STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-4294

) EVELYN BARTON and DANA BARTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was held in this case on June 15-18, 1987, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Steven Hurwitz, Esquire

Assist. Dist. Legal Counsel Department of Health and

Rehabilitative Services

P. O. Box 2417

Jacksonville, Florida 32231-0083

For Respondents: M. S. "Mo" Atwater, Esquire

335 E. Bay St.

Jacksonville, Florida 32202 ISSUE

The issue is whether Respondents' license to operate Little Scholars Academy child care facility should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.

Petitioner, Department of Health and Rehabilitative Services (HRS), presented the testimony of Deborah Sue Beasley, Ellen Shirley, Sylvia Janet Goforth, Ginger Polk Avery, June Fogle Bird, Gloria Eason, Ruby White, Kathy McDuffie, Tamara Aunapu, Eugene Hough, and Nancy Corley, together with the deposition testimony of Claudia L'Engle Stein and Relder Grace Lundy. HRS

Exhibits 1-7 were admitted into evidence. Respondents presented the testimony-of Evelyn Barton, Keith R. D'Amato, Larry Radke, Dana Barton and Floy Walde. Respondents' Exhibits 1-10 and 13-18 were admitted in evidence. Joint Exhibits A and B were also admitted in evidence.

The transcript of the proceeding was filed on August 14, 1987. Both Petitioner and Respondents submitted proposed findings of fact and conclusions of law. Petitioner's proposed order was filed on September 14, 1987. Respondents' proposed order was filed on September 15, 1987. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Respondents Evelyn Barton and Dana Barton are licensed to operate Little Scholars Academy, 2101 Picketville Road, Jacksonville, Florida, and Little Scholars Academy, 2533 Beaverbrook Place, Jacksonville, Florida, each as a child care facility as defined in Section 402.302(4), Florida Statutes (1985).

   
   

2. From July, 1983 to June, 1984, and from July, 1985 to June, 1986, Respondents were co-licensees of the Picketville Road Facility. From July, 1984, to June, 1985, Evelyn Barton was the sole licensee of the Picketville Road facility. As relative to this Administrative Complaint, until June, 1983, Evelyn Barton and Claude Barton, her husband, were co-licensees of the Picketville Road facility. Dana Barton was named as a Respondent solely based on her position as co-licensee during certain periods of time material to the Amended Administrative Complaint. The allegations of the Amended Administrative Complaint relate solely and exclusively to Evelyn Barton. No evidence was presented to show that Dana Barton had any complicity in the events alleged in the Amended Administrative Complaint.

   
   

3. In May, 1984, Evelyn Barton engaged in several force- feeding episodes involving an infant, R.N., born January 24, 1983. In each of these episodes, Evelyn Barton went to the nursery, seated herself facing R.N., who was in a high chair, and fed R.N. The feeding was accomplished by Evelyn Barton using her left hand to hold the infant by the face while using her right hand to clasp a spoon with which to feed baby food. Evelyn Barton used the spoon to pry open the child's mouth and then deposited the food which had been on the spoon into R.N.'s mouth. During each of these episodes, R.N. was screaming, crying, gagging, and spitting back food. R.N.'s nose was also running. During each of these episodes Evelyn Barton fed R.N. in the

   manner described for approximately ten (10) to fifteen (15) minutes. During this time, R.N. repeatedly spit food from her mouth onto the high chair and onto Evelyn Barton's left arm and hand. Evelyn Barton used the spoon to scrap the spit-out food from her hand, from the bib, from the high chair, and from R.N.'s

   face, including mucus from the child's running nose. Evelyn Barton then forced the scrapped up, spit up food back into R.N.'s mouth.

