STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

BEST ACADEMY,

Respondent.

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) Case No. 04-1321

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RECOMMENDED ORDER

On June 10, 2004, an administrative hearing in this case was held in Lakeland, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Carla Meeks, pro se

Best Academy

650 West Main Street Bartow, Florida 33830

STATEMENT OF THE ISSUES

The issues in the case are whether the Respondent violated applicable rules of the Florida Administrative Code, and whether a fine of $150 is warranted for the alleged violations.

PRELIMINARY STATEMENT

By letter dated March 15, 2004, the Department of Children and Family Services (Petitioner) notified Best Academy (Respondent) that the Petitioner intended to impose a fine of

$150 for "repeat violations" of the Florida Administrative Code rules related to staffing ratios. The letter states that the allegations were based on inspections conducted on June 3, 2003, and December 3, 2003. The Respondent challenged the imposition of the fine and requested a hearing. The Petitioner forwarded the request for hearing to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of three witnesses and had Exhibits numbered 1 through 3 admitted into evidence. The Respondent presented the testimony of two witnesses and had Exhibits numbered 1 through 5 admitted into evidence. No transcript of the hearing was filed. Both parties filed proposed recommended orders that were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was a Florida-licensed Child Care Facility located at 650 West Main Street, Bartow, Florida.

2. On June 3, 2003, an employee representing the Petitioner conducted a routine inspection of the Respondent

   facility. Upon completion of the inspection, the Respondent received a copy of the inspection report.

3. At the time of the June 3 inspection, some children were moving back and forth without supervision between their assigned areas, which resulted in the facility being out of compliance with staff-to-child ratio requirements set forth in the Florida Administrative Code.

4. Applicable rules require that there be one staff member responsible for every four children between the ages of birth and one-year-old. At the time of the inspection, there were four children in the infant area, plus an additional two children beyond the age of one walking without supervision through the area. The older children were not directed to return to their assigned area by the one facility employee in the infant area. Because there was only one staff person in the infant's area, the facility was out of compliance with the required ratio.

5. Applicable rules require that there be one staff member responsible for every six children between the ages of one and two years old. At the time of the inspection there were six children in the one-year-old area, plus two additional children beyond the age of two who were playing in the area. The older children were not directed to return to their assigned area by the staff member present. Because there was only one staff

   person in the area, the facility was out of compliance with the required ratio.

6. On December 2, 2003, an employee representing the Petitioner conducted a routine inspection of the Respondent facility. Upon completion of the inspection, the Respondent received a copy of the inspection report.

7. At the time of the December 2 inspection, there were a total of six children in the infant area with one staff person present. Because there was only one staff person in the infant's area, the facility was out of compliance with the required ratio of one staff member responsible for every four children present.

8. The Petitioner regards the failure to comply with staffing ratio requirements as a serious child safety issue. Lack of compliance with required staffing ratios poses the potential for injury or other harm to children who are left without sufficient supervision.

9. By letter dated March 15, 2004, the Petitioner notified the Respondent of the proposed fine and set forth the following as the basis for the penalty:

   The Department proposes to fine your child care facility for violations of the Florida Administrative Code by authority of section 402.310, Florida Statutes. This letter is considered an administrative complaint for the purposes of section 120.60(5), Florida Statutes. . . .

   
   

   Inspections on June 3, 2003 and December 2, 2003 reflected repeat violations. On

   June 3, 2003, the infant and one year old groups were both over ratio. On December 2, 2003, during a routine child care inspection of your facility a Department licensing inspector found the infant room to be over ratio.

   
   

   This situation violates the Florida Administrative Code, Rule 65C-22.001(4), which requires a staff-to-children ratio as established in section 402.305(4), F.S.

   
   

   For these violations, the Department proposes to fine your facility the sum of

   $150.00.

   
   

10. The Respondent testified at the hearing. The Respondent asserted that at the time of the inspections, adequate staff were present in the facility, but for various reasons were not in the areas being observed by the inspectors, and that ratio requirements were unmet for minimal periods of time.

11. The Respondent also asserted that at the time of the inspections, there was a lack of barriers in the facility that would prevent children from wandering in and out of the age- related areas. Additional walls have now been constructed to prevent the children from wandering.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).

13. The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

14. Subsection 402.305(4), Florida Statutes (2003), provides in relevant part as follows:

    1. STAFF-TO-CHILDREN RATIO.--

       (a) Minimum standards for the care of children in a licensed child care facility as established by rule of the department must include:

       1. For children from birth through 1 year of age, there must be one child care personnel for every four children.

       2. For children 1 year of age or older, but under 2 years of age, there must be one child care personnel for every six children.

       
       

15. Florida Administrative Code Rule 65C-22.001 provides in relevant part as follows:

    1. Ratios.

       (a) The staff-to-children ratio, as established in Section 402.305(4), F.S., is based on primary responsibility for the direct supervision of children and applies at all times while children are in care.

       
       

    2. Supervision.

       (a) 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.

       When caring for school age children, child care personnel shall remain responsible for the supervision of the children in care and capable of responding to emergencies, and are accountable for children at all times, which includes when children are separated from their groups. (emphasis supplied)

       
       

16. Neither the statutes nor the rules provide that staffing ratios may be met by staff members who are not located with the children in a designated area. The staff member must be located so as to provide "direct supervision" which is defined as "watching and directing" the activities of the children. Neither the statutes nor the rules provide that a facility may violate staffing ratios for purposes such as employee meals or other absences.

17. Subsection 402.310(1)(a), Florida Statutes (2003), provides that the Petitioner may impose a fine of $100 per violation per day for violations of applicable statutes and rules, and further provides that "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." The Petitioner could have imposed a significantly greater fine in this case, but has determined that a fine of $150 is warranted. There is no

    credible evidence indicating that the proposed fine should be reduced.

18. There were additional deficiencies noted during both inspections and about which the parties testified. These deficiencies were not cited by the Petitioner as the basis for the proposed fine being challenged. At the hearing, the Petitioner acknowledged that the penalty in this case was related solely to the repeated violation of staffing ratios. Accordingly, deficiencies beyond those related to staffing ratio violations and cited herein are outside the scope of this

proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Petitioner enter a Final Order imposing a fine of $150 against the Respondent.

DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 7th day of July, 2004.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Carla Meeks Ruth Johnson Best Academy

650 West Main Street Bartow, Florida 33830

Paul Flounlacker, 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: 04-001321

Orders for Case No: 04-001321