14-004586 Department Of Children And Families vs. Play And Learn Child Care Center Status: Closed Recommended Order on Monday, February 9, 2015.

Summary: Petitioner failed to prove that school bus owned and operated by child care facility was not an excluded vehicle so as to be subject to seat-belt requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN

AND FAMILIES ,

Petitioner,

Cas e No s . 14 - 4586

vs.

PLAY AND LEARN CHILD CARE

CENTER ,

Respondent .

_______________________________/

RECOMMENDED ORDER

On December 12 , 2014, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Miami and

Tallahassee, Florida.

APPEARANCE S

For Petitioner: Karen A. Milia , Esquire

Department of Children and Families

Suite N - 1 01 4

401 Northwest 2nd Avenue

Miami , Florida 3 3128

For Respondent : Lucy C. Pineiro , Esquire

Lucy C. Pineiro and Associates, P.A.

Suite 221

717 Ponce de Leon Boulevard

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE S

The issues are : 1) whether Respondent seated a child in a

non - e xcluded vehicle without an individual seat belt or federally

approved child safety restraint, as allegedly required by

section 402.305(10) , Florida Statutes, and Flori da Administrative

Code Rule 65C - 22.001(6) (d) and (e) ; 2) if so, whether this is a

Class I violation, as provided by section 402.305(10) and rule

65C - 22.001(6)(d) and (e); and 3) if so, whether this Class I

violation necessitates the termination of Respondent's Gold Seal

designation, as provided by section 402.281 .

PRELIMINARY STATEMENT

By Admi nistrative Complaint filed September 23, 2014,

Petitioner alleged that Respondent is a licensed child care

facility, holding license C11MD1573. The Administrative

Complaint alleges that , during a routine inspection on August 14,

2014, Petitioner's inspect or cited Respond ent for a Class I

violation of s tandard number eight because the inspector observed

25 students on Respondent's bus, which was equipped with seat

belts for only 12 seats. The Administrative Complaint alleges

that this is a violation of sec tion 402.305(1 0) and r ule

65C - 22.001(6)(d) and (e). The Administrative Complaint alleges

that this violation is a Class I violation and requires the

termination of Respondent's Gold Seal designation.

Respondent requested a formal hearing.

At the hearing, Petitioner called three witnesses and

offered into evidence five exhibits : Petitioner Exhibits 1

through 5. Respondent called one witness and offered into

evidence four exhibits : Respondent Exhibits 6, 7, 10, and 12.

All exhibits were admitted except R espondent Exhibits 6 and 7,

which were proffered.

The court reporter fi led the transcript on Janua ry 8 , 2015 .

The parties filed proposed recommended orders on January 30 ,

2015 .

FINDING S OF FACT

1. Respondent is a licensed child care facility. Since

2011 , Respondent has transport ed students attending its facility

by the subject bus, which i t owns. The bus transports school -

aged children from Respondent's facility to their schools in the

morning and from their schools to Respondent's facility i n the

after noon and transports preschool - aged children during the day

on field trips .

2. The bus is a 1997 International 3000 series model with a

gross vehicle weight of about 19,500 pounds and a capacity of 29

passengers. T he bus is yellow with black markings and has a

generous allotment of warning lights, including flashing red

lights and a stop arm that extends out from the side of the bus

to remind drivers to stop while the bus picks up or discharges

students. The bus bears the name of the school in large lette rs.

3. When Respondent acquired the bus, it had no seat belts.

Believing that they were required to provide seat belts for

children under five years of age, Respondent's owner installed

seat belts to secure 12 passengers, which was the largest number

of children in this age range whom Respondent expected to

transport at any one time.

4 . On August 14, 2014 , a group of Respondent's students ,

all at least five years old, boarded Respondent's bus at the

child care facility for a field trip . Shortly prior to the

departure of the bus, Petitioner's inspector arrived at the

facility and observed that the bus was occupied by 25 students ,

but had only 1 2 seat belts.

5 . The inspector informed the owner of Respondent that all

of the students were required to have seat belts, but the owner

disagreed. The bus then departed with 13 students not wearing

seat belts, and the inspector issued a citation for the alleged

violation.

6. T he owner's disagreement was based on an inspection by

another employee of Petitioner that had taken place on April 16,

2014. In that inspection, Respondent was found to be in

compliance with all requirements for "seat belts/child

restraints," as provided by s ection 402.305(10) and rule

65C - 22.001(6). In fact, Petitioner's inspections of Respondent's

bus failed to include any seat - belt citation at anytime during

the three years that Respondent owned and operated the bus , even

though, at all times after its acquisition, the bus was equipped

and used as the inspector observed on August 14, 2 014.

