H- .. -- c. - STATE OFIFLORIDA DEPARTMENT OF CHILDREN ANDFAMILY SERVICES ANDERSON and KIDZ. KINGDOM ACADEMY V. I RE I i I DEPARTMENT OFCHILDREN-AND FAMILY SERVICES . hm A . JUN 1.5 2095 FINAL ORDER DCF De Mm THIS CAUSE is before me for entry of a: Final Order The ?Amongsg? Recommended Order found extensive violations of child care facility licensing standards, and. recommended that the Department impose $2,900 in ?nes for the violations; The Department timely ?led the Recommended Order. which .are addressed below. Hailing considered the record in its entirety, ineluding the transcript of the hearing, certain of the findings of fact and conclusions of ?Iaw,'as well as the recOmmended penalty; are rejected,_as provided below. .-With the-exception of the modifications described below," the findings of fact and conclusions of law are approved. and adopted; .Burden of Proof This proceeding arose from the Department?s denial of petitioner's"1 license application to operate a child care facility under chapter 402. Florida l.l?irithough the Department must establish?the reasons for the denial of the child care license application by preponderant evidence, Belinda Anderson and Kidz Kingdom ?led the petition for an administrative . proceeding to this case and are, therefore, the petitioners. The Final Order amends the styic? of this case TE my IAI?ul?I?pll v- - urx-vuv 41.1. Jul! VJ 4.Statutes. The Administrative Law Judge (ALJ), as expressed in paragraphs 35 and 39 of the Amended Recommended Order, considered this case to involve the gem revocation. of aaprofessional license and, as such, imposed the Enhanced evidentiary standard of Clear and convincing evidence applicable to such cases. The legal conclusion is incorrect. Denial ?of a license application requires that the Tagency'taking the action, if chailenged.? in an administrative proceeding, prove the basis of_ the denialby a simple - preponderance of the evidence. Department'of Banking and Finance. Divities and lnve tor Pro ection v. Osborne Stern'and Co. (Fla. .1996). Section 402.308. Florida Statutes, requires child care facilities to apply annually to renew their licenses. Section Florida Statutes, provides that ?the department . - . may dem,_suspend, or revoke a license . for the violation of-any provision of 55. 402.310 402.319, Florida Statutes. or the rules adopted thereunder." Clearly?, violations by a current licensee can be the basis for the'denial of a renewal?application. Because the Legislature is presumed to be-aware of the Osborne decision. it may also be presumed that the Child care licensing statutes operative'here are intended to protect the-public byrequiring child care facility operators to frequently demonstrate ?tnessto perform the critical task of caring for infants and young children. If renewal of licenses upon application were intended as a mere ministerial act, such that an application Lu rum-vow on. your Jun 1.) U.) 1.1 r.uq denial must be handled as a revocation, the Legislaturewomd have so indicated;2 - The ALJ concluded, in paragraph 40; that the Department was also requiredt?o by clear and convincing evidence-that 'petit'ioners' violations ot-theiappiicable statutes and rules Were- "severe? within the meaning or section Florida Statutes. This, too, is error. Nothing in. section 402.310, Florida Statutes; establishes a'ciear and-convincing evidentiary standard for evaluating the severity of licensing violations. - Findings of Fact The Department has'taken exception to the findings of factin paragraphs 8 and 10 of the Amended Recommended Orderion the basis thatithey lack competent substantial evidence sopport. The exceptions are sustained Paragraph 8 provides. in pertinent. part that, ?[d}uring testimony. . .. . [the Department's] representative testified that she would recommend that the agency renew the Ilsense if [petitioners] were to pay the fine.?- The-hearing. transcript does nOtreflect that the agency representative expressed such a" position, The'Department?s representative at the proceeding was Ms. Patricia Hamilton. Child Care Licensing'SuperVisor. in the Department?s District '14. (Tr. 4). At no time did Ms. Hamilton testify?as found by the ALJ. (Tr. 197 221). Ms. Hamilton?s pertinent testimony was only that petitioners? failure to pay a ?ne imposed for previous violations was a factor in the application denial. and that 2 Coke v. Department of Children and ramiiv services. 