16-000736 Department Of Children And Families vs. Scally Family Day Care Home Status: Closed Recommended Order on Tuesday, August 2, 2016.

Summary: The Department proved that Respondent violated Florida Statutes and rules, but the facts do not warrant denial of Respondent's registration as a family day care home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 16 - 0736

SCALLY FAMILY DAY CARE HOME,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hear ing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), on May 12, 2016, by video

teleconference sites in Tallaha ssee and Orlando, Florida.

APPEARANCES

For Petitioner: Stefanie Beach Camfield, Esquire

Department of Children and Families

Regional Counsel

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801 - 1782

For Respondent: Cherrie Scally , pro se

Scally Family Day Care Home

546 Lisa Karen Circle

Apopka, Florida 32712

STATEMENT OF THE ISSUE

The issue in this matter is whether the Department of

Children and Families should deny RespondentÓs application for

registration as a family day care home.

PRELIMINARY STATEMENT

Petitioner, Department of Children and Families (the

ÐDepartmentÑ), issued an Administrative Complaint on or about

November 25, 2015, notifying Respondent, Scally Family Day Care

Home (ÐRespondentÑ) , that the Department was revoking its

registration as a family day care home provider pursuant to

section 402.310, Florida Statutes (2015) . 1 /

Respondent timely req uested a n administrative hearing

challenging the DepartmentÓs action. On February 11, 2016, the

Department referred the matter to the Division of Administrative

Hearings (ÐDOAHÑ) and requested assignment to an Administrative

Law Judge (ÐALJÑ) to conduct a n chapter 120, evidentiary hearing.

The final hearing was held on May 12, 2016. The Department

presented the testimony of Jessica Baloy, Dinah Davis, and

Samantha Wass de Czege. Department Exhibits 1 through 3 were

admitted into evidence without objectio n. Respondent testified

on her own behalf. Respondent also presented the testimony of

Mia Carla Hagins, Tom Breck, and Mizanne Brown. Respondent

Exhibits 1 through 10 were admitted into evidence o ver the

Department's objection.

A one - volume T ranscript o f the final hearing was filed with

DOAH on June 2, 2016. At the close of the hearing, the parties

were advised of the ten - day deadline following DOAHÓs receipt of

the hearing transcript to file post - hearing submittals. The

Department moved for an additio nal ten days to file a proposed

recommended order , which was granted. Both parties presented

post - hea ring submittals which were duly considered in pr eparing

this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

regul ating providers that are licensed or regist ered as family

day care homes.

2. Family day care homes must register annually with the

Department. See § 402.313(1)(a), Fla. Stat.

3. Respondent is owned and operated by Cherrie Scally.

Ms. Scally has regist ered Respondent as a fa mily day care home

since 1997.

4. In or about August 2015, Ms. Scally filed an application

with the Department to renew RespondentÓs registration as a family

day care home for 2016. Respondent's registration for 2015

expired on Oct ober 30, 2015.

5. Upon receiving Ms. ScallyÓs application, the Department

reviewed whether to renew RespondentÓs registration as a family

day care home. As part of its determination, the Department

examined the Florida Central Abuse Hotline Records Searc h

(ÐCAHRSÑ). In CAHRS, the Department identified an Investigative

Summary involving Respondent that verified a finding of

Ðinadequa te supervisionÑ in March 2015.

6. Based on the CAHRS Investigative Summary, the Department

issued an Administrative Complai nt in No vember 2015, revoking

RespondentÓs registration as a family day care home. 2/ The

Department determined that it could no longer approve RespondentÓs

registration Ðbased on the verified findi ng of inadequate

supervision.Ñ

7. The CAHRS resulted from an incident that all egedly

occurred on March 5, 2015 . On March 6, 2015, the Central Abuse

Hotline received an anonymous phone call reporting an injury to a

child at RespondentÓ s family day care home. A four - year - old girl

who attended Respondent Ós family day care home reported to her

mother that another child had hurt her. 3/

8. Jessica Baloy, a child protective investigator with the

Department, was assigned to investigate the incident. Her duties

include investigating facilities regarding complaints of child

abuse and neglect. Ms. Baloy prepared t he CAHRS Investigative

Summary.

