STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NOS. 92-7148

) 92-7447

ALICE P. WHITE d/b/a MISS )

PATTY'S DAY CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K.N. Ayers, held a formal hearing in the above- styled case on May 12, 1993 at Bradenton, Florida.

APPEARANCES

For Petitioner: Raymond R. Deckert, Esquire

4000 West Martin Luther King Jr. Boulevard Tampa, Florida 33614

For Respondent: Donald D. Hadsock, Esquire

1806 Manatee Avenue West Bradenton, Florida 34205

STATEMENT OF THE ISSUES

Whether allegations in the Administrative Complaint dated September 21, 1992, constitute grounds for revoking or failure to renew the license of Alice

1. White, d/b/a Miss Patty's Day Care Center.

   
   

   PRELIMINARY STATEMENT

   
   

   By reason of the allegations in the Administrative Complaint dated September 21, 1992, the Department of Health and Rehabilitative Services, Petitioner, denied Alice P. White's, Respondent's, application to renew the license of Patty's Day Care Center and in Case 92-7148 White requested a hearing to challenge this denial. In Case 92-7447 HRS seeks to revoke the license of Patty's Day Care Center. As grounds therefore it is alleged that Respondent was cited some 17 times over 3 1/2 years for minor violations during quarterly inspections by HRS personnel. The same Administrative Complaint constitutes named grounds for denying renewal and for seeking revocation. At the hearing Petitioner called four witnesses, Respondent called three witnesses, including herself, and 29 exhibits were admitted into evidence. Treatment accorded proposed findings submitted by the parties is contained in the Appendix hereto. Having fully considered all evidence presented I submit the following:

   FINDINGS OF FACT

   
   

   1. Alice P. White is the owner/operator of Miss Patty's Day Care Center in Bradenton, Florida which is licensed for 30 children. This facility has been in operation for approximately 15 years.

      
      

   2. On August 14, 1992 an infant at this day care center was checked by Respondent and found to be not breathing. Respondent called 911 for emergency medical assistance and commenced CPR.

      
      

   3. Emergency medical support arrived shortly thereafter and took the infant to the hospital where it was pronounced dead.

      
      

   4. Sheriff's deputies investigated the incident immediately and questioned Respondent who was quite upset over the incident.

      
      

   5. Respondent initially told the deputy that the baby choked while she was feeding him in her arms. This was false which Respondent admitted after being informed a couple of days later that the medical examiner had concluded that the infant died from Sudden Infant Death Syndrome (SIDS).

      
      

   6. Factually, the eight month old infant had been put to bed in his crib shortly after noon with a bottle feeder for the nap. One of the attendants at the day care center was overseeing the infants in this room. She did not stay in the room every minute but periodically went in and out of the room.

      
      

   7. On August 14, 1992 Respondent returned from a trip to bring children back from a Bible study course and when she entered the area where the babies were sleeping she observed the aide in charge of these babies having some lunch. Respondent then went into the room with the babies and found the infant not breathing.

      
      

   8. The only charges in the Administrative Complaint regarding this incident is contained in paragraphs 5 and 8 of the Administrative Complaint. Paragraph 5 alleges the baby died and paragraph 8 alleges that Respondent had provided the sheriff's department with misinformation regarding the infant choking while she was feeding him and that this infant had been left alone for

      30 minutes without supervision before being noticed by Respondent. No credible evidence to support the lack of adequate supervision of this infant before its death was presented.

      
      

   9. The discrepancies found during the quarterly inspections of the facility for the past 3 1/2 years were predominantly minor offenses such as inadequate record keeping, failure to document all staff had received prescribed training or innoculations, lack of current vehicle driver certificate, unsafe outdoor equipment, or minor food service violations, failure to provide employee background screening, inadequate staff to child ratio, inadequate bathroom supplies, and lack of immunization records. These are all classified as Class III violations as defined in Rule 10M-12.011(7)(c), Florida Administrative Code.