   
   

4. During summer, 1984, Evelyn Barton force-fed a child, M.H., born March 22, 1981. During the specific event in question, M.H. was in the three-year-old class. M.H. was not eating as quickly as the other children and therefore did not finish her meal when the others finished theirs. All the other three-year-olds were permitted to leave the table, but M.H. remained at the table with Evelyn Barton. Evelyn Barton was seated next to M.H., but in such a position that she was able to grasp the child's right hand, which was holding the spoon, in her right hand. Holding the child's hand, Evelyn Barton then directed the spoon, which contained food, to the child's mouth. When the child refused to eat and pulled her hand away from her mouth, Evelyn Barton forced the child's mouth open using the spoon and pushed the food into the child's mouth by pushing the child's hand which was in her firm grasp. The child attempted to spit out the food and was crying. Even after the child spit out the food, Evelyn Barton continued to place more food in the child's mouth using the method just described. This entire episode lasted five to ten minutes.

5. During the winter or spring of 1985, Evelyn Barton engaged in a force-feeding episode involving a child, S.M., born· August 9, 1983. During this event, which occurred during the breakfast meal, S.M. was seated in a high chair with Evelyn Barton seated face to face directly in front of the high chair. Evelyn Barton had a spoon in her right hand and was feeding the child baby food from a jar. S.M. did not want to eat and was gagging and spitting out food from his mouth. The spit-out food landed on the spoon which Evelyn Barton was holding under the child's mouth. Evelyn Barton then spooned the spit-out food back into the child's mouth. Evelyn Barton repeated this process several times until all the food had been eaten. Throughout this episode, the child's face was red and the child was crying. This feeding episode lasted approximately ten (10) minutes.

   
   

6. In approximately May, 1985, Evelyn Barton engaged in a force-feeding episode involving a child, T.S., born January 29, 1982. During this episode, T.S. was seated with his classmates at the two-year-old table. T.S. was not eating his lunch. Evelyn Barton stood directly behind T.S., bending over the child and holding the child's right hand, in which the child held a plastic spoon, with her right hand. Evelyn Barton was holding the child's face with her left hand and used her left hand to tilt the child's head back and to squeeze the child's mouth together in order to force the mouth open. Holding the child's hand and the spoon with her right hand, Evelyn Barton moved the

   spoon containing the food to the child's mouth. If the child failed to eat the food, Evelyn Barton would tilt the child's head back, force the child's mouth open, and would deposit the food in the child's mouth. T.S. was crying and gagging and was resisting opening his mouth. When T.S. continued to resist eating, Evelyn Barton used her left hand to hold the child's right hand and with her right hand slapped the child's hand one or two times. This feeding episode lasted approximately five (5) minutes. The episode stopped only when the child's mother, who was an employee at the facility, intervened by crying out for Evelyn Barton to "stop it" and coming around the table to attempt to calm her child who was screaming and crying.

   
   

7. On July 25, 1985, Evelyn Barton engaged in a force- feeding episode involving a child, A.P., born July 25, 1983. At the time in question, it was the child's two-year birthday and the child and her classmates had been eating french fries which had been brought by the child's mother. Evelyn Barton stood directly behind the child and bent over the child, who was seated on a small bench. The child was crying and Evelyn Barton was mocking the child by making loud crying noises. The child's mouth was so full of french fries that she could not close it, but Evelyn Barton continued to poke more french fries into the child's mouth. During a portion of this episode, Evelyn Barton actually cupped the child's face with her left hand, thereby holding the child's face still, while Evelyn Barton continued to place french fries in the child's mouth.

   
   

8. During August or September, 1983, Evelyn Barton engaged in a force-feeding incident with a child, whose only initial is

   L. On this specific occasion, the child's stomach was upset and his mother had sent a bottle of Gatorade with instructions that he drink the Gatorade instead of eating. The child's teacher had given the child Gatorade as instructed and the child did not wish to eat his lunch which was provided at the facility. During the lunch meal, the child was seated at the two-year-old table. The child was crying. Evelyn Barton approached the table and was advised by the child's teacher that the child did not want to eat and was drinking the Gatorade which had been provided for him. Evelyn Barton then positioned herself behind the child and leaned over the child, using her thumb and ring finger of her left hand to grip the child's face and pry open the child's mouth. Evelyn Barton then took the spoon from the child's plate and using her right hand attempted to force food into the child's mouth. The child did swallow the food which Evelyn Barton forced into his mouth, but then threw up the food which landed on the plate and the table. When the child began to throw up, Evelyn Barton released her grip on the child's face. After the child had thrown up, Evelyn Barton again began to feed the child using the same method, but was placing food on the spoon from the child's

   plate which included the thrown up food. Twice during this feeding episode, the child threw up onto his plate and Evelyn Barton resumed feeding from that same plate, until the plate was essentially clean of food.

