18-000228 Shaguandra Ruffin Bullock vs. Department Of Children And Families Status: Closed Recommended Order on Thursday, April 12, 2018.

Summary: Petitioner proved, by a preponderance of the evidence, that she is of good moral character so she is entitled to issuance of a family day care home license. Investigative reports unsupported by non-hearsay evidence are not competent substantial evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAGUANDRA RUFFIN BULLOCK,

Petitioner,

vs. Case No. 18 - 0228

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (201 7 ), 1/

before Cathy M. Sellers, an Administrative Law Judge ("ALJ") of

the Division of Administrative Hearings ("DOAH"), on March 5 ,

201 8 , by video teleconference at sit es in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Shaguandra Ruffin Bullock , pro se

3817 Northwest 202 nd Street

Miami Gardens, Florida 3305 6

For Respondent: Patricia E. Salman , Esquire

Department of Children and Families

401 Northwest 2nd Avenue , Suite N - 1014

Miami , Florida 33128

STATEMENT OF THE ISSUE

The issue in this case is whether Petiti oner is entitled to

issuance of a license to operate a family day care home ,

pursuant to chapter 402, Florida Statutes, and Florida

Administrative Code Rule 65C - 20 .008 .

PRELIMINARY STATEMENT

By correspondence dated December 8, 2017 , Respondent

notified Petitioner that it proposed to deny her application for

a license to operate a family day care home. Petitioner timely

requested an administrative hearing under sections 120.569 and

120.57(1) to challenge Respondent's proposed denial of the

license, and the matter was referred to DOAH to c onduct the

hearing.

The final hearing was scheduled for, and held on, March 5,

2018. Petitioner testified on her own behalf and did not tender

any exhibits for admission into evidence. Respondent presented

the testimony of Deanna McDonald, Ann Gleeson , and Suzette

Frazier . Respondent's Exhibits 1 , 2, 4, and 5 were admitted

into evidence without objection , and Respondent's Exhibit 3 was

admitted into evidence over a hearsay objection .

A transcript of the final hearing was not filed. The

parties timely filed their p roposed recommended orders, which

have been duly considered in preparing this Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioner, Shaguandra Ruffin Bullock, is an applicant

for a family day care home license for t he Ruffin Bullo ck Family

Day Care Home .

2. Respondent is the state agency responsible for

licensing family day care homes in Florida. § 402.312(1), Fla.

Stat.

Events Giving Rise to this Proceeding

3. A "family day care home" is 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 fo r profit. § 402.302(8), Fla. Stat.

4. On or about July 6, 2017, Petitioner filed a n

application to operate a family day care home.

5. Respondent reviewed the application and determined

that it was incomplete, pending completion of the background

screening required by sections 402.313 (3), 402.305, and

40 2 .3055. 2/

6 . On or about December 8, 2017, Respondent sent

Petitioner a Notice of Intent to Deny Family Day Care Home

Licensure ("NOI"), informing her of Respondent's intent to deny

her applicatio n for a family day care home.

7 . The NOI stated, in pertinent part:

4. On October 10, 2017, the Department

received background clearance letters from

child care personnel at Respondent's Family

Day Care Home.

5. Pursuant to Section 402.313(3), Florida

Stat., childcare personnel in family day

care homes are subject to applicable

screening provisions.

6. Pursuant to Section 402.302(15), Florida

Stat. and Section 39.201(6), Florida Stat.,

The Department assessed the background of

child care personnel at Respondent's family

day care home including, but not limited to

information from the central abuse hotline.

7. The Department's assessment revealed the

Respondent did not meet minimum standards

for child care personnel upon screening

which r equires personnel to have good moral

character pursuant to Section 402.305(2)(a),

Florida Stat.

8. The foregoing violates Rule 65C -

22.008(3), Fla. Admin. Code , [ 3/ ] Section

402.305(2)(a), Fla. Stat. and Section

402.313(3), Florida Stat.

9. Based on the foregoing, Ruffin Bullock

Family Day Care Home's, [sic] pending

licensure application will be denied.

Evidence Adduced at the Hearing

8 . At the final hearing, Respondent acknowledge d that the

background screening for Petitioner and her husband, Marlon

Bullock, did not reveal that either had ever engaged in any of

the offenses identified in section 435.04 , Florida Statutes,

which establishes the level 2 screening standards applicable to

determining good moral character in this proceeding , pursuant to

section 402.305(2)(a) . 4/

9 . Rather, Respondent proposes to deny Petitioner 's

license application solely based on two confidential

investigative summaries ("CIS reports" ) addressing incidents ÏÏ

one involving Petitioner that occurred over 11 years ago, and

one ostensibly involving Marlon Bullock that allegedly occurred

almost 11 years ago .

10 . The CIS report for Intake N o. 2007 - 310775 - 01 addresses

an incident that occurred on or about January 16, 2007 .

11 . Petitioner acknowledges that the incident addressed in

the CIS report for Intake N o. 2007 - 310 775 - 01 occurred .

