11-002242 Davis Family Day Care Home vs. Department Of Children And Families Status: Closed Recommended Order on Tuesday, October 25, 2011.

Summary: Child care facility was guilty of a Class I violation and, a monetary penalty was imposed with adequate time to pay. The renewal license and the large family day care license are to be issued subject to terms and conditions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILIES , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0916

)

DAVIS FAMILY DAY CARE HOME , )

)

Respondent . )

)

DAVIS FAMILY DA Y CARE HOME, )

)

Petitioner, )

)

vs. ) Case No. 11 - 2242

)

DEPARTMENT OF CHILDREN AND )

FAMILIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted by video

tele conference in th e s e case s on July 28, 2011, in Lakeland and

Tallahassee, Florida, before Administrative Law Judge Lynne A.

Quimby - Pennock of the Division of Administrative Hearings

(Division).

APPEARANCES

For the Department of Children and Families:

Stacy N. Robinson, Esquire

Department of Children and Families

1055 Highway 17, North

Bartow, Florida 33830

For Davis Family Day Care Home:

Charlann Jackson Sanders, Esquire

Charlann Jackson Sanders, P.A.

Post Office Box 7752

Lakeland, Florida 33807

STATEMENT OF THE ISSUE S

The issues in th e s e case s are: whether the Davis Family

Day Care Home violated provisions of c hapter 402, Florida

Statutes , 1/ and Florida Administrative Code Chapter 65C - 20 , 2/ and,

if so, what penalty should be imposed; whether the Davis Family

Day Care Home ' s renewal application for a license to operate a

regular family day care center should be approved or denied; and

whether the Davis Family Day Care Home ' s initial application for

a license to operate as a large family child care hom e should be

approved or denied.

PRELIMINARY STATEMENT

The Department o f Children and Families (hereinafter the

"Department " or " DCF " ) issued a " Proposed Fine of Family Day

Care Home License No. F10PO0720 " (hereinafter " AC 1 " ) on

October 29, 2010, to the Davis Family Day Care Home (hereinafter

the " Davis Day Care " or the " fac ility " ). AC 1 alleged a single

violation (August 3, 2010) of the regulations governing the

operation of a family day care home and imposed an

administrative fine of $500.00. The Davis Day Care filed a

response to AC 1 , which was accepted by the Departmen t as a

petition for a formal administrative hearing. On February 2 1,

2011, AC 1 and the facility ' s response were forwarded to the

Division , assigned Case No. 11 - 0916, and assigned to

Administr ative Law Judge J. D. Parrish.

On March 23, 2011, the Departmen t issued a " Proposed Denial

Application to Operate a Family Day Care Home " ( hereinafter

" AC 2 " ) to the Davis Day Care. AC 2 alleged five violations of

the regulations governing the operation of a family day care

home and denied the facility ' s renewal app lication.

On April 11, 2011, the Department issued a " Proposed Denial

Application to Operate a Large Family Day Care Home "

( hereinafter " AC 3 " ) to the Davis Day Care. AC 3 also alleged

the same five allegations as set forth in AC 2 for the renewal

denial. On April 19, 2011, the Davis Day Care filed a " Petition

for Administrative Hearing " (hereinafter the " P etition " ) ,

disputing all the allegations in the Department ' s AC 2 and

AC 3. On May 4, 2011, the Department forwarded the facility ' s

request for a hear ing to the Division . 3/ Administrative Law

Judge William F. Quattlebaum was assigned to hear the P etition

under one Division case number , Case No. 11 - 2242 . On May 11,

2011, the Davis Day Care filed a " Motion for Consolidation of

Related Cases " involving A C 1, AC 2 and AC 3. By Order dated

May 18, 2011, the Division consolidated both Division cases

involving the Davis Day Care. Pursuant to notice , the

consolidated cases were noticed for video teleconference hearing

for July 28, 2011. The consolidated cas es were transferred to

Administrative Law Judge Lynne A. Quimby - Pennock for the final

hearing.

At the beginning of the hearing, the Department announced

that with respect to AC 2 and AC 3, it was not presenting

evidence on either of the alleged abuse inves tigations that

occurred in 2007 and 2008 as outlined in each administrative

complaint.

At the final hearing, the Department called seven

witnesses: Marva Brooks, program manager for a child care food

program; Natalie Barton (mother of E.B.); Connie Flemin g, nurse

practitioner with the child protection team; Deanna McCain,

child protection investigator; Vicki Richmond, children and

family counselor; Sheila Nobles, child care licensing

administrator; and Donald M. Giorgano, child care licensing

counselor , wh o was called as a rebuttal witness. The Department

offered 14 exhibits into evidence , and all were admitted. 4/

The Davis Day Care called five witnesses including:

LaShandra Davis; Sarah Stafford; Suzanne Williams; Alexis Webb;

and LaToya Wilson. The fac ility offered 19 exhibits into

evidence. As the exhibits had been pre - numbered, the following

facility exhibits were admitted: 1 through 16, 18, 19 and 21.

