1589to Ms. Richmond, Ms. Jones had been previously screened, but did
1600not meet the Department ' s standards to be in a child care
1613facility. Ms. Jones should not have been present either for a
1624visit or to be preparing lunches as the testimony revealed.
1634Ms. Richmond recommended to Ms . Davis that it was important to
1646check into getting an exemption for Ms. Jones to be at the
1658facility. Ms. Davis later testified that Ms. Jones had cleared
1668up the screening issue, and both had been told Ms. Jones was
1680allowed to be present at the facility.
168711. At hearing, Ms. Davis admitted that she was over - ratio
1699on August 3, 2010. Further, she stated that she " just flat out
1711misunderstood " the adult - child ratio requirement issue until
1720Ms. Richmond explained it to her in August 2010.
172912. Ms. Brooks and Mr . Giordano testified that they had
1740each individually explained the ratio requirement to Ms. Davis
1749during prior inspections or discussions at the facility.
1757Although there is some discrepancy between Ms. Davis ' s
1767recollection and the two witnesses on this po int, Ms. Davis
1778admitted this violation and was quite candid about her lack of
1789knowledge with respect to it.
179413. Credible testimony from both Ms. Richmond and Shelia
1803Nobles (Ms. Nobles) established that having two or more children
1813over - ratio was a Class I violation, which would subject any
1825child care facility to discipline by the Department.
183314. When Ms. Davis received the Department ' s three - page
1845October 29, 2010, AC 1 advising her of the Class I violation
1857(over - ratio by two or more children) and assessing a $500 fine,
1870she was " shocked. " Ms. Davis testified that , at the time of the
1882inspection (August 3, 2010), Ms. Richmond had stated the fine
1892might be $50 or maybe more, leading Ms. Davis to believe the
1904fine would not be that high.
191015. AC 1 advised Ms. Dav is that the over - ratio issue was a
1925Class I violation of section 402.302(7). AC 1 provided one
1935Department address for two reasons , to pay the $500 fine or to
1947request an administrative hearing. There is no language within
1956AC 1 that advised Ms. Davis of an optional payment plan.
1967Ms. Davis testified she was unaware of a payment plan option ,
1978and her only option was to appeal the decision, which she did.
199016. Ms. Richmond confirmed that the Department would
1998accept payments as long as the total fine amount was p aid in
2011full prior to the next renewal. However, that information was
2021not shared with Ms. Davis until the hearing.
2029C. Department ' s March 23, 2011, Proposed Denial
2038Application to Operate a Family Day Care Home (AC 2) and
2049Department ' s April 11, 2011, Propos ed Denial Application to
2060Operate a Large Family Day Care Home (AC 3).
206917. Both AC 2 and AC 3 set forth five allegations in
2081support of the Department ' s denial of the renewal application
2092and the large family child care home application. Two alleged
2102abuse allegations from 2007 and 2008 were included in these
2112administrative complaints ; however , as previously stated, no
2119testimony or evidence was offered, presented or substantiated at
2128hearing. Thus, any attempt to reference either the 2007 or 2008
2139allegations as fact is disregarded as unfounded and not
2148supported by credible testimony or evidence. AC 2 and AC 3 rest
2160on three allegations: the alleged abuse of child E.B. , the
2170alleged lying during the investigation of the alleged child
2179(E.B.) abuse , and the insp ection conducted on August 3, 2010,
2190regarding the facility being over ratio . 8/
219818. Natalie Barton (Ms. Barton), E.B. ' s mother , testified
2208that she saw marks on E.B. ' s bottom at the end of November 2010
2223(November 30, 2010) that " could only have occurred at the day
2234care. " Ms. Barton testified she picked E.B. up from the
2244facility prior to 5:30 p.m. and discovered the marks on E.B. ' s
2257bottom during bath time that evening.
226319. Both Ms. Barton and Ms. Davis testified that E.B. ' s
2275mother sent a picture of the inju ry to Ms. Davis via her cell
2289phone the evening the injury was first seen. At that point,
2300Ms. Davis told E.B. ' s mother that she (Ms. Davis) didn ' t know
2315what or how the injury occurred and recommended taking the child
2326to E.B. ' s doctor. Ms. Davis had no hes itation in making this
2340recommendation to Ms. Barton.
234420. Ms. Barton took E.B. to her (E.B. ' s) pediatrician the
2356morning after she discovered the injury (December 1, 2010).
2365However, E.B. ' s physician indicated he wanted to see the child
2377in two days, as he c ould not make a determination what, if
2390anything , had caused the injury as there was no bruising.
2400Ms. Barton also testified that she took E.B. back to the Davis
2412Day Care after she was seen by her pediatrician so she could see
2425how E.B. reacted. While at the facility , E.B. was " in her
2436routine, " that she (E.B.) walked in and sat on the couch like
2448she did every day. Ms. Barton did not return E.B. to her own
2461pediatrician for further evaluation. Ms. Barton testified E.B.
2469was seen by the child protective team th e day after she was seen
2483by the pediatrician (December 2, 2010).