9. Ms. Baloy visited Respondent's family day care home on

March 9, 2015, to investigate the allegation. Ms. Scally informed

Ms. Baloy that she had no knowledge of how or when t he child was

injured. Ms. Scally did not learn of the incident until the

childÓs mother called her the evening after the child was picked

up. Ms. Scally thought that the incident may have occurred in her

ÐplayroomÑ while she was in her kitchen either cle aning up another

child or preparing snacks. 4/

10. During her visit, Ms. Baloy found that the part of

Ms. ScallyÓs home used for childcare consists of two rooms, a

ÐplayroomÑ and a kitchen. The rooms are located next to each

other, but a wall separates t hem. Ms. Baloy observed that the

wall obstructs the view between the playroom (where the injury

allegedly occurred) and the kitchen where Ms. Scally believes she

was located at the time of the incident. Ms. Scally admitted to

Ms. Baloy that, while she is able to hear the children in the

playroom from the kitchen, she is unable to see directly from the

kitchen into the playroom.

11. In her investigation, Ms. Baloy reported that the child

had Ðno indicatorÑ of physical injury. In other words, Ms. Baloy

di d not find evidence to suggest the child had sustained an

injury. Ms. Baloy personally interviewed the child and did not

observe any discomfort or physical injuries. Ms. Baloy also

received information from the childÓs mother that a doctor had

examined t he child and determined that she had not suffered any

trauma, just Ðsome irritation.Ñ The childÓs mother decided that

no further medical treatment or examination was needed.

12. In her Investigative Summary, Ms. Baloy reported that

Ð[o]bservations of the home daycare were positive that it was not

hazardous for the children.Ñ Ms. Baloy also declared that

Ms. Scally Ðonce notified by a parent completed the proper

notifications needed in regards to this incident.Ñ However,

Ms. Baloy did have Ðsome concer ns in regards to supervision.Ñ She

found that when Ms. Scally was working/standing in her kitchen,

she could not view the children in the playroom. Consequently, if

something bad happened, she would not be able to see it.

13. Also during her visit to Re spondent, Ms. Baloy observed

11 children in RespondentÓs facility. Consequently, Respondent

was over capacity by one child. (As discussed below, family day

care homes are restricted to a maximum of ten children at one

time.)

14. After her visit, Ms. Bal oy closed her investigation with

Ðverified findings for inadequate supervision.Ñ Ms. Baloy was not

aware of any prior invest igations involving Respondent.

15. Dinah Davis is the policy supervisor for the

DepartmentÓs Office of Childcare Regulation. Her responsibilities

include approving applications for family day care home

registrations with Samantha Wass de Czege, the DepartmentÓs

Director for the Office of Childcare Regulation.

16. Ms. Davis expressed that the Department was concerned

with Ms. BaloyÓ s Investigative Summary because the finding of

Ðinadequate supervisionÑ indicated that Ms. Scally left the

children unattended outside of her direct supervision. The

DepartmentÓs Ðrule of thumbÑ regarding supervision is that a

caregiver must be within Ðsi ght and sound of the children and [be]

able to respond to emergency situations.Ñ Ms. Davis expressed

that a constant sightline is crucial to allow the caregiver to

respond to and prevent an emergency or potentially harmful

situation. Adequate ÐsightÑ sup ervision means that children

should be at least within the caregiverÓs peripheral vision. In

addition, Ms. Davis explained that, by statute, no family day care

home is allowed to care for more than t en children at one given

time.

17. M s. Davis referred t o section 402.310 as the

DepartmentÓs authority to deny Ms. ScallyÓs application.

Although section 402.310 allows the Department to place a family

day care home registration on probation status, Ms. Davis stated

that the Department did not consider the op tion to place

Respondent on probation.

18. Ms. Wass de Czege also testified regarding the

DepartmentÓs decision to revoke (deny) RespondentÓs application

for registration. Ms. Wass de Czege stated that the DepartmentÓs

action was based on the child prote ctive investigatorÓs findings

of Ðinadequate supervisionÑ and overcapacity.

