11-004315 Rising Stars And Roslyn Smith vs. Department Of Children And Families Status: Closed Recommended Order on Friday, November 4, 2011.

Summary: Petitioner demonstrated entitlement to renewal of her childcare facility license. The Department did not prove the violations alleged as grounds for denial by a preponderance of the evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RISING STARS AND ROSLYN SMITH , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4315

)

DEPARTMENT OF CHILDREN AND )

FAMILIES , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on September 23, 2011, by video teleconference at sites in

Tallahassee, Florida and Daytona Beach, Florida, before E. Gary

Early, the Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Paul Kwilecki, Jr., Esquire

327 South Palmetto Avenue

Daytona Beach, Florida 32114

For Respondent: Jane Almy - Loewinger, Esquire

Department of Children and Families

210 North Palmetto Avenue

Suite 430

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue in this case is w hether Petitioner should have

her application to renew her childcare facility license denied

by Respondent, Department of Children and Families

(ÐDepartmentÑ) , for the reasons set forth in the Amended Denial

of Application to Renew Child Care Facility Lice nse.

PRELIMINARY STATEMENT

This case arose upon the denial of the application of

Petitioner to renew her childcare facility license,

No. C07V00140, to operate the Rising Stars child care facility

at 711 Revere Street, Daytona Beach, Florida.

The proce dural history of this case leading to the point at

which it was referred to the Division is recited in the

DepartmentÓs July 25, 2011 Order Relinquishing Jurisdiction. In

that Order, the DepartmentÓs informal Hearing Officer determined

that Petitioner had raised disputed issues of fact with regard

to the DepartmentÓs December 8, 2010 Denial of Application to

Renew Child Care Facility License, and relinquished jurisdiction

so that the case could be referred to the Division for a formal

hearing.

After the i nformal Hearing Officer relinquished

jurisdiction of the matter to the Department, the Department

amended its notice of denial. It is that August 2, 2011 Amended

Denial of Application to Renew Child Care Facility License that

forms the basis for this proc eeding. The stated grounds for

denial were the following:

1. At the inspection of your facility,

dated November 3, 2010, you were cited for

training violations. You were cited for not

having documentation that Veronica Dickson

had started her 40 - clock - hour training

within 90 days of employment and you were

cited for Alicia Thomas not having started

her 40 - clock - hour training within 90 days.

Alicia Thomas started in the childcare

industry on 4/5/2010 and thus should have

started her training no later than 7/5/2010.

At the time of the November 3, 2010

inspection, Ms. Thomas had still not begun

her 40 - clock - hour training.

2. You have not completed the Guide to

Record Keeping online course or the CEU

assessment as mandated in the [September 20,

2010 settlement] agreement.

3. You did not meet with Susan Liebee until

October 8, 2010 which violated the ten days

agreed upon in the settlement.

Subsequent to the denial issued on

December 8, 2010, Rising Stars has been

cited for a background screenin g violation.

On February 2, 2011, the facility was cited

for missing documentation of the affidavit

of Good Moral Character for Quinetta

Edwards. Ms. Edwards was hired at the

facility February 1, 2011 and there was no

good moral character form in her fil e.

Petitioner timely filed a petition disputing the denial of

the license. The petition, the informal Hearing OfficerÓs

July 25, 2011 Order Relinquishing Jurisdiction, and the

August 2, 2011 Amended Denial of Application to Renew Child Care

Facility Lic ense were forwarded by the Department to the

Division of Administrative Hearings on August 18, 2011. The

matter was noticed for hearing on September 23, 2011, and was

held as noticed.

At the formal hearing, Petitioner testified in her own

behalf, and pres ented the testimony of her husband, Charles Lee

Smith, Jr. Petitioner introduced Petitioner's Exhibits 1

through 7 into evidence.

The Department presented the testimony of Patricia Medico,

a childcare inspection specialist for the Department, and

Jennifer Adams, a family services counselor and inspector

supervisor for the Department. The Department introduced

Respondent's Exhibits 1 through 6 into evidence.

The two - volume Transcript was filed on October 11, 2011.

The parties timely filed their Proposed R ecommended Orders,

which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner, Roslyn Smith, holds l icense No. C 07V00140 ,

by which she is licensed to operate the Rising Stars childcare

facility pursuant to c hapter 402, Florida Statutes, and Florida

Administrative Code Chapter 65C - 22.

2. Petitioner has operated the Rising Stars childcare

facility for 12 years. She serves very low - income children in

the Daytona Beach area. There is no question but that

Peti tioner offers superior service to the children under her

care. Petitioner maintains a clothing bank to ensure that the

children in her care are adequately clothed. Petitioner

prepares wholesome, homemade, nutritious meals for the children,

eschewing the more common chicken nuggets and corn dogs offered

up at other facilities. The children are encouraged in their

classrooms, with appropriate and well - kept educational

materials. The facility is clean and well maintained.