At the conclusion of the hearing , the parties requested and

were granted leave to file their propo sed recommended orders

(PROs) by the close of business on the 30 th day after the

transcript was filed. The two - volume T ranscript of the hearing

was filed on August 15, 2011. The parties filed a " Joint

Request for Extension of Time to File Proposed Recomm ended

Orders " before the filing deadline. The request was granted ,

and the parties were directed to file their PROs no later than

the close of business on September 30, 2011. Both parties

timely filed their PROs, and each has been considered in the

prepa ration of this Recommended Order.

FINDINGS OF FACT

A. The Parties

1. The Department is responsible for inspecting, licensing

and monitoring child care facilities such as the one operated by

the Davis Day Care. It is also the Department ' s responsibility

to e nsure that all such facilities are safe and secure for the

protection of the children utilizing those facilities.

2. The Department routinely conducts inspections of

licensed family day care homes to determine whether the home is

in compliance with th e applicable statutes and rules. Following

such inspections , a report is provided to the operator which

provides a time frame to correct any outstanding deficiencies.

3. The Department also conducts inspections or

investigations of child care facilities in response to

complaints it receives.

4. LaShandra Davis (Ms. Davis) owns and operates the Davis

Day Care, a family day care facility licensed by the Department.

The Davis Day Care was initially licensed in April 2007 and was

in continuous operation at all times material to these issues.

No testimony was offered that the facility had prior

disciplinary actions against it.

5. Ms. Davis is a nurse, has an associate of science

(A.S.) degree in nursing from Polk Community College, and is

attending college to obtain an A.S. degree in e arly c hildhood

e ducation. Additionally, Ms. Davis has five sons and one

daughter. Their names include (from youngest to oldest): Layla

Davis, Steven Davis, Devondrae Davis, Deshawn Williams, Daniel

Williams, and Rafael Davis . No testimony was received regarding

Ms. Davis using any other name or names from August 3, 2010,

through December 2, 2010. 5/

6. On February 23, 2011, Ms. Davis submitted an

application to obtain a license to operate a large family day

care home at her current location.

7. On March 15, 2011, Ms. Davis submitted her renewal

application to retain her license to operate a family day care

home at her current location.

B. October 29, 2010, AC 1 (August 3, 2010 , Inspection)

8. On August 3, 2010, the Davis Day Care was subjected to

an inspection based on a complaint that it was " over - ratio. "

This over - ratio issue involves the number of children in the

care of a family day care operation to the number of adults

providing that care. The Department received a complaint that

the facility was seeking meal reimbursements for more children

than were allowed for the type of child care license it held.

Vicki Richmond (Ms. Richmond) testified that she conducted the

inspection on August 3, 2010, and cited the facilit y for being

over the licensed capacity ratio by more than two children.

Because the facility was over ratio by more than two children,

it was a Class I violation.

9. At that August inspection, Ms. Davis explained to

Ms. Richmond that she (Ms. Davis) had a license to provide child

care for ten children, and she had ten children in her care.

Ms. Richmond explained the ratio requirement to Ms. Davis.

Based on the age of the children, Ms. Davis was authorized to

have a maximum of ten children provided no mo re than five were

preschool age, and , of those five, no more than two were under

12 months of age. At this August inspection, Ms. Davis was

over - ratio by two children. Ms. Davis executed and received a

copy of the complaint report prepared on August 3, 2 010, that

discussed the over - ratio limitations. Three other technical

violations were brought to Ms. Davis ' s attention during that

inspection, and two of those violations were corrected

immediately. Ms. Davis was given a two - week extension to

correct the third violation involving an expired fire

extinguisher. 6/

10. Additionally, Ms. Richmond testified that Ms. Davis ' s

mother ( " Ms. Jones " ) 7/ was visiting the facility while

Ms. Richmond was conducting this August inspection. According

to Ms. Richmond, Ms. Jones had been previously screened, but did

not meet the Department ' s standards to be in a child care

facility. Ms. Jones should not have been present either for a

visit or to be preparing lunches as the testimony revealed.

Ms. Richmond recommended to Ms . Davis that it was important to

check into getting an exemption for Ms. Jones to be at the

facility. Ms. Davis later testified that Ms. Jones had cleared

up the screening issue, and both had been told Ms. Jones was

allowed to be present at the facility.

11. At hearing, Ms. Davis admitted that she was over - ratio

on August 3, 2010. Further, she stated that she " just flat out

misunderstood " the adult - child ratio requirement issue until

Ms. Richmond explained it to her in August 2010.

12. Ms. Brooks and Mr . Giordano testified that they had

each individually explained the ratio requirement to Ms. Davis

during prior inspections or discussions at the facility.

Although there is some discrepancy between Ms. Davis ' s

recollection and the two witnesses on this po int, Ms. Davis

admitted this violation and was quite candid about her lack of

knowledge with respect to it.

13. Credible testimony from both Ms. Richmond and Shelia

Nobles (Ms. Nobles) established that having two or more children

over - ratio was a Class I violation, which would subject any

child care facility to discipline by the Department.

14. When Ms. Davis received the Department ' s three - page

October 29, 2010, AC 1 advising her of the Class I violation

(over - ratio by two or more children) and assessing a $500 fine,

she was " shocked. " Ms. Davis testified that , at the time of the

inspection (August 3, 2010), Ms. Richmond had stated the fine

might be $50 or maybe more, leading Ms. Davis to believe the

fine would not be that high.

