and if so the appropriate penalties.
Neither party timely submitted Proposed Recommended Orders.
Respondent Donna J. Downing owns and operates a child care facility known as the Downing House, located at 8508 Lorento Street, Panama City, Florida. The child care facility is also her family's residence. She lives with her husband, son, and daughter who help operate the facility and who have been successfully screened by HRS. Ms. Downing was licensed in 1985 and holds a currently valid license. Her license is endorsed to allow her to operate her facility during nighttime hours.
In April 1988, HRS became concerned that the operation of the Downing House into the night was proving too much for the husband and wife team, since HRS regulations require an adult to be present and awake during the night. HRS,
therefore, inquired of the Downings concerning their proposed arrangements to ensure the presence of an awake adult.
In order to continue to operate into the night, Respondent assured HRS that either she or her husband would be awake during the night while children were present on the premises. However, the evidence established that Respondent and her husband did not always live up to Respondent's representation to HRS. A standard mode of operation by Respondent was for both she and her husband to retire in the evening, leaving the front door unlocked so that the children's parents could pick up their children without disturbing the Downings. However, occasionally one of the Downings would stay up with the children.
On May 5, 1988 a two year old male child was left at the Downing House by his mother for nighttime caretaking.
At approximately 11:00 - 11:15 pm., Mr. and Ms. Downing had gone to bed. There were three children present at the Downing House when the Downings retired, including the two year old male child. The three children were asleep when Ms. Downing left them in the living room. No other adults were present.
Ms. Downing had made arrangements for her adult son to look after the children when he got home from work. He was expected home at about 11:30 p.m.
The son arrived home at approximately 11:40 p.m. When he arrived there were two children present. No method had been established by Respondent to advise her son of the number of children who should be present when he arrived home. He therefore did not realize that one child was missing. The son laid down on the couch in the living room and went to sleep.
Sometime between the Downings going to bed and the arrival of their son, the two year old male child awakened, opened the front door and left the house. The child then unlatched the front yard gate and headed down Lorento Street towards its intersection with Laurie Lane. He then proceeded down Laurie Lane.
At approximately 11:15 p.m., Denise Albert was driving down Laurie Lane. About two tenths of a mile from the Downing House, at 2414 Laurie Lane, Ms. Albert saw the missing child walking down the unlit and unpaved road. He was barefoot and in his pajamas. Ms. Albert stopped and questioned the child for 15 or 20 minutes. She could not obtain any information. She therefore called the Sheriff's office.
Officer Troy Johns was dispatched at 11:30 p.m. The officer picked the child up from Ms. Albert and drove him around the neighborhood, including Lorento Avenue. The child could not or would not identify where he had come from and would not give his name. The child was more interested in the officer's gun and vehicle than in his surroundings. The officer took the child to the Sheriff's station and called HRS.
Debra Young an HRS protective services investigator took the call and picked the child up from the Sheriff's office. She also could not establish the child's identity or address. She placed the child in a foster home.
At 4:11 a.m. the Sheriff's office received a phone call in reference to a missing male child from the Downing House. The missing child was the child the Sheriff's office had turned over to Ms. Young. The Sheriff's office contacted Ms. Young. Mother and child were reunited the next morning.
The call to the Sheriff's office from the Downing House had been prompted when the child could not be found after a search. The search ensued when, at approximately 3:00 a.m., the mother arrived to pick up her son. She discovered his absence and woke Respondent's son who in turn woke Mr. and Ms. Downing. One child remained. A second child had been picked up at approximately 2:30 a.m. by that child's mother. The son did not awaken and was not aware that the second child had been taken from the room in which he was asleep.
The Downings searched the neighborhood for the missing child, including checking the Lagoon which is within a few blocks of the Downing House. The call to the Sheriff's office located the child.
From 1985 until May 1988, Respondent was cited for the following violations of chapter 402, F.S. and the rules related thereto:
September 3, 1985
Two gates in the play yard were left unlocked making it possible for children to have access to the road, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code, in that this was an obvious hazard.
Medicine was left on the kitchen cabinet within the children's reach, in violation of Rule 10M-12.003(1)
and (d), Florida Administrative Code.
