STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 01-1812

)

BOBBIE POTTER, )

Owner/Operator MS. BOBBBIE'S ) FLUTTERBY CHILD CARE CENTER, )

)

Respondent. )

________________________________ )

RECOMMENDED ORDER

Notice was provided and on July 24, 2001, a formal hearing was held in this case at the Department of Transportation District Office, 1901 South Marion Street, Lake City, Florida. Authority for conducting the hearing is set forth in Sections 120.569(1) and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Lucy Goddard, Esquire

Department of Children and Family Services

Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390

For Respondent: Stephen M. Witt, Esquire

Post Office Box 2064

Lake City, Florida 32056-2064

STATEMENT OF THE ISSUE

Should Petitioner levy an administrative fine in the amount of $500.00 against Respondent, pursuant to an administrative complaint drawn in accordance with Sections 402.305(12) and 402.310(1)(a), Florida Statutes?

PRELIMINARY STATEMENT

On March 26, 2001, Petitioner certified service of the administrative complaint on Respondent. On April 20, 2001, Petitioner received correspondence from Respondent contesting the charges in the administrative complaint. Subsequently, the case was received by the Division of Administrative Hearings on May 9, 2001, requesting the assignment of an Administrative Law Judge to conduct a hearing to resolve disputed issues of fact. The case was initially assigned to Barbara J. Staros, Administrative Law Judge. The case was reassigned for hearing.

Petitioner called S.S., mother of J.S., Karen Page, and Sandy Looney as witnesses. Petitioner's Exhibit numbered 1 was admitted, the deposition of Linda Cox Ebbeling, A.R.N.P., with attachments. Those attachments included a series of photographs which were filed later. In addition, Petitioner's Composite Exhibit numbered 2A-2G and Exhibit numbered 3 were admitted. Respondent testified in her own behalf. Respondent presented the testimony of Sue Misinec and Lilly Beckelheimer.

No transcript was prepared. The parties filed proposed recommended orders which have been considered in preparing this recommended order.

FINDINGS OF FACT

1. Bobbie Potter owns and operates Ms. Bobbie's Flutterby Child Care Center (the Center), in Lake City, Florida. The Center is a child care facility licensed by Petitioner in accordance with Chapter 402, Florida Statutes.

2. During late January and early February 2001, S.S. left her child, J.S., to be cared for by Respondent and others in her employ at the Center. At the time J.S. was approximately two years and two months old and weighed approximately 40 lbs. or 15.2 kilograms. He was born on December 21, 1998.

3. J.S. attended day care at the Center on January 29 through 31 and February 5 through 7, 2001.

4. On his first day at the Center J.S. cried and was resistant to the placement but became more acclimated. During that week J.S. did not try to escape the premises. By contrast, during the second week J.S. threw tantrums and tried to leave the Center. To thwart his attempts, a bench was placed to bolster the interior gate designed to control the movement of children within the facility. When confronted with the gate standing alone J.S. had tried to get through the

   gate. When he was told "No" to stop his progress, J.S. would throw himself on the floor. During tantrums J.S. would bang his head on the floor and the wall. Respondent had to put her hand up to stop him from banging his head. In the second week when J.S. was more vigorously reacting to his placement, he would be carried around by the Center staff to try to calm him down when he had tantrums.

5. The other staff members who were involved with care provided J.S. at times relevant were Sue Misinec and Lilly Beckelheimer.

6. Caregivers at the Center had to constantly remove

   
   

   J.S. away from the door to the outside, as well as away from the gates on the inside to keep him from fleeing the building. They were especially concerned when other parents came into the facility that J.S. might take advantage of that situation and leave. When J.S. would attempt his flight, he had to be picked up bodily and brought back. If J.S. had gotten outside he would have had access to a roadway.

7. One other attempt to control J.S.'s movement within the Center was to use the lower half of a two-piece door to prohibit his movement within the Center but he climbed over the lower half of the door separating rooms.

8. At times J.S. hit or kicked other children at the Center and kicked and hit caregivers.

9. Eventually staff at the Center determined to place

   
   

   J.S. in a highchair when he threw tantrums as a means to try and calm him. This involved one teacher picking him up and placing him in the chair. Once in the chair, one person would hold him secure in the chair while another person snapped the safety strap and placed and locked the tray on the chair.

   This effectively restricted J.S.'s movement.

   
   

10. J.S. did not like being placed in the chair. He would scream, kick, and claw when put in the chair. Ordinarily, J.S. would be left in the chair from two to five minutes until he calmed down, although on one occasion he was left in the chair for 15 minutes. While in the chair J.S. would be upset about his predicament.