PetitionerÓs husband frequents th e facility to perform

maintenance and upkeep. The children in her care love

Petitioner, a feeling that she returns in kind.

3. On September 20, 2010, Petitioner and the Department

entered into a Settlement Agreement to resolve several

background screeni ng and training violations. The agreement

resulted in PetitionerÓs license being placed on probationary

status for a period of six months.

4. The DepartmentÓs denial of PetitionerÓs license renewal

was based solely on alleged violations discovered dur ing an

inspection conducted on November 3, 2010, and on an alleged

violation discovered on February 2, 2011.

5. The November 3, 2011 inspection was conducted by

Patricia Medico. Ms. Medico began working for the Department on

May 18, 2010. The November 3, 2010 inspection was her first at

Rising Stars. Despite having been trained since her hire, and

having had a small caseload in DeLand, Ms. Medico considered

herself to be Ða very new counselor starting at [PetitionerÓs]

place in November.Ñ

6. Ms. Me dico made it a practice to inspect facilities

without first reviewing any information or previous Department

inspection reports, a common practice with other inspectors.

She believed that by going out Ðcold,Ñ it allowed her to be more

objective, and to ha ve no preconceived notions or prejudices.

7. On November 18, 2010, a re - inspection of the facility

was performed by Ms. Medico. All deficiencies identified during

the November 3, 2010 inspection had been resolved, and no

further violations were discove red.

8. Since the November 3, 2010 inspection, Rising Stars has

been in substantial -- if not almost perfect - - compliance with

all childcare facility standards. From November 3, 2010 through

the August 26, 2011 inspection, the only violations discovere d

were Quinetta EdwardsÓ missing affidavit of good moral character

discussed below, one classroom without a posted lesson plan in

March 2011, a minor attendance roster discrepancy in March 2011

that was corrected during the inspection, and one time when th e

posted lunch menu was not dated.

9. The evidence demonstrates that Petitioner made

substantial, effective, and sufficient progress toward

compliance since the entry of the settlement agreement on

September 20, 2010, and it is so found.

10. The specific violations that form the basis for the

denial of PetitionerÓs license renewal are as follows:

Training Violations

Veronica Dickson

11. The Department listed, as a basis for the denial of

PetitionerÓs license renewal, that Petitioner did not have

documentation in the employment file of Veronica Dickson showing

that she had started her 40 - clock - hour training within 90 days

of commencement of her employment at Rising Stars.

12. The evidence suggests that the documentation of

Ms. Dicks onÓs training was in her file since at least October 8,

2010, and another copy was printed from the Daytona State

College website and provided to Ms. Medico during the

inspection.

13. Ms. Medico stated that she had no recollection of

having seen Ms. Di cksonÓs training records during the

inspection. At various times, Ms. Medico admitted that due to

her large caseload, she was unclear as to the specifics of any

given inspection. However, she indicated that the inspection

report is her contemporaneous st atement of the facts. She

further indicated that it was her practice to print out a copy

of the report and go over it with the licensee before having the

licensee sign it.

14. When Ms. Medico left a facility, the inspection report

provided to the licen see ÐisnÓt necessarily the written in stone

inspection.Ñ Rather, it is subject to review, occasionally with

items that were found to be non - compliant changed to being

compliant, and items that were found to be compliant changed to

being non - compliant. If items were changed, Ms. Medico would

call the licensee to advise them of the change.

15. Contrary to Ms. MedicoÓs description of the process,

Petitioner testified that, as the normal practice, Ms. Medico

did not go over the inspection reports point - by - point. Rather,

she indicated that she would receive an unsigned report from

Ms. Medico after having accompanied her during the inspection

and having discussed - - and oftentimes resolved - - problems at

the time. She would sign the computerized signature block

without reviewing the report, relying on the earlier

discussions. If necessary, she would review the report after

the inspection.

16. Having personally provided Ms. DicksonÓs traini ng

records to Ms. Medico, Petitioner did not realize that the

training records were identified as a violation on November 3,

2010. Petitioner would have disputed the violation had she

known at the time that she was being cited.

17. The evidence as to wh ether the training documentation

was in Ms. DicksonÓs file is contradictory. However, the more

persuasive evidence supports a finding of fact that the

documentation was provided at the time of the inspection, but

was either overlooked or forgotten by Ms. Medico. Therefore,

there was no violation of any childcare standard associated with

Ms. DicksonÓs training records.

Alici a Thomas

18. The Department listed, as a basis for the denial of

PetitionerÓs license renewal, that Alicia Thomas had not started

her 40 - hour training within 90 days of having started employment

in the childcare industry.