15. AC 1 advised Ms. Dav is that the over - ratio issue was a

Class I violation of section 402.302(7). AC 1 provided one

Department address for two reasons , to pay the $500 fine or to

request an administrative hearing. There is no language within

AC 1 that advised Ms. Davis of an optional payment plan.

Ms. Davis testified she was unaware of a payment plan option ,

and her only option was to appeal the decision, which she did.

16. Ms. Richmond confirmed that the Department would

accept payments as long as the total fine amount was p aid in

full prior to the next renewal. However, that information was

not shared with Ms. Davis until the hearing.

C. Department ' s March 23, 2011, Proposed Denial

Application to Operate a Family Day Care Home (AC 2) and

Department ' s April 11, 2011, Propos ed Denial Application to

Operate a Large Family Day Care Home (AC 3).

17. Both AC 2 and AC 3 set forth five allegations in

support of the Department ' s denial of the renewal application

and the large family child care home application. Two alleged

abuse allegations from 2007 and 2008 were included in these

administrative complaints ; however , as previously stated, no

testimony or evidence was offered, presented or substantiated at

hearing. Thus, any attempt to reference either the 2007 or 2008

allegations as fact is disregarded as unfounded and not

supported by credible testimony or evidence. AC 2 and AC 3 rest

on three allegations: the alleged abuse of child E.B. , the

alleged lying during the investigation of the alleged child

(E.B.) abuse , and the insp ection conducted on August 3, 2010,

regarding the facility being over ratio . 8/

18. Natalie Barton (Ms. Barton), E.B. ' s mother , testified

that she saw marks on E.B. ' s bottom at the end of November 2010

(November 30, 2010) that " could only have occurred at the day

care. " Ms. Barton testified she picked E.B. up from the

facility prior to 5:30 p.m. and discovered the marks on E.B. ' s

bottom during bath time that evening.

19. Both Ms. Barton and Ms. Davis testified that E.B. ' s

mother sent a picture of the inju ry to Ms. Davis via her cell

phone the evening the injury was first seen. At that point,

Ms. Davis told E.B. ' s mother that she (Ms. Davis) didn ' t know

what or how the injury occurred and recommended taking the child

to E.B. ' s doctor. Ms. Davis had no hes itation in making this

recommendation to Ms. Barton.

20. Ms. Barton took E.B. to her (E.B. ' s) pediatrician the

morning after she discovered the injury (December 1, 2010).

However, E.B. ' s physician indicated he wanted to see the child

in two days, as he c ould not make a determination what, if

anything , had caused the injury as there was no bruising.

Ms. Barton also testified that she took E.B. back to the Davis

Day Care after she was seen by her pediatrician so she could see

how E.B. reacted. While at the facility , E.B. was " in her

routine, " that she (E.B.) walked in and sat on the couch like

she did every day. Ms. Barton did not return E.B. to her own

pediatrician for further evaluation. Ms. Barton testified E.B.

was seen by the child protective team th e day after she was seen

by the pediatrician (December 2, 2010).

21. On December 2, 2010, after receiving information about

the possible physical abuse of a child ( E.B. ) (documented as

being received at 11:08 p.m. on December 1, 2010), Deanna McCain

(Inve stigator McCain) contacted Ms. Barton to obtain additional

information. Investigator McCain also spoke with E.B., who said

she had been hit by " Ms. Shawna. " After observing E.B. ' s

injuries and obtaining a photograph of E.B. ' s buttocks, an

appointment was made for E.B. to be seen by a member of the

child protection team, i.e. , the nurse practitioner.

22. During the afternoon of December 2, 2010, N urse

P ractitioner Connie Fleming (Nurse Fleming) performed a medical

evaluation of E.B., a then two - year , nine - month old child.

During E.B. ' s evaluation, Nurse Fleming noticed bruising on

E.B. ' s buttocks. When Nurse Fleming asked E.B. what happened,

E.B. responded " Ms. Shawn spanked me. " Nurse Fleming stated the

bruising appeared to be consistent with an outlin e of a hand.

Pictures taken during the medical evaluation reflect red areas

on E.B. ' s buttocks.

23. Based on her nine - plus years of training and

experience as a nurse practitioner, Nurse Fleming determined

that E.B. had suffered physical abuse ; however , she never state d

who caused the injury. Nurse Fleming contended that the

injuries were indicative of a rapid - force compression injury,

typical of a slap with a hand.

24. Later on December 2 , 2010 , Investigator McCain went to

the facility to investigate t he alleged abuse report. Upon her

arrival at the location, Investigator McCain had to wait for a

local law enforcement officer (LEO) before she could enter the

facility.

25. While Investigator McCain waited for the LEO to arrive

(between 3:30 p.m. and 4: 45 p.m.), she spoke with parents who

were picking up their children from the facility. Each parent

she spoke with had supportive comments about the facility

( " great day care provider, " their child had " no injuries, " had

never seen " inappropriate behavior, " " no concerns " ). Whether

all these comments came from one parent or multiple parents is

unclear. Investigator McCain did not observe any injuries to

any of the children leaving the facility.

