STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4576

)

KAREN J. PILLSBURY, d/b/a ) KINDER KASTLE DAY CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on November 25, 1987, in St. Petersburg, Florida, before Diane A. Grubbs, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

District VI Staff Attorney Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Suite 520, Fifth Floor Tampa, Florida 33614

For Respondent: Karen J. Pillsbury, pro se

Kinder Kastle Day Care Center 2425 - 38th Avenue, West Bradenton, Florida 34205

ISSUE

Whether respondent committed the violations alleged in paragraphs 3(b), (c), (d) and (e) of the Administrative Complaint.

BACKGROUND

By Administrative Complaint dated September 4, 1987, petitioner charged respondent with violating the provisions of Chapter 402, Florida Statutes, and the provisions of Chapter 10M-12, Florida Administrative Code, in that she failed to correct, within the mandated time frame of July 17, 1987, three Class II deficiencies and two Class III deficiencies which were cited during an inspection of June 17, 1987.

In paragraph three of the complaint, petitioner alleged specifically that respondent (a) failed to submit a fingerprint card, affidavit of good moral character and Abuse Registry Form within the required time frames, in violation

of Section 402.3055(3), Florida Statutes, and Rule 10M-12.002(1)(d)2. and 10M- 12.002(1)(e), Florida Administrative Code, a Class III deficiency; (b) failed to provide an adequate staff/child ratio, a violation of Section 402.305(1)(e), Florida Statutes, and Rule 10M-12.002(5)(a)1., Florida Administrative Code, a Class II deficiency; (c) failed to maintain minimum standards for safety conditions/emergency procedures by failing to have emergency lights operating, a violation of Section 402.305(3), Florida Statutes, and Rule 10M-12.003(8)(a), Florida Administrative Code, a Class II deficiency; (d) failed to maintain minimum standards for indoor equipment in that the baby gate was not effective and not the type approved by the Consumer Product Safety Commission, a violation of Section 402.305(2), Florida Statutes, and Rule 10M-12.003(10)(a), Florida Administrative Code, a Class II deficiency; and (e) failed to ensure that a discipline statement was documented in appropriate files, in violation of Section 402.305(8), Florida Statutes, and Rule 10M-12.008(2)(f)2., Florida Administrative Code, a Class III deficiency. The Department of Health and Rehabilitative Services (HRS) sought to impose a civil penalty of $30 for each of the Class III deficiencies, and a civil penalty of $75 for each of the Class II deficiencies.

By letter filed October 14, 1987, the respondent disputed the allegations set forth in paragraphs 3(b), (c), (d), and (e) of the complaint. Petitioner did not dispute the allegations set forth in paragraphs 1, 2, or 3(a). On October 16, 1987, HRS referred the matter to the Division of Administrative Hearings for further proceedings.

At the hearing, petitioner was permitted to amend its administrative complaint to reflect that the total civil penalty sought to be imposed upon respondent is $285, which reflects the correct total of the penalties sought to be imposed for the five violations alleged. Petitioner presented the testimony of Laura D. Winfrey, a Child, Youth and Family Counselor who performed the inspections at Kinder Kastle Day Care Center, and Andrew Alexandre, a Human Services Program Analyst with HRS. Petitioner did not introduce any exhibits into evidence. Respondent testified on her own behalf, and introduced three exhibits into evidence.

A transcript of the hearing in this cause has not been filed. Petitioner filed proposed findings of fact and conclusions of law, and a ruling on each of the proposed findings of fact is included in the Appendix to this Recommended Order. Respondent did not file proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. Respondent, Kinder Kastle Day Care Center (Kinder Kastle), located in Bradenton, Florida, is licensed to operate as a child day care facility under Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code.

   
   

2. On June 17, 1987, and on July 17, 1987, Kinder Kastle was inspected by Laura D. Winfrey to determine whether Kinder Kastle was in compliance with the provisions of Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code.

   
   

3. When Ms. Winfrey inspected Kinder Kastle on June 17, 1987, there was one staff person in the room with 10 babies between one year and 18 months old. On July 17, 1987, when Ms. Winfrey reinspected the facility, there was one staff person responsible for nine babies between the ages of one year and 18 months. The staff person present in the room advised Ms. Winfrey of the children's ages.