248921. On December 2, 2010, after receiving information about
2498the possible physical abuse of a child ( E.B. ) (documented as
2510being received at 11:08 p.m. on December 1, 2010), Deanna McCain
2521(Inve stigator McCain) contacted Ms. Barton to obtain additional
2530information. Investigator McCain also spoke with E.B., who said
2539she had been hit by " Ms. Shawna. " After observing E.B. ' s
2551injuries and obtaining a photograph of E.B. ' s buttocks, an
2562appointment was made for E.B. to be seen by a member of the
2575child protection team, i.e. , the nurse practitioner.
258222. During the afternoon of December 2, 2010, N urse
2592P ractitioner Connie Fleming (Nurse Fleming) performed a medical
2601evaluation of E.B., a then two - year , nine - month old child.
2614During E.B. ' s evaluation, Nurse Fleming noticed bruising on
2624E.B. ' s buttocks. When Nurse Fleming asked E.B. what happened,
2635E.B. responded " Ms. Shawn spanked me. " Nurse Fleming stated the
2645bruising appeared to be consistent with an outlin e of a hand.
2657Pictures taken during the medical evaluation reflect red areas
2666on E.B. ' s buttocks.
267123. Based on her nine - plus years of training and
2682experience as a nurse practitioner, Nurse Fleming determined
2690that E.B. had suffered physical abuse ; however , she never state d
2701who caused the injury. Nurse Fleming contended that the
2710injuries were indicative of a rapid - force compression injury,
2720typical of a slap with a hand.
272724. Later on December 2 , 2010 , Investigator McCain went to
2737the facility to investigate t he alleged abuse report. Upon her
2748arrival at the location, Investigator McCain had to wait for a
2759local law enforcement officer (LEO) before she could enter the
2769facility.
277025. While Investigator McCain waited for the LEO to arrive
2780(between 3:30 p.m. and 4: 45 p.m.), she spoke with parents who
2792were picking up their children from the facility. Each parent
2802she spoke with had supportive comments about the facility
2811( " great day care provider, " their child had " no injuries, " had
2822never seen " inappropriate behavior, " " no concerns " ). Whether
2830all these comments came from one parent or multiple parents is
2841unclear. Investigator McCain did not observe any injuries to
2850any of the children leaving the facility.
285726. Ms. Richmond also went to the facility at
2866approximately t he same time as Investigator McCain ; however ,
2875Ms. Richmond could enter the home without a LEO, and she did so.
2888Ms. Richmond made contact with Ms. Davis and explained there was
2899a complaint. Ms. Richmond ' s task at the time was to obtain
2912information about t he number of children Ms. Davis had in the
2924facility. According to the sign in sheet, there were seven
2934children present, plus Ms. Davis ' s four - year - old son.
2947Ms. Richmond testified that Ms. Davis initially stated there
2956were four children present, but later a sleeping child was found
2967in a crib, and her (then) four - year - old son ran through the
2982home. 9/ Although Ms. Richmond asked for the attendance sheets
2992for the previous month (November 2010), Ms. Davis was only able
3003to provide the attendance sheets for Decem ber 1 and 2, 2010. 10/
3016According to Ms. Richmond, those two attendance sheets
3024documented that Ms. Davis ' s facility was again over - ratio for
3037those two days.
304027. When Investigator McCain entered the facility with the
3049LEO, she explained the reason for her pr esence to Ms. Davis.
3061Investigator McCain testified Ms. Davis was asked how many
3070children were present and together they conducted a " walk -
3080through " of the facility. Investigator McCain testified that ,
3088at the time of the walk - through, she was told there we re four
3103children present, three toddlers and a small child in Ms.
3113Davis ' s arms. Investigator McCain also testified that , during
3123the walk - through , they found an additional child sleeping in a
3135crib. She further testified that , at some later point, another
3145young child ran through the facility, and Ms. Davis identified
3155him as her son.
315928. On December 2, 2010, Investigator McCain questioned
3167Ms. Davis about the alleged physical abuse of E.B. During the
3178investigation discussion, Ms. Davis reported to Investiga tor
3186McCain that " she [ Ms. Davis ] had no idea how they [ E.B. ' s
3202injuries ] occurred. " Ms. Davis further reported E.B. was " fully
3212potty trained. " Ms. Davis reported that the child had a
3222toileting accident the day before and had cleaned herself.
3231Still , later in the investigation discussion , Ms. Davis told
3240Investigator McCain that she (Ms. Davis) had helped clean E.B.
3250after the toileting accident, but only from the front, and she
3261had not observed E.B. ' s buttocks. Ms. Davis also shared with
3273the investigator th at when Ms. Davis questioned E.B. about the
3284injury, E.B. said her mother (Ms. Barton) did it (the abuse).