      
      

   10. All of the violations noted in paragraph 9 above were corrected within the prescribed time period and no Administrative Complaint was ever issued against Respondent prior to the instant Administrative Complaint.

       
       

   11. During the investigation at this day care center following the infant's death, and while the sheriff's deputies were on the scene questioning Respondent and her employees, three additional violations are noted in paragraph

       7 of the Administrative Complaint. The first of these allege the center had 18 children in part of the facility with no staff present in the room. At the time this infraction occurred Respondent was out on the patio being interrogated by a deputy and another deputy had called the aide supervising the 18 children out of the room to question her. When Respondent returned inside the center and observed the aide being questioned by the deputy she sent another aide into the room with the 18 school age children.

       
       

   12. The second allegation was that there were 36 children in the facility although the center was licensed for only 30. Without attempting to justify the violation Respondent testified that this occurred a day or two before school started when the teachers had to be at school but the pupils did not. These excess children were children of teachers who requested Respondent to take them during the time these teachers had to be at school. As a favor to these mothers who had previously used her day care center Respondent temporarily exceeded her authorized number of children.

       
       

   13. The third violation resulted when Respondent left the children she was supervising to open the door to admit the HRS inspector who supervised the facility. While Respondent was opening the door to let the inspector into the facility the proper ratio of staff to child was not maintained.

       
       

   14. In response to the inspection reporting the lack of supervision of the

       18 school age and excess children in the facility (Exhibit 20) Respondent prepared a list of the facility's weak points and steps initiated to correct them (Exhibit 23).

       
       

   15. On August 28, 1992 Respondent voluntarily closed her day care center pending the completion of all investigations (Exhibit 24).

       
       

   16. One witness who has used Respondent's facility for her children for some ten years or more ardently and emotionally supported the renewal of Respondent's license. In addition eight other letters from parents of children who used Respondent's facility voiced strong support for Respondent and expressed an earnest desire for her facility to reopen. Also another letter (Exhibit 26) signed by 19 additional parents strongly supported the renewal of Respondent's license. All of these people, with full knowledge of the unfortunate incident of August 14, 1992, expressed an intent to return their children to Respondent's facility as soon as it is reopened.

       
       

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   18. Section 402.310, Florida Statutes provides in pertinent part: (1)(a) The Department or local licensing

       agency may 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.

   19. All violations here alleged except paragraphs 5 and 8 of the Administrative Complaint are violations of Chapter 10M-12, Florida Administrative Code. Rule 10M-12.011, Florida administrative code provides in pertinent part:

The Department is given enforcement powers by Sections 402.301, 402.310, 402.311, and

402.312, Florida Statutes and may take any or all of the following actions:

1. Deny, suspend, or revoke a license,

2. Seek an injunction to close the facility,

3. Impose an administrative fine, not to exceed $100 per violation per day and where the violation could or does cause death or serious harm impose an administrative fine, not to exceed $500 per violation per day,

4. Require corrective action.

1. The Department will conduct periodic inspections of child care facilities.

2. When the Department determines that a child care facility is not in compliance with the child care standards, the Department shall make a reasonable attempt to discuss each violation with the owner or operator of the facility and the time which the Department will establish for the owner or operator to complete corrective action for any violation.

* * *

(7) The Department will use the following classifications as a guideline for determining the severity of the violation and the amount of the fine:

* * *

1. Class III Violations: Those conditions or occurrences related to the operation and maintenance of the 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.

2. 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.

1. Neither paragraph 5 nor 8 of the Administrative Complaint alleges a violation of either Section 402.310, Florida Statutes or Rule 10M-12.011, Florida Administrative Code which list the grounds for disciplinary action. Since all of the violations charged in the Administrative Complaint were corrected within the prescribed time frame, none of these violations constitute grounds for levying an administrative fine. (Class II violations, if timely corrected, are also not subject to the assessment of a fine) A fortiori, they do not constitute grounds for revocation or refusal to renew a license.

