STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4023

)

DEBRA ACOSTA, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Shalimar, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on January 27, 1992, and finished the following day. The Division of Administrative Hearings received the hearing transcript on March 5, 1992, and the parties filed proposed recommended orders on April 3 and 6, 1992. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: S. J. DiConcilio

Rodney M. Johnson

P.O. Box 8420

Pensacola, FL 32505-0420

For Respondent: Mary Koch Polson

P.O. Box 96

Fort Walton Beach, FL 32549 STATEMENT OF THE ISSUE

Whether petitioner should revoke permanently respondent's license to operate the Kare Free Day Care Center, license No. DC-2154-0, for the reasons alleged in the notice of revocation?

PRELIMINARY STATEMENT

On May 31, 1991, petitioner Department of Health and Rehabilitative Services (HRS) issued a notice of revocation alleging as grounds that respondent's husband "being unscreened for . . . a caretaker role, . . . transport[ed] children from school to the day care center and then to the Acosta home for night care in violation of Rule 10M-12.002(1)(d), Florida Administrative Code"; that "Vicki Waller, age 19, was routinely left in charge of the day care facility in" respondent's absence, in violation of Rule 10M- 12.002(2)(a); that respondent's children "under the age of 16, . . . watch[ed] children during outdoor play time on a Saturday and . . . infants on one occasion in the absence of [other, older] child care personnel" in violation of Rule 10M-12.002(2)(b), Florida Administrative Code; that "ratios of staff to children [we]re routinely out of compliance" in violation of Rule 10M-

12.002(5)(a)1., Florida Administrative Code; that children were "routinely left unsupervised and unattended in their activities" in violation of Rule 10M- 12.002(5)(a), Florida Administrative Code; that diapers were "not promptly changed as needed" in violation of Rule 10M-12.003(9)(b)4., Florida Administrative Code; that neither of two employees "reported [at different times] as being the only staff person on duty at the center . . . ha[d] first aid or CPR certification", in violation of Rule 10M-12.004(1), Florida Administrative Code; that children received too little food and that respondent "reportedly took food from several children's lunchboxes and distributed said food to several other children" in violation of Rule 10M-12.006(1), Florida Administrative Code; that "[m]orning snacks as posted on menus were not being served to the children" in violation of Rule 10M-12.006(3), Florida Administrative Code; that a "child was administered medication without written parental authorization . . . [while a]nother child was not given medication when sick," in violation of Rule 10M-12.008(4)(b), Florida Administrative Code; that "reports were not completed documenting injuries to children" in violation of Rule 10M-12.008(5)(a), Florida Administrative Code; that respondent "took children to the Acosta home and there provided care during evening hours . . . [even though t]he Acosta home was not inspected or licensed or registered as a Family Day Care Home," in violation of Rule 10M-12.009(2)(a), Florida Administrative Code; that respondent's husband "transported children in his privately owned vehicle which has not been inspected or approved for transporting children" in violation of Rule 10M-12.010(1), Florida Administrative Code; that the "approved vehicle used to transport children exceeded the maximum seating capacity authorized . . . [and] child restraints were not used," in violation of Rule 10M-12.010(3), Florida Administrative Code; that respondent yanked children's arms, "swatt[ed] a child's bottom" and washed a child's mouth out with soap in violation of Rule 10M-12.013(1)(c), Florida Administrative Code; that respondent's husband "violated conditions set as part of bail agreement . . . [when he] transported children to school"; and that respondent had "knowledge of said bail conditions . . . [yet] allowed Mr. Acosta access to children."

By letter dated June 7, 1991, respondent denied "each and every alleged material fact" and demanded an administrative hearing. In accordance with Section 120.57(1)(b)3., Florida Statutes (1991), HRS forwarded the notice of revocation and the hearing request to the Division of Administrative Hearings for formal administrative proceedings. During the pendency of the proceedings, HRS has imposed an emergency suspension of respondent's license, arguably authorized under Section 120.60(8), Florida Statutes (1991), which it has denominated a revocation.

FINDINGS OF FACT

1. After respondent Debra T. Acosta and her husband Joe, a noncommissioned Air Force officer, the parents of Joseph M., 16 at the time of hearing, Jason M. (13), Shawn W. (9), and Tisouli (6), applied to HRS for a day care center license, they were required to have their fingerprints taken and to undergo a background check or "screening."