19. According to the DepartmentÓs personnel records,

Ms. Thomas was first employed in the childcare industry on

April 5, 2010. There is no evidence to indicate b y whom she was

employed on that date. The Department provided no information

as to how a licensee is to know when a person is employed Ðin

the industry.Ñ However, it is clear that a candidate for

employment at a child care facility is to commence trainin g

within 90 days of employment at any licensed childcare facility,

and that the employing childcare facility is responsible for

obtaining documentation from childcare personnel.

20. The evidence is undisputed that Ms. ThomasÓs

background screening was co mplete and clear. Furthermore,

Ms. Thomas had completed her required in - service training by

June 30, 2010.

21. The Department personnel summary sheet indicates that

Ms. Thomas started her employment at Rising Stars on May 5,

2010. However, the greater weight of the evidence indicates

that Ms. Thomas was hired by Petitioner in July, 2010.

22. From July through November, 2010, which was the period

of Ms. ThomasÓs employment at Rising Stars, she worked fewer

than 30 days due to various medical issues.

2 3. The evidence indicates that Ms. ThomasÓs failure to

commence her 40 - hour training was not cited by the Department as

a violation on November 3, 2010. The unsigned inspection report

provided by Ms. Medico for PetitionerÓs review did not list a

violatio n related to Ms. ThomasÓs training. Ms. Medico

testified that she did not cite Petitioner for a violation

related to Ms. Thomas on November 3, 2010. Rather, she

indicated that Ðall I did was tell her in notes that Alisca

needed to get this,Ñ and that Ðth e next time I went out, she

would be cited if she did not correct that .Ñ (emphasis added).

Ms. Adams testified that Ðtechnically, [Petitioner] should have

been cited additionally for Alisca Thomas not starting her

training on time,Ñ but that ÐI overlooke d it, and I donÓt know

what [Ms. MedicoÓs] rationale was [for not citing], but I

overlooked it.Ñ Petitioner testified that Alisca Thomas never

appeared on any inspection report that she received.

24. The greater weight of the evidence demonstrates tha t

Petitioner was not cited for a violation related to Ms. ThomasÓs

training status, and that the deficiency would be considered to

be a violation only if it was not corrected by the November 18,

2010 re - inspection.

25. By the time of the November 18, 2 010 re - inspection,

Ms. Thomas had commenced her training, documentation of which

was in her file. Thus, Petitioner made sufficient progress

toward compliance, and in fact completely resolved the issue, by

the time Ms. Medico went back to the facility.

26 . Despite having come into compliance with her training

requirements, Ms. Thomas was let go shortly after November 18,

2010 due to her ongoing health issues.

27. Based on the foregoing, Ms. ThomasÓs training status,

having been completely resolved prior to it being cited as a

violation, and its having had no proven effect on the health,

safety, or child development needs of the children in

PetitionerÓs care, is not a sufficient basis for denial of the

renewal license.

Record - Keeping Course Violation

28 . The Department listed, as a basis for the denial of

PetitionerÓs license renewal, that Petitioner did not complete

the Guide to Record Keeping online course or the CEU assessment

as required by the September 20, 2010 settlement agreement.

29. As part of the settlement agreement, Petitioner was

required by the Department to take and pass the course, and get

credit for the Continuing Education Units (CEUs).

30. Petitioner had taken the course in 2009, and had

received a certificate of completion. The certificate had not

expired.

31. Petitioner attempted to take the Guide to Record

Keeping online course as required by the settlement agreement.

When Petitioner tried to enroll for the course, the course

provider refused to allow her to pay the fee or e nroll. Such

refusal is consistent with the warning on the course

registration home page, which states that Ð[y]ou can only earn

one certificate for each course, and you may not earn CEUs for a

course you have previously taken.Ñ

32. Petitioner testified that she advised Ms. Medico and

Ms. Adams of the problem with taking the online course.

Ms. Adams had a recollection of meeting Petitioner in the lobby

of the DCF building, and discussing Ms. DicksonÓs and

Ms. ThomasÓs training issues with her, but did n ot mention

discussing PetitionerÓs difficulty in taking the record keeping

class. Whether Ms. Adams was told of the problem or not is

immaterial. The evidence is sufficient to demonstrate, at the

very least, that Petitioner advised Ms. Medico, a represen tative

of the Department, of the problem in taking the course.

33. The Department should have known of the restriction on

retaking the course at the time it imposed that requirement on

Petitioner. Petitioner had no reason to expect that the

DepartmentÓ s required settlement condition could not be

performed, and did not know of the restriction until she

attempted to comply. Petitioner made a good faith effort to

comply with the condition but, since the course provider

prohibited Petitioner from retaking the course and receiving CEU

credit, performance of that element of the settlement agreement

was impossible.

34. Based on the foregoing, PetitionerÓs failure to take,

complete, and receive CEU credit for the Guide to Record Keeping

course, in light of the impossibility of doing so, is not a

sufficient basis for denial of the renewal license.

