13-000334 Beatrice Guardian Angel Daycare vs. Department Of Children And Families Status: Closed Recommended Order on Monday, July 22, 2013.

Summary: Respondent met its burden, and the denial of Petitioner's renewal application is appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEATRICE GUARDIAN ANGEL DAYCARE ,

Petitioner ,

vs. Case No. 13 - 0334

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Respondent .

/

RECOMMENDED ORDER

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

on May 1, 2013, via video teleconference with sites in Orlando

and Tallahassee, Florida. The parties appeared before

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jacques Lee Cooper, Esquire

Justice League Law Group

Suite 201 - B

2295 South Hiawassee Road

Orlando, Florida 32835

For Respondent : Stefanie C. Beach, Esquire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801 - 1782

STATEMENT OF THE ISSUE

The issue is whether the Beatrice Guardian Angel Daycare

violated provisions of c hapters 402 and 435, Florida Statutes

(2012), and/or Florida Administrative Code Chapter 65C - 22, such

that its license should not be renewed.

PRELIMINARY STATEMENT

On November 30, 2012, Debra R. Giles executed a document

whereby she relinquished her Beatrice Guardian Angel Daycare

(the Daycare) L icense No. C090R0812 , located at 623 West

Lancaster Road, Orlando, Florida , to the Department of Children

and Families (Department or DCF). Des pite this relinquishment 1/ ,

on December 12, 2012, the Department issued a denial of a

renewal application for License No. C090R0812, ( also called an

administrative complaint by DCF ) , that allege d multiple

violations of the regulations governing the operati on of a child

daycare facility. The Daycare filed a response to the denial

letter, which was accepted by the Department as a petition for a

formal administrative hearing. On January 15, 2013, the denial

letter and the Daycare ' s response were forwarded to DOAH and

assigned to the undersigned. Following one continuance, the case

was scheduled to be heard on May 1, 2013 , and the final hearing

took place on that date.

At the final hearing, the Daycare presented the testimony

of three witnesses. 2/ The Daycare did not offer any exhibits.

The Department presented the testimony of five additional

witnesses. The Department offered the following exhibits, which

were received into evidence: A, 3/ C, E, H, 4/ K through Q, and

T through W. 5/

At the conclusion of the h earing, the parties were advised

that their proposed recommended orders (PROs) would be due ten

days after the transcript was filed. At the request of the

Daycare, on June 6, 2013, a Notice of Filing Transcript was

issued following the filing of the two - v olume Transcript. On

June 17, 2013, the Department ' s counsel filed a motion for

extension of time to file the PROs (motion). The motion failed

to comply with Florida Administrative Code Rule 28 - 106.204(3)

and (4). Time was of the essence in rendering a ruling, and

upon being contacted by the undersigned ' s assistant, the

Daycare ' s counsel advised that it did not object to the motion.

The motion was granted. Thereafter, each party timely filed its

respective PRO, and each has been considered in the prepa ration

of this Recommended Order.

Unless otherwise indicated, all references are to the 2012

version of the Florida Statutes. References to the Florida

Administrative Code are to the current version, unless otherwise

indicated.

FINDING S OF FACT

1. Th e Department is the state agency responsible for

inspecting, licensing, and monitoring child care facilities such

as the one operated by the Daycare. It is the Department ' s

responsibility to ensure that all such facilities are safe and

secure for the prot ection of the children utilizing those

facilities. The Department inspects each licensed day care

center three times a year: two unannounced routine inspections

(to ensure compliance with the applicable laws and rules) , and

one renewal application inspec tion. In the event of a

complaint, additional inspections and/or investigations are

conducted.

2. Ms. Giles owned, operated and directed the Daycare.

The Daycare located on West Lancaster Road opened in

November 2011, and was in continuous operation a t all times

material. 6 / Ms. Giles opened the Daycare at this particular

location after operating it at a different location.

3. Luz Torres is a family service counselor for the

Department. Ms. Torres is trained to inspect day care centers

for initial applications, renewal applications and routine

inspections. Ms. Torres is familiar with the Daycare, having

inspected it several times while it was operational.

4. Inspections of the Daycare revealed operational

deficiencies during four inspections, dat ed February 15;

June 20,; July 2,; and November 7, 2012. The specific

deficiencies were set forth on inspection reports provided to

Ms. Giles at the time of each inspection.