   
   

2. The background check turned up a report of an investigation Air Force personnel had conducted on account of information Carla Burrell, formerly known as Carla Knight, had supplied. The first two numbered paragraphs of the report read:

   
   

   1. On 2 Mar 88, SSgt CARLA K. BURRELL, USAF Clinic, RAF Bentwaters (RAF), UK provided the

following information: She arrived at RAFB from Eglin AFB (EAFB), FL on 21 Apr 85. She was stationed at EAFB from Jan 83 until Apr

85. While stationed at EAFB, her daughter, Angela Kristen Knight, female born: 21 Jan 80, VA, Civ, SSAN: 066-70-1577 (hereafter referred to as VICTIM) stayed with a babysitter during the day. The babysitter was identified as DEBRA ACOSTA, dependent wife of SUBJECT who resides at 318 Blackjack Court, EAFB, FL. DEBRA ACOSTA babysat for several families. After arrival at RAFB, VICTIM entered school and seemed to be worried about something but BURRELL wasn't sure of what it was. According to BURRELL, VICTIM received briefings in school about sexual abuse and was told it wasn't nice for adults to touch children in certain places. This led VICTIM to confide in BURRELL that while they had been stationed at EAFB, SUBJECT would make VICTIM and other young females being babysat by SUBJECT's wife take off their clothes and lie on the bed. On numerous occasions, SUBJECT had placed his hands on VICTIM's bottom and had placed his hands between VICTIM's legs. SUBJECT had touched VICTIM's vagina but had never actually penetrated her vagina. SUBJECT has done the same thing to other female children, but VICTIM stated SUBJECT didn't do anything to boys. In addition, VICTIM told BURRELL SUBJECT would drop his pants and underwear and would place his penis between the legs

of the females but did not insert his penis into their vaginas.

1. On 6 Mar 88, VICTIM was interviewed by SA STANLEY B. CRISP and SA BETTY J. WILKINS in the presence of her mother. VICTIM provided essentially the same information as was provided by her mother on 2 Mar 88. VICTIM provided the following additional information not previously reported by her mother. SUBJECT had made her and other young females go into the bedroom at the same time, sometimes even with DEBRA ACOSTA being at

   home. VICTIM stated however that DEBRA didn't know what SUBJECT was doing. At other times DEBRA wouldn't be at home when the incidents took place. VICTIM couldn't recall the names of the other children who were involved, but stated there were others in the bedroom at

   the same time. VICTIM stated SUBJECT had never hurt her and had never threatened her with harm. SUBJECT had told the children that they shouldn't tell anyone about what

   he was doing to them. VICTIM said she wasn't

   afraid of SUBJECT. The bedroom used was described by VICTIM as an upstairs, spare bedroom. SUBJECT had never made the children go into his bedroom. VICTIM had never told anyone about the incidents until she was told in school of the actions of SUBJECT were wrong.

   
   

   Petitioner's Exhibit No. 7. In February of 1988, Mary Vinyard had given respondent and her husband a letter she and her husband had received from Ms. Burrell. Respondent's Exhibit No. 6. This letter reads:

   
   

   Tom and Mary,

   
   

   Remember me? . . . I'm sorry to say the reason I'm writing is because of a concern I have. I've had nothing but problems with Krissy ever since we got to England. She's doing very well in school, however her behavior has gotten to the obnoxious state. Recently she was referred to a child psychiatrist at Lakenheath (Bentwaters doesn't have one). The Dr. there seems to think part of Krissys problem is that there has been some sort of sexual abuse in the past. She makes up stories, so I have no way of being certain of what she says. Last week after talking to the Dr, on the way home, Krissy suddenly said there had been someone in Florida that had done things he shouldn't have done. She said it was Joe, Debra's husband. I at first couldn't believe it, but she went on to talk about things an 8 year old child really should have no knowledge of. I really don't know what to think however I really don't want to screw up anyone's life. We don't see the psychologist again until next week. I called him and told him of this new development, and he said after two years nothing could be done anyway. I don't believe that. The Air Force seems to be taking a rather relaxed view on this.

   
   

   The reason I'm writing you is to inquire if your children are still in Debra's care. Are you having any trouble with either of them, ightmares, bedwetting, whining? Please do write me back. An answer of any sort will help put my mind at ease. If it is just conjecture, no harm is done. If there is something going on, and Debra is still babysitting, it needs to stop. I just don't want any other parents to go through what

   I'm going through right now. You may or may not want to consider another babysitter.

   Please don't tell Debra I wrote, I always thought the world of her and I know the kids

   loved her. I don't wish to upset their family, especially if this turns out to be nothing; but I'm very suspicious.