19. Ms. Wass de Czege agreed with Ms. Davis that supervision

in a family day care home requires Ðdirect sight and hearing of

the children at all timesÑ so that the caregiver is Ða ble to

respond to meet the needs of the children.Ñ Ms. Wass de Czege

explained that based on the floor design of Ms. ScallyÓs home,

Ðshe could not have the children in her sight. So, she was not

meeting that parameter of the definition of supervision.Ñ

Ms. Wass de Czege explained that the DepartmentÓs definition of

Ðinadequate supervisionÑ for family day care homes is found in

Florida Administrative Code C hapter s 65C - 22 and 65C - 20. 5/

20. Ms. Wass de Czege also remarked that having more than

ten childre n in care at a family day care home is considered

overcapacity. Therefore, having 11 children present in the home

at the time of Ms. BaloyÓs visit caused Respondent to be out of

compliance with the governing regulation.

21. Ms. Wass de Czege also conveye d that registration of a

family day care home is basically a paper process. The applicant

submits the paperwork. The Department checks off the information

listed in section 402.313(1)(a). If approved, the applicant can

care for children. Ms. Wass de Cz ege commented that, because of a

lack of manpower and resources, a registered family day care home

is not subject to routine inspections by the Department.

Consequently, the Department has little regulatory oversight of

Ms. ScallyÓs home.

22. Based on it s review of the CAHRS, the Department

determined that Respondent failed the background check necessary

to register as a fa mily day care home for 2016.

23. Ms. Scally testified on behalf of Respondent at the

final hearing. Ms. Scally has operated her fami ly day care home

since 1997. She has successfully registered with the state every

year since then. She cares greatly for the children entrusted to

her. This current matter is the first issue she has encounter ed

regarding her registration.

24. Regarding the incident on March 5, 2015, Ms. Scally did

not learn that a child may have been harmed at her home until the

childÓs parent called her that evening to report an injury. The

parent relayed that her daughter told her that another child had

poked her in a s ensitive area , drawing blood.

25. Upon learning of the injury, Ms. Scally immediately

took action. That evening, she spoke with the parents of both

children involved to make sure all parties were aware of the

situation. The next morning, Ms. Scally c alled the injured

childÓs parent back to inquire of her well - being. Ms. Scally

also contacted her own pediatrician seeking advice on the

situation. Ms. Scally offered to arrange for her pediatric ian to

examine the child.

26. Ms. Scally herself was the a nonymous caller reporting

the incident to the Central Abuse Hotline. 6/ She called the abuse

hotline on the next morning. (The CAHRS Investigative Summary

notes that the call was received on March 6, 2015, at 10:38 a.m.)

Ms. Scally called the abuse hotli ne because she knew reporting

the injury was the proper and legally required step to take.

Ms. Scally commented that the Department would not have learned

of the in cident but for her phone call.

27. Ms. Scally conceded that, when she is standing in her

kitchen, she does not have a direct line of sight with the

children in her playroom. Consequently, Ms. Scally admitted that

if the child was injured in the playroom while she was in the

kitchen, the child was out of her sight for a short period of

time. On the other hand, Ms. Scally asserts that she can always

hear her children from the kitchen. Furthermore, no child is

ever out of her eyesight for more than a couple of moments.

Ms. Scally also represented that she has taken steps to ensure

that she ca n maintain Ðsight and soundÑ supervision over her

children in the future. She has purchased a mirror to place in

the hallway between the playroom and the kitchen. This mirror

allows her to see into either room from the other.

28. Ms. Scally stated that in her 19 years of childcare,

she has never had any incidents in her family day care home.

29. Ms. Scally acknowledged that she might have had 11

children in her care on the occasion of Ms. BaloyÓs visit to her

home on March 9, 2015. Ms. Scally explained that it was likely

during a ÐtransitionÑ period as her children were being picked up

and dropped off and was not a regular occurrence or f or an

extended period of time.

30. Based on this incident, Ms. Scally asserts that she will

be extra cautious about the interactions betwee n the children in

her care.

31. Ms. Scally presented testimony from several parents whom

she serves. The y each asserted that Respondent provides a

valuable service, and they trust her with their children in her

home. Mia Carla Hag ins placed her daughter with Respondent from

2009 through 2014. Ms. Hagins testified that Ms. Scally ensures

safety, nurturing, and care for the children she supervises.

