15-000896 Department Of Children And Families vs. Worthley Family Day Care Home Status: Closed Recommended Order on Wednesday, April 29, 2015.

Summary: Respondent, a licensed family day care home, failed to have an operable pool alarm for its backyard swimming pool, a Class I Violation for which imposition of a $100 fine and termination of Respondent's Gold Seal designation were appropriate sanctions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Petitioner,

Case No. 1 5 - 0896

vs.

WORTHLEY FAMILY DAY CARE HOME ,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

April 13, 2015 , at sites in Tallahassee and Miami , Florida.

APPEARANCES

For Petitioner: Karen Milia Annunziato , Esquire

Department of Children and Famil i es

401 Northwes t Second Avenue , Suite N - 1014

Miami , Florida 33128

For Respondent: Wayne R. Worthley , pro se

Worthley Family Day Care Home

16320 Southwest 278th Street

Miami , Florida 330 31

STA TEMENT OF THE ISSUES

The primary issue in this case is whether Respondent, a

licensed family day care home , failed to have an operable pool

alarm for its backyard swimming pool , as Petitioner alleges. If

Respondent is found guilty of this disciplinable offense , then

it will be necessary to determine the appropriate penalties for

such violation .

PRELIMINARY STATEMENT

On January 29, 2015 , Petitioner Department of Children and

Families issued an Amended A dministrative Complaint against

Respondent Worthley Family Day Care Home , charging the licensed

day - care provider with an offense relating to noncompliance with

the rule governing swimming pool safety .

The licensee timely exercised its right to be heard in a

formal administrative proceeding. On Februar y 17, 2015 , the

agency referred the matter to the Division of Administrative

Hearings, where the case was assigned to an Administrative Law

Judge.

The final hearing took place as scheduled on April 13,

2015 , with both parties present. The agency called one witness ,

a family services counselor named Yessenia Plata . Petitioner's

Exhibits 1 through 6 were received in evidence without

objection . Wayne Worthley, who, together with his wife

Cristina, operates the couple's licensed family day care home

and re presented Respondent at hearing, elected not to testify,

but he cross - examined Petitioner's witness and argued

Respondent's case. Respondent's Exhibits 2, 3, and 4 were

admitted into evidence.

The final hearing was transcribed, but neither party

ordered a transcript of the proceeding. Each side submitted a

proposed recommended order o n or before April 23, 2015, in

accordance with the deadline established a t the conclusion of

the hearing .

Unless otherwise indicated, citations to the Florida

Statutes refer to the 20 14 Florida Statutes , except that all

references to statutes or rules defining disciplinable offenses

or prescribing penalties for committing such offenses are to the

versions that were in effect at the time of the alleged wrongful

act s .

FIND INGS OF FACT

1. Wayne and Cristina Worthley hold a Certificate of

License, numbered F11MD0165, which authorizes them to operate a

family day care home 1 / in Homestead, Florida , for one year, from

January 6, 2015, through January 6, 2016 . They do business

under the name Cristina Worthley Family Day Care Home . As a

licensed day - care provider , the Worthley s' business falls under

the regulatory jurisdiction of Respondent De partment of Children

and Families ("DCF").

2. On December 17, 2014, a DCF employee named Yessenia

Plata inspected the Worthley home. Ms. Plata observed (and it

is undisputed) that the Worthleys' backyard swimming pool was

not surrounded on all four sides by a fence . 2 / She noticed, as

well, that there was no pool alarm in the pool.

3. In a telephone conversation later that day, Ms. Plata

informed Mrs. Worthley that the licensee would be cited for the

violation of a Class I standard, namely the failure to have a

fence enclosure around the pool or, alternatively, a pool alarm.

M r s. W orthley told Ms. Plata that she would talk to her husband

a bout purchasing a pool alarm. 3 / M s . Plata asked Mrs. Worthley

to let her know when the pool alarm was in place so that a

reinspection could be conducted.

4. By email dated December 21, 2014, Mr . Worthley notified

Ms. Plata that his wife and he had "the pool alarm installed and

[we] re ready . . . for the re - inspection." 4 /

5. Ms. Plata performed another inspection of the Worthley

home on December 23, 2014. She confirmed that a pool alarm in

goo d working order was floating in the pool.