   
   

   The day after the Vinyards gave this letter to respondent, Mr. Acosta took it to his commanding officer, Captain Gilmore, and protested his innocence.

   
   

2. Captain Gilmore made a copy of the letter and launched the investigation that eventuated in the Office of Special Investigations (OSI) report, set out in part above. Petitioner's Exhibit No. 7. No action was taken against Mr. Acosta as a result of the Air Force's investigation. He has consistently denied Krissy's reported allegations, and did so under oath at the formal hearing in this case.

   
   

3. After the OSI report came to HRS' attention, an HRS employee decided "that Debra could get licensed, to continue with the paperwork" (T.370) but as to her only. Eventually HRS did license Debra Acosta to operate Kare Free Day Care (KFDC) at 15 Eglin Street in Fort Walton Beach. KFDC opened in July of 1990. Nobody from HRS asked Mr. Acosta to agree to stay off the day care center premises and neither he nor Ms. Acosta agreed that he would. His presence during various HRS inspections elicited no official, contemporaneous response. T.406-7.

   
   

   Another Allegation Reported

   
   

4. Michelle G'Sell dropped her four-year-old daughter Amber and her two- year-old son Adam off at the Acosta family home about seven o'clock in the morning on Mother's Day, May 12, 1991, in keeping with the arrangement she had made with Ms. Acosta the afternoon before, when she picked up her children at KFDC, after their first stay there.

   
   

5. At quarter past three Sunday afternoon, Ms. G' Sell again picked Amber and Adam up at KFDC. Ms. Acosta had taken them (and her own two youngest children) to KFDC that morning after feeding Shawn and Tisouli breakfast. As Ms. G'Sell walked to her car with her children "around three steps out of the house" (T.113) Amber said, "Mommy, my twat hurts." Id. Asked when, the child "said when she pees." Id.

   
   

6. According to her mother, when they had reached the car, Amber said, "He touched me," id., and, asked who had touched her, pointed to Mr. Acosta, who was standing on the roof of the KFDC building, "and said, 'Him.'" Id. But Jason and Mrs. Acosta (T.512) testified that Mr. Acosta was not at KFDC when Amber left, and Jason testified that his father had not been on the roof that day. T.313.

   
   

7. The next morning Ms. G'Sell dropped Adam off at KFDC and signed Amber in, having arranged for her to be brought to KFDC later in the day. But, after somebody at work told her, "You must believe her, and you must report it," (T.115) she called her father and asked him not to take Amber to KFDC.

   
   

8. She also reported to HRS that Mr. Acosta had sexually abused Amber the day before, and HRS began an investigation eventuating, according to HRS, in FPSS Report No. 91-050519, "alleging sexual abuse on a female child who was enrolled at KFDC . . . [allegedly perpetrated by] Joe A., the husband of D. A." HRS' Proposed Recommended Order, page 3. On May 17, 1991, Mr. Acosta was arrested on criminal charges of sexually abusing Amber, charges which remain pending.

9. Admitted to bail on condition that he stay away from children under 18 years of age, he was rearrested for being in the presence of his own children. (Neither he nor Mrs. Acosta had realized that their children fell within the reach of the condition.) He has since been readmitted to bail and moved out of the family home.

   
   

10. HRS also launched a separate, exhaustive investigation into the operations of KFDC which, while apparently not turning up any other allegation of sexual misconduct, gave rise to the allegations on the basis of which HRS seeks to revoke KFDC's day care center license.

    
    

    Husband Occasionally Helped Out

    
    

11. While Anna Maria Root worked at KFDC in the winter and spring of 1991, Joe Acosta brought her eight-year old son to the Center after school, on the same run on which he picked up his own children. T.218. He may have brought another child, too, aside from the Root child and his own children. T.272. On two or three occasions Joe Acosta transported Shawn Holbert to school. T.379. He drove a brown van, "the one we were licensed to transport children in." T.379.

    
    

12. After KFDC's initial licensure, Ms. Acosta requested an extension or expansion of the license to authorize KFDC to offer child care in the evening, but HRS denied the request. When KFDC closed for the day, children still there were taken to the Acosta home. A "couple of times," (Hoffman Deposition, p.9) Joe Acosta drove the van to the Acosta home after KFDC closed with as many as four or five children who were to be cared for there, id. 9, 56, "and Debra would stay and close up." Waller Deposition, p.14.

