STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

v. ) CASE NO. 86-3018

)

PRINCESS ROEBUCK, d/b/a ) PRINCESS TODDLETIME NURSERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal administrative hearing in this case on November 20, 1986, in Madison, Florida. The transcript was filed on December 10, 1986, and the parties requested and were allowed 20 days thereafter to submit proposed findings of fact and conclusions of law.

These were received and have been considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

APPEARANCES

For Petitioner: John R. Perry, Esquire

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303

For Respondent: J. R. Zant, Esquire

Post Office Box 14 Madison, Florida 32340

By Administrative Complaint filed on June 20, 1986, the Department of Health and Rehabilitative Services (HRS) charged the Respondent, Princess Roebuck, d/b/a Princess Toddletime Nursery (Roebuck) with two violations of Rule 10M-12.002(5)(a), Florida Administrative Code, on May 8, 1986. Specifically, HRS alleges that Roebuck violated subsection 1. of this Rule by having on duty an insufficient ratio of staff to children, and that subsection 2. was violated by Roebuck by a lack of direct supervision on May 8, 1986. HRS seeks to impose an administrative fine of $150.00, or $75.00 per violation.

FINDINGS OF FACT

1. The Respondent, Princess Roebuck, d/b/a Princess Toddletime Nursery, is licensed by HRS to provide day care services to children in Madison, Florida.

   
   

2. Child day care centers, such as that operated by Princess Roebuck, are regulated according to the provisions of Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code. Rule 10M-12.002(5)(a)1., prescribes ratios of staff to children according to the ages of the children

   being supervised. Rule 10M-12.002(5)(a)2. requires and defines direct supervision of children at day care centers.

   
   

3. Roebuck has admitted to seven violations of the above rules between February 23, 1982, and October 29, 1985, which are not the subject of the complaint in this proceeding.

   
   

4. On January 2, 1986, Darlene Burnette, a representative of HRS, visited Princess Toddletime Nursery, and found one employee supervising 13 children, three of whom were under one year of age. After Ms. Burnette had been at the nursery for several minutes, Ms. Roebuck arrived. She was told by Ms. Burnette that the nursery was in violation of HRS staff ratio requirements, and that because of the prior staff ratio problems, more frequent inspections would be made and that further violations could result in the imposition of a fine.

   
   

5. On April 29, 1986, Ms. Burnette conducted a training session to instruct the operators of child day care centers in amendments to Chapter 10M-12 Florida Administrative Code. Ms. Roebuck was present at this meeting. Ms. Roebuck was informed of changes in the administrative rules effective March 1, 1986, governing the operation of child day care centers.

   
   

6. Specifically, Ms. Burnette informed the day care center operators of the ratios set out in Rule 10M-12.002(5)(a), Florida Administrative Code. Ms. Burnette also informed the day care operators about the direct supervision requirement of subsection 2. of the subject rule. Copies of the rules discussed at this training session were provided to those in attendance.

   
   

7. On May 8, 1986, Ms. Burnette visited Princess Toddletime Nursery. There she counted 20 children, three of whom were under two years of age. Only one staff member, Sally Hall, was present when Ms. Burnette arrived.

   
   

8. On this visit, Ms. Burnette also observed children napping in separate rooms at opposite ends of the nursery. From no vantage point in the room could Sally Hall, alone, have supervised or directly observed children in both rooms.

   
   

9. Ms. Roebuck arrived at the nursery on May 8, 1986, some 15 to 20 minutes after Ms. Burnette. Until the arrival of Ms. Roebuck, there was only one staff member to supervise the 20 children who were on the premises.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this case, pursuant to Section 120.57(1), Florida Statutes.

    
    

11. Section 402.305, Florida Statutes, authorizes HRS to promulgate and enforce minimum standards to protect the health, safety, sanitation and well- being of children at day care centers. Such standards must address safety conditions and personnel to children ratios. Section 402.305(1)(e) and (3), Florida Statutes.

    
    

12. Rule 10M-12.002(5)(a), Florida Administrative Code, provides:

    
    

    1. The following staff ratio is based on primary responsibility for the direct supervision of children and applies at

       all times to the children who are cared for by the child care facility.

       
       

       Age of Children Ratio

       
       

       Under 1 year of age 1 staff member

       for 6 infants

       1. years of age 1 staff member for 8 infants

       2. years of age 1 staff member for 12 children

       3. years of age 1 staff member for 20 children

       4. years of age 1 staff member

       or older for 25 children

       
       

    2. Direct supervision means watching and directing children's activities within close proximity within the same room inside or within a designated outdoor play area. Child care personnel and volunteers at a facility must be

       assigned to provide care to a specific group of children and be present with that group of children at all times during the day including during meals, napping and snack times.

       
       

13. Section 402.310(1)(a), Florida Statutes, authorizes HRS to impose administrative fines of up to $100.00 per violation per day for violation of child day care statutes or the rules adopted thereunder.

    
    

14. In determining what is appropriate disciplinary action, Section 402.310(1)(b), Florida Statutes, requires consideration of the following factors:

    
    

    1. The severity of the violation...

    2. Actions taken by the licensee to correct the violation or to remedy complaints.

    3. Any previous violations of the licensee.

       
       

15. On May 8, 1986, when there was only one staff member present at the nursery, Ms. Roebuck was in violation of the staffing requirements set out in Rule 10M-12.002(5)(a), Florida Administrative Code. Because three of the children at the nursery were under two years of age, the maximum number of children that one staff member legally could supervise was 12. A minimum of two staff members at all times would be required to supervise the 20 children: One staff member for the group of 12 children which included the three children under two years of age, and one staff member to supervise the group consisting of the remaining eight children.

    
    

16. Likewise, Ms. Roebuck violated the direct supervision Rule 10M- 12.002(5)(a)2., Florida Administrative Code. The children were napping in two separate rooms and it was not possible from any vantage point for one person directly to observe all the children as they were situated.

17. In her defense, or in mitigation, Ms. Roebuck testified that she was called to her 14 year old son's school when her son was involved in an accident, but that she was on the nursery premises with her employee, Sally Hall, until she received this call. However, Ms. Roebuck admits that when the HRS representative arrived at the nursery, there was only one member of the staff on duty. Nevertheless, the applicable rules do not excuse staff/child ratio violations in emergency situations. If an emergency necessitates the absence of a staff member, it is the responsibility of the day care center operator to assure that adequate staffing exists, whether by regular staff or by substitute.

    
    

18. Imposition of the fine proposed by HRS for the above violations is appropriate under Section 402.310(1)(b), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Princess Roebuck, d/b/a Princess

Toddletime Nursery, be assessed an administrative fine of $75.00 per violation

for the two violations alleged, for a total fine of $150.00.

THIS Recommended Order entered this 30th day of January, 1987, in Tallahassee, Leon County, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3018

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.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Accepted.

2. Accepted.

3. Rejected, as not a proposed factual finding, but a conclusion of law.

4. Accepted.

5. Accepted.

6. Rejected, as not a proposed factual finding, but argument. 7.-16. Accepted.

1. Rejected, as not a proposed factual finding, but argument.

2. Accepted.

19.-20. Rejected, as not proposed factual finding, but argument.

21. Rejected, as not relevant.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Accepted.

2. Accepted.

3.-4. Rejected, as contrary to the weight of the credible evidence.

1. Accepted.

2. Rejected, as irrelevant.

3. Accepted.

COPIES FURNISHED:

John R. Perry, Esquire 2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32303

J. R. Zant, Esquire Post Office Box 14 Madison, Florida 32340

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Steven W. Huss General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-003018

Orders for Case No: 86-003018