STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3043

)

FUNWAY LEARNING CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on September 15, 1995 by telephone conference to Orlando, Florida.

The following appearances were entered:

APPEARANCES

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

Department of Health and Rehabilitative Services

400 West Robinson Street South Tower, Suite S-827 Orlando, Florida 32801

For Respondent: Hugette Nelson

Former Owner/Director Funway Learning Center 2320 Northwest 108 Street

Miami, Florida 33168 STATEMENT OF THE ISSUES

Whether the Respondent failed to produce a personnel file with a Good Moral Character Form or documentation of submission of a fingerprint card for a new employee at the child care facility within the time provided in Rule 10M-12.002, Florida Administrative Code and Section 402.3055(3)(a), Florida Statutes.

PRELIMINARY STATEMENT

This matter began when Petitioner conducted a routine inspection of the Respondent's facility and issued a written citation for alleged violations. Subsequently, Petitioner issued an Administrative Complaint, dated April 12, 1995, alleging certain violations of the Petitioner's child care standards. Respondent denied the allegations and requested a formal administrative hearing. This proceeding followed and was set for hearing in Orlando. This matter was

transferred to the undersigned hearing officer and the parties consented to have the hearing conducted by telephone conference call.

At hearing, one joint exhibit was admitted in evidence. Petitioner presented two evidentiary exhibits and the testimony of one witness. Respondent presented the testimony of one witnesses, Hugette Nelson, the former owner/director of the facility, and one evidentiary exhibit. Official Recognition was taken of Section 402.301-402.319, Florida Statutes and Chapter 10M-12, Florida Administrative Code. A transcript of the hearing has not been filed. Neither party submitted proposed findings of fact or conclusions of law as of the filing of this order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Funway Learning Center is a child care facility licensed by Petitioner for operation at 735 North Thornton Avenue, Orlando, Florida.

   
   

2. The most recent license for operation of the center was issued on June 20, 1994, License Number 694-23, and was valid for all relevant times herein.

   
   

3. During all relevant times, Hugette Nelson was the owner/director of the facility.

   
   

4. On or about February 21, 1995, Lydia Morris began work at Respondent's facility as a member of the child care personnel staff. As of that date the new employee had not completed a good moral character affidavit, nor submitted a fingerprint card or information sufficient to conduct a local, state or federal criminal records check.

   
   

5. On February 21, 1995, personnel from Petitioner conducted a routine inspection of Respondent's facility. Several minor discrepancies were noted which have since been corrected. Staff was requested to produce the employee personnel records for two staff members on duty at the time of the inspection. Staff was either unable or unwilling to do so. The owner/director was not present at the facility at the time of the inspection.

   
   

6. On February 21, 1995, Nelson was requested to make an appointment, prior to March 6, 1995, with Petitioner and bring with her the personnel file with the requested forms and information relating to the recent hire.

   
   

7. On March 7, 1995, Nelson came to the Petitioner's office for a scheduled visit with the personnel file for Morris but was unable to produce a good moral character affidavit or finger print card for Morris.

   
   

8. Morris never completed the required information while employed by Respondent. Morris worked only three days at Respondent's facility, thereafter she called in sick and never returned to work. Her last day on the job was February 24, 1995. Nelson officially terminated her on March 13, 1995.

   
   

9. Nelson has since closed the facility.

   
   

10. Respondent has received one prior citation in the past for a similar violation.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Child care facilities and their personnel are licensed and regulated by the Department of Health and Rehabilitative Services, pursuant to the provisions of Sections 402.301-402.319, Florida Statutes.

    
    

13. Section 402.301, Florida Statutes, provides in pertinent part:

    
    

    Child care facilities; legislative intent and declaration of purpose and policy.

    -It is the legislative intent to protect the health, safety, and well-being of the children of the state and to promote their emotional and intellectual development and care. Toward that end:

    * * *

    (2) It is the intent of the Legislature that all owners, operators, and child care personnel shall be of good moral character.

14. Section 402.302, Florida Statutes, provides in pertinent part: Definitions. - As used in ss. 402.301-402.319:

    * * *

    1. "Operator" means any onsite person ultimately responsible for the overall operation of a child care facility, whether or not he is the owner or administrator of such facility.

    2. "Owner" means the person who is licensed to operate the child care facility.

    3. "Child care personnel" means all owners, operators, employees, and volunteers working in a child care facility. . .

       * * *

       1. "Screening" means the act of assessing the background of child care personnel and includes, [employment history and criminal records checks]. Employment history checks and checks of references shall be assessed by the owner or operator for each employee and by the department for all owners and operators.

       2. "Substantial compliance" means that level of adherence which is sufficient to safeguard the health, safety, and well-being of all children under care. Substantial compliance is greater than minimal adherence but not to the level of

       absolute adherence. Where a violation or variation is identified to the type which impacts, or can be reasonably expected within 90 days to impact, the health safety, or well-being of a child, there is no substantial compliance.

15. Section 402.305, Florida Statutes, provides in pertinent part:

    
    

    Licensing standards; child care facilities.