   
   

9. During September or October, 1983, Evelyn Barton engaged in a force-feeding episode with a child, A.B., born December 1, 1981. This incident occurred during the lunch meal where the child was seated at the two-year-old table. The child was refusing to eat and was crying. Evelyn Barton came to the table, stated that she intended to feed A.B., and took A.B. from the table back to a sink. Evelyn Barton stood the child facing the sink and propping him up with her knee. She stood behind the child and reached around the child, whose chest was just above the sink. Using her left hand, thumb and ring finger, Evelyn Barton pried open A.B.'s mouth. Using her right hand, Evelyn Barton used a plastic spoon and began feeding the child from the child's plate. A.B. continued to resist eating and Evelyn Barton continued to force the child's mouth open with her left hand.

   The child did swallow the food, but repeatedly gagged, and then

   vomited out the ingested food. Evelyn Barton scraped together the vomited food, using the spoon, and forced A.B. to eat the same food again from the spoon. Approximately twenty (20) minutes elapsed during this episode and A.B. continued to cry hysterically. One of the teachers observed that Evelyn Barton's left hand on the child's face left finger marks and bruising which lasted approximately one month. After A.B. had eaten, Evelyn Barton returned him to the table, where he continued to cry. Evelyn Barton then took the child up to the stage in the auditorium, disappeared behind a curtain, and could be heard ordering the child to stop crying. The child continued to cry and a teacher heard a loud smacking sound coming from behind the curtain, followed immediately by increased screaming on the child's part.

   
   

10. During early August, 1985, Evelyn Barton engaged in a force-feeding episode involving a child, S.H., born April 26, 1982. During lunch, S.H. was seated at the two-year-old table, crying and screaming. Evelyn Barton stood behind the child and gripped the child's face in her left hand. Evelyn Barton then forced food into the child's mouth. The child continued crying and gagging and attempting to avoid eating. This episode lasted three (3) to four (4) minutes.

    
    

11. On August 13, 1985, an infant, R.A., born March 26, 1985, was under care at the facility. Since the end of July, 1985, R.A. had been suffering from problems with his ears, a chronic and recurrent condition which the child had endured since he was eight (8) weeks old. The child's mother, Ginger Polk Avery, took the child to the doctor on July 30, 1985, and

    returned the child to the facility after the doctor's appointment. At that time Avery spoke directly with Evelyn Barton and advised her that the child had otitis, an ear infection, and that the doctor had prescribed antibiotics. R.A. remained on antibiotics, which medication was brought by the mother to the facility each morning with written instructions.

    The child was also returned to the doctor for follow-up appointments. Following each appointment, Avery spoke with Evelyn Barton regarding the child's ear condition. During the summer, the children engaged in what was called "water play" by Evelyn Barton. This involved a period of time in which all children went outside to play in various types of water games. It was Evelyn Barton's policy that water play would go on unless it was lightning. Avery was never aware that her child was engaging in water play and she had never provided a bathing suit for her child. On August 13, 1985, R.A. was four months old and was still receiving care and antibiotics for his ear infection.

    At approximately ten o'clock a.m. that day, Janet Goforth, the nursery attendant advised Evelyn Barton that three of the infants were on antibiotics and specifically that R.A. was on antibiotics and that it was currently raining outside. Goforth asked whether it was necessary to take the babies out for water play that morning. Goforth was advised to take the infant out. At 10:45 a.m., at the time scheduled for water play, it was raining.