   
   

2. Obviously the death of an infant at Respondent's facility on August 14, 1992 led to the decision to deny renewal of the license and the filing of the Administrative Complaint to revoke the license. However, there is no evidence linking any act of Respondent with the death of this infant. There is no dispute that the infant died of SIDS. The infant stopped breathing and had the aide been in the room at the time the infant stopped breathing it is unlikely this would have been noticed had the aide not been looking closely at the child.

   
   

3. In these proceedings Petitioner has the burden to prove the grounds for revocation, the only penalty sought in the Administrative Complaint, by clear and convincing evidence. Ferris v. Turlington, 512 So.2d 292 (Fla. 1987). Petitioner has failed to sustain this burden.

   
   

4. Even if the minor violations charged in the Administrative Complaint could now be considered to be grounds for revocation, Section 402.310(1)(b), Florida Statutes provides:

   
   

   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 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 violations or to remedy complaints.

   3. Any previous violations of the licensee.

      
      

5. All of the violations charged in the Administrative Complaint are minor and were corrected forthwith. Respondent submitted a proposed plan to inhibit further violations by increasing staff and preparing written orders for staff guidance. As noted above this is the first Administrative Complaint ever filed against Respondent.

   
   

6. From the foregoing it is concluded that there are no violations listed in the Administrative Complaint which were not timely corrected; that once timely corrected these alleged violations do not constitute grounds for further disciplinary actions; and Petitioner has failed to prove, by clear and convincing evidence, or even by a preponderance of the evidence, that Respondent committed any act which constituted grounds for revocation of her license.

RECOMMENDATION

It is RECOMMENDED that a final order be issued finding Alice P. White, d/b/a Miss Patty's Day Care Center, not guilty of all charges in the Administrative Complaint and that the license to resume operations be issued forthwith to Alice P. White d/b/a Miss Patty's Day Care Center.

DONE AND ENTERED this 28th day of May, 1993, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1993.

APPENDIX

Proposed findings submitted by Petitioner are accepted except as noted below. Those proposed findings neither noted below nor included in Hearing Officer's findings were deemed unnecessary to the conclusions reached:

1. Rejected insofar as child not being supervised. See HO #6.

   
   

2. See HO #11 and #12.

   
   

3. Fifth sentence rejected insofar as it states child was without supervision for 30 minutes. Sixth sentence inconsistent with fifth sentence.

Proposed findings submitted by Respondent are accepted. Those not included in Hearing Officer's findings were deemed unnecessary to the conclusions reached.

COPIES FURNISHED:

Robert Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Raymond Deckert, Esquire 4000 W. Dr. Martin Luther

King Jr. Blvd.

Tampa, Florida 33614

Donald B. Hadsock, Esquire 1806 Manatee Avenue West Bradenton, Florida 34205

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. Some agencies allow a larger period within 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner, CASE NO.: 92-7447 CASE NO.: 92-7148

vs. RENDITION NO.: HRS-93III-FOF-HO

ALICE P. WHITE d/b/a MISS PATTY'S DAY CARE CENTER,

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 28, 1993, by Hearing Officer K. N. Ayers is incorporated by reference.

RULINGS ON EXCEPTIONS

Counsel for the department filed nine (9) numbered exceptions to the Recommended Order (RO). These were opposed by the Respondent.

The first exception states that paragraph 8 of the RO is erroneous to the extent it finds that "[t]he only charges in the Administrative Complaint regarding this incident [Respondent's false statement to the deputy that the baby choked while she was feeding him in her arms] is contained in paragraphs 5 and 8 of the Administrative Complaint." Counsel for the department asserts that paragraph 4(o) of the Administrative Complaint (AC) also relates to the incident of the child's death because it deals with the initial false story told to the police investigators by Ms. Alice P. White. The exception is granted.

Paragraph 4(o) of the AC does indeed charge Respondent with filing a false police report.

