STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

EARLY CHILDHOOD RESOURCES, INC.,

Respondent.

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) Case No. 04-1460

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this matter on June 4, 2004, in Winter Haven, Florida, before William R. Pfeiffer, a duly-appointed Administrative Law Judge with the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Katie Stowell, pro se

Early Childhood Resources, Inc.

122 Central Avenue, West Winter Haven, Florida 33880

STATEMENT OF THE ISSUES

The issues in this matter are whether Petitioner proved that Respondent committed statutory or administrative code violations, and, if so, what is the appropriate fine.

PRELIMINARY STATEMENT

Petitioner notified Respondent by letter dated March 22, 2004, that Petitioner intended to impose a penalty of $300

upon Respondent's day care license for verified findings related to an Abuse Hotline supervision complaint and for violating various statutes and rules, including Section 402.305(12), Florida Statutes (2003), as well as Florida Administrative Code Rules 65C-22.001(5) and 65C-22.001(8)(b).

Respondent timely sought an administrative proceeding to contest Petitioner's intended decision, and the dispute was transferred to the Division of Administrative Hearings (DOAH).

At the final hearing, Petitioner presented three witnesses and three exhibits. Respondent testified in her own behalf, and presented one exhibit. Official recognition was taken of Sections 402.301 through 402.319, Florida Statutes (2003), and Florida Administrative Code Chapter 65C-22.

The one-volume Transcript was filed with DOAH on June 21, 2004. The parties timely filed their proposed recommended orders, which have been duly considered.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner is the state regulatory entity responsible for licensing, inspecting, and regulating child care facilities. See §§ 402.301 through 402.319, Fla. Stat. (2003).

   2. Respondent is a licensed day care facility in Polk County, Florida.

2. The Inspections

   
   

   1. On October 17, 2003, following receipt of a complaint, Vicki Richmond, a child care licensing inspector employed by Petitioner, performed a routine on-site inspection of Respondent's day care. Ms. Richmond spent several hours at the facility, interviewed staff persons as well as children, and concluded that Respondent was in violation of various child care facility laws.

   2. Immediately following the inspection, Petitioner notified Respondent, via the "Child Care Facility Inspection Checklist," that the facility was in violation of

      Section 402.3125, Florida Statutes (2003), for failing to post its license in a conspicuous place; in violation of Subsection 402.305(5), Florida Statutes, for failing to directly watch the children during nap time; and in violation of Subsection 402.305(12), Florida Statutes, for imposing physical punishment upon the children.

   3. In addition, Respondent was also advised that the facility was not in compliance with Florida Administrative Code Rules 65C-22.001(5), relating to supervision; 65C-22.001(8), relating to discipline; 65C-22.002, relating to its physical environment; and 65C-22.004, relating to the health requirements of the facility.

   4. The following month, on November 17, 2003, Amy Anderson, a child abuse investigator employed by Petitioner, investigated a complaint that a child had been injured at Respondent's day care. During her investigation, Ms. Anderson spoke with Candi Tipton, the facility director. Ms. Tipton admitted that she witnessed a child being dragged on the playground by other children. She advised Ms. Anderson that she stopped the activity and did not see any injury. There is no evidence that the child complained about any injury until some scrapes and minor bruises were discovered when he arrived home at the end of the day.

   5. Ms. Anderson alleged that the teachers were neglectful and concluded that the child's injuries resulted from inadequate supervision by center staff.

   6. On November 21, 2003, Petitioner conducted a follow-up inspection of Respondent's day care. Petitioner concluded that all of the violations had been corrected.

   7. On March 22, 2004, Respondent was notified that Petitioner sought to impose a penalty of $300 upon the day care license as a result of the alleged violations, and Respondent timely contested the proposed fine.

3. The Evidence

1. Upon careful consideration of the record, there is clear and convincing evidence that Respondent committed numerous violations. First, it is clear that at least one of Respondent's staff used physical punishment on children at the day care. Respondent's staff admitted that children were occasionally struck on the back of the hand with a green stick when the children misbehaved. Several children corroborated the admission. Moreover, during the inspection, Ms. Tipton located the green stick that was used to punish the children.

2. Second, the clear and convincing evidence demonstrates that Respondent, at times, routinely failed to provide direct supervision to the children. Classrooms were configured in a manner that prevented staff to maintain proper sight and sound contact with all children during naptime.