Petitioner testified, credibly and persuasively, that a t the

time of the incident, Petitioner and her then - husband ,

Bernard L. Johnson, were going through a very difficult,

emotionally - charged divorce. Petitioner went to Johnson 's home

to retrieve their minor children . An argument between her and

Johnson ensued , and she threw a car jack through the back window

of Johnson's vehicle. As a result of this incident, Petitioner

was arrested . H owever, she was not prosecuted, and the charges

against her were dropped.

1 2 . Respondent's witnesses, Ann Gleeson and Suzette

Frazier, both acknowledged that they did not have any

independent personal knowledge regarding the occurrence , or any

aspect s, of the incident reported in the CIS report for Intake

N o. 2007 - 310775 - 01.

1 3 . The other CIS report, for Intake No. 2007 - 455485 - 01 ,

addresses an incident that ostensibly took place on September 7,

2007, involving Marlon Bullock, who is now Petitioner's husband.

1 4 . Petitioner was not married to Bullock at the time of

the incident reported in the CIS report for Intake No. 2007 -

455485 - 01. She credibly testified that she was completely

unaware of th e incident , and had no knowledge o f any aspect of

it , until she saw the CIS report in connection with this

proceeding.

1 5 . Gleeson and Frazier both acknowledged that they did

not have any independent knowledge regarding the occurrence, or

any aspects, of the incident addressed in the CIS report for

Intake N o. 2007 - 455485 - 01 . 5/

1 6 . The CIS reports and their contents are hearsay that

do es not fall within any exception to the hearsay rule . 6 / T he

CIS reports and the information contained therein consist of

summaries of statements made by third parties to the

investigators who prepared the report s . The investigators did

not have any personal knowledge about the matters addressed in

the reports. I t is well - established that hearsay evidence,

while admissible in administrative proceedings, cannot form the

sole basis of a finding of fact in such proceedings.

§ 120. 57(1)(c), Fla. Stat. Accordingly , the CIS reports do not

constitute competent, substantial, or persuasive evidence in

this proceeding regarding the matters address ed in those

reports .

1 7 . Thus, Petitioner's testimony constitutes the

only competent substantial evidence in the record regarding

the matters addressed in the CIS report for Intake

No. 2007 - 310775 - 0 1 , and t here is n o competent substantial

evidence in the record regarding the matters addressed in the

CIS report for Intake No. 2007 - 455485 - 01.

18. Respondent has not adopted a rule defining the term

"good moral character." Therefore , it is required to determine

an applicant's "good moral character" based on the definition of

that term in statute. As noted above, section 402.305(2) (a)

provides that "good moral character" is determined " using the

level 2 standards for screening set fo rth in" chapter 435.

1 9 . Ann Gleeson reviewed Petitioner's application for a

family day care home license. She testified that based on her

review of the CIS reports for Intake No. 2007 - 310775 - 0 1 and

Intake No. 2007 - 455485 - 01, she "didn't feel comfortable"

recommending approval of Petitioner's application for a family

day care home license , and she recommended that the license be

denied . As noted above, Gleeson did not have any personal

knowledge of any of the matters in the CIS re ports . S he relied

on the reports and their contents in making her recommendation

to deny Petitioner's application.

20 . Suzette Frazier, Gleeson 's supervisor, made the

ultimate decision to deny Petitioner's application for the

license.

2 1 . At the final hearing, Frazier tes tified that she

determined that Petitioner's license should be denied based on

the matters addre ssed in the CIS reports.

22 . Frazier testified that Petitioner's application raised

particular con cern s because of the two CIS reports , e ven though

the CIS report for Marlon Bullock contained a "Findings Î No

Indicator" notation. 7 /

23. Frazier testified that it is Respondent's "policy" to

deny an application for a family day care home license in every

case in which the backgroun d screening for the applicant reveals

an incident addressed in a CIS report . According to Frazier,

this policy applies even if the background screening shows that

the applicant does not have a history involving any of the

offenses listed in section 435.04 .

24. Further t o this point, when Petitioner asked Frazier

at the final hearing what she (Petitioner) could do to

demonstrate that she has good moral character for purposes of

obtaining her license, Frazier told her that although she could

reapply, she would n ever qualify to get the license because of

the CIS reports.

2 5 . Frazier testified that, in her view, the CIS reports

contain information indicating that both Petitioner and Marlon

Bullock have a "propen sity" toward violent behavior .

2 6 . Web ster's Collegiate Dictionary , 11th edition, 8 /

defines "propensity" as "a natural inclination or tendency."

A " t endency" is "an inclination, bent, or pre disposition to

something." Id. An "inclination" is a "tendency toward a

certain condition." Id. A "predisposition" is a "tendency to a

condition or quality." Id.

2 7 . Frazier's view that Petitioner and Marlon Bullock have

a "propensity" toward violent behavior is not supported by the

competent, substantial, or persuasive evidence in the record.

28. To the extent Frazier relies on the informati on

contained in the CIS reports to conclude that Petitioner and

Marlon Bullock have a "propensity" toward violent behavior,

n either of these reports constitutes c ompetent substantial

evidence regarding the matters addressed therein.