April 22, 1986
Cleaners were on the washer and dryer within the children's reach and Lysol and Windex were on the kitchen cabinet with food within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. No fire drills, in violation of Rule
10M-12.003(8)(a), Florida Administrative Code.
October 1, 1987
Clorox, detergent, charcoal, briquettes, pliers, plastic bags, cigarette and cough drops were out at several locations throughout the facility and within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code.
An iron was left with the cord hanging over the table within the children's reach making it possible for the iron to be reached and pulled down on top of a child, in violation of Rule 10M- 12.003(1)(a), Florida Administrative Code.
March 23, 1988
A medicine bottle containing medicine and tanning accelerator within the children's reach were located inside the facility and rose dust, Progreen, Spectracide ant killer and touch up paint were at several locations on the porch at the main entrance within the children's reach, in violation of
Rule 10M-12.003(1)(b) and (d), Florida Administrative Code.
Suntan lotion and tanning accelerator and three sand filled milk cartons, all located on the patio at the
back of the house leading to the play yard and all within the children's reach, in violation of Rule 10M-12.003 (1)(b) and (d), Florida Administrative Code.
The gate to the play yard was unlocked allowing children access outside the play area, in violation of Rule 10M- 12.003(4)(b), Florida Administrative Code.
The store room containing a lawn mower and other tools and hazardous materials was left unlocked, in violation of
Rule 10M-12.003(4)(b) , Florida Administrative Code in that it was an obvious hazard, with the children having access to said store room.
A throw rug was on the steps leading to the patio and was not secure
making an obvious hazard, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code.
To Respondent's credit, all of the above violations were corrected within the time frames established by HRS. No fines were ever levied on the Respondent for the above violations. Also, to Respondents credit, the evidence disclosed that Respondent is generally a good caretaker of children.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
Petitioner is responsible for the licensure of child care facilities under sections 402.301-402.319 Florida Statutes. Subsection 402.308(3)(b) and (d), Florida Statutes provides in pertinent part:
Prior to the renewal of a license, the department shall reexamine the child care facility, including in that process the examination of the premises and those records of the facility as required under s. 402.305,
to determine that minimum standards for licensing continue to be met.
* * *
(d) The department shall issue or renew
a license upon receipt of the license fee and upon being satisfied that all standards required by ss. 402.301-402.319 have been met. A license may be issued if all the screening materials have been timely submitted;
however, a license may not be issued or renewed if any of the child care personnel at the applicant facility have failed the screening required by ss. 402.305(1) and 402.3055.
Chapter 10M-12, Florida Administrative Code, contains the regulations implementing Sections 402.301-402.319 Florida Statutes. Rule 10M-12.002, supplies the continuing requirements for a child care facility's personnel and staffing. That rule provides that at least one personnel member be supplied by the facility for a maximum of 12 children of two years of age. Rule 10M- 12.002(5)(a)1., F.A.C. "Child care personnel" includes volunteers. Rule 10M- 12.002(1)(a) F.A.C. "Volunteers" is defined in Rule 10M-12.002(2)(c) F.A.C. as follows:
Volunteers: A volunteer is any person who provides services to, for, or at a child care facility with no promise of compensation. Volunteers must be 16 years of age or older to be counted in the child to staff ratio.
Respondent's son clearly falls into the volunteer category under Rule 10M-12.002 F.A.C. Because Respondent's son was a volunteer, Respondent met the minimum staffing requirements of Rule 10M-12.002 F.A.C. Rule 10M-12.002(5) further provides that at least one personnel member be in "direct supervision" of the children at a child care facility. "Direct supervision" is defined in 10M-12.002(5)2. as:
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 may must be assigned to provide care to a specific group of children at all times during the day including during meals, napping, and snack time.
The evidence clearly demonstrated that Respondent did not provide direct supervision of the children present at her facility after she and her husband went to bed. The lack of supervision continued for at least 15-30 minutes. Since the lack of direct supervision continued for more than a de minimius length of time Respondent violated the direct supervision requirements for child care facilities.