5. Ms. Torres conducted a routine inspection of the

Daycare on February 15, 20 12 (inspection one). A number of

areas of n oncomplian ce areas included physical environmental

issues, such as insufficient lighting, gaps in fencing, ground

cover for outdoor equipment, and training. Other areas

included : a lack of documentation of empl oyee educational

courses showing literacy and developmental course training, a

40 - hour child care course , and 10 hours of in - service training;

items in the first aid kit were missing; deficiencies in food

and nutrition, such as unlabeled bottles and sippy cups; and

deficiencies in children ' s health and immunization records,

personnel records, and background screening.

6. The Department issued an " Administrative Warning

Notification " (notification) to Petitioner based upon the

following violations: " [T]he facility ' s fencing, walls or gate

area had gaps that could allow children to exit the outdoor play

area. The gate was observed broke [sic] with gaps on both

sides. " This notification advised Petitioner that the " next

violation of a licensing standard ou tlined in this notice,

[would] result in an administrative fine. "

7. On June 20, 2012, Ms. Torres conducted a routine

inspection (inspection two) of the Daycare. The noncompliant

areas included : missing documentation for some children ' s

immunization r ecords ; missing documentation of ten hours of

in - service training for the Daycare ' s director ; and missing

documentation of background screening documents, including an

affidavit of good moral character for employees.

8. A second notification 7 / (dated J une 20, 2012) was issued

to the Daycare following inspection two. This notification

involved issues regarding a child ' s health and immunization

records, and missing documentation for employees. One child ' s

immunization records had expired. Four staff me mbers were

deficient regarding in - service training logs, and an additional

staff member had not received the level two screening clearance.

9. In response to a complaint (complaint one), Ms. Torres

conducted an investigation of the Daycare on July 2, 2 012. The

Daycare was found to be out - of - ratio regarding the number of

children to staff, and background screening documentation for

level two screening for staff members was missing. In a mixed

group of children ages one and two years old, the ratio of o ne

staff for six children is required. At the time of the

complaint one investigation, there was one staff per eight

children. Although this ratio issue was rectified during the

complaint one investigation, it was and is considered a

violation. The docu mentation for the l evel two screening

violation for the staff was not corrected during this

investigation.

10. A third notification was issued to the Daycare

following the complaint one investigation. This notification

involved the staff - to - child ratio, and the lack of background

screening documentation. The Daycare was notified that the

appropriate staff - to - child ratio must be maintained at all

times, and the missing L evel two screening documentation had to

be resolved. This notification advised the D aycare that the

" next violation of a licensing standard outlined in this notice,

[would] result in an administrative fine. " 8 /

11. On August 1 , 2012, the Daycare was notified that its

license would expire on November 29, 2012. The Daycare ' s

renewal appl ication was due 45 days before the expiration date,

or before October 15, 2012. The denial letter set forth that

the Daycare ' s renewal application was filed on October 30 ,

2012 . 9 /

12. In June 2012, Ms. Giles became aware that her

daughter, Alexis Ander son, had a drug addiction problem when

Ms. Anderson ' s baby was born addicted to drugs. Ms. Anderson

and her two children were required to live with Ms. Giles while

Ms. Anderson addressed her addiction problem. Ms. Anderson ' s

two children attended the Da ycare. Ms. Anderson would visit the

Daycare to see her children.

13. On November 7, 2012, as a result of another complaint

(complaint two) being filed, DCF conducted an investigation of

the Daycare. Ms. Giles reported that on two different

occasions, t w o small bags were found at the D aycare. One small

empty bag was found in the Daycare ' s common hallway. A second

bag was found on a desk in the Daycare ' s office and contained a

white residue.

14. After the second bag was found and Ms. Giles was told

by an employee what the bags might be used for ( " people

transport drugs in " ), she suspected that Ms. Anderson might have

left the bags at the Daycare. Also, after finding the second

bag, Ms. Giles banned Ms. Anderson from the Daycare.

15. There was specul ation that the two bags contained an

illegal substance; however, the two bags were discarded before

any scientific testing could be done or any photographs could be

taken. There is simply no proof as to what was in either bag. 1 0 /

16. There was no c lear and convincing evidence that

Ms. Anderson supervised or tended to children other than her own

while she was at the Daycare. There was c lear and convincing

evidence that Ms. Anderson was at the Daycare on multiple

occasions and had access to every room a nd child/children there.