CONCLUSIONS OF LAW

7 . DOAH has jurisdiction. §§ 120.569 and 120.57(1), Fla.

Stat. The parties do not dispute that Petitioner has proposed

action determining the substantial interests of Respondent.

Petitioner argues, though, that jurisdiction is l acking because

there is no material issue of disputed fact. Although the

parties do not dispute what transpired on August 14, 2014, it is

not clear that the parties do not dispute the material

characteristics of Respondent's bus .

8. The burden of proof is on Petitioner to prove the

material allegations by clear and convincing evidence. Dep't of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996). Additionally, Petitioner may not take action against

Respondent for acts or omissions with wh ich Respondent has not

been charged. See, e.g. , Trevisani v. Dep't of Health , 908 So.

2d 1108 (Fla. 1st DCA 2005).

9. Respondent's proposed recommended order argues that

Petitioner is equitably estopped from asserting a seat - belt

violation . In this argu ment, Respondent relies on the earlier

inspections that did not cite any seat - belt violations and the

failure, on August 14, 2014, of the inspector to prevent the bus

from departing with unbelted children .

10. Equitable estoppel is rarely available to

a dministrative litigants. Assoc. Indus. Ins. Co. v. Dep't of

Labor & Emp't Sec. , 923 So. 2d 1252, 1255 (Fla. 1st DCA 2006).

Equitable estoppel requires: 1) a representation of a material

fact that is contrary to a later - asserted position; 2) the other

pa rty's reliance on the representation; and 3) a change in

position by the other party due to the reliance on the

representation. When the party to be estopped is a governmental

agency, equitable estoppel also requires that : 1) the

government's conduct exc eeds mere negligence and causes serious

injustice and 2) the application of estoppel against the

government will not und u ly harm the public interest. Id.

11. Respondent cannot satisfy any of these conditions.

First, the failure of earlier inspections to cite a seat - belt

violation or the failure of the inspector to seize control of the

bus on the day of the inspection is not a representation or a

series of representations. Second, any failures as to past

inspections would involve an issue of law, not an issue of fact.

Third, Respondent never changed its position due to any relied -

upon representation , a failure to cite the absence of seat belts ,

or a failure of the inspector to seize control of the bus . When

Respondent purchased a bus without a full comp lement of seat

belts, Respondent was not relying on anything said or done by

Petitioner. If the law requires seat belts, it is irrelevant to

any estoppel analysis whether the first citation wa s issued at

the time of the first inspect ion or the twentieth i nspection .

Lastly, if the law requires seat belts, any failure by

Petitioner's inspectors would not rise to a serious injustice,

and a ruling that would prevent the enforcement of such a seat -

belt law would unduly harm the public interest. Respondent's

a rgument on equitable estoppel is entirely without merit.

12. Respondent's proposed recommended order also argues

that Florida Administrative Code Rules 65C - 22.010 and 65C - 22.012

are invalid exercises of delegated legislative authority on the

ground s that Petitioner has exceeded its grant of rulemaking

authority and enlarged, modified , and contravened the statutes

implemented by the rules. Respondent has not invoked DOAH's

jurisdiction to invalidate r ules because Respondent has not filed

a n original petiti on with DOAH seeking this relief.

§ 120.56(1)(c). Thus, the rules are presumptively valid, City of

Palm Bay v. Departmen t of Transp ortation , 588 So. 2d 624, 628

(Fla. 1st DCA 1994), at least at the level of the DOAH

proceeding. But see Willette v. Air P rod. , 700 So. 2d 397 , 399

(Fla. 1st DCA 1997) ( in a judicial proceeding , an unchallenged

rule must yield to a contradictory statute). Respondent's

arguments against the validity of the subject rules are therefore

rejected .

13. The Administrative Complain t cites section 402.305(10),

which directs Petitioner to establish enforceable standards, but

does not do so itself . This statute directs Petitioner to

establish:

Minimum standards [that] shall include

requirements for child restraints or seat

belts in ve hicles used by child care

facilities and large family child care homes

to transport children, requirements for

annual inspections of the vehicles,

limitations on the number of children in the

vehicles, and accountability for children

being transported.

