STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-1670

)

CHILDREN'S SMALL WORLD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly designated Administrative Law Judge of the Division of Administrative Hearings in Jacksonville, Florida, on September 11, 1997. The appearances are as follows:

APPEARANCES

For Petitioner: Roger L. D. Williams, Esquire

Post Office Box 2417 Jacksonville, Florida 32231-0083

For Respondent: Verl Moser, Pro Se

6027 Kennerly Road

Jacksonville, Florida 32216 STATEMENT OF THE ISSUE

The issued to be resolved in this proceeding concerns whether the Respondent committed the violations of Rule Chapter 10M-12, Florida Administrative Code, alleged in the Administrative Complaint, by failing to have all of its staff

tested for tuberculosis and failing to insure that all children

attending the day-care facility had appropriate health examinations and immunizations.

PRELIMINARY STATEMENT

The Respondent is a licensed child day-care facility licensed by the Department of Children and Family Services (Department). That agency filed an Administrative Complaint against the Respondent on February 18, 1997, alleging in essence, that the facility was in violation of certain provisions of Rule Chapter 10M-12, Florida Administrative Code, so called "Class III violations" by failing to have all its employed staff tested for tuberculosis and by failing to insure that all of the children attending the facility had had appropriate physical examinations and immunizations. The Department seeks to impose a fine of

$300.00 for such alleged violations. The Respondent timely sought an administrative proceeding to contest the purported violations, pursuant to Section 120.57, Florida Statutes. In due course the dispute was transferred to the Division of Administrative Hearings and assigned to the undersigned Administrative Law Judge.

The cause came on for hearing as noticed. At the hearing the agency called two (2) witnesses and had admitted into evidence its composite Exhibit 1. The Respondent called one (1) witness. Official recognition was taken of rules 10M- 12.008(1)(a)(b), 10M-12.002(3)(a), and 10M-12.0011(7), Florida

Administrative Code. Subsequent to the hearing, the Petitioner agency filed a Proposed Recommended Order.

FINDINGS OF FACT

1. Children's Small World is a licensed day-care facility licensed by the Department of Children and Family Services. The Department of Children and Family Services is an agency of the State of Florida charged with licensure of and regulation of the operations of licensed day-care facilities, such as that operated by the Respondent.

2. In January 1997, Children's Small World was scheduled for re-licensure. Re-licensure has an attendant requirement that an inspection of the facility must be conducted. On January 23, 1997, the health inspection for re-licensure of the Respondent's facility was conducted by Maurice Murray and Christine Bailey of the Health Department, who then had responsibility for conducting such health inspections.

3. Upon inspection of the facility on January 23, 1997, it was discovered that the facility was out of compliance in the area of personnel, admissions and record keeping. In essence, Ms. Bailey discovered that seven of the staff persons in the facility had not been tested for tuberculosis. Such staff members can only work in the facility if they have been tested for tuberculosis and obtained negative test results. The facility was accordingly given a due date of February 2, 1997, to bring all workers into compliance in this respect.

4. It was also discovered upon this inspection that there were forty-six out of the sixty-seven children present who were not in compliance with the below-referenced rules because they had not had their health examinations or immunizations. The facility was directed to have the children receive their immunization shots within ten (10) days and for medical examinations to be scheduled or conducted by February 2, 1997.

5. On February 5, 1997, a follow-up inspection of the facility was conducted. It was then discovered that two of the staff previously cited had not yet received a tuberculosis test. Ms. Bailey also discovered upon this re-inspection that seventeen of the children who had previously been out of compliance for immunization shots or physical examinations were present in the facility on that date, February 5, 1997.

6. Ms. Durham, who operates the facility, testified that the reason her records do not indicate that the children had had immunizations or physical examinations was because she would not accept a verbal assurance from parents regarding immunizations and physical examinations, because she did not want to falsely enter such information in the record if it later proved not to be true. She maintained that eleven (11) children had not yet had immunization records completed upon re-inspection, but that all of the children had had their appointments scheduled for immunizations and physical examinations by the time of the

   re-inspection on February 5, 1997. All immunizations and physical examinations were completed by February 10, 1997.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. The Petitioner agency is alleging that the Respondent should be subjected to an administrative fine of $300.00 for alleged "Class III violations" of Rule Chapter 10M-12, Florida Administrative Code.