    
    

13. Twice Mr. Acosta was alone with the children when Stacy Stowell collected her sons, Matthew and Aaron, at KFDC. T.12. But Lynn Hoffman, an employee, was never aware of his being alone with children. Hoffman Deposition,

    p.11. Nor was Julie Ann Merrill, who worked at KFDC from September to December 1990. Merrill Deposition, p.5, 20-21. It rarely happened. The morning after a fire at the Acosta home, Ms. Acosta sent Mr. Acosta to open up KFDC, and he was present when at least one child arrived, before either Ms. Acosta or Vicki Waller got there.

    
    

    Sole Supervisors Under Age and/or Uncertified

    
    

14. When Vicki Waller, then 19 years old, began working for KFDC, neither she nor the Acostas were aware of the HRS rule forbidding leaving the children in the unsupervised care of anybody under 21 years of age. The three of them learned of the requirement in a 20-hour course they took together in the fall of 1990. Before that time, Ms. Waller had been left in charge mornings "from about 7:00 to 7:30," (Waller Deposition, p.6) and all day on one or two Saturdays.

    She was not left in charge after they learned of the rule against it.

    
    

15. Ms. Waller did not have first aid or CPR certification when she took sole responsibility for children at KFDC. Chris Fitzpatrick worked as the only person caring for children at KFDC one Saturday, although she had not yet taken the first aid course she had signed up for. She also lacked CPR certification. Similarly untrained and uncertified, Denise Carla Yates had charge of the children by herself sometimes on Saturdays.

16. Robin Lynn Bedmar was the only person responsible for the children on two or more Saturdays, even though her CPR certification had expired. Sometimes Sandra Lynn Hoffman, who did not have CPR training, was responsible for children at KFDC by herself, or shared responsibility only with Ms. Waller. Chris Fitzpatrick, Denise Caren Yates, Robin Lynn Bedmars and Sandra Lynn Hoffman were

    21 or older, as far as the record shows, when they were left alone with the children.

    
    

    Occasionally Substandard Supervision

    
    

17. Until a refrigerator was installed in the infant room, the worker supervising infants left them unattended in order to get milk from the kitchen. Similarly, in order to change an older (but disabled) child's diapers, the person responsible for his age group left his peers unattended to take him to a mat in another room.

    
    

18. Sometimes only one KFDC employee supervised more than six infants for a full day. On at least four occasions, and possibly on as many as eight occasions (T.71; Waller Deposition p.9) there were more than six babies in the infant room, which had six cribs and two pallets, even after the playpen was removed at HRS's behest. T.71. Towards the end of the day infants along with older children, sometimes aggregating as many as ten or more, were left in the care of a single KFDC employee.

    
    

19. Children played outside, sometimes without adult supervision. Twice, Jason Acosta was outside with children at KFDC "sort of keeping an eye on things while," (Waller Deposition, p.10) his mother was inside with other children. Respondent once asked Jason and Joseph to stay in the baby room with the children there. T.44.

    
    

    Hygiene

    
    

20. The parents of two children complained to Ms. Acosta that their children's diapers were dirty when they picked the children up; and the grandmother of a third testified that, at least twice a week, he had "poopy pants" (T.30) when she came for him at KFDC, or at least by the time she had driven him some ten minutes away. Generally, children at KFDC with soiled diapers got fresh ones promptly. Ms. Acosta had extra diapers and clothes for the children on hand.

    
    

    Nutrition

    
    

21. For every day a child who ate lunch failed to bring his own, KFDC charged his or her parents a dollar. But some or all of the food supplied these children came from the lunch bags sent with other children. Ms. Acosta or an employee opened the bags and divided the food onto plates without regard to the intended recipients' (or their parents') desires.

    
    

22. Mornings and afternoons snacks were almost always provided to the children, but food with which to prepare snacks was occasionally unavailable to staff. The menu sometimes posted at KFDC was not always followed. Once, after two or three children drank from the same glass, respondent refilled it and gave it back to a child, perhaps unaware of its history.

    
    

23. Before she obtained the KFDC license, Ms. Acosta registered her home as a family day care center, and the home was inspected by the fire department.

    T. 497. After her licensure, as before, Ms. Acosta cared for Kyle Dunbar, who

    has cerebral palsy, at her house, while his mother worked evening shifts. BreAnn's mother, Paige Kelso, also worked nights and left her child in respondent's care when she did. Respondent charged for taking care of these children and sometimes had them both in her home at the same time. Friends of her children spent the night sometimes, and she occasionally took care of a friend's two sons as a favor.

    
    

    Other Matters

    
    

24. Ms. Acosta conducted several fire drills at KFDC but sometimes "the month would go by . . . [without one] and then she would write it in" (Waller Deposition, p. 58) anyway, as if one had actually occurred. T.113. Infants were not removed, even when fire drills did take place. Id. Whether falsified records of fire drills were ever submitted to HRS is not clear.