Ms. Anderson did not have the appropriate l evel two screening.

17. In addition to investigating complaint two, child care

regulations counselor Christina Bryant also observed inadequate

ratios between staff and children, and a la ck of qualified or

unscreened individuals supervising children. Ms. Bryant

observed one staff for five children in the zero to twelve month

age group (ratio should be one to four), and she observed one

staff to nine children, in the one - year - old classroom (ratio

should be one staff to six children). Upon completing a review

of the Daycare ' s record keeping, Ms. Bryant also found that

background screening documents were missing for staff members.

18. On November 14, 2012, Child Protective Investigator

(CP I), Beauford White was directed to go to the Daycare and

remove Ms. Anderson ' s two children from the Daycare. 1 1 / When CPI

White advised Ms. Giles he was removing the children from the

Daycare, Ms. Giles became very emotional, and initially told CPI

White he could not take the children. CPI White contacted his

supervisor who directed CPI White to contact the Orange County

Sheriff ' s Office (OCSO) for assistance in removing the children.

Between the time the OCSO was called and when the deputy

arrived, appr oximately 45 to 60 minutes, CPI White had obtained

compliance, and Ms. Giles released the two children to his

custody. 1 2 /

19. On Thursday afternoon, November 29, 2012, Ms. Giles

was asked to attend a meeting on Friday, November 30, 2012, in

the Departm ent ' s legal office regarding the Daycare ' s license.

Because of the short notice, Ms. Giles was unable to obtain an

attorney to accompany her to the meeting on November 30 , 2012 .

Ms. Giles attended the meeting by herself with a number of

Department staff . Ms. Giles was given the following option:

execute a relinquishment of the Daycare ' s license , or the

Department would seek to revoke the license. Ms. Giles did not

know the law.

20. Ms. Giles executed the relinquishment 1 3 / of the

Daycare ' s license beca use she was thinking that " revoke

sound[ed] horrible to " her. She did not want to relinquish her

license, nor close her business, but she did not feel she had

any choice in the matter. The totality of the circumstances

under which Ms. Giles found herself renders the " relinquishment "

less than voluntary.

21. After this meeting, Ms. Giles returned to the Daycare

and was present when Ms. Torres removed the Daycare ' s license

from the wall. Mytenniza Boston, a Daycare employee, was also

present when Ms. Tor res removed the license. Ms. Giles did not

tell Ms. Boston or any of the other Daycare employees that the

Daycare ' s license had been relinquished, nor did she start

notifying parents of the Daycare ' s closing.

22. On Monday, December 3, 2012, around noon , Department

investigators arrived at the Daycare and found children in the

opened facility. Ms. Giles was at the Daycare making telephone

calls to parents asking them to come pick up their child or

children. The Daycare was open for business despite the fact

that Ms. Giles had relinquished her license on Friday,

November 30, 2012.

23. On occasion Pervis Giles, Ms. Giles ' then husband

would walk to the Daycare to talk with Ms. Giles. Mr. Giles

would also cut the Daycare ' s grass, unlock the Daycare ' s d oor

for daily operations, and participate with Ms. Giles in making

business decisions about the Daycare. Ms. Giles did not

consider these activities to be working for the Daycare ;

however, common sense dictates otherwise.

24. Ms. Giles has several childr en . A t various times

during the Daycare ' s operation, Ms. Giles ' children were at the

Daycare volunteering, cleaning up or helping with the Daycare

children in some fashion. Ms. Giles ' children did not have the

required l evel two background screening as M s. Giles did not

know that her children needed to be screened. Ms. Giles ' lack

of understanding regarding who is required to be screened is

troublesome. Ms. Giles has been in the daycare business for

many years, yet she failed to comply with basic safety measures.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this action

in accordance with sections 120.569 and 120.57(1), Florida

Statutes.

26. The Department is the state agency re sponsible for

licensing and regulating daycare facilities. See §§ 402.301 -

402.319. The Department is authorized to issue a daycare

license when specified requirements are met.

See § 402.308(3)(d).

27. In this case, the Daycare is seeking renewal of i ts

license, which Ms. Giles relinquished on November 30, 2012. The

Department now seeks to deny the Daycare ' s renewal application

based upon alleged violations of chapter 402. The two actions,

while inter - related, are distinct actions.