704 so. 2d 725 (Fla. 5a. DCA 1998) does no: compel a different conclusion, As the nge opinion stated. the burden of proof issue was conceded, and not litigated, in that. one. The gain did not, dtorofm, consider tho issue on the merits. WI I u-H 'v?rv vJ-Il dull VJ 1.payment of the fine wOuld have demonstrateda "willingness to do better" on petitioners? part, (T. 199; 221). The finding is rejected. Paragraph 10 provides. in pertinent part. that is axiomatic that the agency representative would net recommend renewal of. the license upon payment violations represented any harm to the public. including children." There was no testimony or other evtdenoe to 1 support this ?nding. The ?nding is not "axiomatic?.- because, taken at face value; itv'rould mean that the Department would. never recommend licensure of any "facility that had violated a child care facility safety regulation. The ?nding is rejected. The Department?s exception to?factual findings in paragraph 34 of the Amended Recommended Order isalso sustained. Paragraph 34 reiterates the findings. that "[t]he agency representative would have approved the application for renewal but for an un?paid'?ne it is axiomatic that ah agency representative would not ignore severe de?ciencies in exchange for the payment of a These findings in paragraph 34 are rejected for the same reasons discussed above. Conclusions of Law The Department took exception to the ?rst sentence of paragraph 11 of the Amended Recommended Order, which concludes that petitioners? violations did not pose a risk of harm to the facility's children. This exception is well- founded. Paragraph 1 1? states-that: I?hul?u?II v- I ??4th un-ve-v quI dun .I.-J v4 .14violationsdo not threaten harm to children or other members of the public within the meaning Florida . Statutest2003). Although [the Department] showed by clear and convincing evidence that '[petitiOner] committed most of the 53 violations, [the Department] failed to show by clear and convincing evidenoethat one or all of mess violations threatened ?children or others with serious harm. - . With regard to paragraph 11?s second sentence, the ALJ weighed the evidence presented andeetermined that all but one of the alleged violations occurred. Clearly, that is a-?nding of fact, and the ?nding is not challenged. The ALJ then, apparently, reviewed the circumstances of each violation and concluded that, taken individtially or the violations did'not create potential harm'to the children at the facility. That is not a factual determination. That is a legal conclusion and it is rejectEd-? The ALJ restated this conclusion in paragraphs -34 and 40, and it is rejected there as well. Section Florida Statdtes, assigns the Department responsibility for determining the appropriate administrative: response to violations of child care-licensing requirements. Section Florida Statutes, additionally provides: in determining the appropriate disciplinary action to be taken for a violation as provided in paragraphta), the following factors shall be considered: 1. . The seVerityof 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 actuator potential harm, and the extent to which the provisions of as. 402.301 - 402.319 have been violated- 2. Actions taken by the licensee to correct the violation or to remedy complaints. [Trill?LO I GA JUII U.) 11. 3. Any previous violations of the licensee. Within. the given statutory parameters, the determination-of the dangerposed to children by a particular violation or set of Violations ate child-care facility is. a matter well within the discretion of the Department. Presumably. themthe Department has some subject matter expertise in this area, and need not, therefore, accord great deference to the conclusion that the violations in this'case did not threaten the facility's children with Serious harm. The 53 violations of statutory and rule licensing standards found to have occurred in this case were committed within an eight month period. The violations included: miscing employee background screening documentation (multiple occasional; failure to cleanldisinfect the diaper changing surface after each use: changing diapers on an inappropriate surface; dirty diapers placed in uncoVered waste receptacle; failu're-to'maintain accurate att'endancelstaff could not account for all children in facility (multiple occasions); inadequate supervision or insuf?cient staff-to-Children ratiol(multiple occasions); lack of first-aid/CPR quali?ed staff on field trips: formula bottles not properly refrigerated (multiple occasions) ordisp'osed