STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

ASBURY CHILD CARE CENTER,

Respondent.

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) Case No. 01-4219

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RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled cause on July 17, 2002, before Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Orange Park, Florida.

APPEARANCES

For Petitioner: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

For Respondent: Suzanne C. Quinonez, Esquire

Post Office Box 130 Middleburg, Florida 32050

STATEMENT OF THE ISSUE

Whether Respondent violated Section 65C-22.001(5)(a), Florida Administrative Code, as set forth in the Administrative Complaint, and if so whether a civil penalty in the amount of one hundred Dollars ($100.00) should be imposed.

PRELIMINARY STATEMENT

Respondent is a day care center, operating in Green Cove Springs, Florida, and licensed by Petitioner.

In the Administrative Complaint dated October 2, 2001, Petitioner alleged that Respondent violated Rule 65D-22.001(5)(a), Florida Administrative Code, by failing to provide direct supervision of children during a twenty-five minute.

Respondent filed a Request for Hearing disputing the allegations set forth in the Administrative Hearing. The case was referred to the Division of Administrative Hearings, which noticed and conducted a formal hearing pursuant to Chapter 120, Florida Statutes; and Chapter 28-106, Parts I and II, Florida Administrative Code.

Petitioner presented testimony of three witnesses: Susan Kipen, Department of Children and Family Services, Child Care Licensure/Family Services Counselor; Melissa Smith, the mother of Keller Smith, and Janet McMahan, Department of Children and Family Services, Family Counsel Supervisor.

Respondent presented testimony of two witnesses: David Russell, the owner and operator of Asbury Child Care Center, Respondent; and Dena Turley, Asbury Child Care Center employee and eyewitness.

Petitioner submitted exhibits including a video tape of August 10, 2001, the date of the incident; a June 14, 2000,

Inspection Checklist; a July 6, 2000, letter from the Department of Children and Family Services warning Respondent that Petitioner considered the infants and toddlers to be in the same room; a September 1, 2000, Inspection Checklist and measurement of the two separate areas within the same room dividing the infants and toddlers; a June 22, 2001, Inspection Checklist; the August 2000 and August 2001 cover letters from Petitioner stating that Respondent met the minimum requirement to be licensed, with the Certificate of License attached to the cover letters; pictures of the type of high chair that Keller Smith was placed in before he fell out; and the August 15, 2001, Complaint Report filed by Petitioner regarding the incident.

Respondent submitted one exhibit, a timeline for the video. Respondent also submitted the pertinent administrative codes and both sides submitted proposed findings which were read and considered.

FINDINGS OF FACT

1. Respondent is a duly-licensed day care facility, licensed by Petitioner, in accordance with Sections 402.319, Florida Statutes, and has been in operation for eight years. Respondent has never been cited for any prior violation.

2. Respondent has elected to provide child care for both infants and toddlers as a convenience for its patrons.

3. Petitioner's rules provide that toddlers must be physically separated form infants.

4. Respondent has accomplished this physical separation by taking a portion of the room in which it keeps toddlers, and creating a separate area for infants using low bookcases to physically separate the toddlers form the infants.

5. This has been the subject of debate and controversy between Petitioner and Respondent over time; however, it was concluded that this met the conditions established in the rule regarding separation and the two areas met size limitations.

6. It was determined that Respondent would have to meet the staffing requirements by maintaining a staff ration of 1:4 in the infant area and a staff ratio of 1:6 in the toddler area.

7. On August 10, 2001, an incident occurred which resulted in Petitioner's staff reviewing video footage of activities in the toddler/infant room. The instant complaint arises from those observations.

8. At formal hearing, the video was introduced and watched by the trier of fact. This video shows most of the toddler/infant room as seen from above and behind the infant section. The video covers a period of time of approximately twenty minutes around 1:35 p.m.1

9. In summary, the video shows the person in charge of toddlers leave the toddlers/infant room leaving the infant care

   supervisor holding an infant in the infant area. The infant care worker steps over the barrier between the two areas of the room, and changes the infant at a changing station located in the toddler area of the room. The toddler supervisor returns and the infant supervisor leaves to go to the bathroom returning several minutes later.

10. All of these events occurred during the period designated on the facility's schedule as "nap time."

11. During the period in question, not all the toddlers or the infants were asleep, and one of the toddlers was in a high chair eating a snack the entire time.

12. Petitioner alleges, based upon the foregoing, a violation of Rule 65C-22.001(5)(a), Florida Administrative Code.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

14. Petitioner alleges violation of Rule 65C-22.001(5)(a), Florida Administrative Code, which states:

    Direct supervision means watching and directing children's activities within the same room or designated outdoor play area and responding to each child's need. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times.

    
    

15. Rule 65C-22.001(5)(b), Florida Administrative Code, provides:

    During nap time, supervision means sufficient staff in close proximity, within sight and hearing of all children. All other staff to meet the required staff-to-children shall be within the same building on the same floor and be readily accessible and available to be summoned to ensure the safety of the children.

    
    

16. The alleged violations occurred during "nap time," according to the schedule.

17. "Nap time" is not defined by rule for purposes of Rule 65C-22.001(5)(a) and (b), Florida Administrative Code. There was testimony received that the District has an unwritten policy that all children must be asleep for it to be nap time. There was no evidence that Respondent was aware of this non-rule policy.

18. There are several alleged situations which are alleged to violate the Rule. They will be discussed separately.

19. The infant supervisor left the infants alone when she stepped out of the infant enclosure to change the infant's diaper. The supervision was within sight and hearing of the infants. Under the "nap time" provision, this was not a violation.

20. The toddler supervisor left the toddler/infant room.

    
    

    Again, the infant supervisor was within sight and hearing of the toddler during "nap time."

21. The infant supervisor left the toddler/infant room. The toddler supervisor was within sight and hearing of the infants.

22. Nap time is not defined by the Rule. Respondent cannot be fined for failing to comply with a requirement that has not

    been adopted as a rule for the reasons related to notice to the public.

23. Petitioner seemed to argue that if Respondent was not guilty of violation of Rule 65C-22.001(5), Florida Administrative Code, Respondent was guilty of violating Rule 65C-22.001(4), Florida Administrative Code. However, Petitioner has not alleged violation of that provision. Further, the provision of 65C- 22.001(5)(b), Florida Administrative Code, regarding "nap time," clearly impacts the requirements of Rule

    65C-22.001(4), Florida Administrative Code.

    
    

24. In summary, a facility may operate with a reduced staff during that period of the day designated as "nap time" on its schedule. Obviously, an operational definition of "nap time" cannot extend the hours of "nap time" beyond what is practically required for children of tender years, i.e., one and a half to two hours.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Administrative Complaint should be dismissed.

DONE AND ENTERED this 12th day of September, 2002, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 12th day of September, 2002.

ENDNOTE

1/ Although the video time says 12:35 p.m., all parties agree the time was 1:35 p.m., and the discrepancy arises from failing to adjust the clock on the video recorder when the time changed.

COPIES FURNISHED:

Suzanne C. Quinonez, Esquire Post Office Box 130 Middleburg, Florida 32050

Robin Whipple-Hunter, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Paul F. Flounlacker, Jr., Agency Clerk Department of Children

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

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children

and Family Services Building 2, Room 204B 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: 01-004219

Orders for Case No: 01-004219