STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1552

)

PAMELA McFARLANE, d/b/a ) CARING HEART PRE-SCHOOL AND ) DAY CARE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding by telephone conference before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 10, 1995, in Orlando, Florida.

APPEARANCES

For Petitioner: James A. Sawyer, Jr., Esquire

District Legal Counsel Department of Health and

Rehabilitative Services

400 W. Robinson Street, Suite S-827 Orlando, Florida 32801

For Respondent: Derrick Smith, President

Caring Heart Pre-School and Day Care, Inc. 1408 West Michigan Street

Orlando, Florida 32808 STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Respondent failed to maintain direct supervision of a child and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on February 24, 1995. Respondents timely requested a formal hearing. 1/

At the formal hearing, Petitioner presented the testimony of: Mr. Ashy Wilhem, an investigator for Petitioner's Division of Child Care Licensing; and Ms. Martha Swaggerty, a supervisor for Petitioner's Division of Child Care Licensing. Petitioner submitted five exhibits for admission in evidence.

Petitioner's Exhibit 1 is a copy of the current license for a child day care facility. Petitioner's Exhibit 2 is Petitioner's Inspection Supplemental Sheet. Petitioner's Exhibit 3 is a copy of a handwritten note from Ms. Pamela McFarlane. Petitioner's Exhibit 4 is a copy of Petitioner's Inspection Checklist and Supplemental Sheet for Respondent. Petitioner's Exhibit 5 is a copy of a Memorandum from Elaine Woods and Marie Rolley of the Devereux Therapeutic Foster Care to Ms. Swaggerty, dated January 3, 1995.

Petitioner's Exhibits 1-3 and 5 were admitted in evidence without objection. Petitioner's Exhibit 4 was rejected pursuant to Respondents' objection.

Respondents presented the testimony of Ms. McFarlane and submitted two exhibits for admission in evidence. Respondents' Exhibit 1 is a composite exhibit consisting of seven letters from individuals not testifying at the formal hearing. Respondents' Exhibit 2 is a letter from Respondent dated January 24, 1995.

Respondents' Exhibit 1 was rejected pursuant to Petitioner's objection.

Respondents' Exhibit 2 was admitted in evidence without objection.

Neither party requested a transcript of the formal hearing. Respondents requested, without opposition, an extension of time in which to file its proposed recommended order ("PRO").

Petitioner did not file a PRO. Respondents timely filed their PRO on September 5, 1995. Respondents' proposed findings of fact are not addressed in the Appendix to this Recommended Order because Respondents failed to comply with the order entered by the undersigned on the record at the formal hearing.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating child day care facilities in Florida. Respondent, Caring Heart Preschool and Day Care, Inc. ("Caring Heart"), is licensed as a child day care facility for children, ages 1-12, pursuant to certificate number 1190-21.

   
   

2. Respondent, Pamela McFarlane, is the owner of Caring Heart within the meaning of Section 402.302(7), Florida Statutes. 2/ Ms. McFarlane operates Caring Heart at 1408 West Michigan Street, Orlando, Florida, 32805.

   
   

3. Michigan Street is a busy four lane street. On December 15, 1994, a four year old child left Caring Heart without the knowledge of his teacher or Ms. McFarlane. The child wandered outside the facility, left the premises, and crossed Michigan Street.

   
   

4. The child was found by a bus driver. The bus driver returned the child to Caring Heart.

   
   

5. Respondents failed to provide quality child care within the meaning of Sections 402.3015(1) and 402.302(3). Respondents failed to maintain direct supervision of the child within the meaning of Section 402.305(1)(d) and Florida Administrative Code Rule 10M-12.002(5)(a)2. 3/

   
   

6. The potential harm to the child was severe within the meaning of Section 402.310(1)(b)1. The period in which Respondents failed to maintain direct supervision of the child was substantial. The child had time to leave

   the premises, cross a busy four lane street, and converse with an adult who, fortunately for the child, took the time to secure the child's safety.

   
   

7. Respondents' failure to maintain direct supervision of the child did not result in any actual harm to the child. Respondents have no history of any prior discipline.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

   
   

9. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that Respondents are guilty of the acts alleged in the Administrative Complaint and the appropriateness of any disciplinary action to be taken against

   Respondents' license. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. Petitioner satisfied its burden of proof. Petitioner showed by clear and convincing evidence that Respondents failed to maintain direct supervision of a four year old child.

    
    

11. Respondents' failure to maintain direct supervision a four year old child could have caused death or serious harm to the child within the meaning of Section 402.310(1)(a). The period in which Respondents failed to maintain direct supervision was substantial. The child had time to leave the facility, cross a busy four lane street, and converse with an adult. Fortunately for the child, the adult returned the child safely to Caring Heart.

    
    

12. Section 402.310(1)(a) authorizes Petitioner to suspend or revoke Respondents' license or to impose an administrative fine not to exceed $500 for a single non-recurring violation. Petitioner seeks to impose a fine of $500.

    
    

13. The administrative fine proposed by Petitioner is appropriate when all of the facts and circumstances in this proceeding are considered. Respondents' failure to maintain direct supervision of the child was a severe violation. It could have caused serious harm to the health and safety of the child within the meaning of Section 402.310(1)(b).

    
    

14. Respondents' failure to maintain direct supervision of the child did not result in actual harm to the child.

Respondents' failure is not a recurring violation. Respondents have no prior discipline history.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of the charges in the Administrative Complaint and imposing an administrative fine of $500.

RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 6th day of October, 1995.

ENDNOTES

1/ Respondents are referred to as separate persons for two reasons. First, the facility is the licensee in this proceeding. The facility is incorporated as a Florida corporation. As an officer of the corporation, Mr. Derrick Smith is entitled to represent the corporate respondent. Second, Respondent, Pamela McFarlane, is the owner of the facility. Sec. 402.302(7), Fla. Stat., defines the term "owner" as the person who is licensed to operate the facility.

2/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

3/ All references to rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order.

COPIES FURNISHED:

James A. Sawyer, Jr., Esquire District Legal Counsel Department of Health and

Rehabilitative Services

400 W. Robinson Street, Suite S-827 Orlando, Florida 32801

Derrick Smith, President Ms. Pamela McFarlane, Owner

Caring Heart Pre-School and Day Care, Inc. 1408 West Michigan Street

Orlando, Florida 32808

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

32399-0700

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.

Docket for Case No: 95-001552

Orders for Case No: 95-001552