2 9 . Furthermore, to the extent Petitioner acknowledges

that she engaged in the conduct addressed in CIS report Intake

No. 2007 - 310775 - 01 , the competent, substantial, and persuasive

evidence shows that this incident ÏÏ which was an isolated event

that occurred in the context of an extremely emotional and

difficult personal event in Petitioner's life ÏÏ simply does not

establish that she has a " tendency" or "inclination" or

"predispos ition" toward violent behavior. To the contrary, the

competent , persuasive evidence shows that this was a one - time

event that happened over 11 years ago , that Petitioner did not

have any instances of violent behavio r before then, and that she

has not had any instances of violent behavior since then. Far

from showing a "propensity" toward violent behavior, the

competent, persuasive evidence shows that Petitioner has

exhibited an otherwise completely non - violent cours e of conduct

throughout her life.

30 . Additionally, a s previously noted, the evidence shows

that neither Petitioner nor Marlon Bullock have any history

involving any of the offenses listed in section 435.04 .

31 . T here is no competent substantial evidence in the

record showing that Petitioner has engaged , during the past

11 - plus years, in any criminal or other conduct that would

present a dan ger to children, and there is no competent

substantial evidence in the record establish ing that Marlon

Bullock has ever engaged in any criminal or other conduct that

would present a danger to children. To the contrary, the

competent substantial evidence establishes that Petitioner and

Marlon Bullock are law - abiding citizens.

32 . Petitioner is employed as the manager of a department

for a Wal - Mart store. Marlon Bullock is, and has worked for

23 year s as, a chef. Petitioner credibly and persuasively

testified that she is a Christian who attends, and actively

participates in, activities with her church.

3 3 . Petitioner also credibly and persuasively testified

that she has raised her four sons from h er previous marriage to

be law - abiding, upstanding citizens. None of them has ever been

arrested or involved in any criminal behavior, and her three

adult child ren are all gainfully employed. Petitioner posits,

persuasively, that her children are testame nts to the stability

of her character and her ability to provide a safe, nurturing

environment for the care of children.

34 . Frazier testified that Respon dent's review of

Petitioner's application showed that apart from the good moral

character requirement, Petitioner's application met all other

requirements to qualify for a family day care home license. 9/

Findings of Ultimate Fact

3 5 . A lthough Respondent has adopted a rule , detailed

in its Handbook, which establish es the background screening

process for purposes of determining good moral character,

Respondent has not adopted a rule defining "good moral

character" or establishing , apart from the standards set forth

in section 402.305(2 )(a), any other substantive standar ds for

determining "good moral character." A ccordingly, pursuant to

the plain language of section 402.305(2)(a), the level 2

screening standards set forth in section 435.04 are the

standards that pertain in this proceeding to determin e good

moral character.

36 . Pursuant to the foregoing findings of fact , and based

on the competent, substantial, and persuasive evidence in the

record, it is found, as a matter of ultimate fact, that

Petitioner and Marlon Bullock are of good moral character.

37 . Conversely, the competent, substantial, and persuasive

evid ence in the record does not support a determination that

Petitioner and Marlon Bullock do not have good moral character.

38 . As noted above, Respondent determined , in its review

of Petitioner's application, that other than the good moral

character requ irement, Petitioner met all other statutory and

rule requirements for a family day care home license. Because

it is determined, in this de novo proceeding under section

120.57(1), that Petitioner and Marlon Bullock meet the good

moral character requiremen t, Petitioner is entitled to issuance

of a family day care home license pursuant to sections

402.305(2)(a), 402.312, and 402.313 and rule 65C - 20.008.

39 . Finally, it is noted that Respondent has not adopted

as a rule pursuant to section 120.54(1)(a), its "policy" of

denying applications for family day care home licenses in every

case in which the background screening for the applicant reveals

an incident addressed in a CIS report . Accordingly, p ursuant to

section 120.57(1)(e)1. , Respondent cannot rel y on or apply this

"policy" to deny Petitioner's application for a family day care

home license.

CONCLUSIONS OF LAW

40 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1).

41 . Petitioner bears the ultimate burden in this

proceeding, by a preponderance of the evidence, to prove her

entitlement to a family day care license pursuant to the

applicable statutes and rules. Dep't of Banking & Fin. v.

Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla. 1996); Nikki

Henderson, d/b/a Henderson Fam. Day Car e Home v. Dep't of Child .

& Fams. , Case No. 15 - 5820 (Fla. DOAH May 2, 2016; Fla. DCF

Jun e 16, 2016 ).

4 2 . Section 402.312(1) prohibits , among other things, the

operation of a family day care home without a license .

4 3 . Section 402.313 specifically addresses family day care

homes . Section 402.313(3) provides that c hild care personnel in

family day care homes are s ubject to the applicable screening

provisions contained in s ections 402.305(2) and 402.3055 . 10/ For

purposes of screening in family day care homes, the term "child

care personnel" includes screening of any member over the age

of 12 years of a family day care home operatorÓs family.