26. Ms. Richmond also went to the facility at

approximately t he same time as Investigator McCain ; however ,

Ms. Richmond could enter the home without a LEO, and she did so.

Ms. Richmond made contact with Ms. Davis and explained there was

a complaint. Ms. Richmond ' s task at the time was to obtain

information about t he number of children Ms. Davis had in the

facility. According to the sign in sheet, there were seven

children present, plus Ms. Davis ' s four - year - old son.

Ms. Richmond testified that Ms. Davis initially stated there

were four children present, but later a sleeping child was found

in a crib, and her (then) four - year - old son ran through the

home. 9/ Although Ms. Richmond asked for the attendance sheets

for the previous month (November 2010), Ms. Davis was only able

to provide the attendance sheets for Decem ber 1 and 2, 2010. 10/

According to Ms. Richmond, those two attendance sheets

documented that Ms. Davis ' s facility was again over - ratio for

those two days.

27. When Investigator McCain entered the facility with the

LEO, she explained the reason for her pr esence to Ms. Davis.

Investigator McCain testified Ms. Davis was asked how many

children were present and together they conducted a " walk -

through " of the facility. Investigator McCain testified that ,

at the time of the walk - through, she was told there we re four

children present, three toddlers and a small child in Ms.

Davis ' s arms. Investigator McCain also testified that , during

the walk - through , they found an additional child sleeping in a

crib. She further testified that , at some later point, another

young child ran through the facility, and Ms. Davis identified

him as her son.

28. On December 2, 2010, Investigator McCain questioned

Ms. Davis about the alleged physical abuse of E.B. During the

investigation discussion, Ms. Davis reported to Investiga tor

McCain that " she [ Ms. Davis ] had no idea how they [ E.B. ' s

injuries ] occurred. " Ms. Davis further reported E.B. was " fully

potty trained. " Ms. Davis reported that the child had a

toileting accident the day before and had cleaned herself.

Still , later in the investigation discussion , Ms. Davis told

Investigator McCain that she (Ms. Davis) had helped clean E.B.

after the toileting accident, but only from the front, and she

had not observed E.B. ' s buttocks. Ms. Davis also shared with

the investigator th at when Ms. Davis questioned E.B. about the

injury, E.B. said her mother (Ms. Barton) did it (the abuse).

29. At hearing , Investigator McCain testified that

Ms. Davis was " very far along in " a pregnancy and that Ms. Davis

was upset, shocked, and surprised by the presence of the

investigators. Investigator McCain also confirmed that DCF ' s

presence tends to raise anxiety levels and that people feel like

they are being attac k ed. Further, Ms. Davis confirmed that she

was two weeks from her delivery due date when this investigation

started. Thus, under the circumstances , forgetfulness may be

perceived by some as lying, when in reality it is simply being

overwhelmed by the situation.

30. As part of the investigation , it was Investigator

McCain ' s responsibilit y to also check for any hazards in the

facility and to ensure adequate supervision of the children.

Although Ms. Davis initially reported there were no other adults

to supervise the children, she later reported that her mother,

Ms. Jones , came each day ar ound 10:15 a.m. to make lunch for the

children. Ms. Barton confirmed that Ms. Jones was sometimes

present in the mornings when Ms. Barton brought E.B. to the

facility.

31. Several technical violations were noted during the

December 2010 investigation; ho wever , they are n ot the subject

of this hearing.

32. Ms. Davis testified she did not spank E.B. Ms. Davis

testified that she did not know how the injury occurred, and the

child ' s hearsay statement that her mother had spanked her is not

supported by other testimony.

33. However, the time lapses between when the injury was

alleged to have occurred (the " end of November, " or

November 30 , 2010 , according to the mother), when the injury was

" discovered " (the night of November 30 , 2010 , according to the

mother ), when the alleged abuse was reported (December 1 , 2010,

at 11:08 p.m.), when the pediatrician ' s examination occurred on

December 1 , 2010 , and when the child protective team became

involved (December 2 , 2010 ), create confusion and doubt as to

when the inj ury actually occurred and by whom. Even taking the

thought process to try to find that the events happened a day

later does not relieve the doubt or confusion, nor is that

supported by the Department ' s documentation.

34. Investigator McCain testified tha t this investigation

was closed with a verified finding of physical injury to E.B.

However, simply finding a " verified finding of physical injury

to E.B. " does not establish who perpetrated that physical

injury. No testimony was provided that any other p ossible

explanation for the injury was explained . Further, other than

indicating that E.B. had red marks on her bottom, no testimony

was provided that indicated the degree of harm to the child.

That being said, this not to say that logic has left the

bui lding with respect to some harm being caused to the child.

There were marks on E.B. ' s buttocks.

35. Several current and former parents of children who

attend or attended the Davis Day Care testified on Ms. Davis ' s

behalf. Each testified that they did no t have any concerns with

their child attending Ms. Davis ' s facility.