28. Where the Dep artment makes allegations that the

applicant engaged in wrongdoing, the burden is on the Department

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

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

record evidence must be made ind icating how the conduct alleged

violates the statutes or rules or otherwise justifies the

proposed sanctions. Mayes v. Dep ' t of Child. & Fam. Servs. , 801

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

29. Generally, a license applicant has the burden to prove

by a preponderance that he or she is entitled to the license.

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

However, where the licensing agency proposed to deny the renewal

of a license based on specific statutory and rule violations, it

has t he burden to prove those violations. The standard of proof

with respect to a contested denial of a day care renewal

application is clear and convincing evidence. See Dorothy Coke

v. Dep ' t of Child. & Fam. Servs. , 704 So 2d 726 (Fla. 5th DCA

1998). See M . H. v . Dep ' t of Child. & Fam. Servs. , 997 So 2d

7 55 (Fla. 2nd DCA 200 8). See also D avis Fam . Day Care Home, No.

2D12 - 1191, (Fla. 2nd DCA filed

July 17, 2013 ).

30 . Section 402.308 provides in pertinent part:

(1) ANNUAL LICENSING -- Every child care

faci lity in the state shall have a license

which shall be renewed annually.

* * *

(3) STATE ADMINISTRATION OF LICENSING. Ï In

any county in which the department has the

authority to issue licenses, the following

procedures shall be applied:

* * *

(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 met.

* * *

(d) The department shall . . . 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

screeni ng materials have been timely

submitted; however, a license may not be

issued or renewed if any of the child care

personnel at the applicant facility have

failed the screening required by ss.

402.305(2) and 402.3055.

3 1 . Section 402.310 provides the fol lowing in

pertinent part:

(1)(a) The department . . . 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:

* * *

3. De ny, suspend, or revoke a license or

registration.

(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

th e probability that death or serious harm

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 correct 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, and to severe disciplinary

sanctions for actions that jeopardize the

health and safety of children. . .

(d) The disciplinary sanctions set forth in

this section apply to licensed child care

facilities, . . .

3 2 . Section 402.305(4) provides in pertinent part:

(4) STAFF - TO - CHILDREN RATIO. Ï

(a) Minimum standards for the care of

children in a licensed child care facility

as established by rule of the de partment

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 s ix children.

3. For children 2 years of age or older,

but under 3 years of age, there must be one

child care personnel 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.

* * *

7. When children 2 years of age and older

are in care, the staff - to - children ratio

shall be based on the age group with the

largest number of children within the group.

3 3 . Section 402.319(1)(b) provides:

(1) It is a mis demeanor of the first

degree, punishable as provided in s.

775.082 or s. 775.083 , for any person

knowingly to:

(b) Operate or attempt to operate a child

care facility without having procured a

license as required by this a ct .

3 4 . Section 435.05 provides in pertinent part:

Requirements for covered employees and

employers. Except as otherwise provided by

law, the following requirements apply to

covered employees and employers:

(1)(a) Every person required by law to be

sc reened pursuant to this chapter must

submit a complete set of information

necessary to conduct a screening under this

chapter.

* * *

(c) For level 2 screening, the employer or

agency must submit the information necessary

for screening to the Departm ent of Law

Enforcement within 5 working days after

receiving it. The Department of Law

Enforcement shall perform a criminal history

record check of its records and request that

the Federal Bureau of Investigation perform

a national criminal history record check of

its records for each employee for whom the

request is made. The Department of Law

Enforcement shall respond to the employer or

agency, and the employer or agency must

inform the employee whether screening has

revealed disqualifying information.

3 5 . Section 435.04 provides in pertinent part:

(1)(a) All employees required by law to be

screened pursuant to this section must

undergo security background investigations

as a condition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforcement, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records chec ks

through local law enforcement agencies.

(b) Fingerprints submitted pursuant to this

section on or after July 1, 2012, must be

submitted electronically to the Department

of Law Enforcement.

(c) An agency may contract with one or more

vendors to perfo rm all or part of the

electronic fingerprinting pursuant to this

section. Such contracts must ensure that

the owners and personnel of the vendor

performing the electronic fingerprinting are

qualified and will ensure the integrity and

security of all perso nal information.

(d) An agency may require by rule that

fingerprints submitted pursuant to this

section must be submitted electronically to

the Department of Law Enforcement on a date

earlier than July 1, 2012.