    * * *

    1. PERSONNEL.- minimum standards for child

       care personnel shall include minimum requirements as to:

       1. Good moral character based on screening.

16. Section 402.3055, Florida Statutes, provides in pertinent part: Submission and processing of fingerprints;

    criminal checks.-

    * * *

    1. REQUIREMENTS FOR CHILD CARE PERSONNEL.-

    (a) Child care personnel of a facility shall, within 5 working days after starting to work at a facility, submit to the facility for

    submission, within 48 hours, to the department,

    . . . a complete set of fingerprints [in order to conduct a criminal records check] . . .

    Failure to supply missing information . . . shall result in automatic disqualification.

    * * *

    1. The child care facility employer shall require that the application for a child care personnel position contain a question that specifically asks the applicant if [she has been disciplined in the past while employed at the child care facility]

    2. Under penalty of perjury, such personnel shall attest to compliance with the minimum standards for good moral character . . .

    1. EXCLUSION FROM OWNING, OPERATING, OR BEING EMPLOYED BY A CHILD CARE FACILITY OR OTHER CHILD CARE PROGRAM; HEARINGS PROVIDED.-

       1. The department . . . shall deny, suspend, or revoke a license or pursue other remedies . . . for failure to comply with this section.

    
    

17. The Petitioner has adopted rules implementing the statutory directive relating to child care standards. Chapter 10M-12, Florida Administrative Code, reads in pertinent part:

    
    

    Rule 10M-12.002 Personnel.

    (1) Background and Screening Requirements:

    (a) "Child care personnel" means all owners, operators, employees, and volunteers working in a child care facility. All child care personnel must be of good moral character in order to work in a child care facility as determined through screening and background checks.

    * * *

    1. For all child care personnel, the owner or designee shall obtain the screening and background checks, . . .

       2. The screening and background checks for child care personnel which require an abuse registry

       clearance, local, state and federal criminal records checks requiring fingerprinting must be initiated, documented and maintained in the personnel record

       . . . within 30 days from the employment date for new personnel . . .

    2. New child care personnel must attest through a notarized affidavit . . . as a part of the application for employment that they are of good moral character . . .

    Rule 10M-12.008 Admission and Record Keeping.

    * * *

    (3) Personnel Records: Personnel records shall be maintained for the owner or operator, each

    employee of the facility . . . These shall include:

    1. Name, address, and telephone numbers.

    2. Documentation of health requirements, if applicable.

    3. Person to contact in an emergency.

    4. Position and date of employment.

    5. Statement that the employee has completed the training in the identification and reporting of child abuse and neglect.

    6. Appropriate documentation that the person has been screened in accordance with Section 402.3055, F.S.

    7. Training information.

    
    

18. Rule 10M-12.011, Florida Administrative Code, Enforcement, authorizes the Petitioner to suspend or revoke a license where violations are serious in nature. Class III violations are the least serious in nature and shall be penalized by a fine not less than $25 nor more than $50 a day for each violation. The fine will be levied for every day that the violation occurred, until corrected.

    
    

19. This proceeding involves disciplinary action against Respondent's child care facility's license. Therefore the burden of proof to establish the facts upon which Petitioner seeks to discipline Respondent's license is on the Petitioner. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). The charge in the Administrative Complaint must be proved by the Petitioner through the introduction of clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. Petitioner must show by clear and convincing evidence that the Respondent, child care facility, by the acts or omissions of the owner/director failed to produce the personnel file of a new employee with a Good Moral Character form and screening information required by Rule 12M-12.002, Florida Administrative Code, within the time provided by the rule or statute. Petitioner has not met this statutory requirement.

    
    

21. The uncontroverted evidence indicated that Lydia Morris was a new hire by Respondent who started work on February 21, 1995, the date of the Petitioner's inspection. On the date of the inspection her personnel file was not produced. It is not disputed that she had not submitted the required documents necessary to complete a screening and background check to Nelson. Apparently, she never did submit the documents before failing to return to work and effectively quitting on February 25, 1995.

22. Section 402.3055, Florida Statutes, indicates that a new hire at a child care facility has 5 working days after starting work at a facility to submit to the facility the affidavit and fingerprints required by statute and rule. This is a duty imposed on the new employee, not the facility. Once the documents are submitted, the facility has 48 hours to transmit them to the Petitioner so that the screening process can begin.

    
    

23. In the Administrative Complaint, the Petitioner alleges that Respondent failed to produce the documents as required. In other words, Respondent was not in substantial compliance with the rules and statutes. However, unless it can be shown that Respondent ignored the rule, by not having the proper forms available, or advised Morris not to comply with the rule, a duty to submit the required documents by Respondent never arouse since five days did not elapse between the date Morris started work and the last day that she came to work. Therefore, no violation of the so-called "seven day rule" has occurred by the Respondent. Respondent can not be held accountable for Morris' failure to complete the forms, so long as she was not permitted to continue to work at the facility beyond the five days she had to submit the forms.

RECOMMENDATION

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

Complaint filed against Respondent.

DONE AND ENTERED this 27th day of October, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 27th day of October, 1995.

COPIES FURNISHED:

James A. Sawyer, Jr., Esq. Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

Hugette Nelson

2320 Northwest 108 Street

Miami, Florida 33168

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 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: 95-003043

Orders for Case No: 95-003043