4 4 . S ection 402.305, titled "Licensing standards; child

care facilities," subsection (1), directs Respondent to

establish licensing standards that each licensed child care

facility must meet.

4 5 . Section 402.305(2), titled "Personnel," specifically

requires these licensing standards to include minimum standards

for child care personnel. In pertinent part, t his statute

states: " [m] inimum standards for child care personnel shall

include minimum requirements as to : (a) Good moral charac ter

based upon screening . This screening shall be conducted as

provided in chapter 435, using the level 2 standards for

screening set forth in that chapter ." § 402.3 02 ( 2 ) (a) , Fla.

Stat. (emphasis added).

4 6 . Section 435.04 establishes the level 2 screening

standards that, per the plain language of section 402.305( 2 ) (a) ,

are used to determine "good moral character." T he security

background investigations under section 435.04 are to :

ensure that no persons subject to the

provisions of this section have been

arrested for and are awaiting final

disposition of, have been found guilty of,

regardless of adjudication, or entered a

plea of nolo contendere or guilty to, or

have been adjudicated delinquent and the

record has no t been sealed or expunged for,

any offense prohibited under any of the

following provisions of state law or similar

law of another jurisdiction [ . ]

The statute goes on to list 53 criminal offenses , in subsections

435.04(2)(a) through (zz) and 435.04 (3), to which level 2

background screening applies. Thus, s ection 435.04 establishes

the level 2 screening sta ndard to identify, and screen from

employment, persons that have been arrested for and are awaiting

final disposition of, have been found guilty of, r egardless of

adjudication, or entered a plea of nolo contendere or guilty to,

or have been adjudicated delinquent and the record has not been

sealed or expunged for, any of the 53 offenses listed in

section 435.04 (2)(a) through (zz) and (3) .

4 7 . Respondent has adopted r ule 65C - 20.008, titled

"Application." Among other things, t his rule establishes and

prescribes the application form for a license to o perate a

family day care home; prescribes the timeframe and process for

review of applications fo r license; and incorporates by

reference the Family Day Care Home/Large Family Day Care Home

Handbook, dated October 2017 ("Handbook") . 11 /

4 8 . The Handbook, sub section 4 .1 , titled " Initial

Screening ," states, in pertinent part:

4 Background Screening

4.1 Initial Screening

Operators, household members, substitutes,

volunteers and Large Family Child Care Home

employees must have a level 2 background

screening clearance from the department

prior to obtaining a license, residing in

the home, employment, or volunteering

unsupervised with children. The

employer/owner/operator must review each

employment application to assess the

relevancy of any issue uncovered by the

complete background screening, including any

arrest, pending criminal charge, or

convict ion, and should use this information

in employment decisions in accordance with

state laws.

A. Level 2 screening as outlined in

s [.] 435.04, F.S., is required for all child

care personnel and includes a criminal

records check (both national and statewid e),

a sexual predator and sexual offender

registry search, and child abuse and neglect

history of any state in which an individual

resided during the preceding 5 years. All

fingerprints must be submitted and processed

through the Background Screening

Clea ringhouse and therefore a LiveScan

vendor that is Clearinghouse compatible must

be used for submission of fingerprints.

B. The fingerprint results from the Federal

Bureau of Investigation will be returned to

DCF via the Florida Department of Law

Enforce ment. DCF will review both the

federal and state criminal history results,

along with state criminal records, national

sex offender registry, Florida sex offender

registry, and the Florida child abuse and

neglect registry.

C. DCF will issue an eligible or non -

eligible result for employment through the

Clearinghouse upon completion of searches

and results from other states, if

applicable.

D. The operator must submit to licensing a

five year employment history. Licensing

staff will conduct employment history

checks, including documented attempts to

contact each employer that employed the

individual within the preceding five years

and documentation of the findings.

Documentation must include the applicantÓs

job ti tle and description of his/her regular

duties, confirmation of employment dates,

and level of job performance.

E. The employer/owner/operator must conduct

employment history checks for substitutes,

including documented attempts to contact

each employer that employed the individual

within the preceding five years and

documentation of the findings.

Documentation must include the applicantÓs

job title and description of his/her regular

duties, confirmation of employment dates,

and level of job performance. The

employer/owner/operator must make at least

three attempts to obtain employment history

information. Failed attempts to obtain

employment history must be documented in the

personnel file and include date, time, and

the reason the information was not obtained.

F. The employer/owner/operator must send a

request for criminal history records for

each state the individual lived if the

individual has lived outside the state of

Florida in the preceding five years. Visit

www.myflfamilies.com/backgroundscr eening,

click on the National Records Request link

to obtain the instructions and forms to

complete to submit a request for a search.

Once the results are received, the

information must be sent to the DCF

Background Screening unit.

G. The employer/owner /operator must send a

request for a search of each stateÓs child

abuse and neglect registry if the individual

has lived outside the state of Florida in

the preceding five years. Visit

www.myflfamilies.com/backgroundscreening,

click on the Out of State Abu se Registry

Check link to obtain the instructions and

forms to complete to submit a request for a

search. Documentation of the date the

search was requested, and the date the

results were received, must be maintained in

the employeeÓs file for review by t he

licensing authority.

