STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A BLESSED CHILD PRESCHOOL DAYCARE,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 04-1832

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 20, 2004, in Lake Wales, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James Loydd

A Blessed Child Preschool Daycare

209 East Sessoms Avenue Lake Wales, Florida 33853

For Respondent: Jack E. Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUES

The issues are whether the Department of Children and Family Services should impose an administrative fine on

Petitioner because children at Petitioner’s child care facility were playing in an area that did not comply with the Department’s rule governing outdoor play areas, and if so, how much should the fine be.

PRELIMINARY STATEMENT

By certified letter dated April 9, 2004, the Department of Children and Family Services (Department) informed Petitioner that it intended to impose a $250.00 administrative fine on Petitioner based upon the results of the Department’s inspection of Petitioner’s child care facility on March 11, 2004. The letter alleged that on that date, the Department’s inspector observed children playing at Petitioner’s facility in an area that did not comply with the Department’s rule governing outdoor play areas.

By letter dated April 28, 2004, Petitioner timely requested a hearing on the Department’s decision to impose an administrative fine. The Department referred the matter to the Division of Administrative Hearings (Division) on May 20, 2004, for the assignment of an administrative law judge to conduct the hearing requested by Petitioner. The hearing was originally scheduled for July 19, 2004, but it was subsequently rescheduled for July 20, 2004, upon the Department’s unopposed motion.

At the hearing, Petitioner presented the testimony of Stephanie Pride, Vivian Loydd, and James Loydd. Petitioner's

Exhibits P1 through P3, P4-A through P4-C, and P5-A through P5-G were received into evidence. The Department presented the testimony of Glynnis Green and Patricia Hamilton. The Department’s Exhibits A and B were received into evidence. At the Department’s request, official recognition was taken of Sections 402.305 and 402.310, Florida Statutes (2003),1 and Florida Administrative Code Rule Chapter 65C-22.

No Transcript of the hearing was filed. The Department requested and the parties were given 15 days from the date of the hearing to file their proposed recommended orders (PROs). The Department filed its PRO on August 2, 2004, and Petitioner filed a letter summarizing its position on August 4, 2004. The parties' post-hearing filings were given due consideration by the undersigned in preparing this Recommended Order.

FINDINGS OF FACT

1. Petitioner operates a licensed child care facility located in Lake Wales. The facility’s license number is C14PO0223.

2. Petitioner’s facility, which is owned by James and Vivian Loydd, has a licensed capacity of 25 children. The facility only serves “school age” children, ages five through

1. The Loydds own another child care facility in Lake Wales that serves younger children.

   1. Petitioner’s facility is operated on the grounds of a church located on the northeast corner of Scenic Highway and Sessoms Avenue.

   2. Scenic Highway is a busy two-lane commercial road that is used as a “cut-through” to get to a main highway. The posted speed limit on Scenic Highway is 35 miles per hour.

   3. Sessoms Avenue is a residential street. It is not heavily-traveled.

   4. The church grounds include a fellowship hall, classrooms, and an office in one building and a worship auditorium in another building.2 The church also includes a fenced playground area adjacent to the office.3

   5. The worship auditorium building and the fellowship hall/classroom/office building are separated by a paved parking area, which is approximately 50 feet wide and 160 feet long. The parking area includes approximately six handicapped parking spaces.4

   6. Access to the handicapped parking area is provided by a narrow, one-way driveway off of Sessoms Avenue. The driveway runs through a covered breezeway between the church office and the worship auditorium.5

   7. The main parking area for the church is located adjacent to Scenic Highway.6 That parking area can be accessed from either Scenic Highway or Sessoms Avenue. The Sessoms

      Avenue entrance to the main parking area is not the same driveway that is used to access the handicapped parking area.

   8. There are no barriers between the handicapped parking area and the main parking area or Scenic Highway; however, the handicapped parking area is more than 90 feet from Scenic Highway.

   9. On March 11, 2004, the Department conducted a routine investigation of Petitioner’s facility. The inspection was conducted by Glynnis Green.

   10. Ms. Green arrived at Petitioner’s facility at approximately 3:00 p.m. She turned into the church grounds by way of the driveway off Sessoms Avenue. Ms. Green was driving very slowly along the driveway through the breezeway because she was unfamiliar with the layout of the facility.