    
    

25. Ms. Acosta and others on the KFDC staff relied on "time outs" as their principal disciplinary method. But Ms. Acosta once swatted a little girl's behind. The witness who testified to this incident also testified, "I'm not saying that the child did not like Debra [Acosta, the respondent] or was scared of Debra." Waller Deposition, p. 61.

    
    

    CONCLUSIONS OF LAW

    
    

26. Because HRS has referred this matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b), Florida Statutes (1991) "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

    
    

27. HRS is charged with regulating child day care centers and is authorized to

    
    

    deny, suspend, or revoke a license or impose an administrative fine not to exceed $100 per violation, per day, for the violation of any provision of ss. 402-301-402.319 or rules adopted thereunder. However, where the violation could or does cause death or serious harm, the department or local licensing agency may impose an administrative

    fine, not to exceed $500 per violation per day.

    
    

    (b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered.

    1. The severity of the violation, including the probability of 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.

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

    3. Any previous violations of the licensee.

    Section 402.310(1), Florida Statutes (1991). Here HRS has charged respondent with violations of several HRS rules promulgated pursuant to Section 402.505, Florida Statutes (1991).

    
    

28. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

    391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

    See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation,

    393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

29. HRS first alleges that respondent ran afoul of the rules because her husband who, despite his "volunteer" status is deemed "child care personnel," Section 402.302(8), Florida Statutes (1991), acted as a caretaker "being unscreened for such caretaker role." The rule provides:

    
    

    1. Background and Screening Requirements:

       
       

       . . .

       
       

       (d) For all child care personnel, the owner or the designee shall obtain the screening and background checks, which include a one time employment history check for the last

       2 years, if applicable, a one time character reference check which includes no less than two character references, an annual abuse registry clearance, a local criminal records check every 5 years, a state criminal records check every 5 years, and one federal criminal records check. The federal criminal records check requires the submission of fingerprints in accordance with Section 402.3055, F.S.

       
       

       Rule 10M-12.002, Florida Administrative Code. The evidence showed that Mr. Acosta worked as a caretaker, however briefly and infrequently, but HRS did not prove clearly and convincingly that the owner did not "obtain the screening and background checks" required by the rule.

       
       

30. The evidence suggested that a background check was done on Mr. Acosta, that the results were inconclusive, and that the issue of his role as a caretaker was never squarely faced, once HRS decided to issue the license in Mrs. Acosta's name only. To some extent, moreover, HRS' investigators' failure to mention anything when they found him on the KFDC premises can be construed as condoning his participation in the enterprise.

31. HRS proved its allegations that Vicki Waller was left in charge of the facility although she was under 21, in violation of Rule 10M-12.002(2)(a), Florida Administrative Code, and that Jason Acosta supervised children playing outside although he was under 18, in violation of Rule 10M-12.002(2)(b), Florida Administrative Code. But, at least as to the former violation, the evidence also showed prompt steps to correct the situation once respondent discovered a rule was being violated. That Mrs. Acosta put her older sons "in charge of a class or group of children," Rule 10M-12.002(2)(b), Florida Administrative Code, the one time she asked them to stay in the baby room was not clearly and convincingly established.

    
    

32. HRS did not prove its allegations that the required staff to children ratios were "routinely out of compliance," in violation of Rule 10M- 12.002(5)(a)1., Florida Administrative Code, or that children at KFDC were "routinely left unsupervised and unattended." HRS showed that, on perhaps as few as three occasions, children were in the yard without an adult, that the infants were left unattended while their caretaker walked to the kitchen and back for milk (until this problem was solved by installation of a refrigerator), and that an older age group was left unattended while the diapers of one of them were changed; and that, on perhaps as few as four occasions, some of them lasting for less than a full day, more than six infants were in the baby room.

    
    

33. HRS did not prove the violations it alleged of Rules 10M- 12.003(9)(b)4., 10M-12.008(4)(b), 10M-12.008(5)(a), 10M-12.010(1) or 10M- 12.010(3), Florida Administrative Code, by clear and convincing evidence. HRS did not allege a violation of Rule 10M-12.007(1)(g), Florida Administrative Code. See Wray v. Department of Professional Regulation, 435 So.2d 312 (Fla. 1st DCA 1983).