H. The employer/owner/operator must conduct

a search of the sexual offender/predator

registry of any state the individual has

lived in outside the state of Florida in the

preceding five years. Visit

www.myflfamilies.com/backgrou ndscreening,

click on the Out of State Sexual

Predator/Offender Registry Check link to

obtain the instructions and forms to

complete to submit the request for a search.

Documentation of the search date, and

findings from each state, must be documented

in t he employeeÓs file for review by the

licensing authority.

I. The employer/owner/operator must

maintain on - site at the program

copies/documentation of completion of all

applicable elements in the screening process

for an individual in the personnel file for

review by the licensing authority.

J. An individual may be hired un der one of

these circumstances: 1. If all components

are complete with an eligible screening and

documented in the employeeÓs file.

2. ÒProvisional hireÓ status upon

notification email from the department

allowing the individual to be hired for a

45 day period while out of state records are

being requested and awaiting clearance.

During those 45 days the individual must be

under the supervision of a screened and

trained staff memb er when in contact with

the children. 3. Screening requests have

been initiated, but before results have been

received, the individual may be hired for

training and orientation purposes only in

accordance with s. 435.06(2)(d), Florida

Statutes. Until scr eening is complete

showing good moral character, the employee

may not be in contact with the children as

specified in this statute.

K. The employer/owner/operator must

initiate the screening through the

Clearinghouse prior to fingerprinting.

Failure to initiate the screening may result

in an invalid screening and the individual

will have [to] be re - fingerprinted and pay

the fees again.

L. The employer/owner/operator must add

substitutes, employees and household members

to their Employee/Contractor Ros ter when the

individual has received a child care

eligible result. Employer/owner/operator

must immediately add an end date for

individuals on the Employee/Contractor

Roster in the Clearinghouse when employment

terminates or a household member is no

longe r residing in the home.

M. The employer/owner/operator will receive

an email notification if any individual on

the Employee/Contractor Roster is arrested

for a disqualifying offense. The

employer/owner/operator is required to take

appropriate action if an individual becomes

disqualified pursuant to s. 435.06, Florida

Statutes.

4 9 . These Handbook provisions establish the process for

initial background screening . However, i mportantly, they do not

establish any definition or substantive standards prescribing

what constitutes "good moral character." Nor has Respondent

adopted any other rules defining or establishing substantive

standards for determining what constitutes "good moral

character."

50 . Thus, t he standard for determining whether or not an

applicant possesses "good moral character" is specifically ÏÏ and

exclusively ÏÏ established in sections 402.305(2)(a) and 435.04 ÏÏ

which , as discussed above, is whether or not the family day care

home license applican t has been arrested for and is awaiting

final disposition of, ha s been found guilty of, regardless of

adjudication, or entered a plea of nolo contendere or guilty to,

or ha s been adjudicated delinquent and the record has not been

sealed or expunged for, an y of the 53 offenses listed in

section 435.04. 12 /

51 . As discussed above, the evidence establishes that

neither Petitioner nor Marlon Bullock were determined, through

background screening, to fall within the groups of persons and

offenses described in section 435.04(2) and (3). Accordingly,

pursuant to sections 402.305(2)(a) and 435.04, it is concluded

that the evidence shows that Petitioner and Marlon Bullock

possess good moral character, as required by those statutes .

5 2 . The circumstances in this case are remarkably similar

to those in Henderson Fam ily Day Care Home , cited above . In

that case, based on five CIS reports , some of which had verified

findings and others of which had no indicators , Respondent

den ied a license for a family day care home on the basis that

the applicant lack ed good moral character . At the final

hearing, Respondent tendered and relied on the CIS reports as

its evidence that the applicant should not be licensed. In his

recommended order, t he ALJ did not ascribe weight to the

reports, reasoning that :

The information contained in the reports

that the Department relies upon is largely

hearsay or hearsay reports of hearsay. The

reports consist mostly of summaries of

records reviewed by the reporter or

summaries of statements by other

individuals. They are not reports of

information about which the reporter has

direct knowledge. The reports do not

identify who the investigat or obtained the

information from. In short [,] all of the

statements in RespondentÓs Exhibits C

through G about anything Ms. Henderson did

or did not do are hearsay recitations of

statements made to and summarized by the

reporters or summaries of documents

reviewed. §§ 90.801 & 90.802, Fla. Stat.

Hearsay alone cannot support a finding of

fact. § 120.57(1)(c), Fla. Stat.

53 . Notably, the ALJ found that an isolated incident that

occurred 11 years before the application was submitted did not

make the app licant a person who lacks good moral character. The

ALJ determined in his Recommended O rder that the applicant had

shown, by competent substantial evidence, that she was entitled

to issuance of the license. Respondent adopted the ALJ's

recommended order , without modification, as its F inal O rder.

5 4 . Likewise, h ere, b ased on the competent substantial

evidence in the record, it is concluded that Petitioner has

established that she and Marlon Bullock possess good moral

character . Accordingly, Petitioner i s entitled, pursuant the

pertinent statutes and rules, to issuance by Respondent of a

family day care home license.