11. The use of the highchair as a means to confine J.S. took place on February 6 and 7, 2001. On Wednesday,

    February 7, 2001, the staff placed J.S. in the highchair against his will more than once but no more than three times. On one occasion on that date when J.S. attempted to follow Respondent out the door and the other employees were busy with other duties, Respondent said, "If he gets out the door you are not going to catch him," in comments offered to the staff members. As a consequence J.S. was placed in the highchair.

12. J.S.'s placement in the highchair as a means to control him did not interfere with his toileting. He was not

    being "potty" trained at the time. His placement in the highchair did not interfere with his breakfast and lunch. His placement in the highchair for meals was with his cooperation.

13. Sometime on Wednesday, February 7, 2001, when J.S. was being forcibly placed and detained in the highchair, he received bruises on his left side, right side, hip and back as evidenced in photos taken by S.S. on February 7, 2001. See Petitioner's Exhibit numbered 2A through 2G.

14. When seen on February 13, 2001, by the University of Florida Child Protection Team, the bruises were still in evidence. On that date the bruise on the left side of J.S.'s abdomen, about two inches from his umbilicus, was one centimeter to one and one-half centimeters in length. The bruise on the right side of his abdomen just above the hip area was small and faint. It was about one and one-half centimeters in length. The bruises appeared yellow in color indicating that they were at least a couple of days old, according to Linda Cox Ebbeling, A.R.N.P., who examined J.S. on that date. Her opinion on the age of the bruises is credited.

15. Photos taken at the time Ms. Ebbeling examined J.S. are attached as part of Petitioner's Exhibit numbered 1. Notwithstanding the presence of the bruises at the time

    Ms. Ebbeling examined J.S., the abdomen appeared non-tender,

    with no hepatosplenomegaly. Ms. Ebbeling did not observe any bruising on J.S.'s back as had been detected by S.S. on February 7, 2001.

16. The confinement of J.S. to the highchair against his will is discipline that was frightening to the child. The discipline was severe and humiliating. It was a form of physical punishment.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569(1) and 120.57(1), Florida Statutes.

18. Petitioner seeks to impose an administrative fine of

    
    

    $500.00 because of Respondent and/or members of her staff's treatment of J.S. when providing care at the Center.

19. Petitioner bears the burden of proving the grounds for imposing the administrative fine.

20. As authority, Petitioner cites to Section 402.305(12), Florida Statutes, pertaining to child discipline at the Center wherein it states:

    (12) CHILD DISCIPLINE.--

    
    

    1. Minimum standards for child discipline practices shall ensure that age- appropriate, constructive disciplinary practices are used for children in care. Such standards shall include at least the following requirements:

       
       

       1. Children shall not be subjected to discipline which is severe, humiliating, or frightening.

          
          

       2. Discipline shall not be associated with food, rest, or toileting.

          
          

       3. Spanking or any other form of physical punishment is prohibited.

       
       

    2. Prior to admission of a child to a child care facility, the facility shall notify the parents in writing of the disciplinary practices used by the facility.

    
    

21. Further, reference in the administrative complaint is made to Section 402.310(1)(a), Florida Statutes, which states:

    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.

    
    

22. Respondent and those in her employ have violated Section 402.305(12), Florida Statutes, by subjecting J.S. to discipline that was severe, humiliating, and frightening, and constituted a form of physical punishment. The nature of the discipline had the potential to cause serious harm. The administrative complaint refers to alleged mistreatment of

J.S. that occurred on either February 6 or 7, 2001. It is

taken to mean action that took place on February 7, 2001, in that the administrative complaint speaks in terms of the bruises on the abdomen and lower back that occurred on February 7, 2001. For the violation that took place on February 7, 2001, Petitioner is entitled to impose an administrative fine in the amount of $500.00, as requested.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered imposing a $500.00 administrative fine against Bobbie Potter, owner/operator of Ms. Bobbie's Flutterby Child Care Center.

DONE AND ENTERED this 20th day of August, 2001, in Tallahassee, Leon County, Florida.

___________________________________ CHARLES C. ADAMS

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2001.

COPIES FURNISHED:

Lucy Goddard, Esquire Department of Children

and Family Services

Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390

Stephen M. Witt, Esquire Post Office Box 2064

Lake City, Florida 32056

Virginia A. Daire, Agency Clerk Department of Children

and Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel 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: 01-001812

Orders for Case No: 01-001812