    
    

34. HRS proved that respondent violated Rule 10M-12.004(1), Florida Administrative Code, "First Aid Treatment and Emergency Procedures," on several Saturdays. The rule provides:

    
    

    At least one adult employee or volunteer who has a valid certificate of completion or is currently receiving training in either a Red Cross First Aid Multi-Media Course or a course determined by the department to be an equivalent, shall be present at all times that children are in the care of the facility.

    
    

    Some effort was made, as evidenced by employees signing up for courses, but respondent never addressed this deficiency effectively.

    
    

35. HRS did not prove a violation of Rule 10M-12.006, Nutrition, which requires:

    
    

    1. Facilities shall provide meals and snacks of a quantity and quality to supplement food served at home so that the daily nutritional needs of the children are met according to recognized nutritional standards.

       
       

       . . .

       (3) Facilities shall assure that each child is provided snacks in addition to meals to meet the child's nutritional needs.

       
       

       HRS did not prove that a whole day passed without snacks for the children or that the nutritional needs of the children were not met. Respondent's "fishes and loaves" approach to lunchtime may well have breached KFDC's agreements with parents, but does not seem to run afoul of HRS' rules.

       
       

36. Respondent's babysitting less than six children after hours at her own home was not clearly and convincingly shown to run afoul of the rule provision HRS cited. Some, if not all, were children she had cared for in her home prelicensure. Rule 10M-12.009(2)(a), Florida Administrative Code, provides:

    
    

    A child care facility shall have approval of the department or 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.

    
    

    This language unquestionably reaches providing care during night time hours, even for less than six children, on the premises of the day care center. But it is not clear that a licensee cannot make the same use of her house as an unlicensed person can; and, rightly or wrongly, respondent believed she was authorized to take care of less than six children in her home, even before KFDC was licensed.

    
    

37. Finally, HRS proved that Ms. Acosta spanked a child, albeit with a single swat of her hand. HRS' rules flatly prohibit spanking.

    
    

    1. Child care facilities must ensure that age-appropriate, constructive disciplinary practices are used for children in care.

(c) Spanking or any other form of physical punishment is prohibited.

Rule 10M-12.013, Florida Administrative Code. The evidence showed that "time outs" were the ordinary means of discipline, means which presumably qualify as "age-appropriate, constructive disciplinary practices."

RECOMMENDATION

HRS proved several significant violations. But HRS did not prove, or even allege, that respondent's husband sexually abused a child or children. Instead, HRS alleged and proved that such allegations are the basis for pending criminal and (other) administrative proceedings. It is, accordingly,

RECOMMENDED:

1. That HRS suspend respondent's day care center license for one year, with credit for the time already elapsed in which HRS has prevented respondent from operating a day care center.

   
   

2. That HRS place respondent's license on probation thereafter for a period of at least two years, on condition that respondent comply with all applicable statutes and rules for two years; on condition that respondent not

charge for children she cares for at her home; and on condition that Mr. Acosta stay off KFDC premises while children other than his own are there, and have no contact with children who are cared for at KFDC (other than his own), until and unless he is exonerated in both the criminal and administrative proceedings now pending.

DONE and ENTERED this 22 day of May, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992.

APPENDIX

Petitioner's proposed findings of fact Nos. 1, 3, 4, 5, 6, 7, 10, 11, 12,

13, 17, 20 and 26 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 2, KFDC was licensed earlier than January 1, 1991.

With respect to petitioner's proposed finding of fact No. 8, the court order was not in evidence.

With respect to petitioner's proposed finding of fact No. 9, the substance is addressed in later proposed findings of fact.

With respect to petitioner's proposed findings of fact Nos. 14 and 15, the evidence did not show routine noncompliance.

With respect to petitioner's proposed finding of fact No. 16, this occurred only rarely.

With respect to petitioner's proposed finding of fact No. 18, it was not clearly and convincingly shown that the screening had not be completed.

With respect to petitioner's proposed finding of fact No. 19, it was not clearly and convincingly shown that the children received less than what was nutritionally necessary.

Petitioner's proposed findings of fact Nos. 21, 23 and 24 were not proven.

With respect to petitioner's proposed finding of fact No. 22, it was not clear that respondent "extended her day care license to her home without authority" as opposed to acting in good faith under supposed authority antedating issuance of KFDC's license. Vicki Waller did not see all those children at the same time, as far as the record shows.

With respect to petitioner's proposed finding of fact No. 25, the credible evidence did not clearly and convincingly establish any improper discipline other than the swat.

With respect to petitioner's proposed finding of fact No. 27, the violation consisted only of being in the presence of his own children.

Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 9, 11, 12,

14, 15, 17, 18 and 20 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 7, an adult was inside when the boys were asked to watch the infants, but no adult was outside three or more times when one of the Acosta sons supervised.

With respect to respondent's proposed finding of fact No. 8, noncompliance with ratios was sometimes more than momentary.

With respect to respondent's proposed finding of fact No. 10, diapers were changed regularly.

With respect to respondent's proposed finding of fact No. 13, morning snacks were not always given.

With respect to respondent's proposed finding of fact No. 16, children whose parents did not pick them up at KFDC were also brought to the Acosta home.

With respect to respondent's proposed finding of fact No. 19, no improper discipline other than a single swat was proven.

With respect to respondent's proposed finding of fact No. 21, this is properly a conclusion of law.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

S. J. DiConcilio, Esquire Rodney M. Johnson, Esquire

P.O. Box 8420

Pensacola, FL 32505-0420

Mary Koch Polson, Esquire

P.O. Box 96

Fort Walton Beach, FL 32549

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner, CASE NO.: 91-4023 RENDITION NO.: HRS-92-277-FOF

vs.

DEBRA ACOSTA,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). The Recommended Order entered May 2, 1992, by Hearing Officer Robert T. Benton is incorporated by reference.

RULING ON EXCEPTIONS FILED BY RESPONDENT

Respondent excepts to finding of fact 14 wherein M:. Acosta was found to have been left alone with children at Kare Free Day Care Center (KFDCC) upon a few occasions. Having reviewed the entire record, it is clear that Mr. Acosta was observed at KFDCC on numerous occasions by employees, parents, and HRS personnel. Mr. Acosta occasionally transported children in his van and on at least two occasions Ms. Stacy Stowell, a parent, found Mr. Acosta to be the only adult present when she picked up her children. (T 12, 13). The exception is denied because the findings are Supported by competent, substantial evidence.

Respondent excepts to the Hearing Officer's findings on page 17 that children were sometimes left unattended. The findings are Supported by competent, substantial evidence; therefore, the exceptions are denied.

Respondent excepts to the Hearing Officer's adoption of the department's proposed finding number 10 that Mr. Acosta acted as a caretaker at KFDCC when he transported children, and that he was not screened as a caretaker. Respondent maintains that this finding regarding screening is inconsistent with the Hearing Officer's finding on page 16. Respondent testified (T 482) that Mr. Acosta was not screened as a caretaker, but that he did submit the required documentation for screening. Having reviewed the record I conclude that Mr. Acosta submitted the necessary documents for the screening process, but was never approved to be a caretaker at KFDCC. Indeed, the reason respondent sought the license in her name was based on the allegations that Mr. Acosta molested a child prior to the application for licensure. See finding of fact 2 and respondent's exhibit 7. Proposed finding 10 is modified to read, Mr. Acosta acted as a caretaker at KFDCC, and he was not approved to be a caretaker.

Respondent excepts to the Hearing Officer's adoption of HRS' proposed finding 26 that fire drills were not performed as required and that respondent was observed fraudulently documenting fire drills. The grounds for the exception is that this violation was not alleged in the notice of revocation. Respondent points out that the Hearing Officer refused to receive evidence of other misconduct on the grounds it was not alleged in the notice of revocation and thus not relevant. I disagree with the Hearing Officer on this point. Inconsistently, the Hearing Officer received evidence from respondent, which was admittedly not relevant to the alleged violations, but was relevant only to mitigation of the penalty to be imposed. Likewise, the Hearing should have received evidence of aggravating circumstances from

HRS. For example, HRS tendered the witness Mary Garcia whose child had been cared for in the Acosta home and was allegedly molested by Mr. Acosta, to show a pattern of sexual abuse by Mr. Acosta and thus danger to the welfare of children at KFDCC. The Hearing Officer rejected the tender. (T 166 - 168).

The record does contain evidence that two other children had been sexually molested by Mr. Acosta; thus, remand for further testimony is not required in order to determine the appropriate penalty. See findings of fact 2, 6, and 7. Returning to respondent's exception the finding that fire drills were not held as required and that records of fire drills were fraudulently created by respondent, this finding is relevant on the issue of penalty; therefore, the exception is denied.

Respondent excepts to the Hearing Officer's conclusion that HRS proved several significant violations. Respondent challenges the seriousness of the violations. The exception is denied.

Finally, respondent excepts to the Hearing Officer's decision not to recommend immediate reinstatement of respondent's license to provide day care. The exception is denied.