Untimely Meeting Violation

35. The Department listed, as a basis for the denial of

PetitionerÓs license renewal, that Petitioner failed to meet

with Susan Liebee , a coordinator at the Daytona State College,

within 10 days of the date of the settlement agreement to

discuss staff training requirements. The meeting was to have

been held by September 30, 2010, but did not take place until

October 8, 2010.

36. Petit ioner testified that she went to Ms. LiebeeÓs

office to meet with her, but that she was not there. She

subsequently called and made an appointment with Ms. Liebee to

meet on October 8, 2010, and met as scheduled. Petitioner made

every reasonable effort t o meet the time frame for the meeting

established in the settlement agreement, but due to reasons

outside of her control was not able to meet until Ms. Liebee was

available on October 8, 2010. PetitionerÓs testimony on that

point was credible, and there w as no evidence to the contrary.

37. Based on the foregoing, PetitionerÓs failure to meet

with Ms. Liebee due to circumstances involving Ms. LiebeeÓs

schedule that were out of PetitionerÓs control, is not a

sufficient basis for denial of the renewal licen se.

Affidavit of Good Moral Character Violation

38. The Department listed, as a basis for the denial of

PetitionerÓs license renewal, that an Affidavit of Good Moral

Character was not in the file of new hire Quinetta Edwards.

Ms. Edwards was hired effe ctive February 1, 2010. The

inspection during which Ms. EdwardÓs employment file was

reviewed was conducted on February 2, 2010.

39. As stated by Ms. Medico, a new employeeÓs background

investigation consists of the level 2 background screening

requir ed in Chapter 435, the Affidavit of Good Moral Character

signed by the employee, the signed and notarized Child Abuse

Reporting Form, the employeeÓs employment history, checked

references for two years, and a supplemental statement that the

employee has no t had a child care license denied or revoked in

the past. All of the screening requirements listed by

Ms. Medico, and established in r ule 65C - 22.006(4), had been met

but for the affidavit.

40. Due to a simple oversight, Ms. Edwards failed to

execute the Affidavit of Good Moral Character prior to her

employment with Petitioner. Upon learning of the oversight,

Ms. Edwards executed the Affidavit on February 8, 2010.

Petitioner thereupon submitted the affidavit to the Department

by facsimile on that date. There was no attempt to backdate the

form, or to do anything other than honestly correct the

oversight.

41. Ms. Edwards has cleared all screening, meets all

employee standards, and remains on the staff of Rising Stars

without any problems to this day.

4 2. The simple and unintentional oversight in having

Ms. Edwards execute her affidavit one week after commencement of

employment, given that all other background screening was

completed without incident, had no effect on the health or

safety of the childre n attending Rising Stars. That oversight

was not a material violation of the DepartmentÓs licensing

standards or of the settlement agreement, and is not a

sufficient factual basis for the denial of PetitionerÓs license

renewal.

Other Violations Not Ple d

43. In addition to the issues pled as reasons for denial

in the DepartmentÓs Amended Denial of Application to Renew Child

Care Facility License, the parties introduced testimony and

documentary evidence regarding a number of alleged minor

deficiencies at the Rising Stars facility discovered during the

November 3, 2010 inspection. Both Ms. Medico and Ms. Adams

admitted that the deficiencies did not form the basis for the

DepartmentÓs proposed action.

44. As to the facility violations - - which inclu ded among

other minor deficiencies, a missing lesson plan; exposed ÐSÑ

hooks on the swing set; worn electrical outlet covers; an

exposed, but generally inaccessible screw point underneath a

bench; uneven boards on a deck; and two forks in a drawer

accessib le but off - limits to children - - the evidence

demonstrates conclusively that those deficiencies are Ðcommon

problemsÑ and that Ðthose things, they happen everywhere.Ñ The

evidence further demonstrates that PetitionerÓs husband keeps

the facility well kept and maintained, and that Petitioner does

a Ðwonderful jobÑ with the Rising Stars facility. The evidence

is undisputed that each of the alleged violations identified in

the November 3, 2010 inspection report were either corrected on

the spot during the in spection, or were corrected by the

November 18, 2010 re - inspection. They have not recurred.

45. To the extent that those alleged deficiencies are

considered in the final decision regarding renewal of

Petitioner Ó s license, despite having not been pled by the

Department, it is found that the alleged deficiencies, have had

no adverse effect on t he health, sanitation, safety, and

adequate physical surroundings for the children in PetitionerÓs

care, have had no adverse effect on the health and nutrition of

the children in PetitionerÓs care, and have had no adverse

effect on the child development needs of the children in

PetitionerÓs care. Therefore, those alleged deficiencies do not

form a sufficient basis for denial of PetitionerÓs license

renewal.