Ultimate Factual Determinations

6. The undersigned determines, based on clear and

convincing evidence, that the Worthleys did not have a pool

alarm in their backyard swimming pool on December 17, 2014.

7. The f ailure to have an operable pool alarm, coupled

with the undisputed fact that the Worthleys' pool fence did not

completely surround the pool, constituted a Class I V iolation of

Florida Administrative Code Rule 65C - 20.010(1)(i) , which

mandates that a family day - care licensee having a pool shall

install an operable pool alarm if it lacks a fence enclosure

around the pool.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

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

9. A proceeding, such as this one, to impose discipline

upon a license is penal in nature. State ex rel. Vining v. Fla.

Real Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973).

Accordingly, DCF must prove t he charges against the Worthleys by

clear and convincing evidence. Dep't of Banking & Fin., Div. of

Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

1 0. Regarding the standard of proof, in Slomowitz v.

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

developed a "workable definition of clear and convincing

evi dence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the wi tnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 ( Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguou s." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

1 1 . Section 402.310 authorizes DCF to impose discipline

against licensed child care facilities, licensed large family

child care homes, and licensed or registered family day care

homes , such as the Worthleys'. This statute provides, in

pertinent part, as follows:

[DCF] or [a] local licensing agency may

administer any of the following disciplinary

sa nctions 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 depart ment

or local licensing agency may impose an

administrative fine, not to exceed $500 per

violation per day in addition to or in lieu

of any other disciplinary action imposed

under this section.

2. Convert a license or registration to

probation status and require the licensee or

registrant to comply with the terms of

probation.

* * *

3. Deny, suspend, or revoke a license or

registration.

§ 402.310 (1)(a), Fla. Stat.

12 . DCF charged the Worthleys with a violation of rule

65C - 20.010(1)(i), whic h provides in relevant part as follows:

All in - ground swimming pools and above -

ground swimming pools more than one foot

deep shall have either a fence or barrier on

all four sides, at a minimum of four feet in

height, separating the home from the

swimming pool, or a pool alarm that is

operable at all times when children are in

care. . . . The exterior wall of the home

with an ingress and egress does not

constitute a fence or barrier.

(Emphasis added.) 5 /

13 . The foregoing statutory provisions and rule "must be

construed strictly, in favor of the one against whom the penalty

would be impo sed." Munch v. Dep't of Prof'l Reg., Div. of Real

Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v.

Dep't of Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA

2002); McClung v. Crim. Just. Stds. & Training Comm'n , 458 So.

2d 887, 888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct i s to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.");

see also, e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n , 57

So. 3d 92 9 , 931 (Fla. 1st DCA 2011)(statutes imposing a penalty

must never be extended by construction).

14 . As discussed above, t he undersigned has determined ,

based up on the clear and convincing evidence adduced by DCF ,

that the Worthleys are guilt y, as a matter of ultimate fact, of

having violated rule 65C - 20.010(1)(i).

15 . In determining that the Worthleys committed this

violation , the undersigned concluded that the plain language of

the applicable statutes and rule, being clear and unambiguou s,

could be applied in a straightforward manner to the historical

events at hand without resorting to principles of interpretation

or examining extrinsic evidence of legislative intent . It is

therefore unnecessary to make additional legal conclusions

conc erning th is violation.

16 . DCF imposes penalties upon licensees in accordance

with the enforcement guidelines prescribed in r ule 65C - 20.012.

The following general principles apply:

(a) Enforcement of disciplinary sanctions

shall be applied progressively for each

standard violation. In addition, providers

will be offered technical assistance in

conjunction with any disciplinary sanction.

The department shall take into consideration

the actions taken by the home to correct the

violation when determining the appropriate

disciplinary sanction.

(b) Each standard violation has an assigned

classification based on the nature or

severity of the violation(s) as identified

within CF - FSP Form 531 8 and CF - FSP Form

5317.

Fla. Admin. Code R . 65C - 20.012 (3).