329529. At hearing , Investigator McCain testified that
3302Ms. Davis was " very far along in " a pregnancy and that Ms. Davis
3315was upset, shocked, and surprised by the presence of the
3325investigators. Investigator McCain also confirmed that DCF ' s
3334presence tends to raise anxiety levels and that people feel like
3345they are being attac k ed. Further, Ms. Davis confirmed that she
3357was two weeks from her delivery due date when this investigation
3368started. Thus, under the circumstances , forgetfulness may be
3376perceived by some as lying, when in reality it is simply being
3388overwhelmed by the situation.
339230. As part of the investigation , it was Investigator
3401McCain ' s responsibilit y to also check for any hazards in the
3414facility and to ensure adequate supervision of the children.
3423Although Ms. Davis initially reported there were no other adults
3433to supervise the children, she later reported that her mother,
3443Ms. Jones , came each day ar ound 10:15 a.m. to make lunch for the
3457children. Ms. Barton confirmed that Ms. Jones was sometimes
3466present in the mornings when Ms. Barton brought E.B. to the
3477facility.
347831. Several technical violations were noted during the
3486December 2010 investigation; ho wever , they are n ot the subject
3497of this hearing.
350032. Ms. Davis testified she did not spank E.B. Ms. Davis
3511testified that she did not know how the injury occurred, and the
3523child ' s hearsay statement that her mother had spanked her is not
3536supported by other testimony.
354033. However, the time lapses between when the injury was
3550alleged to have occurred (the " end of November, " or
3559November 30 , 2010 , according to the mother), when the injury was
" 3570discovered " (the night of November 30 , 2010 , according to the
3580mother ), when the alleged abuse was reported (December 1 , 2010,
3591at 11:08 p.m.), when the pediatrician ' s examination occurred on
3602December 1 , 2010 , and when the child protective team became
3612involved (December 2 , 2010 ), create confusion and doubt as to
3623when the inj ury actually occurred and by whom. Even taking the
3635thought process to try to find that the events happened a day
3647later does not relieve the doubt or confusion, nor is that
3658supported by the Department ' s documentation.
366534. Investigator McCain testified tha t this investigation
3673was closed with a verified finding of physical injury to E.B.
3684However, simply finding a " verified finding of physical injury
3693to E.B. " does not establish who perpetrated that physical
3702injury. No testimony was provided that any other p ossible
3712explanation for the injury was explained . Further, other than
3722indicating that E.B. had red marks on her bottom, no testimony
3733was provided that indicated the degree of harm to the child.
3744That being said, this not to say that logic has left the
3756bui lding with respect to some harm being caused to the child.
3768There were marks on E.B. ' s buttocks.
377635. Several current and former parents of children who
3785attend or attended the Davis Day Care testified on Ms. Davis ' s
3798behalf. Each testified that they did no t have any concerns with
3810their child attending Ms. Davis ' s facility.
381836. On March 11, 2011, after receipt of the facility ' s
3830application for the large family day care home license , 11/ the
3841Department conducted an inspection of the facility and found it
3851to b e in compliance with all the licensing standard requirements
3862(including those previously cited during the December 2010
3870inspection that were corrected).
387437. Upon completion of its investigation, the Department
3882determined to deny Ms. Davis ' s renewal applic ation and to deny
3895her application for a large family day care license, based on
" 3906numerous complaints to our office alleging physical abuse of
3915children in your care and Class I violations of licensing
3925standards. " There was one verified complaint of abuse, not
" 3934numerous complaints " as alleged. There was a Class I violation
3944regarding the over - ratio issue ; however , that could have been
3955resolved with better communication skills. The
3961misrepresentation could have been avoided. Neither notification
3968includes any indication that the March 11, 2011, inspection was
3978taken into consideration prior to making the denial decision.
398738. The Department presented testimony indicating that
3994there had been past complaints regarding Ms. Davis and/or the
4004facility. However, no d ocumented prior complaints or final
4013orders were submitted with respect to any prior actions.
4022CONCLUSIONS OF LAW
402539. The Division of Administrative Hearings has
4032jurisdiction over the parties to and the subject matter of this
4043proceeding pursuant to s ections 120.569 and 120.57(1), Fl orida
4053Stat utes (2011) .
4057D. AC 1 October 29, 2010 (August 3, 2010 , Inspection )
406840. Where the Department makes allegations that the
4076applicant engaged in wrongdoing, the burden is on the Department
4086to prove wrongdoing. Dep ' t of Ba nking & Fin. v. Osborne Stern &
4101Co. , 670 So. 2d 932 (Fla. 1996). Factual findings based on
4112record evidence must be made indicating how the conduct alleged
4122violates the statutes or rules or otherwise justifies the
4131proposed sanctions. Mayes v. Dep ' t of Chi ld . & Fam . Servs . ,
4147801 So. 2d 980, 982 (Fla. 1st DCA 2001).
415641. The standard of proof with respect to the alleged
4166wrongdoing issue (over - ratio) is clear and convincing evidence
4176because the Department is seeking to discipline the license of
4186Respondent. Fe rris v. Turlington , 510 So. 2d 292 (Fla. 1987).