46. Finally, evidence was received regarding the

employment of Jennifer Geier by Petitioner during a period that

she was disqualified from employment. Petitioner was not aware

that Ms. Geier was subject to disqualification, especially since

she had received a letter from the Department of Corrections

dated September 9, 2009 , stating that Ðthere are no stipulations

in her order that prevents her from employment in a child care

facility.Ñ 1/ Upon discovering that the offense was, in fact,

disqualifying, Ms. Geie r was terminated. It is clear that at

the time the Department issued its Amended Denial of Application

to Renew Child Care Facility License on August 2, 2011, the

Department was well aware of Ms. Geier and her relationship with

Petitioner, with all aspect s of her employment at Rising Stars

having been resolved in the September 20, 2010 Settlement

Agreement, and with her having received a Final Order from the

Department granting an exemption from disqualification on

January 3, 2011. Since all aspects of Ms . GeierÓs employment

were resolved by the settlement agreement, and since Ms. GeierÓs

employment by Petitioner was not pled by the Department, her

previous employment does not form a sufficient basis for denial

of PetitionerÓs license renewal.

CONCLUSIONS OF LAW

A. Jurisdiction

47. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties pursuant to

s ections 120.569 and 120.57(1), Florida Statutes (2011) .

48. The Department is the administrative agency of the

State of Florida, charged with the duty to enforce an d

administer the provisions of c hapter 402, Florida Statutes. The

Department has jurisdiction over the licensing of childcare

facilities pursuant to s ections 402.301 - 402.319, Florida

Statutes , and Florida Administrative Code Rule 65C - 22.

49. Petitioner is the owner of the Rising Stars childcare

facility and is subject to the DepartmentÓs childcare facility

standards.

B. Standards

50. Section 402.305 establishes the standards for

licensin g of childcare facilities. Subsection (1) of s ection

402.305 provides that:

(1) LICENSING STANDARDS. Ï The department

shall establish licensing standards that

each licensed child care facility must meet

regardless of the origin or source of the

fees used to operate the facility or the

type of children served by the facility.

(a) The standards shall be designed to

address the following areas:

1. The health, sanitation, safety, and

adequate physical surroundings for all

children in child care.

2. Th e health and nutrition of all children

in child care.

3. The child development needs of all

children in child care.

51. Section 402.308, Florida Statutes, deals with the

issuance of licenses for childcare facilities, including the

requirement of annual renewal, and states:

(1) ANNUAL LICENSING. -- Every childcare

facility in the state shall have a license

which shall be renewed annually.

* * *

(3) STATE ADMINISTRATION OF LICENSING. -- In

any county in which the department has the

authority to issu e licenses, the following

procedures shall be applied:

(a) Application for a license or for a

renewal of a license to operate a childcare

facility shall be made in the manner and on

the forms prescribed by the department....

(b) Prior to the renewal of a license, the

department shall reexamine the child care

facility, including in that process the

examination of the premises and those

records of the facility as required under s.

402.305, to determine that minimum standards

for licensing continue to be m et.

* * *

(d) The department shall issue or renew a

license upon receipt of the license fee and

upon being satisfied that all standards

required by ss. 402.301 - 402.319 have been

met. A license may be issued if all the

screening materials have been time ly

submitted; however, a license may not be

issued or renewed if any of the childcare

personnel at the applicant facility have

failed the screening required by ss.

402.305(2) and 402.3055. (emphasis added) .

A failure of screening was not a basis for the proposed denial

of PetitionerÓs license renewal.

52. Section 402.310 offers establishes the factors and

procedures to be applied when a license denial is based upon

violations of childcare facility standards and thus used in lieu

of disciplinary proceedi ngs as a sanction for such violations.

That section provides, in pertinent part, that:

402.310 Disciplinary actions; hearings upon

denial, suspension, or revocation of license

or registration; administrative fines. Ï

(1)(a) The department or local lice nsing

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 sect ion.

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 period

that exceeds 6 months and the probatio n -

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

probation - 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 registration.

(b) In determining the app ropriate

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 harm to the health or safety of any

perso n 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 correct the violation or to

remedy complaint s.

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 pr obation 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 pre - disciplinary actions, such as

efforts to assist licensees or registrants

to correct the statutory or regulatory

violations, and to severe disciplinary

sanction s 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 contingent upon a specific

appropriation.

(d) The disciplinary sanctions set forth in

this section apply to licensed childcare

facilities, licensed large family childcare

homes, and licensed or registered family day

care homes. (emphasis added) .

53. Rule 65C - 22.003 was promulgated by the De partment to

establish the training standards to be applied to employees of

childcare facilities. As to when training is to commence, r ule

65C - 22.003(1)(c) provides that:

(c) ÐBegin training for child care

personnelÑ refers to a candidateÓs

commencement of at least one of the child

care training courses listed in Section

402.305(2)(d), F.S. This may be accomplished

by classroom attendance in a department -

approved training course, acquiring an

educational exemption fro m a department -

approved training course, beginning a

department - approved online child care

training course, or by receiving results

from a department - approved competency

examination within the first 90 days of

employment in the child care industry in any

l icensed Florida child care facility. The

child care facility is responsible for

obtaining documentation from child care

personnel.