   11. As Ms. Green was driving through the breezeway, she saw a child chasing after a ball that had rolled across the path of her car. Ms. Green stopped her car and the child ran in front of her car, retrieved the ball, and then ran back in front of her car to the handicapped parking area where he was playing with other children.7

   12. Ms. Green was only driving three to five miles per hour at the time she first saw the child, and she was able to stop her car in plenty of time to avoid hitting the child. The

       child crossed approximately ten to 15 feet in front of Ms. Green’s car.

   13. The child who crossed in front of Ms. Green’s car was playing ball with seven other children in the handicapped parking area.8 Another three children were sitting on the step outside of the classroom building with Stephanie Pride, the teacher who was supervising the children at the time.9

   14. A total of 11 children were at Petitioner’s facility on the day of Ms. Green’s investigation. All of the children were “school age,” and all of the children were outside with Ms. Pride.

   15. Ms. Pride was the only teacher at the facility at the time. The other teacher, “Miss Tina,” left approximately 10 minutes before Ms. Green arrived. The facility’s director was on maternity leave, and the Loydds were at their other child care facility.

   16. Ms. Pride and the Loydds acknowledged at the hearing that it was inappropriate for the children to be playing outside in an unfenced area with only one supervisor. They acknowledged their unfamiliarity with the Department’s rule requiring two supervisors under such circumstances, and they accepted responsibility for their lack of familiarity.

   17. After Ms. Green parked her car, she directed Ms. Pride to take the children inside. Ms. Pride did so, and Ms. Green commenced her inspection of Petitioner’s facility.

   18. After completing her inspection, Ms. Green filled out the Department’s standard inspection checklist form. On the form, Ms. Green cited Petitioner’s facility for six violations,10 including a violation of Florida Administrative Code Rule 65C- 22.002(4)(e) for the children playing in the unfenced handicapped parking area. Ms. Green described that violation on the checklist as follows:

       The center did not have fencing for the outdoor play area that was safe from traffic. They were allowing the children to play in the parking lot and a child was witnessed running after a ball into the path of a car entering the parking lot. The center did not have an additional staff member present in the unfenced outdoor play area used for school-age children. The center did not have written authorization from the department to operate without a fence.

       
       

   19. All of the violations cited by Ms. Green were corrected at the time of the inspection or within the time set by Ms. Green for her follow-up inspection. The violation related to the children playing in the handicapped parking area was corrected at the time of the inspection by Ms. Pride taking the children inside.

   20. Ms. Green explained the results of her inspection to Ms. Pride and the Loydds, who had come to the facility at some point during Ms. Green’s inspection. She did not indicate what action the Department might take based upon the cited violations, because she did not know.

   21. Mr. Loydd asked Ms. Green what could be done to remedy the violation related to the outdoor play area. Ms. Green suggested that the facility could erect barricades around the handicapped parking area while the children were playing in that area in order to keep the children in and the cars out.

   22. On March 12, 2004, the day after Ms. Green’s inspection, Mr. Loydd purchased $272.63 of materials to implement Ms. Green’s suggestion. The materials included four orange traffic cones, four orange posts with reflectors on top, and two rolls of four-foot high orange plastic fencing.11

   23. Mr. Loydd planned to place two cones on the driveway in front of the breezeway and two cones at the end of the handicapped parking area. He also planned to place two posts at each end of the handicapped parking area and then run fencing between each set of posts in order to enclose the handicapped parking area.12

   24. The cones, posts, and fencing will be set out when the children are playing in the handicapped parking area, and will be removed when the children are playing inside.

   25. After Ms. Green returned to her office, she provided the completed inspection checklist to her supervisor, Patricia Hamilton, for further action.

   26. After reviewing the checklist and discussing the matter with Ms. Green, Ms. Hamilton determined that a fine should be levied against Petitioner based upon the children's playing in the unfenced handicapped parking area. Ms. Hamilton considered the violation to be serious because the children could have been seriously injured if they were struck by a car while playing in the unfenced parking area.

   27. Ms. Hamilton determined that a $250.00 fine would be appropriate under the circumstances. She testified that the “objective” of the fine was to impress upon Petitioner the seriousness of the violation so as to ensure that it would not happen again.