419742. The " clear and convincing standard " is well settled in
4207the law . E vidence has been described as follows:
4217[T]he evidence must be found to be credible;
4225the facts to which the witnesses testify
4232must be dis tinctly remembered; the testimony
4239must be precise and explicit and the
4246witnesses must be lacking in confusion as to
4254the facts in issue. The evidence must be of
4263such weight that it produces in the mind of
4272the trier of fact a firm belief or
4280conviction, with out hesitancy, as to the
4287truth of the allegations sought to be
4294established.
4295In re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz
4307v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
431843. Ms. Davis admitted the allegation of being over - ratio
4329on August 3, 2010. The Department met its burden of proof with
4341respect to the over - ratio allegation.
4348E. Department ' s March 23, 2011, Proposed Denial
4357Application to Operate a Family Day Care Home (AC 2) and
4368Department ' s April 11, 2011, Proposed Denial Applic ation to
4379Operate a Large Family Day Care Home (AC 3).
438844. The standard of proof with respect to a contested
4398denial of the family day care renewal application and the denial
4409of the large family day care application is by clear and
4420convincing evidence . Se e Dorothy Coke v. Dep't of Child. & Fam.
4433Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998) . Generally, a
4445license applicant has the burden to prove that he or she is
4457entitled to the license. See Dep ' t of Banking & Fin. v. Osborne
4471Stern & Co. , 670 So. 2d at 934. However, where the licensing
4483agency proposed to deny the renewal of a license based on
4494specific statutory and rule violations, it has the burden to
4504prove those violations.
45074 5 . Section 402.302(8) provides the definition for a
" 4517family day care home " as:
4522[a ]n occupied residence in which child care
4530is regularly provided for children from at
4537least two unrelated families and which
4543receives a payment, fee, or grant for any of
4552the children receiving care, whether or not
4559operated for profit. A family day care hom e
4568shall be allowed to provide care for one of
4577the following groups of children, which
4583shall include those children under 13 years
4590of age who are related to the caregiver:
4598(a) A maximum of four children from birth to
460712 months of age.
4611(b) A maximum of t hree children from birth to
462112 months of age, and other children, for a
4630maximum total of six children.
4635(c) A maximum of six preschool children if all
4644are older than 12 months of age.
4651(d) A maximum of 10 children if no more than 5
4662are preschool age and, of those 5, no more than 2
4673are under 12 months of age.
46794 6 . S ection 402.302(9) provides the definition for a
" 4690large family child care home " as:
4696[a]n occupied residence in which child care
4703is regularly provided for children from at
4710least two unrelated fam ilies, which receives
4717a payment, fee, or grant for any of the
4726children receiving care, whether or not
4732operated for profit, and which has at least
4740two full - time child care personnel on the
4749premises during the hours of operation. One
4756of the two full - time ch ild care personnel
4766must be the owner or occupant of the
4774residence. A large family child care home
4781must first have operated as a licensed
4788family day care home for 2 years, with an
4797operator who has had a child development
4804associate credential or its equival ent for
48111 year, before seeking licensure as a large
4819family child care home. A large family
4826child care home shall be allowed to provide
4834care for one of the following groups of
4842children, which shall include those children
4848under 13 years of age who are relat ed to the
4859caregiver:
4860(a) A maximum of 8 children from birth to
486924 months of age.
4873(b) A maximum of 12 children, with no more
4882than 4 children under 24 months of age.
48904 7 . Section 402.305(4) provides for the staff to children
4901ratio that may be used at ch ild care locations as:
4912(a) Minimum standards for the care of
4919children in a licensed child care facility
4926as established by rule of the department
4933must include:
49351. For children from birth through 1 year
4943of age, there must be one child care
4951personnel for every four children.
49562. For children 1 year of age or older, but
4966under 2 years of age, there must be one
4975child care personnel for every six children.
49823. For children 2 years of age or older,
4991but under 3 years of age, there must be one
5001child care person nel for every 11 children.
50094. For children 3 years of age or older,
5018but under 4 years of age, there must be one
5028child care personnel for every 15 children.
50355. For children 4 years of age or older,
5044but under 5 years of age, there must be one
5054child care personnel for every 20 children.
50616. For children 5 years of age or older,
5070there must be one child care personnel for
5078every 25 children.
50817. When children 2 years of age and older
5090are in care, the staff - to - children ratio
5100shall be based on the age group w ith the
5110largest number of children within the group.
51174 8 . Section 402.309 provides for provisional licenses or
5127registration as follows:
5130(1) The . . . department, whichever is
5138authorized to license child care facilities
5144in a county, may issue a provisiona l license
5153for . . . or large family child care homes,
5163. . . to applicants for an initial license
5172or registration or to licensees or
5178registrants seeking a renewal who are unable
5185to meet all the standards provided for in
5193ss. 402.301 - 402.319.