(e) Vendors who submit fingerprints on

be half of employers must:

1. Meet the requirements of s. 943.053 ; and

2. Have the ability to communicate

electr onically with the state agency

accepting screening results from the

Department of Law Enforcement and provide a

photograph of the applicant taken at the

time the fingerprints are submitted.

3 6 . Section 402.3054 provides in pertinent part:

(1) For the purposes of this section,

" child enrichment service provider " means an

individual who provides enrichment

activities, such as language training, music

instruction, educational instruction, and

other experiences, to specific children

during a specific time that is not part of

the regular program in a child care

facility.

* * *

(3) A child enrichment service provider

shall be of good moral character based upon

screening. This screening shall be

conducted as provided in chapter 435, using

the level 2 s tandards for screening set

forth in that chapter. A child enrichment

service provider must meet the screening

requirements prior to providing services to

a child in a child care facility. A child

enrichment service provider who has met the

screening stan dards shall not be required to

be under the direct and constant supervision

of child care personnel.

3 7 . Rule 65C - 22.001(4)(a)(b) provides:

(4) Ratios.

(a) The staff - to - child ratio, as

established in Section 402.305(4), F.S., is

based on primary res ponsibility for the

direct supervision of children, and applies

at all times while children are in care.

(b) Mixed Age Groups.

1. In groups of mixed age ranges, where

children under one year of age are included,

one staff member shall be responsible fo r no

more than four children of any age group, at

all times.

2. In groups of mixed age ranges, where

children one year of age but under two years

of age are included, one staff member shall

be responsible for no more than six children

of any age group, at all times.

3 8 . Rule 65C - 22.006 provides in pertinent part:

Children ' s Health Requirements.

(1) Ge ne ral Requirements.

(a) Records required to document compliance

with S ection 402.305, F. S ., and Rules

adopted thereunder, shall be maintained at

t he facility, and shall be available during

the hours of operation for review by the

licensing authority.

* * *

( 2 ) Children ' s Health Requirements:

(a) The child care facility is responsible

for obtaining for each child in care a

current, complete and properly executed

Student Health Examination form DH 3040

(June 2002), which is incorporated herein by

reference and may be obtained from the local

county health department, from the parent or

legal guardian or a signed statement by

authorized profess ionals that indicates the

results of the components of the Student

Health Examination form are included in the

health examination. The Student Health

Examination shall be completed by a person

given statutory authority to perform health

examinations.

( c ) The child care facility is responsible

for obtaining for each child in care a

current, complete and properly executed

Florida Certification of Immunization form

Part A - 1, B, or C, DH 680 (April 2009), or

the Religious Exemption from Immunization

form, DH 681 (July 2008), which are

incorporated herein by reference, from the

custodial parent or legal guardian. DH Form

680 and DH Form 681 may be obtained from the

local county health department.

Immunizations received out - of - state are

acceptable; however im munizations must be

documented on the Florida Certification of

Immunization form and must be signed by a

physician practicing in the State of

Florida. Specific immunization requirements

are included and detailed in the most

current edition of the " Immuniz ation

Guidelines - Florida Schools, Child Care

Facilities and Family Day Care Homes " as

promulgated by the Florida Department of

Health.

(3) Enrollment Information. The facility

operator shall obtain enrollment information

from the child ' s custodial paren t or legal

guardian prior to accepting a child in care.

This information shall be documented on CF -

FSP Form 5219, March 2009, Child Care

Application for Enrollment, which is

incorporated by reference, or an equivalent

form that contains all the information

required by the department on CF - FSP Form

5219. CF - FSP Form 5219 may be obtained from

the licensing authority or on the

d epartment ' s website at

www.myflorida.com/childcare.

(a) Enrollment information shall be kept

current and on file.

(b) The child sh all not be released to any

person other than the person(s) authorized

or in the manner authorized in writing by

the custodial parent or legal guardians.

4. Prior to beginning volunteering in a

child care facility, a CF - FSP 5217, March

2009, Volunteer Aff idavit, which is

incorporated by reference, and may be

obtained from the department ' s website

www.myflorida.com/childcare , must be

completed and on file at the child care

facility for the volunteer.

(4 ) Personnel Records. Records shall be

maintained and kept current on all child

care personnel, as defined by Section

402.302(3), F.S., . . . These shall include:

(a) An employment application with the

required statement pursuant to Section

402.3055(1)(b ), F.S.