Additionally, Rule 10M-12.009 provides that:
The minimum standards for child care facilities apply to child care facilities which provide care during night time hours with the inclusion of the following standards as set forth in this section. Any child care facility caring for children at night but for less than 24 hours must follow the same requirements for personnel standards as previously stated.
In addition, the following standards shall apply:
A Child care facility shall have approval of the department local licensing agency prior to instituting the provision of night time care on a regular basis. Approval will be granted if the child care facility meets all standards contained in this rule
One adult must remain awake all night if a child care facility is providing night time care.
The evidence clearly demonstrated that no one was awake at the Downing House after about 11:40 a.m. Respondent violated the requirements of Rule 10M-
12.009 Florida Administrative Code.
Section 402.310, Florida Statutes governs license disciplinary actions of HRS and states in pertinent part:
(1)(a) The department of local licensing agency may deny, suspend, or revoke a license or impose an administrative find not to exceed
$100 per violation, per day, for the violation of any provision of Subsection 402.201-319 or rules adopted thereunder.
In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:
The severity of 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 actual or potential harm, and the extent to which the provisions of this part have been violated.
Actions taken by the licensee
to correct the violation or to remedy complaints.
Rule 10M-12.011, Florida Administrative Code, is the rule implementing Section 402.310, Florida Statutes, and states in pertinent part:
In determining the amount of fine to be levied for a violation of any of the provisions of Sections 402.301 through 402.319,
S., or this Rule Chapter, the department will consider each of the factors listed in Section 402.310(1)(b), F.S., as amended by Chapter 83-248, Laws of Florida. These factor are:
Any previous violations of the licensee.
Actions taken by the licensee to correct the violations or to remedy complaints.
The severity of 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 actual or potential harm, and the extent to which the provisions of this part were violation
The Department will use the following classifications as a guideline for determining the severity of the violation and the amount of the fine:
Class I violations: Include overt abuse and negligence related to the operation and maintenance of a facility which the Department has determined will present in imminent danger to the children of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. Class I violations are subject to a $100 fine per day for each violation. A fine may be imposed for a Class I violation even if corrective action is completed by the owner or operator within the time established by the Department.
Class II Violations: Those conditions or occurrences related to the operation and maintenance of a facility when the Department has determined will threaten directly the physical or emotional health,
safety, or security of the children, other than Class I violations. Class II violations are subject to a fine not less than
$30 nor more than $75 per day for each violation. No fine shall be imposed for a Class II violation which the owner or operator corrects within the time established by the Department.
Class III Violations: Those conditions or occurrences related to the operation and maintenance of a facility which the Department has determined will threaten indirectly or potentially the physical or emotional health, safety, or security of children other than Class I or Class II violations. Class III violations are subject to a fine not less than $10 nor more than $30 per day for each violation. No fine shall be imposed for a Class III violation which the owner or operator corrects within the time established by the Department.
Other: In addition, the Department may set and levy a fine or impose any other penalty authorized by law for each violation which cannot be classified as a Class I, II or III violation up to the maximum authorized by law. No fines shall be imposed for a violation in this category which the owner or operator corrects within the time established by the Department.
In this case, Respondent was negligent in her supervision of the 2 year old male child. Due to that negligence the child was placed in an imminently dangerous and frightening situation. Respondent's actions constitute a Class I violation. Additionally, the seriousness of Respondent's actions are exacerbated by the fact that the Downings failed to live up to the representations they had made to HRS regarding nighttime supervision, and the other multiple violations by Respondent over the years.
However, on the other hand, the evidence disclosed that Respondent's earlier violations were not particularly dangerous and were immediately corrected. Respondent never had a hearing on any of the earlier violations nor was offered a clear point of entry on any of the earlier violations.
Respondents actions towards the 2 year old child were not intentional, but more the result of lack of thinking on the Downings part. Operation during the night was clearly too much for them. Respondent was a good caretaker during the day.
In light of the above factors, the appropriate penalty which should be imposed on Respondent is to revoke the endorsement of her license to operate at night and impose an administrative fine of $1000 for the aggravated Class I violation.