5197(2) A provisio nal license . . . may not be
5208issued unless the operator or owner makes
5215adequate provisions for the health and safety of
5223the child. A provisional license may be issued
5231for a child care facility if all of the screening
5241materials have been timely submitted. A
5247provisional license or registration may not be
5254issued unless the child care facility, family day
5262care home, or large family child care home is in
5272compliance with the requirements for screening of
5279child care personnel in ss. 402.305, 402.3055,
5286402.313, a nd 402.3131, respectively.
5291(3) The provisional license . . . may not be
5301issued for a period that exceeds 6 months;
5309however, it may be renewed one time for a period
5319that may not exceed 6 months under unusual
5327circumstances beyond the control of the
5333applica nt.
5335(4) The provisional license or registration may
5342be suspended or revoked if periodic inspection or
5350review by the local licensing agency or the
5358department indicates that insufficient progress
5363has been made toward compliance.
5368(5) The department shall adopt rules specifying
5375the conditions and procedures under which a
5382provisional license or registration may be
5388issued, suspended, or revoked.
539249 . Section 402.310 addresses discipline for failure to
5401conform with licensing requirements and states , in pertin ent
5410part:
5411(1)(a) The department or local licensing
5417agency may administer any of the following
5424disciplinary sanctions for a violation of
5430any provision of ss. 402.301 - 402.319, or the
5439rules adopted thereunder:
54421. Impose an administrative fine not to
5449exceed $100 per violation, per day.
5455However, if the violation could or does
5462cause death or serious harm, the department
5469or local licensing agency may impose an
5476administrative fine, not to exceed $500 per
5483violation per day in addition to or in lieu
5492of any other disciplinary action imposed
5498under this section.
55012. Convert a license or registration to
5508probation status and require the licensee or
5515registrant to comply with the terms of
5522probation. A probation - status license or
5529registration may not be issued for a per iod
5538that exceeds 6 months and the probation -
5546status license or registration may not be
5553renewed. A probation - status license or
5560registration may be suspended or revoked if
5567periodic inspection by the department or
5573local licensing agency finds that the
5579probati on - status licensee or registrant is
5587not in compliance with the terms of
5594probation or that the probation - status
5601licensee or registrant is not making
5607sufficient progress toward compliance with
5612ss. 402.301 - 402.319.
56163. Deny, suspend, or revoke a license or
5624r egistration.
5626(b) In determining the appropriate
5631disciplinary action to be taken for a
5638violation as provided in paragraph (a), the
5645following factors shall be considered:
56501. The severity of the violation, including
5657the probability that death or serious h arm
5665to the health or safety of any person will
5674result or has resulted, the severity of the
5682actual or potential harm, and the extent to
5690which the provisions of ss. 402.301 - 402.319
5698have been violated.
57012. Actions taken by the licensee or
5708registrant to corre ct the violation or to
5716remedy complaints.
57183. Any previous violations of the licensee
5725or registrant.
5727(c) The department shall adopt rules to:
57341. Establish the grounds under which the
5741department may deny, suspend, or revoke a
5748license or registration or place a licensee
5755or registrant on probation status for
5761violations of ss. 402.301 - 402.319.
57672. Establish a uniform system of procedures
5774to impose disciplinary sanctions for
5779violations of ss. 402.301 - 402.319. The
5786uniform system of procedures must provide
5792for the consistent application of
5797disciplinary actions across districts and a
5803progressively increasing level of penalties
5808from predisciplinary actions, such as
5813efforts to assist licensees or registrants
5819to correct the statutory or regulatory
5825violations, an d to severe disciplinary
5831sanctions for actions that jeopardize the
5837health and safety of children, such as for
5845the deliberate misuse of medications. The
5851department shall implement this subparagraph
5856on January 1, 2007, and the implementation
5863is not contingen t upon a specific
5870appropriation.
5871(d) The disciplinary sanctions set forth in
5878this section apply to licensed child care
5885facilities, licensed large family child care
5891homes, and licensed or registered family day
5898care homes.
5900(2) When the department has rea sonable
5907cause to believe that grounds exist for the
5915denial, suspension, or revocation of a
5921license or registration; the conversion of
5927a license or registration to probation
5933status; or the imposition of an
5939administrative fine, it shall determine the
5945matter in accordance with procedures
5950prescribed in chapter 120 . . . .
595850 . Section 402.305(12)(a) provides for the child
5966discipline that may be used at child care locations as:
5976(a) Minimum standards for child discipline
5982practices shall ensure that age - appropria te,
5990constructive disciplinary practices are used
5995for children in care. Such standards shall
6002include at least the following requirements:
60081. Children shall not be subjected to
6015discipline which is severe, humiliating, or
6021frightening.
60222. Discipline shall not be associated with
6029food, rest, or toileting.
60333. Spanking or any other form of physical
6041punishment is prohibited.
60445 1 . Florida Administrative Code Rule 65C - 20.010(6) and (7)
6056state , in pertinent part:
6060(6) Child Discipline.
6063(a) Family day care home s shall adopt a
6072discipline policy consistent with Section
6077402.305(12), F.S., including standards that
6082prohibit children from being subjected to
6088discipline which is severe, humiliating,
6093frightening, or associated with food, rest,
6099or toileting. Spanking or any other form of
6107physical punishment is prohibited.