17 . DCF asserts that the Worthleys committed a Class I

Violation. Such a violation is defined in rule 65C - 20.012( 1 ) (d)

as follows:

1. " Class I Violation " is an incident of

noncompliance with a Class I standard as

described on CF - FSP Form 5318 March 2009

Family Day Care Home Standards

Classifications Summary and CF - FSP Form

5317, March 2009 Large Family Child Care

Home Standards Classification Summary, whic h

is incorporated. A copy of CF - FSP Form 5318

and 5317 may be obtained from the

department ' s website

www.myflorida.com/childcare. Class I

violations are the most serious in nature,

pose an imminent threat to a child including

abuse or neglect and which c ould or do

result in death or serious harm to the

health, safety or well - being of a child.

18 . The Worthleys' violation is an offense falling under

Standard No. 12 as described in CF - FSP Form 5318 , which provides

in pertinent part as follows: "Children in care had access to a

water hazard or swimming pool . . . ." In this instance, the

element of access was established by clear and convincing proof

of the absence, on December 17, 201 4 , of both a compliant fence

and an operable pool alarm at the Worthle y home . This

particular offense is classified as a Class I Violation in CF -

FSP Form 5318 .

19 . The penalties for a first violation of a Class I

standard offense are a fine of between $100 and $500 per day and

such "other disciplinary sanctions" as DCF may in its discretion

impose. Fla. Admin. Code R . 65C - 20.012( 3 )( e ) 1.a.

20 . Section 402.281(4)(a), Florida Statutes, provides that

"[c] ommission of a class I violation shall be grounds for

termination of the designation as a Gold Seal Quality Care

provid er until the provider has no class I violations for a

period of 2 years. "

21 . DCF has urged the undersigned to recommend that the

Worthleys be fined $100 and that the licensee's designation as a

Gold Seal Quality Care provider be terminated . These sanctions

are warranted for a Class I Violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order finding the Worthley Family Day

Care Ho me guilty of the offense charged in the Amended

Administrative Complaint. It is further RECOMMENDED that DCF

impose a fine against the Worthleys in the amount of $100 and

terminate the licensee's Gold Seal designation.

DONE AND ENTERED this 29th day of Ap ril , 20 1 5 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April , 20 1 5 .

ENDNOT ES

1 / Section 402.302(8), Florida Statutes, defines the term

"family day care home" to mean:

an occupied residence in which child care is

regularly provided for children from at

least two unrelated families and which

receives a payment, fee, or grant for any of

the children receiving care, whether or not

operated for profit. Household children

un der 13 years of age, when on the premises

of the family day care home or on a field

trip with children enrolled in child care,

shall be included in the overall capacity of

the licensed home. A family day care home

shall be allowed to provide care for one of

the following groups of children, which

shall include household children under 13

years of age:

(a) A maximum of four children from birth

to 12 months of age.

(b) A maximum of three children from birth

to 12 months of age, and other children, for

a maximum total of six children.

(c) A maximum of six preschool children if

all are older than 12 months of age.

(d) A maximum of 10 children if no more

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

more than 2 are under 12 months of age.

2 / The Worthle ys' home is separated from the pool by a three -

sided fence that encloses a play area on their patio. This

fence, which abuts the exterior wall of the house on either side

of the back door, prevents access to the pool from the patio.

3 / Ms. Plata, who has firsthand knowledge of Mrs. Worthley's

statement, credibly testified about the substance of the

statement. Mrs. Worthley's out - of - court statement is admissible

under a recognized exception to the hearsay rule. See §

90.803(18), Fla. Stat.

4 / This email corroborates Ms. Plata's testimony regarding Mrs.

Worthley's statement, on December 17, that she would speak with

her husband about buying an alarm.

5 / The Worthleys' fenced - in patio fails to satisfy this rule

because the exterior wall of the home completes the enclosure.

COPIES FURNISHED :

Karen Milia Annunziato, Esquire

Department of Children and Famil i es

401 Northwest Second Avenue, Suite N - 1014

Miami, Florida 33128

(eSer v ed )

Wayne R. Worthley

Worthley Family Day Care Home

16320 Southwest 278th Street

Miami, Florida 33031

(eSer v ed )

Paul Sexton, Agency Clerk

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

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahasse e, 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.