STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-4545

)

PITTER PATTER DAY CARE, )

a/k/a GAIL RIVERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 5, 1998, by video conference between Tallahassee, Florida, and Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roger L. D. Williams, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32217

For Respondent: Wilene Dennis Dozier, Esquire

200 West Forsythe Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

May the Respondent's license to operate a day care facility be revoked or otherwise disciplined, pursuant to Section 403.310, Florida Statutes?

PRELIMINARY STATEMENT

The Department of Children and Family Services issued a "Revocation of License" against Gail Rivers, d/b/a Pitter Patter Day Care dated September 12, 1997.

Ms. Rivers petitioned for formal hearing.

Formal hearing was duly noticed and went forward on January 5, 1998, by video conference. All persons with the exception of the undersigned were present in Jacksonville, Florida. The undersigned was present in Tallahassee, Florida.

At formal hearing, the Agency presented the oral testimony of Jean Johnson, Angela Baird, Takenya Fleming, Joyce Bates, and Tawnetta Porter, and had six exhibits admitted in evidence.

Respondent presented the oral testimony of Laquita Gissentanner and Gail Rivers and had one exhibit admitted in evidence, provided it was mailed to the undersigned within five days of hearing. To date, this exhibit has not been filed with the Division, and therefore, it has not been considered.

A transcript was filed on January 16, 1998. Respondent's proposed order, filed January 15, 1998, and the Agency's proposed order filed January 23, 1998, have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material, Respondent Gail Rivers, d/b/a

   Pitter Patter Day Care was licensed by the Agency as a Day Care facility.

2. By a June 19, 1997, letter, Respondent was informed that one of her employees, Laquita Gissentanner, was disqualified from continued employment in a position as child care personnel in a child care facility, as defined in Section 402.302(8), Florida Statutes (1995), and that to continue to employ

   Ms. Gissentanner in direct contact with children would result in action against Respondent's license.

3. Laquita Gissentanner was disqualified through the Agency's screening process on the basis of her history of a misdemeanor (simple battery) and felony (robbery with a deadly weapon) on January 11, 1990.

4. The Agency directly notified Ms. Gissentanner of her disqualification by another June 19, 1997, letter.

   Ms. Gissentanner then began an effort to be granted an exemption from disqualification to work in a position of special trust, but apparently she never contested the accuracy of her criminal record.1 By all accounts, Ms. Gissentanner had, by August 21, 1997, been turned down for an exemption and was pursuing an evidentiary hearing for exemption pursuant to Chapter 120, Florida Statutes.

5. Angela Baird became employed by Pitter Patter Day Care in September 1996 and worked there in the "One-Year Olds' Classroom" continuously until she left August 11, 1997.

6. Keyonte Mobley, male, was born February 11, 1997, and had begun attending Pitter Patter Day Care on April 14, 1997.

7. Keyonte was normally cared for in Pitter Patter's "Baby Room." It is undisputed that Laquita Gissentanner, as a Pitter Patter employee, cared for Keyonte in the Baby Room at least

   
   

   until June 19, 1997. The Baby Room is reserved for children under one year of age.

8. On the morning of August 21, 1997, Keyonte's aunt, Takenya Fleming, delivered Keyonte to Pitter Patter Day Care at approximately 7:00 a.m. At that time, Ms. Fleming observed no employees present except the owner-manager, Gail Rivers, who was then in charge of the Baby Room.

9. According to Ms. Baird, Ms. Fleming, and Keyonte's mother, Tawnetta Porter, Ms. Gissentanner had worked regularly or at least frequently on the Pitter Patter premises caring for children between the June 19, 1997, notification, and August 21, 1997. Ms. Porter observed that Ms. Gissentanner had received Keyonte every morning up until July 21, 1997. Ms. Baird stated that Ms. Gissentanner worked in the Baby Room daily until August 11, 1997. Ms. Fleming stated Ms. Gissentanner was there at least daily the whole of the last week before August 21, 1997. In most instances, the aunt or mother delivered Keyonte into

   Ms. Gissentanner's care each morning they saw her.

10. In making the foregoing finding of fact, I have specifically discounted as not credible Ms. Gissentanner's testimony that she was on Pitter Patter's premises after June 19, 1997, only at irregular times to deliver or pick up her own

    three-year-old child who was a Pitter Patter client or on August 1, 1997, to get the papers described infra.

11. From the two immediately foregoing findings of fact, I infer, over Ms. Rivers' direct denial, that she knew or should have known that Ms. Gissentanner had direct contact with children on Pitter Patter's premises during this period. Accordingly, I do not find credible Ms. Rivers' and Ms. Gissentanner's testimony that Ms. Rivers terminated Ms. Gissentanner's employment on

    June 19, 1997.

    
    

12. On August 21, 1997, Ms. Gissentanner telephoned Ms. Rivers to say she was coming to Pitter Patter Day Care to pick up some papers the two women believed were necessary to

    obtaining a Section 120.57(1), Florida Statutes, formal hearing for an exemption for Ms. Gissentanner.

13. Ms. Rivers then discovered she did not have some other papers she personally needed, and she left the Baby Room with three babies unattended in it, including Keyonte. She also left the Day Care Facility entirely to return home to get the papers. When she did so, at approximately 8:00 a.m., two employees,

    Ms. Betty and Ms. Debra, were in the facility, but not in the Baby Room.

14. Ms. Rivers was gone from the facility for approximately one and a half hours, during most of which time three babies would have been left alone except for the two employees who had other duties with other children in other rooms and except for Ms. Gissentanner's arrival at about 8:30 a.m.