C. The Burden and Standard of Proof

54. The allegations of fact set forth in the charging

document are the facts upon wh ich this license denial proceeding

is predicated. M. H. v. Dep't of Child. & Fam. Servs. , 977 So.

2d 755, 763 (Fla. 2d DCA 2008); Trevisani v. DepÓt of Health ,

908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v.

DepÓt of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). The

Amended Denial of Application to Renew Child Care Facility

License was based solely on alleged violations of childcare

facility standards identified during the November 3, 2010 , and

February 2, 2011 inspections. Therefore, the reasons for denial

are limited to those reasons pled by the Department.

55. Petitioner has applied for the renewal of a license to

operate a childcare facility, and challenges the DepartmentÓs

decision to deny licensure. As the party asserting the

a ffirmative, Petitioner has the burden of proof to demonstrate,

by a preponderance of the evidence, that she satisfied the

requirements for licensure and was entitled to receive the

license. Dep't of Banking & Fin. v. Osborne Stern and Co. , 670

So. 2d 932, 934 (Fla. 1996); N. W. v. Dep't of Child. & Fam.

Servs. , 981 So. 2d 599, 601 (Fla. 3d DCA 2008); Fla. Dept. of

Transportation v. J. W. C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981).

56. The Department has based its licensing decision on

instances of wrongd oing on the part of Petitioner. Therefore,

even though the ultimate burden of proof remains with Petitioner

to demonstrate entitlement to the renewal of her license, the

burden in this proceeding shifts to the Department to prove up

those incidents upon w hich it relies for its decision to deny

the license. In evaluating the burden in the licensing

component of a dual licensing/enforcement proceeding, the

Supreme Court has held that:

. . . while the burden of producing evidence

may shift between the partie s in an

application dispute proceeding, the burden

of persuasion remains upon the applicant to

prove her entitlement to the license. The

denial of registration . . . is not a

sanction for the applicant's violation of

the statute, but rather the applicatio n of a

regulatory measure. . . . The clear and

convincing evidence standard is also

inconsistent with the discretionary

authority granted by the Florida legislature

to administrative agencies responsible for

regulating professions under the State's

police power. In this case, the Department

was required to determine whether the

respondents had demonstrated worthiness to

transact business in Florida before

approving their application. (citations

omitted) .

Dep't of Banking & Fin. v. Osborne Stern and Co. , at 934

57. The Second District Court of Appeal has agreed with

the rationale of the shifting burden, and the application of the

preponderance of the evidence standard in a license renewal

proceeding. In a comprehensive analysis of the burden of proof

in a renewal case, which includes significant discussion of the

First District Court of Appeal and Supreme Court opinions in

Osborne Stern and Co. , the court held that:

On appeal from the final administrative

order, the First District agreed that the

agenc y had the burden of proving that the

applicants had committed the alleged

violations in order to deny registration on

that ground. Id. Notably, the First

District concluded that the burden of proof

shifted between the parties in the

registration proceedi ng, and its ruling on

this point is instructive:

The hearing officer correctly ruled

that an applicant for licensure or

registration to engage in a particular

profession or occupation bears the

burden of showing entitlement thereto

by a preponderance of the evidence.

However, that does not mean that the

applicant must disprove that violations

occurred as alleged by the Department;

the Department had the burden of

proving the alleged violations actually

occurred if the registration is to be

denied on that ground.

Id. However, the First District reversed

the final administrative order because the

court concluded that the agency was required

to satisfy the clear and convincing standard

of proof on this issue rather than the

preponderance of the evidence standard. Id.

at 248 - 49. The First District also

certified a question of great public

importance concerning whether the

Department's evidentiary burden in a

registration proceeding is governed by the

clear and convincing standard. Id. at 249.

On review of the certifi ed question in the

Supreme Court of Florida, that court

reaffirmed the rule that an administrative

agency's burden of proof in a license

application proceeding is governed by the

preponderance of the evidence standard.

Osborne Stern & Co. II , 670 So. 2d at 934 -

35. Accordingly, the supreme court quashed

that portion of the First District's

decision that had extended the clear and

convincing standard to license application

proceedings. Id. at 935.

* * *

Osborne Stern & Co. II stands for the

proposition that in a license application

proceeding, the agency has the burden of

proving specific acts of misconduct by a

preponderance of the evidence if it seeks to

deny a license application on that ground.

Id. at 935 ("Nothing about this case shows

that the [preponderance of the evidence]

standard invites an abuse of discretion by

the Department in denying registration

applications, or results in the denial of

licenses which otherwise should or would be

granted if the Department were put to a

higher burden of proof ." (emphasis added).