55 . Furthermore, under any circumstances, Respondent is

not authorized to rely on its "policy" ÏÏ which has not been

adopted as a rule pursuant to section 120.54(1) ÏÏ to deny

Petitioner's family day care home license on the basis that the

CIS reports per se establish lack of "good moral character . "

56 . Section 120.57(1)(e)1. states, in pertinent part :

"[a]n agency or administrative law judge may not base agency

action that determines the substantial interests of a party on

an unadopted rule."

5 7 . Section 120.52(16) defines a "rule , " in pertinent

part, as "each agency statement of general applicability that

implements, interprets, or prescribes law or policy."

5 8 . A "statement of general applicability" is a statement

that purports to affect a category or class of similarly -

situated persons or activities. McCarthy v. Dep't of Ins. ,

479 So. 2d 135 (Fla. 2d DCA 1985 ). Here, Frazier testified that

Respondent has a " policy " to deny family day care home license

applications in every case in which there is a CIS report.

Thus , Respondent's " policy " is a "statement of general

applicability" that applies, as a rule of decisio n, to every

application for a family day care home license.

5 9 . If the statement of general applicability gives a

statute a meaning not apparent from its literal reading and

create s or adversely affect rights, require s compliance, or

otherwise has the direct and consistent effect of law, it is a

rule. State Bd. of Admin. v. Huberty , 46 So. 3d 1144, 1147

(Fla. 1st DCA 2010); Beverly Enterp rises - Fla., Inc. v. Dep't of

HRS , 573 So. 2d 19, 22 (Fla. 1st DCA 1990).

60 . Here, Respondent's " policy " giv es the pertinent

statutes ÏÏ here, sections 402.305(2)(a) and 435.04 ÏÏ a meaning

that is not apparent from a literal reading of the statutes. As

previously discussed, the plain language of section

402.305(2)(a) provides that good moral character is determined

based on screening, "which shall be conducted as provided in

chapter 435, using the level 2 standards for screening set forth

in that chapter ." § 403.305(2)(a), Fla. Stat. (emphasis added).

Neither section 402.305(2)(a) nor section 435.04 anyw here state

that CIS reports are determinative of whether an applicant has

good moral character. To the contrary, these statutes expressly

limit the good moral character determination to the " level 2

standards for screening set forth in chapter 435. " Thus,

Respondent's "policy" indisputably gives these statutes a

meaning not apparent from their literal reading, so constitutes

an interpretation of the statutes. 13 / Additionally, t he policy

adversely affects applicants' rights by effectively imposing a

r equirement ÏÏ the absence of any CIS reports in an applicant's

background, even when the level 2 screening standards imposed by

sections 402.305(2)(a) and 435.04 are met ÏÏ for issuance of a

license.

61 . Pursuant to section 120.52(16) and the interpretive

case law, it is clear that Respondent's policy constitutes a

rule. It has not been adopted, as required by section

120.54(1)(a), pursuant to the rulemaking process established in

section 120.54. Acco rdingly, pursuant to section

120.57(1)(e) 1., Respondent is not authorized to base its agency

action regarding Petitioner's license on this policy.

6 2 . Additionally, Respondent cannot successfully assert

that it is simply applying sections 402.305 and 435.04 to deny

Petitioner's license. Here, Respondent's stated basis for its

decision to deny Petitioner's license ÏÏ that the background

screening includes CIS reports ÏÏ is contrary to the plain

language of se ctions 402.305(2)(a) and 435.04, which expressly

limits the standards considered in determining good moral

character to the level 2 screening standards set forth in

chapter 435. As such, any application of the statute that makes

CIS reports determinative of family day care home licensure is

clearly erroneous , and, thus, cannot support the denial of

Petitioner's license . See Summer Jai Alai Partners v. Dep't of

Bus. & Prof'l Reg . , 125 So. 3d 304, 307 (Fla. 3d DCA 2013); Fla.

Hosp. v. Ag. for Health Care Ad min. , 823 So. 2d 844, 848 (Fla.

1st DCA 2002)(an agency's interpretation and application of a

statute it is charged with administering is not entitled to

deference where it conflicts with the plain language of the

statute) .

63. Based on the foregoing, it is concluded that

Petitioner meets the good moral character requirement, as well

as all other pertinent requirements in chapters 402 and 435, and

rule 65C - 20 .008 , and therefore is entitled to issuance of a

family day care ho me license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a final order

granting Petitioner's license for a family day care home.

DONE AND ENTERED this 12th day of April , 201 8 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 12 th day of April , 201 8 .

ENDNOTES

1/ All references are to the 2017 codification of Florida

Statutes.