4. During the inspection of June 17, 1987, Ms. Winfrey noted that the exit lights were not turned on. At the time of reinspection on July 17, 1987, the exit lights still were not lit. However, the rooms where the exit lights were located had windows. Therefore, because the facility was only used during the daytime, the exit lights were visible even when they were not turned on and the regular lighting was off. Ms. Pillsbury, the respondent, testified that she had attempted to have the exit lights fixed in early July, so they would be continuously lit, but due to equipment that had to be ordered and other difficulties, the lights were not permanently turned on until October of 1987.

   
   

5. During both inspections, Ms. Winfrey noted that respondent was using two different types of baby gates to block interior doorways. Ms. Winfrey considered that one of the gates was unsafe because it was not approved by the Consumer Product Safety Board. 1/ The gate had a bar and clip type mechanism and had to be moved to the side to allow exit from the room. Ms. Winfrey remembered seeing a bulletin from the Consumer Product Safety Board regarding that particular type of gate; however, she could not remember what was in the bulletin concerning the gate. Ms. Winfrey felt that the gate might be a hazard because it is not permanently attached to the wall. If it were removed from the doorway and set aside, Ms. Winfrey felt that the gate could fall and injure a child. The "approved" gate is of latticed design, consisting of hinged wood slats. The gate is permanently attached to one side of the door and opens and shuts in accordion fashion. Because of the manner of opening and closing, it is very easy for children to get their fingers pinched in the gate. The slats in the accordion gate are not as sturdy as those in the other gate and are more easily broken. There was no competent evidence presented to establish that the accordion gate was safer or more effective than the other gate respondent was using.

   
   

6. When Ms. Winfrey inspected the facility on both occasions, she requested random samples of children's files to determine whether they contain the information required. On June 17, 1987, none of the files contained statements outlining respondent's disciplinary policies signed by the children's parents. On July 17, 1987, Ms. Winfrey inspected four files from each age group, and only four of the files had disciplinary policy statements signed by the children's parents. Ms. Pillsbury stated that of the files checked on the second visit, many of the children had not been back to the day care center since the first inspection. However, Ms. Pillsbury picked the files to be inspected by Ms. Winfrey. Ms. Pillsbury stated that all parents did get a copy of a disciplinary statement; however, there was nothing in the files documenting that this had been done.

   
   

7. Respondent did not dispute the allegation that she failed to submit a fingerprint card, affidavit of good moral character and Abuse Registry Form within the required time frames in violation of Section 402.3055(3), Florida Statutes, and Rule 10M-12.002(1)(b)2. and (1)(e), Florida Administrative Code.

   
   

8. On June 17, 1987, Ms. Winfrey advised Ms. Pillsbury of the violations she observed and informed Ms. Pillsbury that the violations needed to be corrected by July 17, 1987, when the facility would be reinspected.

   
   

9. Kinder Kastle has been cited for violations on previous occasions and has paid an administrative fine.

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The Department of Health and Rehabilitative Services may "impose an administrative fine not to exceed $100 per violation, per day, for the violation of any provision of s. 402.301 - 402.319 or the rules adopted thereunder." Section 402.310, Florida Statutes (1985).

    
    

12. Rule 10M-12.002 (5)(a) 1., Florida Administrative Code, provides that, for infants one year old, the staff to children ratio is one staff member for eight infants. In other words, one staff member cannot directly supervise more than eight infants between the ages of 12 months and 18 months. Respondent was in violation of this rule on June 17, 1987, when there was only one staff person supervising 10 infants between the ages of 12 to 18 months old. Respondent did not correct this violation by July 17, 1987, in that there was one staff person supervising nine infants on that date. Therefore, respondent violated Rule 10M-12.002(5)(a)1., as alleged in paragraph 3(b) of the Administrative Complaint.

    
    

13. Respondent was charged in the Administrative Complaint with failing to have "emergency lights" operating in violation of Rule 10M-12.003(8)(a), Florida Administrative Code. Rule 10M-12.003(8)(a) provides that "[a]ll child care facilities shall conform to state standards prepared by the State Fire Marshal: Chapter 4A-36, Florida Administrative Code . . . . " Rule 4A-36.026 is entitled "Emergency Lighting." Subsection (1) reads as follows:

    
    

    1. When specified by the authority having jurisdiction, emergency lighting shall be provided during hours of darkness or where the facility would not have adequate illumination for egress purposes in the event of failure of normal lighting.

       
       

       Rule 4A-36.024, entitled "Exit Marking" reads in pertinent part as follows:

       
       

       1. Signs.

          (a) When specified by the authority having jurisdiction, exits shall be marked by readily visible signs. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants.