Thomas Breck placed two children with Ms. Scally from 1996 through

2000. Mr. Breck testified that Ms. Scally provided excellent care

and demonstrated complete professionalism. Mizanne Brown placed

her child with Ms. Scally for ten years. Ms. Brown testified that

Ms. Scally was fabulous, nice, and wonderful.

32. Ms. Scally also produce d 26 letters of recommendation

from parents and teachers of children for whom she has cared.

Ms. Scally asserted that these letter s show how positi vely her

community views her , her home, and her childcare services.

33. Based on the competent substantial evidence presented at

the final hearing, the Department failed to establish, by a

preponderance of the evidence, sufficient grounds to deny

RespondentÓs application for registration as a family day care

home under the provisions of section 402.310. Accor dingly, the

Department should approve RespondentÓs application to regis ter as

a family day care home.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to se ctions 120.569 and 120.57(1).

35. A family day care home must be licensed or registered

with the Department. See § 402.312(1), Fla. Stat. Family day

care homes that are not licensed must register annually. See

§ 402.313(1)(a), Fla. Stat.

36. The Depa rtment, on an annual basis, is required to

evaluate the registration system for family day care homes. The

Department shall address the number of registered homes, the

number of children served in registered homes, and the number,

nature, and resolution o f any complaints received regarding family

day care homes. See § 402.313(10), Fla. Stat.

37. Section 402.310 authorizes the Department to administer

disciplinary actions against registered family day care homes for

violations of certain statutes or Depar tment rules. Section

402.310(1) states, 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:

1. Impose an ad ministrative 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 addit ion to or in lieu of any other

disciplinary action imposed under this

section.

2. Convert a license or registration to

probation status and require the licensee or

registrant to comply with the terms of

probation. A probation - status license or

registrat ion may not be issued for a period

that exceeds 6 months and the probation - status

license or registration may not be renewed. A

probation - status license or registration may

be suspended or revoked if periodic inspection

by the department or local licensin g 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. [ 7/ ]

3. Deny , 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

followi ng 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 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. [ 8 /]

* * *

(d) The disciplinary sanctions set forth in

this section apply to . . . registered family

day care homes.

38 . Pursuant to section 39.201(6), Florida Statutes, the

Department may use information from a CAHRS report to review an

application for registration to operate a family day care home.

Section 39.201 (6) states, in pertinent part:

Information in the central abuse hotline and

the departmentÓs automated abuse information

system may be used by the department . . . as

part of the licensure or registration process

pursuant to ss. 402.301 - 402.319.

39. Respondent challenges the DepartmentÓs denial of her

applicat ion for registration as a family day care home.

Respondent , as the party asserting the affirmative, carries the

ultimate burden of persuasion. Dep't of Child. & Fams. v. Davis

Fam. Day Care Home , 160 So. 3d 854, 857 (Fla. 2015); Dep't of

Banking & Fin. v . Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla.

1996); DepÓt of Transp. v. J. W. C. Co. , 396 S o. 2d 778 (Fla. 1st

DCA 1981).

40. However, in an application denial proceeding , the agency

has the burden to prove the specific acts or violations which it

all eges are grounds for the denial. Dep't of Banking & Fin. v.

Osborne Stern and Co. , 670 So. 2d at 934 ; see also M. H. v. DepÓt

of Child. & Fams. , 977 So. 2d 755, 761 (Fla. 2d DCA 2008)

(ÐWithout 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.Ñ ) ; and Comprehensive Med. Access,

Inc. v. Off. of Ins. Reg. , 983 So. 2d 45, 46 (Fla. 1st DCA 2008)

(While the appl icant continuously has the burden of persuasion to

prove entitlement to be licensed, Ðthe agency denying the license

has the burden to produce evidence to support a denial.Ñ) .

41. An administrative agency's burden of proof in a license

application proceed ing is governed by the preponderance of the

evidence standard. M.H. v. Dep't of Child. & Fams. , 977 So. 2d at

761, citing to Osborne Stern & Co. II , 670 So. 2d at 934 - 35.

42. In determining the appropriate disciplinary action the

Department should admini ster in this matter, the undersigned

applies the facts to the guidelines set forth in section 402.310.