36. On March 11, 2011, after receipt of the facility ' s

application for the large family day care home license , 11/ the

Department conducted an inspection of the facility and found it

to b e in compliance with all the licensing standard requirements

(including those previously cited during the December 2010

inspection that were corrected).

37. Upon completion of its investigation, the Department

determined to deny Ms. Davis ' s renewal applic ation and to deny

her application for a large family day care license, based on

" numerous complaints to our office alleging physical abuse of

children in your care and Class I violations of licensing

standards. " There was one verified complaint of abuse, not

" numerous complaints " as alleged. There was a Class I violation

regarding the over - ratio issue ; however , that could have been

resolved with better communication skills. The

misrepresentation could have been avoided. Neither notification

includes any indication that the March 11, 2011, inspection was

taken into consideration prior to making the denial decision.

38. The Department presented testimony indicating that

there had been past complaints regarding Ms. Davis and/or the

facility. However, no d ocumented prior complaints or final

orders were submitted with respect to any prior actions.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Fl orida

Stat utes (2011) .

D. AC 1 October 29, 2010 (August 3, 2010 , Inspection )

40. Where the Department makes allegations that the

applicant engaged in wrongdoing, the burden is on the Department

to prove wrongdoing. Dep ' t of Ba nking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996). Factual findings based on

record evidence must be made indicating how the conduct alleged

violates the statutes or rules or otherwise justifies the

proposed sanctions. Mayes v. Dep ' t of Chi ld . & Fam . Servs . ,

801 So. 2d 980, 982 (Fla. 1st DCA 2001).

41. The standard of proof with respect to the alleged

wrongdoing issue (over - ratio) is clear and convincing evidence

because the Department is seeking to discipline the license of

Respondent. Fe rris v. Turlington , 510 So. 2d 292 (Fla. 1987).

42. The " clear and convincing standard " is well settled in

the law . E vidence has been described as follows:

[T]he evidence must be found to be credible;

the facts to which the witnesses testify

must be dis tinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, with out hesitancy, as to the

truth of the allegations sought to be

established.

In re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

43. Ms. Davis admitted the allegation of being over - ratio

on August 3, 2010. The Department met its burden of proof with

respect to the over - ratio allegation.

E. Department ' s March 23, 2011, Proposed Denial

Application to Operate a Family Day Care Home (AC 2) and

Department ' s April 11, 2011, Proposed Denial Applic ation to

Operate a Large Family Day Care Home (AC 3).

44. The standard of proof with respect to a contested

denial of the family day care renewal application and the denial

of the large family day care application is by clear and

convincing evidence . Se e Dorothy Coke v. Dep't of Child. & Fam.

Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998) . Generally, a

license applicant has the burden to prove that he or she is

entitled to the license. See Dep ' t of Banking & Fin. v. Osborne

Stern & Co. , 670 So. 2d at 934. However, where the licensing

agency proposed to deny the renewal of a license based on

specific statutory and rule violations, it has the burden to

prove those violations.

4 5 . Section 402.302(8) provides the definition for a

" family day care home " as:

[a ]n occupied residence in which child care

is regularly provided for children from at

least two unrelated families and which

receives a payment, fee, or grant for any of

the children receiving care, whether or not

operated for profit. A family day care hom e

shall be allowed to provide care for one of

the following groups of children, which

shall include those children under 13 years

of age who are related to the caregiver:

(a) A maximum of four children from birth to

12 months of age.

(b) A maximum of t hree children from birth to

12 months of age, and other children, for a

maximum total of six children.

(c) A maximum of six preschool children if all

are older than 12 months of age.

(d) A maximum of 10 children if no more than 5

are preschool age and, of those 5, no more than 2

are under 12 months of age.

4 6 . S ection 402.302(9) provides the definition for a

" large family child care home " as:

[a]n occupied residence in which child care

is regularly provided for children from at

least two unrelated fam ilies, which receives

a payment, fee, or grant for any of the

children receiving care, whether or not

operated for profit, and which has at least

two full - time child care personnel on the

premises during the hours of operation. One

of the two full - time ch ild care personnel

must be the owner or occupant of the

residence. A large family child care home

must first have operated as a licensed

family day care home for 2 years, with an

operator who has had a child development

associate credential or its equival ent for

1 year, before seeking licensure as a large

family child care home. A large family

child care home shall be allowed to provide

care for one of the following groups of

children, which shall include those children

under 13 years of age who are relat ed to the

caregiver:

(a) A maximum of 8 children from birth to

24 months of age.

(b) A maximum of 12 children, with no more

than 4 children under 24 months of age.

4 7 . Section 402.305(4) provides for the staff to children

ratio that may be used at ch ild care locations as:

(a) Minimum standards for the care of

children in a licensed child care facility

as established by rule of the department

must include:

1. For children from birth through 1 year

of age, there must be one child care

personnel for every four children.

2. For children 1 year of age or older, but

under 2 years of age, there must be one

child care personnel for every six children.

3. For children 2 years of age or older,

but under 3 years of age, there must be one

child care person nel for every 11 children.

4. For children 3 years of age or older,

but under 4 years of age, there must be one

child care personnel for every 15 children.

5. For children 4 years of age or older,

but under 5 years of age, there must be one

child care personnel for every 20 children.