(b) Position and date of employment.

(c) CF - FSP Form 5337, March 2009, Child

Abuse & Neglect Reporting Requirements,

which is incorporated by reference, must be

signed annually by all child care personnel.

(d) Initial Screening. Screening

in formation must be documented on CF - FSP

Form 5131, March 2009, Background Screening

and Personnel File Requirements, which is

incorporated by reference. Screening

includes the following:

1. Level 2 screening as defined in Section

435.04, F.S., which incl udes at a minimum

Federal Bureau of Investigations (FBI),

Florida Department of Law Enforcement

(FDLE), and local law enforcement records

checks. For the purpose of issuing a

license, any out - of - state criminal offense,

which if committed in Florida, would

constitute a disqualifying felony offense,

shall be treated as a disqualifying felony

offense for screening purposes under this

rule.

2. An employment history check must include

the previous two years, which shall include

the applicant ' s job title and a description

of their regular duties, confirmation of

employment dates, and level of job

performance. Failed attempts to obtain the

employment history must be documented in the

personnel file, and include date, time, and

the reason the information was n ot obtained.

3. CF Form 1649A, January 2007, Child Care

Attestation of Good Moral Character, which

is incorporated by reference, must be

completed for all child care personnel

annually or in accordance with the local

licensing authority. A copy of the C F Form

1649A may be obtained from the department ' s

website at www.myflorida.com/childcare .

(e) Re - Screening. A screening conducted

under this rule is valid for five years, at

which time a statewide re - sc reen must be

conducted.

1. The five year re - screen is required for

all child care personnel.

2. The five year re - screen must include, at

a minimum, statewide criminal records checks

through the FDLE and a local criminal

records check.

3. CF Form1649 A Child Care Attestation of

Good Moral Character must be completed for

all child care personnel annually. A copy

of the CF 1649A may be obtained from the

department ' s website at

www.myflorida.com/childcare .

4. Re - screening. Re - screening information

for all child care personnel must be

documented on CF - FSP Form 5131 March 2009,

Background Screening and Personnel File

Requirements.

5. A copy of all background screening

clearance documents for the directo r and

owner must be included in the department ' s

official licensing file or in accordance

with the appropriate local licensing agency

requirements.

* * *

(f) Copies of training information and

credentials as described in subsections 65C -

22.003(4) , (6) and (7), F.A.C., as

a pplicable.

(g) Driver ' s license and driver physical

examination documentation. A copy of the

driver ' s license and the physician

certification, or another form containing

the same elements of the physician

certification, granti ng medical approval to

operate the vehicle, and valid

certificate(s) of course completion for

first aid training and infant and child

cardiopulmonary resuscitation (CPR)

procedures must also be maintained in the

driver ' s personnel file.

3 9 . Any final or der denying renewal of the applicant ' s

license must be based solely on the grounds asserted in the

denial letter given to the Daycare. See M. H. v. Dep ' t of

Child. & Fam. Servs. , supra . " [T]he notice ' s exclusive focus on

' significant pulling force ' as ca using a nonaccidental injury

precluded DCF from urging negligence as an alternative ground

for denying the renewal of the license at the administrative

proceeding. " ) The Department did not all ege a lack of

timeliness in the filing of the Daycare's renewal application

and should not be allowed to allege that as a ground for further

sanctions.

40 . The D epartment sustained its burden with respect to

the violations as set forth above. The D aycare failed to comply

with the statutes and rules governing it. T he credible evidence

establishes that there were deficiencies revealed during the

routine inspection conducted on February 15, 2012, and those

same deficiencies were found again during the June 20, July 2,

and/or November 7 , 2012, inspections or investigat ions. These

deficiencies were sufficient to warrant the denial of the

Daycare ' s application for renewal of the license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

F amilies enter a final order DENYING the renewal application.

DONE AND ENTERED this 22nd day of July , 2013 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrativ e H earings

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 Administrative Hearings

this 22nd day of July , 2013 .

ENDNOTE S

1/ The term relinquishment is defined as " A forsaking,

abandoning, renouncing, or giving over a right. " Black ' s Law

Dictionary 1456(4th ed. 1968). The undersigned can find no

authority for the Department to continue the review of the

Daycare ' s renewal a pplication when its owner relinquished the

license. However, the circumstances under which Ms. Giles

relinquished the license are less than flattering to the

Department. The Department, by issuing the denial letter,

afforded a point of entry for Ms. Gile s to contest the denial.