Section 402.310(1)(a) states that the Department may discipline

Respondent Ðfor a violation of any provision of ss. 402.301 -

402.319, or the rules adopte d thereunder.Ñ

43. The competent substantial evidence establish es that

Respondent committed two violations of the applicable statutes and

rules. First, Ms. Scally failed to provide adequate supervision

in her family day care home under chapter 65C - 20 ent itled ÐFamily

Day Care Standards and Larg e Family Child Care Homes.Ñ Florida

Admin istrative Code R ules 65C - 20.009(5)(a) provides:

(5) Supervision.

(a) At all times, which includes when the

children are napping or sleeping, the operator

shall remain res ponsible for the supervision

of the children in care and capable of

responding to emergencies and the needs of the

children . . . . During the daytime hours of

operation, children shall have adult

supervision, which means watching and

directing childrenÓs activities, both indoors

and outdoors, and responding to each childÓs

needs. [ 9/ ]

The evidence in the record establishes, by a preponderance of the

evidence, that, on or about March 5, 2015, Ms. Scally failed to

adequately watch and direct her childrenÓs activities and respond

to each childÓs needs. The evidence supports the DepartmentÓs

allegation that a child sustained an injury (however slight) while

in Ms. ScallyÓs care. At the time the incident most likely

occurred, Ms. Scally was not in a position to actively monitor her

childrenÓs activities. Consequently, Ms. Scally failed to provide

supervision Ðcapable of responding to emergencies and the needs of

the children.Ñ Although the undersigned has little doubt that

Ms. Scally would have reacted swif tly and appropriately to prevent

or address the situation had she observed the incident, the fact

is that she did not. Accordingly, Ms. Scally violated rule 65C -

20.009(5)(a). 10/

4 4 . The evidence in the record also establishes a second

violation , by a pre ponderance of the evidence, that, on or about

March 9, 2015, RespondentÓs facility was overcapacity by one child

(11 children instead of ten). Section 402.302(8) states, in

pertinent part:

(8) ÐFamily day care homeÑ means an occupied

residence in which c hild care is regularly

provided for children from at least two

unrelated families and which receives a

payment, fee, or grant for any of the children

receiving care, whether or not operated for

profit . . . . A family day care home shall

be allowed to pro vide care for one of the

following groups of children, which shall

include household children under 13 years 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 ag e.

4 5 . Ms. Scally testified that the only reason 11 children

were present in her home at one time was during a ÐtransitionÑ

period when children were being dropped off and picked up. The

applicable statute does not appear to provide for an exception to

the ten children maximum. Consequently, Ms. Scall y violated

section 402.310(8).

4 6 . Upon finding a violation of an applicable statute or

Department rule, the Department may administer any of the

following disciplinary sanctions:

1. Impose an administrat ive fine not to

exceed $100 per violation, per day;

2. Convert a registration to a six month

probation status and require the registrant to

comply with the terms of probation; or

3. Deny, suspend, or revoke a registration.

See § 402.310(1)(a) .

47. Th e Department seeks to deny RespondentÓs application - Î

the harshest sanction. T he evidence in the record does not

support denial of RespondentÓs registration.

48. To determine the appropriate disciplinary action to take

against Respondent, section 402.310 (1)(b) requires the Department

to consider the following factors:

1. The severity of the violation, including

the 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

poten tial 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.

49. Based on the above three factors , the competent

substantial evidence in the record does not support denial of

RespondentÓs registration. First, the facts do not establish a

ÐsevereÑ violation. The Department produced (hearsay) evidence

that a child suf fered Ðsome irritationÑ at Ms. ScallyÓs home on

March 5, 2015. The Department investigator found Ðno indicatorÑ

of physical injury. No medical records or testimony were produced

showing that the child will face Ðthe probability of death or

serious harm.Ñ There is no evidence that any other child under

Ms. ScallyÓs supervision has ever experienced Ðactual or potential

harm.Ñ Ms. Baloy specifically reported that Ms. ScallyÓs home

Ðwas not hazardous for the children.Ñ 11/

50. Second, upon learning of the i njury, Ms. Scally reacted

swiftly, properly, and conscientiously. Once informed of the

possible injury, Ms. Scally immediately offered assistance to

ensure the childÓs health and safety. Ms. Scally herself helped

arrange for the child to receive medical care. Ms. Scally also

contacted the parents of both of the children involved in the

incident to fully discuss the situation. Finally, Ms. Scally

promptly reported the incident to Central Abuse Hotline. At no

point did Ms. Scally attempt to cover up or m inimize the incident.