          * * *

       2. Illumination of signs.

       1. Every sign shall be suitably illuminated by a reliable light source giving a value of not less than 5 foot-candles on the illuminated surface. Such illumination shall be continuous as required in Rule 4A-36.025

          . . . and where emergency lighting facilities are required, exit signs shall be illuminated from the same source.

       2. Exit signs may be either externally or internally-illuminated.

       Rule 4A-36.025(2) provides as follows:

       
       

       (2) Illumination of means of egress shall be continuous during the time that the conditions of occupancy require that the means of egress be available for use. Artificial lighting shall be employed at such places and for such periods of time as required to maintain the illumination to the minimum foot-candle values herein specified.

       
       

       Respondent was charged with not having emergency lights operating. The evidence established only that respondents' exit lights were not lit. In other words, they were not internally illuminated. Rule 4A-36.026(1) provides that emergency lighting must be provided "if care is provided during hours of darkness or where the facility would not have adequate illumination . . . in the event of failure of normal lighting." The evidence established that care was not provided during hours of darkness and there was no evidence that the facility would not have adequate illumination in the event the normal lighting failed. In other words, petitioner failed to establish that respondent was required to have emergency lighting.

       
       

14. Petitioner in its proposed conclusions of law cites to Rule 4A- 36.024(2)(a) which relates to the illumination of exit signs. However, the factual allegations of the Administrative Complaint refer to emergency lights, not to the illumination of exit signs. Further, there was no evidence that the exit light, treated simply as an exit sign, was not illuminated externally by a "reliable light source giving a value of not less than 5 foot- candles on the illuminated surface." Rule 4A-36.024(2)(b) specifically states that exit signs may be illuminated either externally or internally. Thus, petitioner failed to present evidence establishing that respondent violated any of the provisions of Chapter 4A-36, Florida Administrative Code, and, therefore, respondent has not violated Rule 10M-12.003(8)(a), Florida Administrative Code, as alleged in the Administrative Complaint.

    
    

15. Respondent was charged with violating Rule 10M-12.003(10)(a), Florida Administrative Code, on the factual allegation that "baby gate not effective and not the type approved by the Consumer Project (sic) Safety Commission." Rule 10M-12.003(10)(a) provides in pertinent part that "[t]oys, equipment and furnishings must be safe and maintained in a sanitary condition." There was no competent evidence presented to establish that the baby gate in question was unsafe or less safe than the baby gate approved for use. There is no requirement in the rule that equipment be approved by any particular board or commission. Further, there was no evidence presented to establish that any board or commission had determined that the baby gate in question was unsafe for the purpose it was used. Thus, petitioner failed to establish that respondent violated Rule 10M-12.003(10)(a).

    
    

16. Rule 10M-12.008(2)(f)2. provides as follows:

    
    

    (2) Enrollment information: The operator shall obtain and keep current the following enrollment information from the child's parent or guardian, on HRS-CYF Form 5012

    . . . or an equivalent form . . . .

    * * *

    (f) Signed statements that the child care facility has provided the following information to parents:

    * * *

    2. The child care facility's disciplinary practices used by the facility in writing.

    
    

    Rule 10M-12.013(2), Florida Administrative Code, provides as follows:

    
    

    (2) Prior to admission of a child to a child care facility, the facility shall notify the parents in writing of the disciplinary practices used by the facility . . . .

    Verification that child care facilities have provided parents in writing the disciplinary practices used by the facility shall be documented on the enrollment form or an equivalent form with the signature of the parent.

    
    

    The evidence established that on June 17, 1987, the respondent did not have any statements signed by the children's parents verifying that the parents had received information concerning Kinder Kastle's disciplinary practices. By July 17, 1987, some of respondent's files contained the required statements, but the majority of the files did not. The rules require that a signed statement from the parents be obtained for each child enrolled. Since respondent had not obtained the required statement for every child enrolled at the center by July 17, 1987, respondent was in violation of Rule 10M-12.008(2)(f)2., Florida Administrative Code, as alleged in the Administrative Complaint.

    
    

17. Section 402.310(1)(b), Florida Statutes, provides that the following factors shall be considered in determining the appropriate disciplinary action to be taken for a violation of the applicable statutes or rules:

    
    

    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.