2/ The Department listed two of these three witnesses for its

own case - in - chief. To provide an orderly hearing flow and allow

the Department the opportunity to elicit the direct testimony of

each witness, the undersigned allowed the Department ' s cross

examination to go beyond the Daycare ' s direct examination.

3/ Exhibit A, when introduced at hearing contained two pages,

the front and last. The undersigned noted to the parties there

was a page or pages missing. The Department ' s counsel provided

the complete four page E xhibit to DOAH on Friday, May 3, 2013.

4/ The Daycare objected to Exhibit H.

5/ Exhibits T through W were hand - drawn during the hearing. The

Department ' s counsel e - filed these four exhibits on Friday,

May 3, 2013.

6 / A different day care center is currently operating in the

location where Beatrice Guardian Angel Daycare had operated.

7 / Although the pagination indicates there were four pages to

this notification, only " Page 1 of 4 " was within Exhibi t M.

8 / Each notification indicated that a further violation could

result in the imposition of a fine. No fines were ever imposed.

9 / The August 1 notification letter indicates that a fine would

be imposed for a late filed renewal application. The

D ecember 12, 2012, denial letter did not allege that the renewal

application was filed late, nor did it impose a fine for the

late filed renewal application.

1 0 / The undersigned acknowledges that the DCF complaint report

admitted in evidence includes witn ess statements that Ms. Giles

and others recounted to others as to events that occurred. The

complaint reports are hearsay. However, since this case is not

criminal in nature, the report falls within the public records

hearsay exception in section 90.803 (8).

The public record exception is limited to " matters observed

pursuant to duty imposed by law as to matters which there was a

duty to report. " The investigator who wrote the report did not

observe the two bags at the Daycare. Records that are not ba sed

on the observations of the public official, but " rely on

information supplied by outside sources " do not fall within the

public records and reports exception to the hearsay rule. Lee

v. Dep ' t of HRS , 698 So. 2nd 1194, 1201 (Fla. 1997); see also

M.S. v . Dep ' t of Child. & Fams. , 6 So. 3d 102, 104 (Fla. 4th DCA

2009). Thus, although the direct observations of the

investigator are set forth in the report are admissible as an

exception to the hearsay rule, the hearsay - within - hearsay

statements made by the alleged witnesses do not fall within the

hearsay exception. Ms. Giles and Myteenzia Boston testified

that they did not know that the white residue was cocaine, but

they suspected it was. However, no scientific testing was done

to identify the residue.

E ven though the complaint and/or investigative report are

admissible, the determination of the weight to be given the

report, as is the case with all evidence, remains within the

province of the trier of fact. There is no clear and convincing

evidence that there was cocaine or cocaine residue in either

bag.

1 1 / It remains unclear why the two children needed to be

removed. CPI White ' s testimony implied that the children should

have been staying with another relative per a court order, but

no court order or direct testimony was elicited about those

circumstances. Further, there was no proof that the children

were residing with Ms. Giles, as they were at a day care center

during regular working hours. Although DCF ' s Exhibit A, page

two, paragraph one, ref erences " an active dependency court order

under chapter 39, Florida Statutes " , the exact nature of that

order was never divulged.

1 2 / Although Ms. Giles and the OCSO Deputy engaged in a verbal

altercation with each other, CPI White was satisfied with the

children ' s removal.

1 3 / The document (Respondent ' s Exhibit E) reads as follows:

November 30, 2012

I, Debra Giles , do hereby relinquish my

child care facility license, License Number

C090R0812 , Beatrice Guardian Angel Daycare,

623 West Lancaster Road , Orlando, FL 32809.

I understand that I have the opportunity to

seek legal counsel.

Debra R. Giles [signature] 11 - 30 - 12

Debra R. Giles [printed] Date

Michelle Stanton [Notary Stamp]

Witnesses:

[Illegible signature] [Illegible signature]

COPIES F URNISHED:

Stefanie C. Beach, Esquire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801 - 1782

Jacques Lee Cooper, Esquire

Justice League Law Group

Suite 201 - B

2295 South Hiawassee Road

Orlando, Florida 32835

Esther Jacobo , Interim Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Marion Drew Parker, General Counsel

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Greg Venz, Agency Clerk

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 su bmit 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.