2/ Section 403.3055 imposes the requirement that a license

application contain a question that asks whether the applicant,

owner, or operator of a child care facility license has

previously had a child care license denied, revoked, or

suspended in any state or juris diction, or whether that person

has been subject to disciplinary action or been fined while

employed in a child care facility. The statute authorizes

Respondent to deny a child care facility license on this basis

or to impose other sanctions on child care facilities for

failure to request this information from employees. There is no

allegation that Petitioner failed to comply with this provision,

nor is there any evidence in the record that Petitioner

previously had a child care license denied, revoked, o r

suspended in any state or jurisdiction, or that she was subject

to disciplinary action or fined while employed in a child care

facility. To the contrary, the evidence establishes that

Petitioner has not previously owned, operated, or been employed

by a child care facility.

3/ The NOI cites rule 65C - 22.008(3) as a basis for the proposed

denial. This citation appears to be incorrect. Rule 65C - 22.008

is titled "School Age Child Care" and deals with licensure of a

type of facility that is not the subje ct of Petitioner's

application.

4/ Section 402.305 is titled "Licensing standards; child care

facilities." As discussed more extensively below, section

402.305 requires Respondent to establish minimum licensing

standards that each licensed child care fa cility must meet.

Among these are "minimum requirements as to: (a) Good moral

character based upon screening. This screening shall be

conducted as provided in chapter 435, using the level 2

standards for screening set forth in that chapter."

§ 402.305 (2)(a), Fla. Stat.

5/ As more fully discussed below, this CIS report is hearsay

that does not fall within any exception to the hearsay rule, and

there is no other competent substantial evidence in the record

of this proceeding regarding the matters addr essed in this CIS

report. As such, the report does not constitute competent

substantial evidence on which any findings of fact may be based

in this proceeding. Accordingly, the undersigned has not made

any findings of fact regarding this report, other th an that the

report exists.

6/ Although Respondent presented the testimony of its records

custodian to authenticate the CIS reports, that does not render

the reports non - hearsay or establish that they fall within any

exception to the hearsay rule. See Dollar v. State , 685 So. 2d

901, 903 (Fla. 5th DCA 1996)(even if a document is

authenticated, it still must satisfy the requirements for a

hearsay exception). Respondent, as the proponent of the hearsay

evidence, bears the burden of establishing, by evide nce in the

record, the proper predicate for applicability of an exception

to the hearsay rule. Yisrael v. State , 993 So. 2d 952, 956

(Fla. 2008).

It is noted that to the extent documents tendered for

admission in administrative hearings may fall withi n an

exception to the hearsay rule, the two exceptions most often

propounded are the exception for records of regularly conducted

business activity ÏÏ the so - called "business records exception" ÏÏ

in section 90.803(6), Florida Statutes, and the exception for

public records and reports ÏÏ the so - called "public records

exception " ÏÏ in section 90.803(8). Although here, Respondent

failed to establish that the CIS reports fell within any

exception to the hearsay rule, these two exceptions and their

elements merit dis cussion.

To fall under the business records exception in

section 90.803(6), the proponent of the document must show that

the record was made at or near the time of the event recorded;

that it was the regular practice of the business to make such a

re cord; and that the record was made by or from information

transmitted by persons with knowledge who are acting in the

course of the regularly conducted business. Quinn v. State , 662

So. 2d 947, 953 (Fla. 5th DCA 1995). It is well - established in

Florida l aw that investigative reports generally do not fall

within the business records hearsay exception because the

persons providing the information to the person preparing the

report do not, themselves, have a business duty to provide that

information. See Vi sconti v. Hollywood Rental Serv. , 580 So. 2d

197 (Fla. 4th DCA 1991)(patient statement regarding slip and

fall incident did not fall within the business records exception

because the patient did not have a business duty to make the

statement); Brooks v. St ate , 918 So. 2d 181 (Fla. 2005)(where

the initial supplier of information in a record is not acting in

the course of the business, the information does not fall within

the business records exception); Harris v. Fla. Game and Fresh

Water Fish Comm'n , 495 So . 2d 806 (Fla. 1st DCA 1986)(statements

made in investigative reports do not fall within the business

records exception where the statement is not made by a person

who was acting within the regular course of the business's

activity). Here, the evidence do es not definitively show that

the information contained in the CIS reports was recorded at or

near the time of the event recorded. Further, and most

important, the persons who transmitted the information to the

investigator s who prepared the report did not have a business

duty to provide that information to the investigator , so were

not acting in the course of regularly conducted business when

they provided that information to the investigators.

Accordingly, the CIS reports do not fall under the business

records exception to the hearsay rule.

Nor do the CIS reports fall under the public records

exception to the hearsay rule in section 90.803(8). This

exception applies to records, reports, statements reduced to

writing, or data compilations, in any form, of public offices or

agencies, setting forth the activities of the office or agency,

or matters observed pursuant to duty imposed by law as to

matters which there was a duty to report, excluding in criminal

cases matters obs erved by a police officer or other law

enforcement personnel, unless the sources of information or

other circumstances show their lack of trustworthiness. The

exception encompasses two types of public records and reports:

(1) records setting forth the ac tivities of the office or

agency; and (2) records of a public office or agency which set

forth matters observed pursuant to duty imposed by law as to

which matters there was a duty to report. Philip Morris USA,

Inc. v. Pollari , 228 So. 115, 120 (Fla. 4th DCA 2017). The CIS

reports do not fall within the first category of the exception

because they were not records or reports of the activities of

Respondent . To fall within this category, the documents can do

no more than "simply set forth the activities o f the government

agency ." Id. at 121 (emphasis added) ; Benjamin v. Tandem

Healthcare, Inc. , 93 So. 3d 1076, 1082 (Fla. 4th DCA 2012).