    Goforth placed R.A. in a walker and set him outside, well away from the flow of water from the sprinkler in which the infants were to have water play. Goforth retreated to an awning to get out of the rain. Evelyn Barton came out, picked R.A. up from where Goforth had placed him, and deposited R.A., still in his walker, in a position in the sprinkler such that the water from the sprinkler sprayed the child in the face and body. Because of his tender age, R.A. was unable to move himself from this location in order to get out of the direct path of the sprinkler.

    R.A. remained in this position for the entire duration of water play, approximately one hour, until Goforth removed him. Throughout this time, R.A. screamed and cried. R.A. was afraid of the water and water was able to enter his nose and ears. Goforth was so distraught by this treatment of R.A. by Evelyn Barton that she left the facility that afternoon and did not return. Goforth did call the child's mother to tell her what had occurred.

12. During the summer, 1984, school year 1984-1985, and summer, 1985, a child, C.M., born April 22, 1974, was in attendance at the facility. This child was short, severely over- weight and not a good student. Throughout this time, on a daily basis, Evelyn Barton imposed extensive punishment and discipline on C.M. Evelyn Barton made C.M. stand, both inside and outside in the hot sun, for two (2) or more hours at a time to do his school work. Evelyn Barton made C.M. run outside in the heat for

    extensive periods of time, which was particularly difficult for him because of his obesity. Evelyn Barton struck C.M. on the legs and rear end with a yellow plastic baseball bat and on the hand and shoulder with a ruler. Evelyn Barton withheld lunch from C.M. until mid or late afternoon or made the child stand alone in a corner to eat his lunch. Evelyn Barton directed the child to do his make-up school work outside at a picnic table or at a trampoline standing or bending over his work. This occurred during the hot summer months of 1985 on a daily basis. Evelyn Barton made C.M. do jumping jacks outside in the heat for extensive periods of time, causing the child extreme fatigue as a result of his size and the heat. Evelyn Barton forced C.M. to continue these strenuous exercises after he had stopped from exhaustion, by her slapping the child. Evelyn Barton, on almost a daily basis, made C.M. squat, sometime with his hands on his head, and walk about the facility in what was described as a "duck walk," resulting in leg cramps in the child. At times, Evelyn Barton made C.M. squat even when he was eating his meals. At times, C.M. defecated or urinated in his pants. When this occurred, Evelyn Barton would mock the child by telling him that he smelled bad and calling him a baby. On more than one occasion, Evelyn Barton used a baby blanket to put on C.M. in a manner resembling a diaper after the child had soiled his pants. At times during the summer, Evelyn Barton made C.M. run around the track at the facility carrying a box filled with his make-up work. At other times, Evelyn Barton made C.M. hop up and down for long periods of time. When C.M. was unable to continue this exercise, Evelyn Barton struck him on his rear end with a small wooden board. Throughout all of these various punishments, C.M. displayed signs of physical exhaustion and cried regularly. C.M. was singled out for punishment and discipline more than any other child under care at the facility. Evelyn Barton constantly described C.M. as a "meanie" and called him "baddie." When questioned by other employees regarding her treatment of C.M., Evelyn Barton said that she was going to get rid of his meanness and that he was just bad. On one occasion Evelyn Barton told

    C.M. that his Daddy did not love him. On another occasion, in

    the presence of the children, Evelyn Barton told C.M. that he was going to stop being a little meanie.

    
    

13. During the school year 1984-85 and summer, 1985, a child, M.O., born October 16, 1976, was enrolled at the facility.

    M.O. was a thin child who was described as being hyperactive. During this time, Evelyn Barton imposed punishment and discipline on M.O. M.O. was made to run around the large outside field area during this time period even past the point of exhaustion, during which punishment, the child was observed to be crying. Evelyn Barton also made M.O. run around outside holding a box containing her make-up school work, which punishment occurred on a regular basis. Evelyn Barton made M.O. stand outside holding a tire

    around her waist for specific time periods, and if M.O. was unable to do this exercise for the specified time, Evelyn Barton would-make her begin again. Evelyn Barton made M.O. engage in jumping jacks as a form of punishment. These jumping jacks occurred both inside and outside the facility, even on very hot days. M.O. was also made to squat down and duck walk. M.O. was also made to stand outside by the trampoline and do her school work, during the heat of the summer. On occasion, Evelyn Barton said that M.O. was simply being "mean" and she would pop the child on the leg and bottom with her hand if the child stopped the exercises or punishment imposed before the time set by Evelyn Barton. Evelyn Barton also struck M.O. both with her hand and with a yellow plastic bat.