M. H. v. Dep't of Child. & Fam. Servs. , 977 So. 2d 755, 760 - 761

(Fla. 2d DCA 2008). The court then proceeded to summarize its

decision as follows:

Without question, an applicant for a license

has the initial burden of demonstrating his

or her fitness to be licensed. Osborne

Stern & Co. I , 647 So. 2d at 248. But if

the licensing agency proposes to deny the

requested license based on specific acts of

misconduct, then the agency assumes the

burden of proving the specifi c acts of

misconduct that it claims demonstrate the

applicant's lack of fitness to be licensed.

Osborne Stern & Co. II , 670 So. 2d at 934.

Id. at 761.

58. The evidentiary burden on the Department has been

described by the First District Court of Appeal as follows:

Despite the fact that the applicant

continuously has the burden of persuasion to

prove entitlement, however, the agency

denying the license has the burden to

produce evidence to support a denial. . . .

While the agency is not required to prove

its allegations by clear and convincing

evidence, it may not deny a license

application unless the decision is supported

by competent substantial evidence. . . .

Competent substantial evidence is such

evidence that is "sufficiently relevant and

mate rial that a reasonable mind would accept

it as adequate to support the conclusion

reached." De Groot v. Sheffield , 95 So. 2d

912, 916 (Fla. 1957).

Comprehensive Med. Access, Inc. v. Office of Ins. Regulation ,

983 So . 2d 45, 46 (Fla. 1st DCA 2008) ( citing Dep't of Banking &

Fin. v. Osborne Stern and Co. , supra ) .

59. In a case that bears significant similarities to that

before the undersigned, the Third District Court of Appeal has

addressed a situation in which the Department denied an

application for re newal of a foster care license. In N. W. v.

Depar t ment of Children & Fam ily Services , 981 So. 2d 599 (Fla.

3d DCA 2008), the applicant had been licensed to operate a

foster home from 1996 through 2003. She applied for renewal,

and was denied based on all egations that she violated foster

home standards. Having acknowledged that the application was

for renewal, the court held that:

Because N.W. applied for a foster home

license, she had the burden of proving by a

preponderance of the evidence that she

sati sfied all the requirements for licensure

and was entitled to receive the license.

See § 120.57(1)(j), Fla. Stat. (2007).

("Findings of fact shall be based upon a

preponderance of the evidence, except in

penal or licensure disciplinary proceedings

or exce pt as otherwise provided by

statute."); Dep't of Banking & Fin., Div. of

Secs. & Investor Prot. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996). The ALJ

correctly acknowledged that N.W. had the

ultimate burden of proof in this license

application proceeding. It was the

Department's burden to provide specific

reasons for the denial and to produce

competent, substantial evidence to support

those reasons. Mayes v. Dep't of Child. &

Family Servs. , 801 So. 2d 980 (Fla. 1st DCA

2001).

Id. at 601.

60. Despite language in Mayes v. Depar t ment of Child ren &

Family Ser vices , 801 So. 2d 980 (Fla. 1st DCA 2001)(language

that was cited in N. W. v. Dep't of Child. & Fam. Servs. , supra )

that suggested a lesser competent substantial evidence standard,

t he court in M. H. v. Depar t ment of Children & Fam ily Servi ces ,

supra , concluded that the burden on the agency is one of

preponderance. The court noted that the statement in Mayes may

have been confusing since it did not identify the stage in the

proceeding to which the competent, substantial evidence

statement applied, i.e. the burde n of proof stage for the

administrative proceeding versus the standard of review stage

for the appellate proceeding. M. H. v. Dep't of Child. & Fam.

Servs. , at 761.

61. Providing a degree of uncertainty to the issue of the

appropriate burden of proof in a license renewal proceeding is

the case of Coke v. Depar t ment of Child ren & Fam ily Serv ices ,

704 So. 2d 726 (Fla. 5th DCA 1998), in which the Fifth District

Court of Appeal held that the agency bears the burden of proving

allegations of wrongdoing by an applicant by clear and

convincing evidence. The court did not perform an extensive

analysis of the issue, but did note that Ð[t]he Department

agrees that in this proceeding it had the burden of proving her

lack of entitlement to a renewal of her license a nd that the

evidence needed to be clear and convincing.Ñ Id. The

undersigned notes that the Department in this case similarly

stated that Ð[t]he standard of proof in this case is clear and

convincing evidence, because the Department is seeking to

discipl ine the license of the Respondent.Ñ The DepartmentÓs

position is understandable since s ection 402.310(1)(a) couches

license denial as a disciplina ry sanction for a violation of

s ections 402.301 - 402.319.

62. Despite the opinion in Coke v. Dep ar t ment of Child ren

& Fam ily Serv ices , supra , and the DepartmentÓs effort to impose

upon itself a higher burden of proof, the undersigned concludes

that since this case involves the denial of an application for

renewal of a license, Petitioner has the overall bur den to prove

entitlement, but that the Department must prove up the incidents

of wrongdoing that support its decision that Petitioner does not

meet child care facility standards by a preponderance of the

evidence.