6111(b) All family day care home operators,
6118employees, substitutes, and volunteers must
6123comply with the family day care home ' s
6132written discipline policy.
6135(c) A copy of the written discipline policy
6143must be available for review by the parents
6151or legal guardian and the licensing
6157authority.
6158(7) Child Abuse or Neglect.
6163(a) Acts or omissions that meet the
6170definition of child abuse or neglect
6176provided in Chapter 39, F.S., constitute
6182a violation of the stand ards in
6189Sections 402.301 - .319, F.S.
6194(b) Failure to perform the duties of
6201a mandatory reporter pursuant to
6206Section 39.201, F.S., constitutes a
6211violation of the standards in Sections
6217402.301 - .319, F.S.
62215 2 . Rule 65C - 20.012 identifies the Department ' s trea tment
6235of Class I violations of its licensing rules for child care
6246facilities. The rule states in pertinent part:
6253(1) Definitions.
6255* * *
6258(b) " Probation " is a licensing status
6264indicating the license is in jeopardy of
6271being revoked or not renewe d due to
6279violations within the control of the
6285provider. Probation may require the
6290licensee to comply with specific conditions
6296intended to ensure that the licensee comes
6303into and maintains compliance with licensing
6309standards. Examples of such conditions a re:
6316a deadline to remedy an existing violation,
6323a specified period during which compliance
6329with licensing standards must be strictly
6335maintained; and, specified conditions under
6340which the home must operate during the
6347probationary period.
6349(c) " Standards " a re requirements for the
6356operation of a licensed family day care home
6364or large family child care home provided in
6372statute or in rule.
6376(d) " Violation " means a finding of
6382noncompliance by the department or local
6388licensing authority of a licensing standard.
63941. " Class I Violation " is an incident of
6402noncompliance with a Class I standard as
6409described on CF - FSP Form 5318 March 2009
6418Family Day Care Home Standards
6423Classifications Summary and CF - FSP
6429Form 5317, March 2009 Large Family Child
6436Care Home Standards Clas sification Summary,
6442which is incorporated. A copy of CF - FSP
6451Form 5318 and 5317 may be obtained
6458from the department ' s website
6464www.myflorida.com/childcare. Class I
6467violations are the most serious in nature,
6474pose an imminent threat to a child including
6482abus e or neglect and which could or do
6491result in death or serious harm to the
6499health, safety or well - being of a child.
6508* * *
65114. " Technical Support Violations " are the
6517first or second occurrence of noncompliance
6523of an individual Class III standard or the
6531first occurrence of noncompliance of an
6537individual Class II standard.
6541* * *
6544(3) Disciplinary Sanctions.
6547(a) Enforcement of disciplinary sanctions
6552shall be applied progressively for each
6558standard violation . In addition, providers
6564will be o ffered technical assistance in
6571conjunction with any disciplinary sanction.
6576The department shall take into consideration
6582the actions taken by the home to correct the
6591violation when determining the app ropriate
6597disciplinary sanction.
6599(b) Each standard viol ation has an assigned
6607classification based on the nature or
6613severity of the violation(s) as identified
6619within CF - FSP Form 5318 and CF - FSP Form
66305317.
6631* * *
6634(d) Failure to submit a completed CF - FSP
6643Form 5133, Application for a License to
6650Operate a Family Day Care Home, which is
6658incorporated by reference in subsection 65C -
666520.008(1), F.A.C. or CF - FSP Form 5238,
6673Application for a License to Operate a Large
6681Family Child Care Home, which is
6687incorporated by reference in paragraph 65C -
669420.013(3)(a), F.A.C. , for renewal of an
6700annual license at least 45 days prior to the
6709expiration date of the current license
6715constitutes a licensing violation. The
6720department shall issue an administrative
6725complaint imposing a fine of $50.00 for the
6733first occurrence, $100.00 f or the second
6740occurrence, and $200.00 for each subsequent
6746occurrence within a five year period.
6752(e) Disciplinary sanctions for licensing
6757violations that occur within a two year
6764period shall be progressively enforced as
6770follows:
67711. Class I Violations.
6775a. For the first and second violation of a
6784Class I standard, the department shall, upon
6791applying the factors in Section 402.310(1),
6797F.S., issue an administrative complaint
6802imposing a fine not less than $100 nor more
6811than $500 per day for each violation, and
6819may impose other disciplinary sanctions in
6825addition to the fine.
6829b. For the third and subsequent violation
6836of a Class I standard, the department shall
6844issue an administrative complaint to
6849suspend, deny or revoke the license. The
6856department, upon appl ying the factors in
6863Section 402.310(1), F.S., may also levy a
6870fine not less than $100 nor more than $500
6879per day for each violation in addition to
6887any other disciplinary sanction.