6. For children 5 years of age or older,

there must be one child care personnel for

every 25 children.

7. When children 2 years of age and older

are in care, the staff - to - children ratio

shall be based on the age group w ith the

largest number of children within the group.

4 8 . Section 402.309 provides for provisional licenses or

registration as follows:

(1) The . . . department, whichever is

authorized to license child care facilities

in a county, may issue a provisiona l license

for . . . or large family child care homes,

. . . to applicants for an initial license

or registration or to licensees or

registrants seeking a renewal who are unable

to meet all the standards provided for in

ss. 402.301 - 402.319.

(2) A provisio nal license . . . may not be

issued unless the operator or owner makes

adequate provisions for the health and safety of

the child. A provisional license may be issued

for a child care facility if all of the screening

materials have been timely submitted. A

provisional license or registration may not be

issued unless the child care facility, family day

care home, or large family child care home is in

compliance with the requirements for screening of

child care personnel in ss. 402.305, 402.3055,

402.313, a nd 402.3131, respectively.

(3) The provisional license . . . may not be

issued for a period that exceeds 6 months;

however, it may be renewed one time for a period

that may not exceed 6 months under unusual

circumstances beyond the control of the

applica nt.

(4) The provisional license or registration may

be suspended or revoked if periodic inspection or

review by the local licensing agency or the

department indicates that insufficient progress

has been made toward compliance.

(5) The department shall adopt rules specifying

the conditions and procedures under which a

provisional license or registration may be

issued, suspended, or revoked.

49 . Section 402.310 addresses discipline for failure to

conform with licensing requirements and states , in pertin ent

part:

(1)(a) The department or local licensing

agency may administer any of the following

disciplinary sanctions for a violation of

any provision of ss. 402.301 - 402.319, or the

rules adopted thereunder:

1. Impose an administrative fine not to

exceed $100 per violation, per day.

However, if the violation could or does

cause death or serious harm, the department

or local licensing agency may impose an

administrative fine, not to exceed $500 per

violation per day in addition to or in lieu

of any other disciplinary action imposed

under this section.

2. Convert a license or registration to

probation status and require the licensee or

registrant to comply with the terms of

probation. A probation - status license or

registration may not be issued for a per iod

that exceeds 6 months and the probation -

status license or registration may not be

renewed. A probation - status license or

registration may be suspended or revoked if

periodic inspection by the department or

local licensing agency finds that the

probati on - status licensee or registrant is

not in compliance with the terms of

probation or that the probation - status

licensee or registrant is not making

sufficient progress toward compliance with

ss. 402.301 - 402.319.

3. Deny, suspend, or revoke a license or

r egistration.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation, including

the probability that death or serious h arm

to the health or safety of any person will

result or has resulted, the severity of the

actual or potential harm, and the extent to

which the provisions of ss. 402.301 - 402.319

have been violated.

2. Actions taken by the licensee or

registrant to corre ct the violation or to

remedy complaints.

3. Any previous violations of the licensee

or registrant.

(c) The department shall adopt rules to:

1. Establish the grounds under which the

department may deny, suspend, or revoke a

license or registration or place a licensee

or registrant on probation status for

violations of ss. 402.301 - 402.319.

2. Establish a uniform system of procedures

to impose disciplinary sanctions for

violations of ss. 402.301 - 402.319. The

uniform system of procedures must provide

for the consistent application of

disciplinary actions across districts and a

progressively increasing level of penalties

from predisciplinary actions, such as

efforts to assist licensees or registrants

to correct the statutory or regulatory

violations, an d to severe disciplinary

sanctions for actions that jeopardize the

health and safety of children, such as for

the deliberate misuse of medications. The

department shall implement this subparagraph

on January 1, 2007, and the implementation

is not contingen t upon a specific

appropriation.

(d) The disciplinary sanctions set forth in

this section apply to licensed child care

facilities, licensed large family child care

homes, and licensed or registered family day

care homes.

(2) When the department has rea sonable

cause to believe that grounds exist for the

denial, suspension, or revocation of a

license or registration; the conversion of

a license or registration to probation

status; or the imposition of an

administrative fine, it shall determine the

matter in accordance with procedures

prescribed in chapter 120 . . . .

50 . Section 402.305(12)(a) provides for the child

discipline that may be used at child care locations as:

(a) Minimum standards for child discipline

practices shall ensure that age - appropria te,

constructive disciplinary practices are used

for children in care. Such standards shall

include at least the following requirements:

1. Children shall not be subjected to

discipline which is severe, humiliating, or

frightening.

2. Discipline shall not be associated with

food, rest, or toileting.

3. Spanking or any other form of physical

punishment is prohibited.

5 1 . Florida Administrative Code Rule 65C - 20.010(6) and (7)

state , in pertinent part:

(6) Child Discipline.

(a) Family day care home s shall adopt a

discipline policy consistent with Section

402.305(12), F.S., including standards that

prohibit children from being subjected to

discipline which is severe, humiliating,

frightening, or associated with food, rest,

or toileting. Spanking or any other form of

physical punishment is prohibited.