Exception 2 excepts to the finding in paragraph 8 of the RO that "no credible evidence to support the lack of adequate supervision of this infant before its death was presented." The exception is denied. The supervision issue material to this case is that alleged in paragraph 7(a) of the AC; i.e., whether on August 19, 1992 Laura Winfrey discovered there were 18 school aged children in part of the facility with no staff or direct supervision, in violation of Rule 10M-12.002(5)(a)(2), Fla. Admin. Code. See Finding of Fact 11.

Exception 3 disagrees with finding of fact 9 that the discrepancies found during inspections over the past 3.5 years were predominantly minor offenses. My review of the entire record discloses that there was insufficient evidence adduced upon which to base a finding of fact that inadequate staff to child ratios or lack of direct supervision constitute minor discrepancies. Moreover, counsel is correct that it is the department's duty, not the Hearing Officer's, to interpret what is and is not a minor discrepancy. The exception is granted.

Exception 4 disagrees with paragraph 21 of the RO. The department disagrees that neither paragraphs 5, 8, nor 4(o) of the AC alleges a violation of either s. 402.310, Fla. Stat., or Rule 10M-12.O11, Fla. Admin. Code. Counsel argues that s. 402.305(2)(a), Fla. Stat., and Rule 10M-12.002(1)(a), Fla. Admin. Code, requiring good moral character, are the specific measures that White violated by lying to the police. Those provisions refer to the statutorily enumerated disqualifying offenses. "Good moral character" is not a "catchall" term. Therefore lying to the police is not grounds, under the facts of this case, for denial or revocation of licensure.

The AC also does not charge lack of direct supervision of the dead child.

Therefore, the decision in this case does not turn on that issue.

Counsel cites no authority to support his contention that denial or revocation of licensure can be based upon properly corrected previous violations corrected prior to the currently-noticed denial or revocation. Based upon the foregoing, Exception 4 is denied.

The Exception numbered 5 is granted. Although the child died from SIDS, counsel for the department is correct in pointing out that if the child had been under direct supervision at all times /1, the child might still be alive.

Exception 6 arguing that the department met its burden of proof is denied. Exception 7 disagrees with any general rule that once timely corrected,

previous violations no longer constitute grounds for further disciplinary

action. The violations cited and corrected over the 3.5 year period preceding the AC in this case are not sufficient to support denial or revocation of a license. That is not to say that in a proper case, previously corrected

violations cannot support later disciplinary action. To that extent only, Exception 7 is granted.

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 above Rulings on Exceptions.

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 above Rulings on Exceptions.

Based upon the foregoing, it is

ADJUDGED, that Alice P. White, d/b/a Miss Patty's Day Care Center is not guilty of the charges legally alleged in the Administrative Complaint. The charge of giving false information to the police is not a violation, under these facts, of the child care licensure statute or rule. It is further ADJUDGED that the license to resume operations be issued forthwith to Alice P. White d/b/a Miss Patty's Day Care Center.

DONE and ORDERED this 28th day of October, 1993, in Tallahassee, Florida.

Jim Towey Secretary

Department of Health and Rehabilitative Services

by Assistant Secretary for Children and Family Program Office

ENDNOTE

1/ If the department had alleged in the AC a specific lack of direct supervision as to the deceased child, and proved it at the hearing, this case might have turned out differently

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COY 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 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:

Raymond R. Deckert, Esquire District 6 Legal Office

4000 W. Martin Luther King, Jr. Blvd. Tampa, Florida 33614

Donald B. Hadsock, Esquire 1806 Manatee Avenue West Bradenton, Florida 34205

K. N. Ayers Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

CERTIFICATE OF SERVICE

HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U.S. Mail this 3rd day of November, 1993.

Robert L. Powell, Sr. Agency Clerk

Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 201

Tallahassee, Florida 32399-0700 904/488-2381

================================================================= ORDER CLARIFYING AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

Case Nos. 92-7148

vs. 92-7447

Rendition No. HRS-93-411-FOF HO

ALICE P. WHITE,

Respondent.