    
    

14. On a specific event during the 1984-85 school year, at approximately 1:00 p.m., Janet Goforth heard the child, M.O., screaming from the stage area from behind the closed curtains.

    M.O. screamed and cried for Evelyn Barton, who the child called "Teacher," that she was afraid of the dark and she had to go to the bathroom. The child continued to scream so loud that she woke the babies who were taking naps. Evelyn Barton ignored M.O.'s screams for approximately fifteen (15) minutes. Throughout this time M.O. continued to cry and scream.

    
    

15. On another specific occasion during the fall, 1984, Evelyn Barton made the child, M.O., stand in the corner. Evelyn Barton stood directly behind the child and pressed the child against the wall by using her own back pushing against the child's back as the child's face and nose were facing into the wall itself. M.O. was crying and asking Evelyn Barton to let her go because it was hurting her. Instead of releasing the child, Evelyn Barton also hit the child at least twice on the legs with a yellow plastic bat. M.O. continued to cry and to tell Evelyn Barton that she was hurting her.

    
    

16. On another occasion during summer, 1985, Evelyn Barton held the child between a hallway door at the facility and the wall. Evelyn Barton did this by placing the child between the door and the wall in such a manner as to keep the child from being able to move or come out from between the wall and the door. This episode lasted for one or two minutes, during which

    M.O. continued crying and telling Evelyn Barton that she was hurting her.

    
    

17. During the summer of 1985, the open class children, who were first grade and above, were served dry cereal in single serving individual packets for breakfast. These packets were the type that were designed to be opened on the side and the cereal eaten directly from the packet. During the summer of 1985, the single packet dry cereals were served at least twice a week. The

    single packet cereals were served from a very large cardboard box in which they were purchased in bulk. The large cardboard box had an out-of-date expiration label. Throughout this time, every morning when the cereal was served, one or more children found bugs in their cereal. The bugs were variously described as "little brown weevils," "little brown bugs," and "bugs with wings." Despite being advised by the staff that there were bugs in the cereal, on every occasion, Evelyn Barton failed to dispose of the tainted cereal, and at best replaced one packet with another from the same large box.

    
    

18. During March through November, 1983, various staff personnel observed roaches and roach droppings in the kitchen on the counters and around the stove. These roaches were observed on a daily basis.

    
    

19. On various occasions, spoiled milk was served to the children at the facility. Each time that spoiled milk was served, it was disposed of, and no child was force to drink it.

    
    

20. The primary drink provided to children at the facility throughout 1984-1985 was orange and grape fruit drinks made by adding water to a powdered mix. Throughout this time, these fruit drinks were kept in one gallon jugs which remained in the main auditorium on dining room tables all day and all night. The gallon jugs were not refrigerated, nor were they washed every time before being refilled. Staff members observed black particles floating in the drink mix on occasion and black rings inside the gallon jug containers.

    
    

21. June Fogle, now known as June Fogle Bird, was the HRS licensing counsellor responsible for inspection of Little Scholars Academy on Picketville Road during April, 1985. On April 22, and 29, 1985, Fogle made inspection visits to the facility. On both occasions Fogle was unable to have access to the records of children under care at the facility because she gave no notice to Evelyn Barton of her intended visit and Evelyn Barton was teaching a class. For Evelyn Barton to have left her class to assist Fogle would have resulted in understaffing or leaving the children completely unattended. Either Evelyn Barton or Dana Barton refused to sign the standard inspection checklist after Fogle completed her inspections on these two dates.