D. Analysis

63. Applying the law to the facts of this case, Petitioner

established that she meets the standards to receive a renewal of

her childcare facility license.

64. The allegations regarding the training records of

Ms. Dickson and PetitionerÓs meeting with Ms. Liebee were not

proven by the Department to have been violations of any

childcare facility standard, and cannot form the basis for the

denial of the license.

65. PetitionerÓs failure to take the Guide to Record

Keeping online course and obtain credit for the Continuing

Educati on Units (CEUs) cannot be considered to be a violation,

due to the fact that the provider would not allow Petitioner to

retake the course or receive CEU credit due to her having taken

the course previously. The impossibility of performance of an

obligatio n, as has been proven in this case, is a defense to

performance. Ellingham v. DepÓt of Child. and Fam. Servs. , 896

So. 2d 926 (Fla. 1st DCA 2005).

66. As to Ms. ThomasÓs training, the evidence demonstrates

that the Department did not cite Petitione r for a violation of

the training standard on November 3, 2010, but rather granted

Petitioner until the November 18, 2010 re - inspection to correct

the matter. By the November 18, 2011 re - inspection, the

training matter, along with each of the other defici encies

identified on November 3, were resolved. Thus, although there

was a deficiency related to training, the Department declined to

cite Petitioner for a violation. In addition, Petitioner proved

that she was making sufficient progress toward complianc e with

sections 402.301 - 402.319, and had taken effective action to

correct the non - compliance. For the reasons herein, denial of

PetitionerÓs license renewal for Ms. ThomasÓs training

deficiency is n ot an appropriate action under s ection 402.310.

67. Finally, the allegation as to the background screening

of Ms. Edwards is an insufficient basis for the denial of

PetitionerÓs license. Ms. Edwards completed all other

background - screening requirements, including her FDLE screening

and her Child Abuse Repo rting form. There was clearly no effort

or intent to avoid screening. Rather, the failure to complete

the Affidavit of Good Moral Character was a simple,

unintentional oversight that was rectified almost immediately.

It exposed no child to any potential for harm. Chapter 402

contains no express Ðsubstantial complianceÑ standard applicable

to licensure. However, there must be some recognition of the

reality that there are occasions where perfect compliance has

not been achieved, not due to any intent to subvert the

standards of compliance, but due to the practical realities

involved in coordinating the governmentally required flow of

paper. Cf. Beverly Healthcare Kissimmee v. Ag. for Health Care

Admin. , 870 So. 2d 208, 211 (Fla. 5 th DCA 2004). In addit ion,

Petitioner proved that she made sufficient pro gress toward

compliance with sections 402.301 - 402.319, and had taken

effective action to correct the non - compliance.

E. Ultimate Conclusion

68. In this case, it has not been proven by a

preponderan ce of the evidence that the grounds for denial listed

in the DepartmentÓs August 2, 2011 Amended Denial of Application

to Renew Child Care Facility License constituted material

violations of child care facility standards or the settlement

agreement. There was no demonstrated likelihood of harm to the

health and safety of the children in PetitionerÓs care given the

nature of the alleged incidents. None of the incidents

identified in the November 3, 2010 or February 2, 2011

inspections warrant s the decision to deny renewal of

Petitioners' childcare facility license.

RECOMMENDATION

Upon the consideration of the facts found and the

conclusions of law reached, it is RECOMMENDED that the

Department of Children and Family Services enter a Final Order

granting t he renewal of license, No. C07V00140, to Petitioner

Roslyn Smith for the o peration the Rising Stars child care

facility.

DONE AND ENTERED this 4th day of November, 2011, in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 the Clerk of the

Division of Admin istrative Hearings

this 4th day of November, 2011 .

ENDNOTE

1 / Although Petitioner, on questioning, stated that the dates of

employment were in 2010, it is clear from a review of all of the

evidence in context, and therefore found, that the period of

employment at issue was from September 2009, after Petitioner

rece ived the DOC letter, until December 2009. That timeframe is

also consistent with that set forth in the Recommended Order in

J. G. v. DepÓt of Child. & Fam. Servs. , Case No. 10 - 3189 (Fla.

DOAH Sept. 13, 2010; Fla. DCF Jan. 3, 2011).

COPIES FURNISHED :

Jane Almy - Loewinger, Esquire

Department of Children and Families

210 North Palmetto Avenue, Suite 430

Daytona Beach, Florida 32114

Paul Kwilecki, Jr., Esquire

327 South Palmetto Avenue

Daytona Beach, Florida 32114

Gregory D. Venz, Agency Clerk

Departme nt of Children and Families

1317 Winewood Boulevard

Building 2, Room 204A

Tallahassee, Florida 32399 - 0700

Drew Parker, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Davi d 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 date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.