/

ORDER CLARIFYING FINAL ORDER

The Department of Health and Rehabilitative Services filed on December 16, 1993 a Motion to Clarify the Final Order herein. The issue decided in the hearing conducted on May 12, 1993 was "[w]hether allegations in the Administrative Complaint dated September 21, 1992, constitute grounds for revoking or failure to renew the license of Alice P. White, d/b/a Miss Patty's Day Care Center." Counsel states in his motion that also at issue at said hearing was whether allegations in the Administrative Complaint constituted grounds for the October 21, 1992 denial of Ms. White's application for renewal of her child care license.

Respondent Alice P. White d/b/a Miss Patty's Day Care Center prevailed on all the issues litigated at the hearing and the Recommended Order and Final Order each state that "the license to resume operations be issued forthwith to Alice P. White d/b/a Miss Patty's Day Care Center."

Apparently instead of the license to resume operations being "forthwith" issued as per the Final Order dated October 28, 1993, according to the Motion, the following state of affairs exists:

To date, a license has not been issued. On or about Monday, December 13, 1993, Ms.

Pauline Hodges, a Children, Youth and Families counselor, inspected the

proposed location by Alice P. White subject to the license in question.

Ms. Hodges discovered that the home was not ready to receive children. Specifically, the home did not have any cribs, contained a twin bed and other furniture, such as sofa, chairs, and other furniture not suitable for a children's day care center. There were no appropriate sleeping mats, no safe toys, no

high chairs for feeding purposes, no requisite space for child--designated areas, an in general did not meet the statutory requirements of Chapter 402, Florida

Statutes, for readiness for a child day care facility. It has now been converted back to a home living area and is not suitable for housing children in a day care setting. The Department is placed in the position of having to issue a license to a facility that does not meet minimum child care standards.

Even if the agency was in the position to issue a provisional license, the minimum screening requirements have not been met by Alice P. White. In addition, FPSS Report No. 92-085603, for neglect, lack of supervision caretaker present, and lack of supervision caretaker absent, has been received as a result of the death of the child N.P. The classification of the report is confirmed for abuse or neglect.

The December 13, 1993 inspection of the proposed premises, FPSS Report No. 92- 085603, and Ms. White's moral character are separate issues that were not contained in the Administrative Complaint litigated on May 12, 1993. There is no ground for the requested clarification of the Final Order issued herein. The Final Order granting licensure obviously assumes that all licensure deficiencies to be litigated were stated in the Administrative Complaint. Presumably, District licensure officials would be able to carry out their responsibilities by conditioning the license on compliance with the licensure law and rules and the good moral character provisions of the law. Clearly the Final Order means that the license should be issued forthwith unless there exist other legal reasons to prevent issuance which were not litigated in this proceeding and which must not be addressed in the instant Final Order. For example, if children are accepted into the facility and are actually present prior to its meeting minimum licensure requirements, the children could be pulled out until there is compliance. Likewise, if Ms. White requests amendment or expunction of Abuse Report 92-085603, a Final Order in the abuse case confirming her as a perpetrator would mean her license would have to be revoked unless an exemption is granted.

Based on the foregoing, the request for clarification is denied.

ORDERED this 7th day of January, 1994, at Tallahassee, Leon County, Florida.

H. JAMES TOWEY Secretary

Department of Health and Rehabilitative Services

By LINDA F. RADIGAN

Assistant Secretary for Children and Family Program Office Department of Health and

Rehabilitative Services 1317 Winewood Blvd.

Tallahassee, Florida 32399-0700

Copies furnished to:

Raymond R. Deckert, Esquire HRS District 6 Legal Office

4000 W. Martin Luther King, Jr. Blvd. Tampa, Florida 33614

Donald B. Hadsock, Esquire 1806 Manatee Avenue West Bradenton, Florida 34205

K. N. Ayers Hearing Officer

Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 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 20th day of January, 1994, in Tallahassee, Florida.

Robert L. Powell, Sr. Agency Clerk

Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 200

Tallahassee, Florida 32399-0700

(904)488-2381

A:RP-WHITE.DOC.

Docket for Case No: 92-007148

Orders for Case No: 92-007148