    
    

22. During August, 1985, Gloria Eason, HRS District Intake Counselor, made two visits to the facility. One visit occurred on August 19, 1985, during which Eason was accompanied by Francis Eugene Hough, an HRS Licensing Inspector. On this occasion, Evelyn Barton instructed the staff at the facility not to speak to the HRS personnel. Evelyn Barton also refused to sign the standard inspection checklist on this occasion. Evelyn Barton

refused to speak with Eason or Hough. On this occasion, Eason summoned the police to assist in her inspection. After a police sergeant advised Evelyn Barton that Eason had a right to be there and that Barton must permit the investigation, Evelyn Barton did talk to Eason. Evelyn Barton's failure or refusal to cooperate in the investigation was based upon previous advise of counsel.

23 During the summer of 1983, Evelyn Barton urged the staff in charge of the two-year-old children to take their children outside and make them run around for approximately forty-five

(45) minutes in order to ensure that they were tired enough to take their naps. Additionally, it was observed that Evelyn Barton made one child run around her at nap time until the child was exhausted and took a nap.

1. Evelyn Barton testified at the hearing and essentially denied the facts alleged in each and every count of the Amended Administrative Complaint. Since her testimony was in direct conflict with that of all of the HRS witnesses, it is necessary that some findings regarding credibility and the weight of the evidence be made. Evelyn Barton's testimony was replete with inconsistencies and inaccuracies. For example, she testified that she had a degree in Early Childhood Education and later acknowledged she did not have the degree because she lacks some hours from graduation. In testifying regarding the water play incident with R.A., Evelyn Barton testified that it was sunny outside when she placed the child in the water and that it remained sunny throughout the time of water play. However, later in her testimony, she acknowledged that she went inside and gave an umbrella to one staff person in order to keep her hair from getting wet and that it was sprinkling during some period of time in water play. Evelyn Barton also testified on direct that she had no knowledge of any problem with the child, S.M., in regard to eating. However, on cross, she testified that she was sure she had fed the child because that particular child, S.M., "at times had problems with his eating." These examples of inconsistencies are set forth only as some examples of the inaccuracies and inconsistencies found in Evelyn Barton's testimony. In assessing her credibility, great weight is given to the testimony and report of Keith R. D'Amato, a clinical psychologist who was called as her own witness. According to D'Amato, Evelyn Barton functions in a very rigid mind set and has some unrealistic child rearing attitudes. He also stated that Evelyn Barton presents herself in a good light and does not admit to most of the normal human frailties. Finally, it must be recognized that Evelyn Barton's description of the various events was totally contrary to the testimony of each and every HRS witness. Additionally, Evelyn Barton's testimony even conflicted with the testimony of her own witness, Floy Walde. Evelyn Barton testified extensively that in feeding a child she might gently

   cup the child's chin in the palm of her left hand, but she never used her thumb and fingers to hold the child's face. Floy Walde described Evelyn Barton's feeding technique as involving holding the child's face between the thumb and fingers of her left hand in order to keep the child's face from moving away. Based upon these inconsistencies and inaccuracies, it is found that the testimony of Evelyn Barton regarding these incidents is lacking in credibility, is self-serving and is calculated to present herself in a good light.

   
   

2. Based upon the testimony of D'Amato and Claudia L'Engle Stein, it is found that the force-feeding engaged in by Evelyn Barton is abusive behavior.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

4. This proceeding is penal in nature and the burden of proof is on Petitioner. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla 1st DCA 1980). Because Respondents' license to operate a child care facility is at stake, the evidence to support the revocation action must be clear and convincing. Ferris v. Turlington, 12 FLW 393 (Fla. July 16, 1987).

   
   

5. The Department of Health and Rehabilitative Services is charged with the responsibility of regulating and licensing the child care facilities in Florida. Chapter 402, Florida Statutes, and Chapter 1OM-12, Florida Administrative Code. Rule lOM- 12.02(1), Florida Administrative Code, provides:

   
   

   . . .No person shall be an operator or owner of, nor be employed in a child care facility who:. . .

   
   

   (d) exhibits behavior that may be injurious to children.