Pl ainly, this subsection omits specific, enforceable standards

for seat belts, annual vehicle inspections, the maximum number of

children on a vehicle, and accountability for the children being

transported. For this reason, Petitioner has not proved any

vio lations of secti o n 402.3 05 (10).

14. However, as dir ected by section 402.3 05 , Petitioner has

adopted minimum standards for the operation of child care

facilities in r ule 65C - 22.001 , which is entitled, "General

Information." These minimum standards include a number of

specific, enforceable requirements concerning the transportation

of students. Rule 65C - 22.001(6) provides:

Transportation. For the purpose of this

section, vehicles refer to those that are

owned, operated or regularly used by the

child care facility and vehicles that

provide transportation through a contract or

agreement with an outside entity. ParentsÓ

personal vehicles used during field trips

are excluded from meeting the requirements

in paragraphs 65C - 22.001(6)(a)2., (b) and

(c), F.A.C.

(a) When any vehicle is regularly used by a

child care facility to provide

transportation, the driver shall have the

following:

1. A valid Florida driverÓs license,

2. An annual physical examination which

grants medical approval to drive, and val id

certificate(s) of course completion for

first aid training and infant and child

cardiopulmonary resuscitation (CPR)

procedures.

(b) All child care facilities must comply

with the insurance requirements found in

Section 316.615(4), F.S.

(c) All vehic les regularly used to

transport children shall be inspected

annually by a mechanic to ensure proper

working order. Documentation by the

mechanic shall be maintained in the vehicle.

(d) The maximum number of individuals

transported in a vehicle may not e xceed the

manufacturerÓs designated seating capacity

or the number of factory installed seat

belts.

(e) Each child, when transported, must be

in an individual factory installed seat belt

or federally approved child safety

restraint, unless the vehicle is excluded

from this requirement by Florida Statute.

(f) When transporting children, staff - to -

child ratios must be maintained at all

times. The driver may be included in the

staff - to - child ratio. Prior to transporting

children and upon the vehicle(s) ar rival at

its destination, the following shall be

conducted by the driver(s) of the vehicle(s)

used to transport the children:

1. DriverÓs Log. A log shall be

maintained for all children being

transported in the vehicle. The log shall

be retained for a minimum of four months.

The log shall include each childÓs name,

date, time of departure, time of arrival,

signature of driver, and signature of second

staff member to verify the driverÓs log and

that all children have left the vehicle.

2. Upon arri val at the destination, the

driver of the vehicle shall:

a. Mark each child off the log as the

children depart the vehicle;

b. Conduct a physical inspection and

visual sweep of the vehicle to ensure that

no child is left in the vehicle; and

c. Sign, date and record the driverÓs

log immediately, verifying that all children

were accounted for, and that the visual

sweep was conducted.

3. Upon arrival at the destination, a

second staff member shall:

a. Conduct a physical insp ection and

visual sweep of the vehicle to ensure that

no child is left in the vehicle; and

b. Sign, date and record the driverÓs

log immediately, verifying that all children

were accounted for and that the log is

complete.

(g) Each vehicle shall be equipped with

contact information for all children being

transported. When transporting children

with chronic medical conditions (such as

asthma, diabetes or seizures), their

emergency care plans and supplies or

medication shall be available. The

resp onsible adult shall be trained to

recognize and respond appropriately to the

emergency.

15. As noted above, the Administrative Complaint alleges

that Respondent has violated rule 65C - 22.001(6)(d) and (e). This

case does not involve the transporting of children in excess of

the overall capacity of the bus , so the relevant portion of rule

65C - 22.001(6)(d) pertains to the transporting of students for

whom seat belts are not available .

16. Thus, as relevant to the case, rule 65C - 22.001(6)(d)

and rule 65C - 2 2.001(6) (e) , respectively , limit the number of

passengers to the number of seat belts and require the passengers

to wear the seat belts. The f irst issue is whether the exempt -

vehicle provision in rule 65C - 22.001(6)(e) also applies to rule

65C - 22.001(6)(d) . If the exemption does not apply to both

subsecti ons and the subject bus constitutes an excluded vehicle,

each seat on Respondent's bus c ould be required to be equipped

with a seat belt, but the students would not be required to wear

them . This would ma ke no sense. See, e.g. , Tampa - Hillsborough

Cnty. Expressway Auth. v. Morris Ali gnment Serv. , Inc. , 444 So.