RULING ON EXCEPTIONS FILED BY HRS

Counsel excepts to the Hearing Officer's findings regarding the screening of Mr. Acosta. See the ruling on respondent's exceptions.

Counsel excepts to the Hearing Officer's finding that the seriousness of the violation of leaving the children in the care of someone under the age of 21 was mitigated by respondent's correction of the violation.

Counsel maintains that the violation continued uncorrected. The evidence was

conflicting on this point; therefore, the exception is denied. See respondent's testimony at T 446,

Counsel excepts to the Hearing Officer's conclusion that HRS failed to prove that required staff- children ratios were routinely violated. Counsel maintains that this conclusion is inconsistent with finding of fact 19. There was conflicting evidence on this issue and the ratios vary according to the age of the children. The exception is denied.

Counsel excepts to the Hearing Officer's conclusion that respondent's feeding practices did not constitute a violation. The Hearing Officer found that if a parent did not provide a lunch for a child, respondent obtained food by taking it from the food supplied by other parents for their children. A parent who did not provide a lunch was charged $1.00. I concur with counsel. Respondent's feeding practice violates Rule 10M-12.006(1), F. A. C., which requires the facility to provide meals unless a parent has agreed in writing to provide food for his or her child pursuant to subsection (2) of the rule. Thus, respondent is found guilty of violating this rule.

Counsel excepts to the Hearing Officer's conclusion that respondent was not guilty of violating Rule 10M-12.009(2)(a), F. A. C., by caring for children at her home at night. The Hearing Officer accepted respondent's testimony that she didn't realize she was violating the rules. One is charged with knowledge of the law. Family day care homes must be licensed or registered with the department.

Section 402.313, Florida Statutes. Respondent's request for authority to provide evening care had been denied by the department. (T 170, 187). I concur with counsel and therefore find respondent guilty of violating Rule 10M- 12.009(2)(a), F. A. C. This is an egregious violation because respondent was aware that the day care license had been issued in her name only because of the department's grave reservations about the fitness of her husband to serve as a caretaker. Even if it were not a rule violation, it would be a monumental failure of judgment on respondent's part, and thus relevant as an

aggravating factor as to the penalty.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the ruling on the exceptions. It is noted that respondent's husband testified at the final hearing, but invoked the privilege against self incrimination to avoid answering questions regarding Michelle G'Sell's testimony that her daughter was sexually molested by Mr. Acosta at KFDCC and that her daughter identified Mr. Acosta as the perpetrator on the same day as the alleged abuse. See T 122 - 128 for Ms. G'Sell's testimony and T 383 and 397 for Mr. Acosta's invocation of the privilege.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the rulings on the exceptions and except for the recommended penalty. The Fifth Amendment does not forbid adverse inferences against a

witness in a civil proceeding when the witness refuses to testify in response to accusatory evidence and such an inference may be of high probative value.

Baxter vs. Palmigiano, 425 U. S. 308 (1976); 47 L ed 2d 810, 821, 822, DeBock

vs. State, 512 So2d 164 (Fla. 1987).

Respondent is hereby found guilty of the violations as recommended by the Hearing officer and in addition respondent is found guilty of violating Rule 10M- 12.006(1), F. A. C., and Rule 10M-12.009(2)(a), F. A. C. See the ruling

on the department's exceptions for discussion.

I cannot in good conscience accept the Hearing Officer's recommended penalty. To do so would in effect certify that parents can leave their children at respondent's facility with no reason to be concerned about the safety of their children. Despite the grave and unresolved questions about her husband's fitness he was allowed to be at respondent's facility on many occasions and to transport children. As noted previously, respondent's judgment was terribly flawed in caring for children at night in her home considering the concerns about her husband and the department's denial of her request for authority to provide such care.

The aggravating circumstances far outweigh the mitigating circumstances and I conclude the most severe sanction should be imposed. The entire record has been reviewed in reaching this decision. Criminal Justice Commission vs. Bradley, 596 So2d 661 (Fla. 1992).

Based upon the foregoing, it is

ADJUDGED, that respondent's license be revoked.

DONE and ORDERED this 12th day of July 1992, in Tallahassee, Florida.

Robert B. Williams Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Human Services

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

S. J. Diconcilio, Esquire Asst. District Legal Counsel District 1 Legal Office

Post Office Box 8420 Pensacola, FL 32505-8420

Mary Koch Polson Post Office Box 96

Fort Walton Beach, FL 32549

Robert T. Benton, II Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U. S. Mail this 14 day of July , 1992.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 (904)488-2381

Docket for Case No: 91-004023

Orders for Case No: 91-004023