15. Laquita Gissentanner arrived at the facility around 8:30 a.m. and went straight to the Baby Room, where she found Keyonte whining and unattended. She telephoned Ms. Rivers and Keyonte's grandmother.

16. Keyonte was examined by his pediatrician and sent home without a specific diagnosis on August 21, 1997.

17. The following day, Keyonte's family determined, through a different physician, that Keyonte had suffered a recent spiral fracture of the left femur. This injury is indicative of abuse.

18. There is no conclusive evidence that Keyonte was injured at Pitter Patter Day Care, but Agency investigators concluded it was more probable that he was injured in day care than that he had been abused by his mother.

19. On a previous occasion, a toddler at Pitter Patter Day Care had been bitten by another child, but the Agency had not cited Ms. Rivers therefor, and this issue was not specifically raised in the charging document herein, the Revocation of License.

20. According to Angela Baird, during her employment between September 1996 and August 11, 1997, the facility had been frequently understaffed or had a greater children-to-staff ratio than Agency rules permitted, but she provided no definite numbers. Although an investigative report which shows that the ratios were out of compliance on August 27, 1997, was admitted in evidence, Ms. Rivers was never cited for those alleged ratio offenses, and they were not specifically raised in the charging document herein, the Revocation of License.

21. Ms. Baird had no first hand knowledge of the events of August 21, 1997, because she was not there at the time. The Agency never established the number of children or the ratio of children-to-staff present on the day in question.

    
    

    CONCLUSIONS OF LAW

    
    

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

23. The statutes clearly applicable are:

402.310 Disciplinary actions; hearings upon denial, suspension, or revocation of license; administrative fines.

(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.

1. 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 violation or to remedy complaints.

      
      

   3. Any previous violations of the licensee.

* * *

Section 402.3055 Child care personnel requirements.

(2) EXCLUSION FROM OWNING, OPERATING, OR BEING EMPLOYED BY A CHILD CARE FACILITY OR OTHER CHILD CARE PROGRAM; HEARINGS PROVIDED.

(g) Refusal on the part of an applicant or licensee to dismiss child care personnel who have been found to be in noncompliance with personnel standards of s. 402.305(1) [redesignated as s. 402.305(2)] shall result in automatic denial or revocation of the license in addition to any other remedies pursued by the department or local licensing agency. (Parenthetical information provided.)

* * *

Section 435.06 Exclusion from employment.

1. When an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from

   disqualification. The only basis for contesting the disqualification shall be proof of mistaken identity.

   
   

2. The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07.

1. Although the Agency's proposed order asserts that a violation also has occurred pursuant to Section 402.305(4), Florida Statutes, "failure to maintain appropriate staff to children ratio as established by Agency rule," such a violation cannot be found against the licensee in this instance because the Revocation of License/charging document herein did not charge the Respondent with any specific violations other than employing a disqualified person after appropriate notice and with failing to keep a disqualified person away from direct contact with children in Pitter Patter's care. There is non-specific language within the charging document of, "your previous failures to adhere to the rules and regulations regarding child day care facilities," but as used therein, it is merely part of the listing of factors to be considered in determining the penalty to be assessed, if discipline is found to be appropriate in the first place. If a violation is proven and discipline is to be meted out therefor, then certain factors are to be weighed in assigning permissible penalties which range from a fine to license revocation. See the factors listed in Sections 402.310(1)(b)1-3. Even if this nonspecific language in the charging document was intended to

   constitute a separate and different charge of violation, it is insufficient to give adequate notice of any such charge against the Respondent.

2. Finally, the Agency has not established as fact a violation of the ratio set out in Section 402.305(4)(a)1, one qualified child care personnel per every four children under one year of age for August 21, 1997, or any other day.

3. Clearly, Ms. Rivers leaving three babies unattended on August 21, 1997, in a room alone for what could have amounted to an hour-and-a-half was neglect, but neglect per se was not charged against this license, and therefore, it cannot form the basis of discipline in this proceeding.

4. What can, and should, form the basis of license discipline herein is the deliberate abandonment of her three infant clients by Ms. Rivers when she knew that the unauthorized Ms. Gissentanner would soon be on the premises and have access to children entrusted to Pitter Patter's Care. Moreover, the credible evidence shows that Ms. Gissentanner was permitted direct care of children for an extended period of time between

   
   

   June 19, 1997, and August 21, 1997. These are the violations proven.

5. The factor listed in Section 402.310(2)(b)1. weighs heavily in favor of revocation in this case. See also, Section 402.3055(2)(g), Florida Statutes. Herein, there is no evidence

of Section 402.310(2)(b)2. As to Section 402.310(2)(b)3., there are no previous proven "violations," but similar incidents (biting) and subsequent problems which could contribute to such incidents (out of ratio) have been considered in formulating a recommendation of revocation.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Children and Family Services enter a Final Order ratifying its Revocation of License upon the foregoing findings of fact and conclusions of law.

RECOMMENDED this 11th day of March, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 11th day of March, 1998.

ENDNOTE

1/ Ms. Gissentanner stated she did not deny her prior convictions. No statute numbers for these prior convictions have been provided. Unless the battery was upon a minor, which

Ms. Gissentanner denies it was, that offense alone would not be disqualifying, but the felony robbery would be. See Section 435.03(2)(h) and (r), Florida Statutes.

COPIES FURNISHED:

Roger Williams, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32231

Wilene D. Dozier, Esquire

200 West Forsyth Street Suite 800

Jacksonville, Florida 32202

Gregory Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, Esquire Department of Children and

Family Services 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: 97-004545

Orders for Case No: 97-004545