As Ms. Baloy specifically found, Ms. Scally Ðonce notified by a

parent completed the proper notifications needed in regards to

this incident.Ñ

51. Finally, the Department did not produce evidence of any

previous violations by Respon dent of the pertinent statutes or

Department rules. In her 19 years as a registered family day care

home, this incident is the first and only reported instan ce of

Ms. ScallyÓs a lleged inadequate supervision.

52. Therefore, in applying the factors set fo rth in section

402.310(1)(b) that the Department is required to consider in

determining disciplinary action, the competent substantial

evidence in the record does not support den ial of RespondentÓs

application - Î the most extreme sanction - Î as the appropriate

disciplinary action for Respondent . 12/ See Comprehensive Med.

Access , 983 So. 2d at 46 (An agency Ðmay not deny a license

application unless the decision is supported by competent

substantial evidence.Ñ) .

53. Consequently, while the Department met its b urden of

proving specific violations of a Florida statute and rule, the

evidence does not support denial of RespondentÓs application for

registration as a family day care home. Accordingly, Respondent

carried the ultimate burden of persuasion by proving t hat it is

entitled to register as a family day care home . 13/

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 approving RespondentÓs applicatio n

for registration as a family day care home.

DONE AND ENTERED this 2nd day of August , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSo to 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 2nd day of August , 2016 .

ENDNOTE S

1/ The Administrat ive Complaint incorrectly notified Respondent

that the Department was taking action Ðto revokeÑ RespondentÓs

family day care home registration. The Department initiated its

review of RespondentÓs annual registration prior to its (then

current) October 30, 2015 , expiration date. Consequently, once

the Department decided to deny RespondentÓs registration, it

prepared an Administrative Complaint in the form of a revocation

action. The Department, however, did not finalize and issue the

Administrative Compla int unti l on or about November 25, 2015 - Î

several weeks after RespondentÓs registration had expired.

Consequently, at the final hearing, the Department represented

that its ÐrevocationÑ action should be considered a ÐdenialÑ of

RespondentÓs renewal applic ation. Respondent, at the final

hearing, agreed to waive any objections to the timeliness,

notice, or validity of the Administrative Complaint and proceed

with the evidentiary hearing.

2 / See endnote 1 above.

3 / The Department offered evidence and tes timony regarding how

the incident allegedly occurred, not in an effort to prove the

cause of the childÓs injuries, but to show Ms. ScallyÓs general

supervisory practice within her home. The undersigned makes no

findings of fact regarding the childÓs alleg ed injury on March 5,

2015. The relevant information taken from the CAHRS is that the

Central Abuse Hotline received information of possible abuse or

neglect at RespondentÓs facility. This call led to Ms. BaloyÓs

subsequent inspection and observation of RespondentÓs facility

and Ms. ScallyÓs supervisory methods and techniques.

4 / At the final hearing, Ms. Baloy testified that she conducted

a one - on - one, unsworn interview with the child. Ms. Baloy

referred to the childÓs statements in the Investigative Summary

and in her testimony. The childÓs statements are hearsay. See

§ 90.801(1)(c), Fla. Stat. Under the Administrative Procedure

Act, Ð[h]earsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.Ñ £ 120.57(1)(c),

Fla. Stat. As stated above, the undersigned makes no findings of

fact based on the childÓs unsworn, hearsay statements.

5 / Ms. Wa ss de Czege stated that the child protective

investigatorÓs definition of Ðinadequate supe rvisionÑ is found in

rules and regulations regarding section 39, Florida Statutes.

6 / See section 39.201(1)(a) , which states:

Any person who knows, or has reasonab le cause

to suspect, that a child is abused,

abandoned, or neglected by a parent, legal

custodian, caregiver, or other person

responsible for the childÓs welfare, as

defined in this chapter, or that a child is

in need of supervision and care and has no

par ent, legal custodian, or responsible adult

relative immediately known and available to

provide supervision and care shall report

such knowledge or suspicion to the department

in the manner prescribed in subsection (2).