    
    

    Rule 10M-12.011(7), Florida Administrative Code, sets forth classifications to be used as a guideline in determining the severity of the violation and the amount of the fine. The rule provides four classifications: Class I Violations, Class II Violations, Class III Violations, and Other. A Class I violation is a violation which includes "overt abuse and negligence" which "will present in (sic) imminent danger to the children . . . or a substantial probability that death or serious physical or emotional harm would result." Class II violations are "[t]hose conditions or occurrences . . . which . . .

    will threaten directly the physical or emotional health, safety, or security of the children, other than Class I violations." Pursuant to the rule, Class II violations subject the licensee to a fine of "not less than $30 nor more than

    $75 per day for each violation." Class III violations are those which "will threaten indirectly or potentially the physical or emotional health, safety, or security of children other than Class I or II violations. The "Other" classification covers every violation that is not a Class I, II or III violation, and subjects the licensee to any penalty or fine authorized by law.

18. Respondent did not contest the allegation that she failed to submit a fingerprint card, affidavit of good moral character, and Abuse Registry Form within the required time frames in violation of Section 402.3055(3), Florida Statutes, and Rule 10M-12.002(1)(d)2. and (1)(e), Florida Administrative Code. This is a Class III violation.

    
    

19. Respondent violated Rule 10M-12.002(5)(a)1., Florida Administrative Code, by permitting one staff person to directly supervise more than eight infants under two years of age. The staff/children ratios established by the rule are designed to ensure that children in day care facilities are properly supervised. The failure to have proper supervision directly threatens the safety and security of the children. Therefore, the violation of Rule 10M- 12.002(5)(a)1. is a Class II violation.

    
    

20. Respondent violated Rule 10M-12.008(2)(f)2. by failing to have signed statements demonstrating that the children's parents had been advised of the respondent's disciplinary practices. This violation was alleged to be a Class III violation; however, the violation is more appropriately classified as "Other". There was no evidence presented establishing that respondent failed to advise parents of Kinder Kastle's disciplinary practices, and the Administrative Complaint did not allege such. The charge, which the evidence supported, was simply that respondent failed to have appropriate documentation showing that each parent had received information concerning the disciplinary practices of Kinder Kastle. There was no evidence presented showing how this lack of documentation would "threaten indirectly or potentially the physical or emotional health, safety or security of the children," and the potential harm certainly is not apparent from the charge itself. Therefore, the violation of Rule 10M-12.008(2)(f)2. is not a Class III violation, but it is a violation properly classified as "Other" under Rule 10M-12.011(7)(d).

    
    

21. The fines set forth in the Administrative Complaint for the violations proved or uncontested are within the amounts established by Rule 10M-12.011(7), Florida Administrative Code, and are reasonable considering the violations and respondent's prior violations.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent violated

Rule 10M-12.002(1)(b)2. and (1)(e), Florida Administrative Code, Rule 10M- 12.002(5)(a)1., Florida Administrative Code, and Rule 10M-12.008(2)(f)2., Florida Administrative Code, as alleged in paragraphs 3(a), (b), and (e) of the Administrative Complaint; dismissing the charges set forth in paragraphs 3(c) and (d) of the Administrative Complaint; and imposing a total administrative fine of $135 to be assessed as follows: $30 for the Class III violation, $30 for the Other violation, and $75 for the Class II violation.

DONE AND ENTERED this 19th day of January, 1988, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1988.

ENDNOTE

1/ The complaint referred to the "Consumer Project Safety Commission," Ms. Winfrey called the organization the "Consumer Product Safety Board," and petitioner in its proposed order refers to the Consumer Product Safety Commission. No competent evidence was presented to establish the organization's proper name or its purpose.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4576

Petitioner's proposed findings of fact:

1. Accepted.

2. Accepted.

3. Accepted that charge is not disputed.

4. Accepted generally, last sentence unnecessary.

5. Accepted that exit lights or signs were not internally lit. Reject for lack of competent evidence that they were not illuminated externally.

6. Accepted that Ms. Winfrey thought the gate unsafe; reject that gate was not approved by Consumer Product Safety Commission for lack of competent evidence; reject that the gate is unsafe for lack of competent evidence.

7. Accepted generally.

COPIES FURNISHED:

Edward A. Haman, Esquire District VI Staff Attorney Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Suite 520, Fifth Floor Tampa, Florida 33614

Ms. Karen J. Pillsbury Kinder Kastle Day Care Center 2425 - 38th Avenue, West Bradenton, Florida 34205

R. S. Power, Esquire Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700

Gregory Coler, Secretary Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-004576

Orders for Case No: 87-004576