   
   

   The clear and convincing evidence established that Evelyn Barton exhibited behavior injurious to children on multiple occasions. Her methods of force-feeding children were abusive and threatened and inflicted harm on the children. Certainly this behavior constitutes abuse and neglect as those terms are defined in Section 415.503, Florida Statutes. Additionally, Evelyn Barton's actions in regard to the child, R.A., constituted behavior which was or could have been injurious as defined in Section 415.503, Florida Statutes. Additionally, the excessive punishment and abuse carried out by Evelyn Barton on the two children, C.M. and

   M.O., most clearly constituted abuse or neglect and each of these children was a victim of child abuse as those terms are defined in Section 415.503, Florida Statutes.

   
   

6. The evidence was insufficient to establish that encouraging two-year-old children to run in order to tire them out for their naps was injurious behavior.

   
   

7. The evidence was inconclusive regarding any responsibility which Evelyn Barton must have for the serving of spoiled milk on occasion or the presence of roaches. However, Evelyn Barton must bear the responsibility for serving dry cereal which was infested with insects and for serving fruit drinks which were not refrigerated. This behavior is contrary to the portions of Chapter lOM-12 regarding food preparation and food service in a child care facility.

   
   

8. Evelyn Barton should not bear the entire burden of culpability in regard to the problems between HRS' personnel and personnel at the facility. The inspections were carried out in a manner which was not conducive to immediate access to records. Under the circumstances and in this regard, it is concluded that Evelyn Barton in only culpable for her refusal to sign the inspection reports.

   
   

9. The treatment given by Evelyn Barton to C.M. and M.O. and her behavior in the force-feeding incidents can only be characterized as ill-advised, at best, and sadistic, at worst. The direct culpability for this behavior lies solely with Evelyn Barton. No evidence of any inappropriate or illegal behavior by Dana Barton was presented. For this reason, it is recommended that any portion of the Amended Administrative Complaint which relates to Dana Barton be dismissed. As to Evelyn Barton, it concluded that in light of the severe and recurrent nature of the injurious behavior, revocation of Evelyn Barton's license to operate or own a child care facility is appropriate.-~

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order revoking the license of Evelyn Barton to own or operate a child care facility in the State of Florida and dismissing any charges as they relate to Dana Barton.

DONE AND ENTERED this 23rd day of October, 1987, in Tallahassee, Florida.

DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987.

COPIES FURNISHED:

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Steven Hurwitz, Esquire Assistant District Legal Counsel Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

M.S. "Mo" Atwater, Esquire

335 East Bay Street Jacksonville, Florida 32202

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner DEPARTMENT OF

HEALTH AND REHABILITATIVE SERVICES

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: A(3); B(4); C(5); D(6); E(7); F(8); G(9); H(10); I(11); J(12); K(13); Mi (14); Mii(15); Miii(16); Miv(17); N(18+19); and 0(20).

   
   

2. Proposed finding of fact L is rejected as being unsupported by the competent, substantial evidence, and because the evidence on which it is based is speculative.

Specific Rulings on Proposed Findings of Fact Submitted by Respondents, EVELYN BARTON AND DANA BARTON

Respondents' Proposed Order is virtually impossible to understand. There are no paragraph numbers, no page numbers and the proposed findings of fact are intermixed with the proposed conclusions of law. Accordingly, these specific rulings will be. made by reference to the topic of the proposed findings of fact.

The proposed findings of fact regarding the licensure inspections are adopted in substance as modified in Findings of Fact 18 and 19.

The proposed findings of fact regarding the August 19, 1985, investigation by Eason are adopted in substance as modified in Finding of Fact 19.

The proposed findings of fact regarding the feeding incidents are subordinate to the facts actually found in this Recommended Order.

The proposed findings of fact regarding R.A. are subordinate to the facts actually found in this Recommended Order.

The proposed findings of fact regarding C.M. and M.O. are subordinate to the facts actually found in this Recommended Order.

The proposed findings of fact regarding exercise to tire out the young child are subordinate to the facts actually found in this Recommended Order.

The proposed findings of fact regarding food and sanitation problems are subordinate to the facts actually found in this Recommended Order.

Docket for Case No: 85-004294

Orders for Case No: 85-004294