2d 926, 929 (Fla. 1983) (construction of statute must avoid

"absurd" result). "'[T]he words of a statute must be read in

their context and with a v iew toward their place in the overall

statutory scheme.' ( citation omitted) . " FDA v. Brown &

Williamson Tobacco Corp. , 529 U.S. 120, 133 (2000). A court must

construe a regulatory statute as a "'coherent regulatory scheme'

(citation omitted)" and "'fit, if possible, all parts [of the

statute] into a harmonious whole.' (citation omitted) . " Id.

17. In Davis v. Michigan Department of Treasury , 489 U.S.

803 (1989), the U.S. Supreme Court was faced with a

interpretative problem similar to that posed by th e mention of

excluded vehicles in rule 65C - 22.001(6)(e) , but not rule

65C - 22.001(6)( d ). The statute before the court authorized the

taxation of "pay or compensation for personal services as an

officer or employee of the United States . . ., if the taxatio n

does not discriminate against the officer or employee because of

the source of the pay or compensation. (emphasis supplied) . "

The state imposed its personal income tax on the retirement pay

received by a retired federal employee. The court held that t he

highlighted portion of the statute meant that it applied to

retired, as well as active, federal employees. The state argued

that, even if so, the highlighted portion of the statute did not

modify the reference to the officer or employee in the clause

p rohibiting discrimination in the taxing scheme. The court

conceded that the state's "hypertechnical reading of the

nondiscrimination clause is not inconsistent with the language of

that provision examined in isolation ." Id. at 809. But, to

avoid an "imp lausible" interpretation in which a state could

impose an income tax in a discrim in atory fashion against retired

federal employees, but not active federal employees, the court

read the nondiscrimination clause to apply to both classes of

federal employees. Id. at 809 - 10.

18. Applying these rules of statutory construction to rule

65C - 22.001(6)(d) and (e), the excluded - vehicle provision applies

to both subsections to avoid an absurd or implausible result and

to achieve a coherent regulat ory scheme on the tr ansportation

provided by child care facilities. This reading of the rule is

also supported by the principle that disciplinary provisions must

be construed strictly, and any ambiguities must be construed in

favor of the licensee. See, e.g. , McClung v. Cri m. Just. St ds .

& Training Comm 'n , 458 So. 2d 887, 888 (Fla. 5th DCA 1984).

19 . The next issue is to determine which party bears the

burden of proving whether the bus is excluded from the seat - belt

requirement s . Absent clear legislative intent to the cont rary ,

the party with the burden of proof must prove the nonavailability

of an exception to a general statute, if the exception is within

the enacting clause establishing the liability.

20 . The earliest case on this point is Baeumel v. State ,

26 Fla. 71, 7 So. 371 (1890) , in which an indictment charged the

defendant with engaging in business as a dealer selling alcoholic

beverages without a license. The statute required a dealer

selling alcoholic beverages to obtain a license and designated as

a dealer a ny person who sold alcoholic beverages, but an

independent clause within the sentence setting forth the second

requirement excluded certain activities by compounding druggists.

Quoting with approval a treatise on criminal procedure, the

Supreme Court stat ed:

["] 'if there is an exception in the enacting

clause, the party pleading must show that

his adversary is not within the exception;

but, if there be an exception in a

subsequent clause, or a subsequent statute,

that is matter of defence, and is to be

s hown by the other party.'"

26 Fla. at 75, 7 So. at 372 (citations omitted). Under this

principle, the defendant bore the burden of proving that he was

entitled to the druggist exclusion.

21 . In State v. Buchman , 361 So. 2d 692 (Fla. 1978), the

defendan ts were charged with the sale of unregistered securities

under section 517.07, which prohibited the sale of unregistered

securities unless the securities or transaction wa s exempt under

section 517.05 and 517.06, respectively. Section 517.17

affirmatively placed the burden of proving entitlement to an

exemption on the person claiming the exemption. Noting that the

legislative intent and the exemptions were in separate statutes,

the Court held that the burden was on the defendants, not the

state, as to the se exemptions. See also Terranova v. State , 474

So. 2d 1206 (Fla. 2d DCA 1985) (defendant had burden of proving

exemption under section 489.103 after state proved that defendant

had contracted without a licensed in violation of section

489.127).