(b) All family day care home operators,

employees, substitutes, and volunteers must

comply with the family day care home ' s

written discipline policy.

(c) A copy of the written discipline policy

must be available for review by the parents

or legal guardian and the licensing

authority.

(7) Child Abuse or Neglect.

(a) Acts or omissions that meet the

definition of child abuse or neglect

provided in Chapter 39, F.S., constitute

a violation of the stand ards in

Sections 402.301 - .319, F.S.

(b) Failure to perform the duties of

a mandatory reporter pursuant to

Section 39.201, F.S., constitutes a

violation of the standards in Sections

402.301 - .319, F.S.

5 2 . Rule 65C - 20.012 identifies the Department ' s trea tment

of Class I violations of its licensing rules for child care

facilities. The rule states in pertinent part:

(1) Definitions.

* * *

(b) " Probation " is a licensing status

indicating the license is in jeopardy of

being revoked or not renewe d due to

violations within the control of the

provider. Probation may require the

licensee to comply with specific conditions

intended to ensure that the licensee comes

into and maintains compliance with licensing

standards. Examples of such conditions a re:

a deadline to remedy an existing violation,

a specified period during which compliance

with licensing standards must be strictly

maintained; and, specified conditions under

which the home must operate during the

probationary period.

(c) " Standards " a re requirements for the

operation of a licensed family day care home

or large family child care home provided in

statute or in rule.

(d) " Violation " means a finding of

noncompliance by the department or local

licensing authority of a licensing standard.

1. " Class I Violation " is an incident of

noncompliance with a Class I standard as

described on CF - FSP Form 5318 March 2009

Family Day Care Home Standards

Classifications Summary and CF - FSP

Form 5317, March 2009 Large Family Child

Care Home Standards Clas sification Summary,

which is incorporated. A copy of CF - FSP

Form 5318 and 5317 may be obtained

from the department ' s website

www.myflorida.com/childcare. Class I

violations are the most serious in nature,

pose an imminent threat to a child including

abus e or neglect and which could or do

result in death or serious harm to the

health, safety or well - being of a child.

* * *

4. " Technical Support Violations " are the

first or second occurrence of noncompliance

of an individual Class III standard or the

first occurrence of noncompliance of an

individual Class II standard.

* * *

(3) Disciplinary Sanctions.

(a) Enforcement of disciplinary sanctions

shall be applied progressively for each

standard violation . In addition, providers

will be o ffered technical assistance in

conjunction with any disciplinary sanction.

The department shall take into consideration

the actions taken by the home to correct the

violation when determining the app ropriate

disciplinary sanction.

(b) Each standard viol ation has an assigned

classification based on the nature or

severity of the violation(s) as identified

within CF - FSP Form 5318 and CF - FSP Form

5317.

* * *

(d) Failure to submit a completed CF - FSP

Form 5133, Application for a License to

Operate a Family Day Care Home, which is

incorporated by reference in subsection 65C -

20.008(1), F.A.C. or CF - FSP Form 5238,

Application for a License to Operate a Large

Family Child Care Home, which is

incorporated by reference in paragraph 65C -

20.013(3)(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 violation. The

department shall issue an administrative

complaint imposing a fine of $50.00 for the

first occurrence, $100.00 f or the second

occurrence, and $200.00 for each subsequent

occurrence within a five year period.

(e) Disciplinary sanctions for licensing

violations that occur within a two year

period shall be progressively enforced as

follows:

1. Class I Violations.

a. For the first and second violation of a

Class I standard, the department shall, upon

applying the factors in Section 402.310(1),

F.S., issue an administrative complaint

imposing a fine not less than $100 nor more

than $500 per day for each violation, and

may impose other disciplinary sanctions in

addition to the fine.

b. For the third and subsequent violation

of a Class I standard, the department shall

issue an administrative complaint to

suspend, deny or revoke the license. The

department, upon appl ying the factors in

Section 402.310(1), F.S., may also levy a

fine not less than $100 nor more than $500

per day for each violation in addition to

any other disciplinary sanction.

* * *

(4) Access. The family day care operator

must allow access to the entire premises of

the family day care home to inspect for

compliance with family day care home minimum

standards. Access to the family day care

home also includes access by the parent,

legal guardian, and/or custodian, to their

child(ren) while i n care. (emphasis added) .

5 3 . The Department did not sustain its burden with respect

to the denial notification letters. The Department failed to

provide the facility with the option to pay the October 29,

2010, proposed fine in a manner that clearly t he Department has

utilized in the past. Further, its own witnesses stated that

Ms. Davis was shocked , overwhelmed , or stunned that the

investigation was on - going and that they pushed her with respect

to answering questions in a stressful situation. That ' s not to

say that the investigation was conducted inappropriately.

However, under the circumstances once , it was determined that no

children were in immediate danger (which was determined by

Investigator McCain ' s inquiries on December 2 , 2010 ), a more

met hodical approach to seek the requisite answers to the inquiry

could have been undertaken. That systematic methodology may

have ensured that the documentation of the events was accurately

recorded as opposed to various discrepancies in the Department 's

exh ibits.