Here, the CIS reports consist of a narrative prepared by CIS

investigators, who are employees of Respondent, regarding

st atements made to them by third parties, ostensibly describing

their actions or actions of other persons. They do not

constitute factual reports "focused on the essential functions

of the office or agency ," which is a necessary element for a

document to fa ll within this category of the exception.

Nationwide Mut. Fire Ins. Co. v. Darragh , 95 So. 3d 897, 900

(Fla. 5th DCA 2012). Nor do the reports fall in the second

category of the public records exception. Reports that fall

within this category must be ba sed on a public official's first -

hand observation of an event. Yisrael , 993 So. 2d at 959. As

discussed, the CIS reports consist of a narrative regarding

statements made to investigators regarding matters reported to

them by third parties, ostensibly des cribing the actions of

those third parties or of other persons. The reports clearly

and indisputably do not constitute reports of first - hand

observations of events by the investigators. Simply stated,

none of the investigators had any personal knowledge of the

matters addressed in the reports , which is required for this

hearsay exception to apply . Accordingly, the CIS reports do not

fall within the public records exception to the hearsay rule.

Finally , it is noted that in Henderson Family Day Care

Home , Respondent argued that because section 39 .202 makes abuse

and neglect report s available to it, that statute create s an

exception to the hearsay rule for their use. In his R ecommended

O rder, t he ALJ flatly (and correctly) rejected that position,

and Respondent accepted , in toto , the ALJ's conclusions of law

in its F inal O rder . Although Respondent has not taken that

position in its Proposed Recommended Order in this case, it

warrants mention.

7/ Frazier testified that just because there is a finding of

"no indicator" does not mean that a child is not injured. The

undersigned notes that not only does Frazier have absolutely no

personal knowledge of any aspect of the incident addressed in

CIS report for Intake No. 2007 - 455485 - 01, but she engaged in

completely unsupported speculation in surmising that a child was

or may have been injured in the incident addressed in that CIS.

8/ Judicial tribunals are authorized to look to the dictionary

for the plain and ordinary meaning of terms. Gyong yosi v.

Miller , 80 So. 3d 1070, 1075 (Fla. 4th DCA 2012).

9/ Consistent with that testimony, it is noted that the NOI

informing Petitioner that Respondent proposed to deny the

application for license only mentioned that Petitioner did not

satisfy the go od moral character requirement. See § 120.60(3),

Fla. Stat. (requiring the agency to provide written notice that

the agency intends to grant or deny the application for license,

and requiring the notice to state with particularity the grounds

or basis for the issuance or denial of the license, except when

issuance is a ministerial act) .

10/ As discussed in note 2 above, section 402.3055 is not

pertinent in this particular proceeding because neither

Petitioner nor Marlon Bullock have previously been employed as

child care personnel.

11/ Respondent, in its Proposed Recommended Order, paragraph 10

of the Conclusions of Law, states: "Rule 65C - 20.008(3)(a)(1) -

(4), F.A.C., lays out the initial screening requirements."

Respondent cites to a previous version of rule 65C - 20.008 that

is no longer in effect as of October 25, 2017. The version of

rule 6 5C - 2 0.008 that went into effect on October 25, 2017,

applies to this proceeding. See Lavernia v. Dep't of Prof.

Reg. , 616 So. 2d 53, 54 (Fla. 1st DCA 1993)(law in effect at

time licensure decision is made, rather than at time application

is filed, applies ).

1 2 / Section 402.305(15) defines "screening" to include

employment history checks, including documented attempts to

contact each employer that employed the applicant within the

preceding 5 years and documentation of the findings, and a

search of the c riminal history records, sexual predator and

sexual offender registry, and child abuse and neglect registry

of any state in which they applicant presided in the preceding

five years. However, this definition, which is a more general

statute describing scr eening, does not supersede the more

specific provision in section 402.305(2)(a) establishing the

substantive standards applicable to determining "good moral

character." See Sch. Bd. of Palm Beach Co. v. Survivors Charter

Sch. , 3 So. 2d 1220, 1233 (Fla. 20 09); Maggio v. Fla. Dep't of

Labor & Emp't Sec. , 899 So. 2d 1074, 1079 (Fla. 2005)(a specific

statute covering a particular subject area controls over a

statute covering that subject in general terms).

13 / Additionally , that interpretation is contrary to the plain

language of sections 402.305(2)(a) and 435.04.

COPIES FURNISHED:

Lacey Kantor, Esquire

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Shaguandra Ruffin Bullock

3817 Northwest 202 nd Street

Miami Gardens, Florida 33056

(eServed)

Patricia E. Salman, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

(eServed)

John Jackson, Acting General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

T allahassee, 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.