6891* * *
6894(4) Access. The family day care operator
6901must allow access to the entire premises of
6909the family day care home to inspect for
6917compliance with family day care home minimum
6924standards. Access to the family day care
6931home also includes access by the parent,
6938legal guardian, and/or custodian, to their
6944child(ren) while i n care. (emphasis added) .
69525 3 . The Department did not sustain its burden with respect
6964to the denial notification letters. The Department failed to
6973provide the facility with the option to pay the October 29,
69842010, proposed fine in a manner that clearly t he Department has
6996utilized in the past. Further, its own witnesses stated that
7006Ms. Davis was shocked , overwhelmed , or stunned that the
7015investigation was on - going and that they pushed her with respect
7027to answering questions in a stressful situation. That ' s not to
7039say that the investigation was conducted inappropriately.
7046However, under the circumstances once , it was determined that no
7056children were in immediate danger (which was determined by
7065Investigator McCain ' s inquiries on December 2 , 2010 ), a more
7077met hodical approach to seek the requisite answers to the inquiry
7088could have been undertaken. That systematic methodology may
7096have ensured that the documentation of the events was accurately
7106recorded as opposed to various discrepancies in the Department 's
7116exh ibits.
71185 4 . Any final order denying renewal of the applicant ' s
7131license must be based solely on the grounds asserted in the
7142notice of intent to deny given the applicant. See M. H. v.
7154Dep ' t of Child . & Fam . Servs . , Case No. 2D07 - 1006, 2008 Fla.
7172App. LEXIS 4 391 *6 (Fla. 2d DCA March 28, 2008)("[T]he notice ' s
7187exclusive focus on ' significant pulling force ' as causing a
7198nonaccidental injury precluded DCF from urging negligence as an
7207alternative ground for denying the renewal of the license at the
7218administrative proceeding.") 12/
72225 5 . There was a verified abuse finding; however , the
7233perpetrator of the abuse is unknown to the undersigned. No
7243testimony was provided as to what a verified abuse finding
7253entailed.
7254RECOMMENDATION
7255Based on the foregoing Findings of Fact a nd Conclusions of
7266Law, it is RECOMMENDED:
7270a. W ith respect to the October 29, 2010 , administrative
7280c omplaint , that a final order be entered by the Department of
7292Children and Families finding that the facility was over - ratio
7303on August 3, 2010, and imposing an administrative fine of $500
7314with no less than ten months to pay the fine. It is further
7327RECOMMENDED that Ms. Davis be ordered to attend remedial classes
7337on the financial operations and management of a child care
7347facility;
7348b. W ith respect to the March 23, 2011, administrative
7358complaint , that a final order be entered by the Department of
7369Children and Families renewing the family day care home license
7379on probation status for six months with periodic inspections to
7389ensure the continued safe operation of th e facility; and
7399c. W ith respect to the April 11, 2011, administrative
7409complaint , that a final order be entered by the Department of
7420Children and Families finding that the large family child care
7430home application be issued a provisional license for a minim um
7441of six months with periodic inspections to ensure the continued
7451safe operation of the facility, with the ability for an
7461additional six - month provisional period. In the event the large
7472family child care home provisional license is not activated
7481within t wo months of the issuance of the final order in this
7494matter, a new application shall be required, subject to all the
7505applicable statutory requirements.
7508DONE AND ENTERED this 2 5 th day of October, 2011 , in
7520Tallahassee, Leon County, Florida.
7524S
7525LYNNE A. QUIMBY - PENNOCK
7530Administrative Law Judge
7533Division of Administrative Hearings
7537The DeSoto Building
75401230 Apalachee Parkway
7543Tallahassee, Florida 32399 - 3060
7548(850) 488 - 9675
7552Fax Filing (850) 921 - 6847
7558www.doah.state.fl.us
7559Filed with t he Clerk of the
7566Division of Administrative Hearings
7570this 2 5 th day of October , 2011 .
7579ENDNOTES
75801/ References to Florida Statutes are to Florida Statutes
7589(2010), unless otherwise indicated.
75932/ References to Florida Administrative Code rules are to the
7603c urrent version, unless otherwise indicated.
76093/ Although electronically filed on May 4, 2011, the
7618Department ' s n otice to the Division references the " DCF Case
7630Action ( A dministrative C omplaint imposing $500 fine) " and is
7641executed on February 17, 2011, befo re the facility was notified
7652of these two administrative complaints.
76574/ The Department ' s E xhibit 1, the October 29, 2010, letter to
" 7671Davis Family Day Care Home, Attention: LaShandra Davis "
7679contained three pages ; however , page two and page three were
7689ide ntical. The Davis Day Care ' s E xhibit 9 contained the same
7703October 29, 2010, letter with three distinct separate pages.
77125/ In both the Department ' s E xhibit 5 and the Davis Day Care ' s
7729E xhibit 10, the reference to the day care owner and provider
7741(Ms. Davis ) as " Ms. Shawn " is hearsay and was not corroborated
7753with any testimony at hearing.
77586/ These three technical violations and the expired fire
7767extinguisher are not the subject of this case.