9. Rule 10M-12.002(3)(a), Florida Administrative Code, states:

   All child care personnel must be appropriately tested and found negative of tuberculosis in a communicable stage within ten days of employment. Documentation of the TB results must be kept on file at the child care facility.

   
   

10. Rule 10M-12.008(1), Florida Administrative Code, concerning childrens' health requirements provides:

    1. Within thirty days of enrollment each child must have on file a written Certificate of Health examination . . .Within thirty calendar days of enrollment each child must have on file a Florida Certificate of Immunization.

       
       

11. Rule 10M-13.011(7), Florida Administrative Code provides, concerning Class III violations:

    . . .are the least serious in nature and pose no threat to the health, safety, and well-

    being of a child and include those conditions or occurrences related to the operation and maintenance of the facility other than

    Class I or Class II violations. Class III violations shall be penalized by a fine not less than $25.00 no more than $50.00 per day for each violation.

    
    

12. The relevant Department personnel notified the Respondent facility of the health requirements and related record keeping regarding its workers and of the requirement for physical examinations, immunizations, and maintenance of the related health records for the minor children attending the facility.

    The facility was so notified by Ms. Bailey upon her inspection of January 23, 1997. She notified the facility that by February 2, 1997, the tuberculosis tests and the immunizations for the minor children should be completed. She notified the facility that by that date the physical examinations should be either complete or scheduled. Upon the February 5, 1997 re-inspection, while all of the physical examination or immunization appointments had been made, not all of the immunizations had been carried out which were required to be carried out or accomplished by February 2, 1997. Moreover, two of the staff members did not have tuberculosis tests with negative results accomplished and on file in the records of the facility. Thus, although a significant effort to comply with the above-referenced rules had been made, compliance had not yet been completed.

13. The facility was thus in violation of Rule

    
    

    10M-12.002(3)(a), Florida Administrative Code, in that all of its

    workers had not yet had the necessary tuberculosis tests with negative results on file in the records of the facility.

    Moreover, the facility violated Rule 10M-12.008, in that not all of the children not in compliance on January 23, 1997, had, upon the February 5, 1997 re-inspection, been given physical examinations and immunizations, (although all required physical examinations and immunizations had been scheduled and were indeed accomplished by February 10, 1997). Thus, on February 5, 1997, upon the re-inspection, two of the workers previously cited and seventeen of the children were still out of compliance, although the facility was making good faith efforts to comply as quickly as possible.

14. The minimum fine to be imposed by the agency is $25.00 per violation per day. The failure to have the facility staff tested for tuberculosis and to have the test results on file can be considered to be one violation and the failure to maintain the medical records on the children showing proof of immunizations is a second violation. Thus at a minimum of $25.00 per day per violation, the facility could be fined a maximum of $50.00 per day for at least a period of ten (10) days from February 2, 1997. In fact the violations extended longer than that because the curing of the violations was not finally accomplished until February 10, 1997. Thus the facility could have been fined as much as $850.00, based upon the minimum $25.00 per day per violation. Thus, under the circumstances, and giving due

consideration for the facility's good faith effort to comply, which it did in fairly short order, even if not by the Department's deadline, the administrative fine of $300.00, is reasonable.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED:

That a Final Order be entered by the Department of Children and Family Services imposing an administrative fine against the above named Respondent in the amount of $300.00.

DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998.

COPIES FURNISHED:

Roger L. D. Williams, Esquire Post Office Box 2417 Jacksonville, Florida 32231

Verl Moser, Pro Se 6027 Kennerly Road

Jacksonville, Florida 32216

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, Esquire Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 97-001670

Orders for Case No: 97-001670