3. Third, the clear and convincing evidence demonstrates that Respondent committed additional violations noted in the Inspection Checklist but not referenced or charged in Petitioner's Notice to Assess. During her inspection,

   Ms. Richmond actually saw bleach and other cleaning agents

   accessible to children. She noted that prescription medications were accessible to children, and fencing was inadequate in the children's play area. Infant crib sheets failed to properly fit the mattresses and presented suffocation hazards. High chairs did not have safety straps. In addition, Respondent failed to post its operating license in a conspicuous place and had an incomplete first aid kit, missing records, and incomplete emergency numbers posted on the wall. Finally, the facility director failed to have the required credentials.

4. With respect to Petitioner's allegation that the boy who was dragged by other children received his minor injuries as a result of inadequate supervision, there is insufficient evidence to conclude that Respondent's staff was neglectful. The investigator's report is far-reaching and based on

   speculation.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 402.310(2), Florida Statutes (2003).

6. Petitioner is the state agency responsible for licensing, inspecting, and regulating child care facilities. See §§ 402.301 through 402.319, Fla. Stat. (2003).

7. Petitioner has the burden to prove the allegations against Respondent by clear and convincing evidence in order to impose an administrative fine on Respondent. See Dept. of Banking & Finance v. Osborne, Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).

8. All child care facility staff must comply with the relevant portions of the child care licensing laws and administrative regulations to safely and properly operate a child care facility. §§ 402.301 through 402.319, Fla. Stat. (2003).

9. Pursuant to Subsection 402.305(12)(a)(3), Florida Statutes (2003), "[s]panking or any other form of physical punishment is prohibited." Given the clear and convincing evidence, including the staff person's admission, Respondent has repeatedly violated the prohibition.

10. Pursuant to Florida Administrative Code

    
    

    Rule 65C-22.001(5), during nap time, staff must be "within sight and hearing of all the children." Given the configuration of the class room, Respondent violated the requirement.

11. Pursuant to Florida Administrative Code

    
    

    Rule 65C-22.002(1)(b), "[a]ll child care facilities be in good repair, free from health and safety hazards . . .". Although only noted in the Inspection Checklist, the clear and convincing evidence demonstrates that Respondent committed numerous

    violations. Petitioner's inspector witnessed bleach and various hazardous cleaning supplies sitting in an unlocked supply room and accessible to children. She saw prescription medications that were not locked, outdoor play space that was not adequately enclosed and certain playground equipment that was unsafe. She saw crib sheets that were not secure and high chairs with missing safety straps.

12. Petitioner may levy an administrative fine against a facility:

    . . . 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.

    
    

    See § 402.310(1)(a), Fla. Stat. (2003).

    
    

13. In determining whether to impose a fine and the appropriate amount, Petitioner shall consider the severity and extent of the violations including the actual or potential harm to the children, the actions taken by the licensee to correct the violations, and any previous violations by the licensee. See § 402.310(1)(b), Fla. Stat. (2003).

14. The evidence demonstrates that many of Respondent's violations are very serious. The repeated use of physical punishment with the green stick is a clear and egregious

    violation that warrants a $500 fine. Furthermore, Respondent's failure to directly supervise the children during nap time warrants a $200 fine.

15. Finally, the clear and convincing evidence demonstrates that Respondent violated Florida Administrative Code Rule 65C-22.002(1)(b), which states, "[a]ll child care facilities be in good repair, free from health and safety hazards . . .". Petitioner's inspector witnessed bleach and various hazardous cleaning supplies sitting in an unlocked supply room and accessible to children. She saw prescription medications that were not locked, outdoor play space that was not adequately enclosed and certain playground equipment that was unsafe. She saw crib sheets that were not secure and high chairs with missing safety straps. However, no fine is recommended for these violations, given that they were only provided to Respondent in the Inspection Checklist and not provided in Petitioner's Notice to Assess.

16. In sum, Petitioner proved that Respondent violated Subsection 402.305(12), Florida Statutes, for imposing physical punishment upon the children. In addition, Petitioner also proved that the facility was not in compliance with Florida Administrative Code Rule 65C-22.001(5), for failing to be "within sight and hearing of all the children."

17. Given the evidence, and notwithstanding Respondent's arguments that certain staff have been terminated, the day care suffers from extremely poor management that threatens the safety and welfare of children. Petitioner's $300 fine is unreasonably low and should be increased to at least $700. In addition, a copy of the final order detailing the factual findings should be posted in Respondent's facility in a conspicuous place for 12 months. Finally, Petitioner should routinely inspect the facility.

RECOMMENDATION

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

RECOMMENDED that the Petitioner enter a final order imposing an administrative fine of $700.00 upon Respondent.

DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida.

S

WILLIAM R. PFEIFFER

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 5th day of October, 2004.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Katie Stowell

Early Childhood Resources, Inc.

122 Central Avenue, West Winter Haven, Florida 33880

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: 04-001460

Orders for Case No: 04-001460