77757/ Ms. Davis ' s mother ' s name was never provided during the
7789heari ng. However, in both the Department ' s E xhibit 5 and the
7803Davis Day Care ' s E xhibit 10, the mother ' s name is given as
7819Velma Jones. However this name is hearsay and was not
7829corroborated with any testimony at hearing. This name is being
7839used simply for ease of reference.
78458/ Ms. Davis admitted she was over - ratio on August 3, 2010, and
7859there will be no further discussion of that allegation in this
7870section.
78719/ In both the Department ' s E xhibit 6 and the Davis Day Care ' s
7888E xhibit 13, the number " 6 " is beside th e phrase " Children
7900Present:, " yet on page 3 of 5 of both exhibits, it ' s reported
" 7914The number of children observed in this age group was 8 per the
7927sign in sheets and the operator statement. " The Department ' s
7938E xhibit 6 (Bate - stamped page 22) lists six child ren " [p] resent
7952at time of inspection. "
795610/ In the Department ' s E xhibit 6 (Bate - stamped page 22) and the
7972Davis Day Care ' s E xhibit 11 (page 1 of 2), the dates for the
" 7988sign in sheets " listed are Thursday, December 2, 2011, and
7998Wednesday, December 2, 2011. This is i naccurate
8006reporting/recording.
800711/ The Davis Day Care submitted its renewal application on
8017March 15, 2011, four days after this inspection. Thus, this
8027inspection had to be in response to the Davis Day Care ' s large
8041family child care home applic ation that was submitted on
8051February 23, 2011.
805412/ The Department did not allege a lack of timeliness in the
8066filing of the facilit y's renewal application and should not be
8077allowed to allege that as a grounds for further sanctions.
8087COPIES FURNISHED :
8090St acy N. Robinson, Esquire
8095Department of Children and Families
81001055 Highway 17, North
8104Bartow, Florida 33830
8107Charlann Jackson Sanders, Esquire
8111Charlann Jackson Sanders, P.A.
8115Post Office Box 7752
8119Lakeland, Florida 33807
8122Gregory Venz, Agency Clerk
8126Departmen t of Children and Families
8132Building 2, Room 204B
81361317 Winewood Boulevard
8139Tallahassee, Florida 32399 - 0700
8144Drew Parker, General Counsel
8148Department of Children and Families
8153Building 2, Room 204
81571317 Winewood Boulevard
8160Tallahassee, Florida 32399 - 0700
8165David Wilkins, Secretary
8168Department of Children and Families
8173Building 1, Room 202
81771317 Winewood Boulevard
8180Tallahassee, Florida 32399 - 0700
8185NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
8191All parties have the right to submit written exceptions within
820115 days from the da te of this Recommended Order. Any exceptions
8213to this Recommended Order should be filed with the agency that
8224will issue the Final Order in th e s e case s .
- Date
- Proceedings
- PDF:
- Date: 06/15/2015
- Proceedings: Transmittal letter from Claudia Llado forwarding the two-volume Transcript, along with Respondent's Exhibits, which were returned by the Second District Court of Appeal to the agency.
- PDF:
- Date: 08/19/2013
- Proceedings: Petitioner/Appellant's Motion to Tax Costs (filed in Case No. 11-002242).
- PDF:
- Date: 10/25/2011
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 09/30/2011
- Proceedings: Petitioner`s Department of Children and Family Services' Proposed Recommended Order filed.
- PDF:
- Date: 09/30/2011
- Proceedings: Davis Day Care Home's Notice of Filing Proposed Recommended Order filed.
- PDF:
- Date: 09/14/2011
- Proceedings: Joint Request for Extension of Time to File Proposed Recommended Orders (filed in Case No. 11-002242).
- Date: 08/15/2011
- Proceedings: Transcript (not available for viewing) filed.
- Date: 07/28/2011
- Proceedings: CASE STATUS: Hearing Held.
- Date: 07/27/2011
- Proceedings: Davis Family Day Care Home Exhibits (exhibits not available for viewing)
- Date: 07/21/2011
- Proceedings: Respondent, Department of Children and Families' List of Exhibits (exhibits not available for viewing)
- PDF:
- Date: 05/18/2011
- Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for July 28, 2011; 9:00 a.m.; Lakeland and Tallahassee, FL).
- Date: 05/18/2011
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 04/14/2011
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for May 25, 2011; 9:00 a.m.; Lakeland, FL).
- PDF:
- Date: 04/12/2011
- Proceedings: Petitioner, Department of Children and Families' Motion to Reschedule Hearing Date filed.
Case Information
- Judge:
- LYNNE A. QUIMBY-PENNOCK
- Date Filed:
- 02/21/2011
- Date Assignment:
- 06/30/2011
- Last Docket Entry:
- 06/15/2015
- Location:
- Lakeland, Florida
- District:
- Middle
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Stacy Robinson Nickerson, Esquire
Address of Record -
Charlann Jackson Sanders, Esquire
Address of Record -
Gregory D. Venz, Assistant General Counsel
Address of Record