22 . In S tate v. Thompson , 390 So. 2d 715 (Fla. 1980), a

defendant was convicted of possessing a short - barreled shotgun in

violation of section 790.221, which, in a single sentence,

prohibited the possession of certain weapons, but an independent

clause within the sentence excluded antique firearms. T he

grammar of the two statutes in Baeumel and Thompson was identical

in that the exception was contained in an independent clause --

i.e., a clause with a subject and predicate -- separated from the

enacting clause by a se micolon. Noting that the exception clause

"constitut[ed] a member of a complex or compound sentence [rather

than] a compl eted sentence, 390 So. 2d at 716 n.3 , the court

applied Baeumel and held that the defendant bore the burden of

proving the antique - wea pon defense.

23 . In State v. Robarge , 450 So. 2d 855 (Fla. 1984) , the

defendant was convicted of possessing a firearm without a license

in violation of section 790.05, which prohibited, in a single

sentence , the possession of a firearm "without having a l icense . "

Concluding that "without having a license" was not an excepti on in

a subsequent clause, the c ourt held that the state had the burden

of proving that the defendant lacked a license.

24 . The subject exclusion is a dependent clause within the

en abling provision of rule 65C - 22.001(6)(e) , so , under the four

above - discussed cases, Petitioner bears the burden of proving

that the bus is not excluded from the seat - belt law.

25 . In the alt er n ative, even if the seat - belt exclusion

were an affirmative defense, Respondent would not bear the

ultimate burden of proof on this issue. Respondent would have to

"go forward with evidence that the affirmative defense exists,"

and "once [Respondent] has presented competent evidence of the

existence of the defense , the burden of proof remains with

[Petitioner]." Wright v. State , 442 So. 2d 1058, 1060 (Fla. 1st

DCA 1983).

26 . Construing the meaning of the exempt - vehicle provision

of rule 65C - 22.001(6)(e) requires reference to a series of

statutes and rules. Sec tion 316.613, which requires child -

restraint devices in certain "motor vehicles," excludes a "school

bus" and incorporates the statutory definition of "school bus" at

section 316. 003(45). § 316.613(2)(a) . Section 316.614, which

requires the use of seat b elts in certain "motor vehicles,"

likewise excludes a "school bus, " b ut does not incorporate the

definition of Ðschool bus . Ñ £ 316.614(3)(a)1. For present

purposes, this recommended order disregards as irrelevant any

distinction between "vehicle" in rule 65C - 22.001(6)(e) and "motor

vehicle" in sections 316.613 and 316.614 and the failure of

section 316.614(3)(a)1. to incorporate the statutory definition

of "school bus" at section 316.003(45).

27 . Section 316.003(45) defines a "school bus" as:

Any motor vehicle that complies with the

color and identification requirements of

chapter 1006 and is used to transport

children to or from public or private school

or in connection with school activities, but

not including buses operated by common

carriers in urba n transportation of school

children. The term ÐschoolÑ includes all

preelementary, elementary, secondary, and

postsecondary schools .

28 . Respondent 's child care facility satisfies the

definition of a preelementary school. In dictum in a case

involving a nonpublic - sector bus transporting children from a

public elementary school to an after - school child care facility,

the Florida Supreme Court acknowledged that a statute covering

any private "nursery [or] preelementary . . . school"

"purport[ed]" to cover the child care facility. Travelers Indem.

Co. v. Suazo , 614 So. 2d 1071 (Fla. 1992).

29 . Unfortunately, there are no color and identification

requirements for school buses in chapter 1006. Section 1006.25

provides:

(1) DEFINITION. Ï For the purpose of this

part, a Ðschool busÑ is a motor vehicle

regularly used for the transportation of

prekindergarten disability program and

kindergarten through grade 12 students of

the public schools to and from school or to

and from school activities, and owned,

opera ted, rented, contracted, or leased by

any district school board, except:

(a) Passenger cars, multipurpose

passenger vehicles, and trucks as defined in

49 C.F.R. part 571.

(b) Motor vehicles subject to, and

meeting all requirements of, the United

St ates Department of Transportation, Federal

Motor Carrier Safety Regulations under Title

49, Code of Federal Regulations and operated

by carriers operating under the jurisdiction

of these regulations but not used

exclusively for the transportation of public

school students.

( 2) SPECIFICATIONS. Ï Each school bus as

defined in 49 C.F.R. part 571 and subsection

(1) that is rented, leased, purchased, or

contracted for must meet the applicable

federal motor vehicle safety standards and

other specifications as prescribed by rules

of the State Board of Education.