of after use conducting food preparation in the handwashing sink; missing child health screening records and expired immunizations; broken/dangerous equipment (multiple occasions); and, missing electrical outlet coyers in a child-accessible area; i concur with the Department?s licensing staff in this casethat petitioners? violations created the potential-for severe harm to the facility's children. The sanitation and health screening violations create a risk of serious illness v- [nun?I?v I UJWI VUII spreading through the facility?s children. Equipment Violations often result in serious injuries that are entirely avaidable. The Department has seen many - tragic injuries result when staff-'to-children ratios are out of balance or when child care workers do not account for all the children. in their facility. The background screening docdmentation viOIations, too. could lead to dissatrous- conSequences sho'uid'a violent or predatory individiJalbe hired by the'faciliiy. individually. the violations. in this case may: not warrant denial of petitioners? renewal application. When considered terther, however, it is clear that petitioners? inability to comply with the applicable statutory and rule reguirements places the children in the facility at risk?for serioiJs harm. Even if the first sentence of paragraph 11 were construed as a ?nding of fact, I would reject it. as not Supported by competent substantial evidence.- There was substantial testimony by. the Department's licensing staff concerning the potential harm that could result from the violations that occurred in this case (T. 50-68; '1 10-1 17; 135; 139; 145; 158; 198-208). There was no testimony or other evidence presented that the violations did not have the potential to result in serious harm. There was testimony from petitioner that no actual harm resulted, (T. 243), but that does net support the finding- that no potential riSk existed. The interpretation of section Florida Statutes, which appears in Recommended Orderparagraph 41, is also rejected. That paragraph concludes that mitigation of the penalty in this casevis appropriate because petitioner had no "previous" violations of licensing provisions. The ALJ, apparently, considered the span or violations presented here as a single non- . u- ll"l 1314.9 I 3154?. use? Jun U.) nu: compliance. I disagree. 53 violations over eight?months establish a?plain pattern of non-compliance. It would be unrealistic to expect the Department to initiate administrative action on each discrete violation or each i?ndiirldual inspeCtion. it is also unreasonable to. conclude that the Department's efforts to work with petitioner to attain compliance over time should then foreclose theDepartrnent from denying petitioners? license renewal application on the grounds that there We're no "previoUs?violations; Penalty The. entire record in this case demonstrates that petitioners are unable or unvirilling to maintain compliance With child care facility requirements thatare intended to help ensure the safety of the childrenin. petitioner's care. I do not believe that the imposition of a ?ne. as recommended by the ALJ, would result in better compliance in the future. in my view. petitioners did not establish fitness to be awarded a license to operate a child care facility, and the Department was correct to deny the license renewal application. Accordingly, petitioners? application for a child care facility license is hereby DENIED. DONE AND ORDERED at Tallahassee, Leon?County, FlOrida, this day of 9:31;, 2005. We Don Winstead Deputy Secretary Department of Children and Family Services ul_u.a.unn._n u- 21.RIGHT To PPEAL A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF. A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, IN THE FIRST DISTRICT COURT OF APPEAL OR IN THE DISTRICT COURT OF APPEAL WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE-ORDER TO-BE REVIEWED: Copies furnished to: Jack Farley -- KeithPeterson District 1'4.Legal Coonsel . 170 North Florida Awe. Department?of Children and Bartow, FL 33830 Family Services . 74720 Old Highway 37 South Lakeland FL 33813?2030 Pat Hamilton . Child Care Licensing Department of Children and Family Services 4720 Old Highway 37 South Lakeland. FL 33813-2030 CERTIFICATE-OF SERVICE I HEREBY CERTIFY that a copy of this Final Order was providled to the above- named individuals at the lIsted addresses, by U. 8 Mail this 155 day of Mt, .2005. Greg'ory enz. ency Clerk? Departm tofC dren and Families