5 4 . Any final order denying renewal of the applicant ' s

license must be based solely on the grounds asserted in the

notice of intent to deny given the applicant. See M. H. v.

Dep ' t of Child . & Fam . Servs . , Case No. 2D07 - 1006, 2008 Fla.

App. LEXIS 4 391 *6 (Fla. 2d DCA March 28, 2008)("[T]he notice ' s

exclusive focus on ' significant pulling force ' as causing a

nonaccidental injury precluded DCF from urging negligence as an

alternative ground for denying the renewal of the license at the

administrative proceeding.") 12/

5 5 . There was a verified abuse finding; however , the

perpetrator of the abuse is unknown to the undersigned. No

testimony was provided as to what a verified abuse finding

entailed.

RECOMMENDATION

Based on the foregoing Findings of Fact a nd Conclusions of

Law, it is RECOMMENDED:

a. W ith respect to the October 29, 2010 , administrative

c omplaint , that a final order be entered by the Department of

Children and Families finding that the facility was over - ratio

on August 3, 2010, and imposing an administrative fine of $500

with no less than ten months to pay the fine. It is further

RECOMMENDED that Ms. Davis be ordered to attend remedial classes

on the financial operations and management of a child care

facility;

b. W ith respect to the March 23, 2011, administrative

complaint , that a final order be entered by the Department of

Children and Families renewing the family day care home license

on probation status for six months with periodic inspections to

ensure the continued safe operation of th e facility; and

c. W ith respect to the April 11, 2011, administrative

complaint , that a final order be entered by the Department of

Children and Families finding that the large family child care

home application be issued a provisional license for a minim um

of six months with periodic inspections to ensure the continued

safe operation of the facility, with the ability for an

additional six - month provisional period. In the event the large

family child care home provisional license is not activated

within t wo months of the issuance of the final order in this

matter, a new application shall be required, subject to all the

applicable statutory requirements.

DONE AND ENTERED this 2 5 th day of October, 2011 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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.doah.state.fl.us

Filed with t he Clerk of the

Division of Administrative Hearings

this 2 5 th day of October , 2011 .

ENDNOTES

1/ References to Florida Statutes are to Florida Statutes

(2010), unless otherwise indicated.

2/ References to Florida Administrative Code rules are to the

c urrent version, unless otherwise indicated.

3/ Although electronically filed on May 4, 2011, the

Department ' s n otice to the Division references the " DCF Case

Action ( A dministrative C omplaint imposing $500 fine) " and is

executed on February 17, 2011, befo re the facility was notified

of these two administrative complaints.

4/ The Department ' s E xhibit 1, the October 29, 2010, letter to

" Davis Family Day Care Home, Attention: LaShandra Davis "

contained three pages ; however , page two and page three were

ide ntical. The Davis Day Care ' s E xhibit 9 contained the same

October 29, 2010, letter with three distinct separate pages.

5/ In both the Department ' s E xhibit 5 and the Davis Day Care ' s

E xhibit 10, the reference to the day care owner and provider

(Ms. Davis ) as " Ms. Shawn " is hearsay and was not corroborated

with any testimony at hearing.

6/ These three technical violations and the expired fire

extinguisher are not the subject of this case.

7/ Ms. Davis ' s mother ' s name was never provided during the

heari ng. However, in both the Department ' s E xhibit 5 and the

Davis Day Care ' s E xhibit 10, the mother ' s name is given as

Velma Jones. However this name is hearsay and was not

corroborated with any testimony at hearing. This name is being

used simply for ease of reference.

8/ Ms. Davis admitted she was over - ratio on August 3, 2010, and

there will be no further discussion of that allegation in this

section.

9/ In both the Department ' s E xhibit 6 and the Davis Day Care ' s

E xhibit 13, the number " 6 " is beside th e phrase " Children

Present:, " yet on page 3 of 5 of both exhibits, it ' s reported

" The number of children observed in this age group was 8 per the

sign in sheets and the operator statement. " The Department ' s

E xhibit 6 (Bate - stamped page 22) lists six child ren " [p] resent

at time of inspection. "

10/ In the Department ' s E xhibit 6 (Bate - stamped page 22) and the

Davis Day Care ' s E xhibit 11 (page 1 of 2), the dates for the

" sign in sheets " listed are Thursday, December 2, 2011, and

Wednesday, December 2, 2011. This is i naccurate

reporting/recording.

11/ The Davis Day Care submitted its renewal application on

March 15, 2011, four days after this inspection. Thus, this

inspection had to be in response to the Davis Day Care ' s large

family child care home applic ation that was submitted on

February 23, 2011.

12/ The Department did not allege a lack of timeliness in the

filing of the facilit y's renewal application and should not be

allowed to allege that as a grounds for further sanctions.

COPIES FURNISHED :

St acy N. Robinson, Esquire

Department of Children and Families

1055 Highway 17, North

Bartow, Florida 33830

Charlann Jackson Sanders, Esquire

Charlann Jackson Sanders, P.A.

Post Office Box 7752

Lakeland, Florida 33807

Gregory Venz, Agency Clerk

Departmen t of Children and Families

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Drew Parker, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

David Wilkins, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the da te of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in th e s e case s .