(3) STANDARDS FOR LEASED VEHICLES. Ï A motor

vehicle owned and operated by a county or

municipal transit authority that is leased

by the district school board for

transportation of public school students

must meet such standards as the State Board

of Education establishes by rule. A school

bus authorized by a district school board to

carry passengers other than school students

must have the words ÐSchool BusÑ and any

other signs and insignia that mark or

designate it as a school bus covered,

removed, or otherwise concealed while such

passengers are being transported.

(4) OCCUPANT PROTECTION SYSTEMS. Ï Students

may be transported only in designated

seating positions, except as provided in

s. 1006.22(12), and must use the occupant

crash protection system provided by the

manufacturer, which system must comply with

the require ments of 49 C.F.R. part 571 or

with specifications of the State Board of

Education.

30 . At the hearing, t he parties refer red specifically to 49

C.F.R. s ection s 571.208 and 571.222 . These lengthy regulations

do not contain any specifications for the colo r and

identification of school buses. Section 571.3(b) defines a "bus"

as a motor vehicle designed to carry more than ten persons, and a

"school bus" as a "bus that is sold . . . for purposes that

include carrying students to and from school or related ev ents ,"

subject to an exception involving an urban common carrier that is

not relevant to the present case.

31 . It is appropriate to refer to these federal regulations

to the extent that they are incorporated, directly or indirectly,

in the excluded - vehi cle provision of rule 65C - 22.001(6)(e). As

should be clear from section 1006.25, which is referenced

strictly for establishing the requirements as to color and

identification marks, the federal regulations do not play a role

in this case.

32 . It is inapp ropriate to refer to these federal

regulations, a s Respondent's proposed recommended order appears

to do, as independent authority relieving Respondent of any seat -

belt obligation that may be imposed under state law. Such a use

of federal law essentially represents a preemption argument,

which invites a determination that the state law is

unconstitutional under the Supremacy Clause of the U.S.

Constitution. See, e.g. , Wos v. E. M. A. , 133 S. Ct. 1391

(2013) . An Administrative Law Judge lacks the authorit y to make

such a determination. See, e.g. , Key Haven Ass'n Enter., Inc. v.

Bd. of Trs. , 427 So. 2d 153, 157 (Fla. 1983).

33 . The only rule that the Administrative Law Judge could

find specifying the minimum requirements for school buses applies

to new buses and was adopted by the Florida Department of

Education (FDOE) : rule 6A - 3.0291. P ursuant to this rule and

section 1006.25, FDOE has published Florida School Bus

Specifications, revised 2013, which is available at

http://www.fldoe.org/core/fileparse. php/7585/urlt/0085480 -

floridaschoolbusspecifications.pdf .

34 . Applying to all public school buses purchased after the

effective date of the document, the Florida School Bus

Specifications specifies that all buses shall be yellow, id. at

p. I - 6, with black trim, id. at p. III - 13, and shall bear

lettering at least eight inches high stating "School Bus . " Id.

at p. III - 13. Other lettering requirements are also contained in

the Florida School Bus Specifications, revised 2013, such as

indications of the "Emerg ency Door," the warning to "Stop When

Red Lights Flash," "Emergency Exits," and optional American

flags. Id. Also, the signal arms must be red with the warning

to "Stop" in letters at least six inches high. Appendix A

graphically displays these various requirements .

35 . T he factual record in this case reveals that Respondent

owns and operates a big, yellow bus with black trim equipped with

a stop arm; warning lights, including flashing red stop lights ;

and large letters identifying the name of Responde nt's child care

facility. The big yellow vehicle with black trim and an array of

warning lights is instantly recognizable as a school bus.

36 . Thus, Respondent's bus is what it appears to be at

first glance -- a school bus. And a school bus is excluded fr om

the seat - belt provisions of rule 65C - 22.001(6)(d) and (e).

Petitioner has thus failed to prove the material allegations of

the Administrative Complaint, and i t is unnecessary to address

the second and third issues set forth in the Statement of the

Issu es.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Families

enter a final order dismissing the Administrative Complaint .

DONE AND ENTERED this 9 th day of February , 2015 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 Administrative Hearings

this 9 th day of February , 2015 .

COPIES FURNISHED:

Karen A. Milia, Esquire

Department of Children and Families

Suite N - 1014

401 Northwest 2nd Avenue

Miami, Florida 33128

(eServed)

Lucia C. Pineiro, Esquire

Lucia C. Pineiro and Associates, P.A.

Suite 221

717 Ponce de Leon Boulevard

Coral Gables, Florida 33134

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Fl orida 32399 - 0700

(eServed)

Rebecca Kapusta, Interim General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

B uilding 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

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.