7 / See also R ule 65C - 20.012(1)(b) , which provides:

ÐProbationÑ is a licensing status indicating

the license is in jeopardy of being revoked

or not renewed due to violations within the

control of the provider. Probation may

require the licensee to comply with specific

conditions intended t o ensure that the

licensee comes into and maintains compliance

with licensing standards. Examples of such

conditions are: a deadline to remedy an

existing violation, a specified period during

which compliance with licensing standards

must be strictly mai ntained; and, specified

conditions under which the home must operate

during the probationary period.

8 / Section 402.310(1)(c)2 . instructs the Department to adopt

rules to:

Establish a uniform system of procedures to

impose disciplinary sanctions for vio lations

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,

such as for the deliberate misuse of

medications. The department shall impleme nt

this subparagraph on January 1, 2007, and the

implementation is not contingent upon a

specific appropriation.

The Department did not introduce evidence or testimony of a

Department rule that establishes a uniform system of procedures

to impose discipli nary sanctions or provides a consistent

application of disciplinary actions or progressive increasing

levels of penalties for denial of a registration. Consequently,

the undersignedÓs analysis of the appropriate disciplinary action

in this matter is based directly on the provisions of section

402.310.

9 / See also rule 65C - 22.001(5)(a) , which provides the same

definition of ÐsupervisionÑ under the ÐGeneral InformationÑ for

child care standards.

10 / The Department witnesses both testified that a family d ay

care home provider must be within Ðsight and sound of the

children.Ñ The only specific reference to Ðsight and soundÑ

supervision for a family day care home is found in rule 65C -

20.009(5)(b) which provides, ÐA child who has been placed in an

isolation area due to illness as stated in paragraph 65C -

20.010(4)(b), F.A.C., must be within sight and hearing of the

operator.Ñ No evidence demonstrated that the child allegedly

injured in RespondentÓs facility was in an isolated area due to

illness. Nevertheles s, the evidence in the record does support

the DepartmentÓs allegation that Ms. Scally failed to provide

supervision Ðcapable of responding to emergencies and the needs

of the childrenÑ under rule 65C - 20.009(5)(a).

11 / The fact that Ms. Scally situated h er childcare area in two

rooms that are separated by a wall does not violate rule 65C -

20.009(5)(a) , as long as Ms. Scally supervises her children in a

manner that ensures she is Ðcapable of responding to emergencies

and the needs of the children.Ñ

12 / Th e undersigned concludes that the evidence in the record

does not support denial of RespondentÓs application for

registration. That being said, the undersigned observes that,

of the disciplinary sanctions available to the Department, the

most appropriate penalty would be to approve Resp ondentÓs

registration for a six - month probation period - Î subject to

periodic inspections to ensure compliance with applicable

statutes and Departm ent rules. Ms. Scally has credibly and

persuasively shown that she can and wil l correct the violations

noted in the CAHRS Investigative Summery from March 2015. The

undersigned is not sympathetic to the DepartmentÓs testimony that

it does not have the manpower to regularly inspect family day

care homes. Florida statutes and Depart ment rules clearly

establish probation as a sanction that the Department must

consider, and be prepared to offer, for family day care home

registrants. See § 402.310(1)(a)2 . and rule 65C - 20.012(1)(b).

If probation is the appropriate sanction based on fac tors

contained in section 402.310(b), then the issue of whether or not

the Department has available resources to inspect Respondent for

six months should n ot be held against Ms. Scally.

13/ See endnote 12 above. Based on the evidence in the record,

the most appropriate sanction would be to approve Ms. ScallyÓs

application, but co nvert her registration to a six - month

probation - status and require her to comply with the terms of

probation.

COPIES FURNISHED:

Stefanie Beach Camfield, Esquire

Department of Children and Families

Regional Counsel

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801 - 1782

(eServed)

Cherrie Scally

Scally Family Day Care Home

546 Lisa Karen Circle

Apopka, Florida 32712

Paul Sexton, Agency Clerk

Department of Children a nd Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Rebecca Kapusta, 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

Building 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.