   28. The proposed $250.00 fine was based solely on the violation related to the children playing in the handicapped parking area. Ms. Green and Ms. Hamilton each testified that the other violations had been promptly resolved to the Department’s satisfaction and that the proposed fine was not based upon those violations.13

   29. A certified letter was sent to Petitioner on April 9, 2004, under Ms. Hamilton’s signature advising Petitioner of the Department’s intent to impose a $250.00 fine. The letter

       advised Petitioner of its right to request a hearing on the Department’s intended action.

   30. The Loydds responded to the Department’s letter through a letter dated April 28, 2004. In that letter, the Loydds requested a hearing, and also stated that they had “purchased cones and barrier protection at the cost of $275.00 to keep traffic out of the drive thru so we are requesting the department to rescind the fine and to grant the use of the drive through as part of the play area.”

   31. Ms. Hamilton did not take any action on the Loydds' request that they be allowed to use the handicapped parking area as an outdoor play area. She did not recall seeing the Loydds’ letter, and because the letter requested a hearing on the proposed fine, it is likely that Ms. Hamilton’s assistant sent it directly to Tallahassee for processing.

   32. The Loydds did not follow up with Ms. Hamilton regarding their request for approval of their use of the handicapped parking area as an outdoor play area. Mr. Loydd spoke to another Department inspector, Vicki Richmond, about using the cones and fencing to enclose the handicapped parking area, but Ms. Richmond told him that she did not think that the Department would approve that plan.

   33. The Department and the Loydds are equally at fault for the Department’s failure to take prompt action on the request

       for approval of Mr. Loydd’s proposal to use the handicapped parking area as an outdoor play area. The Department is at fault because, as it acknowledged in its PRO (at pages 7-8), it did not closely review the April 28, 2004, letter from the Loydds that clearly requested approval of that area as an outdoor play area, and the Loydds are at fault for not formally following up with Ms. Hamilton after she failed to respond to the letter and/or after Mr. Loydd received conflicting information from Ms. Green and Ms. Richmond regarding the viability of his proposal.

   34. The decision to approve an unfenced outdoor play area is made by Ms. Hamilton and a “team” of inspectors and supervisors. It typically takes approximately one week for such a decision to be made once a formal request is received.14

   35. Petitioner has not used the handicapped parking area as an outdoor play area since Ms. Green’s inspection. No children have been observed playing in that area during the Department’s follow-up inspections.

   36. None of the violations cited by Ms. Green were repeat violations.

   37. Petitioner has not been cited for any previous violations by the Department relating to the safety of children at its facility.

       CONCLUSIONS OF LAW

       
       

   38. The Division 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.

   39. The Department is the state agency responsible for licensing, inspecting, and regulating child care facilities. See §§ 402.301-.319, Fla. Stat.

   40. Section 402.310(1)(a), Florida Statutes, provides that the Department may deny, suspend, or revoke a license, or impose an administrative fine “for the violation of ss. 402.301-402.319 or rules adopted thereunder.”

   41. The Department is not seeking to suspend or revoke Petitioner’s license, and such action would clearly be inappropriate under the circumstances of this case. The Department is only seeking to impose an administrative fine.

   42. Florida Administrative Code Rule 65C-22.002(4)(e), which was adopted by the Department under the authority of Sections 402.301 and 402.305, Florida Statutes, provides:

       (e) The outdoor play area shall have and maintain safe and adequate fencing or walls a minimum of four (4) feet in height. Fencing, including gates, must be continuous and shall not have gaps that would allow children to exit the outdoor play area. The base of the fence must remain at ground level, free from erosion or build-up, to prevent inside or outside access by children or animals. A fence is not required if all of the following conditions are met:

       
       

       1. The children using the play area are in five-year-old kindergarten and grades one or above;

          
          

       2. In addition to the established staff- to-children ratios, for the purpose of safety, an additional staff member is present, during all times of outdoor activities, to assist in providing supervision;

          
          

       3. The outdoor play area is not located adjacent to a congested, heavily trafficked location or near any major intersections, crowded business areas, or water hazards; and

          
          

       4. The department or the local licensing agency has provided written authorization to the program to operate without a fence.

       
       

   43. The Department has the burden to prove the allegations against Petitioner by clear and convincing evidence in order to impose an administrative fine on Petitioner. See Dept. of

       Banking & Finance v. Osborne, Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).

   44. The Department met its burden of proof. The evidence was clear and convincing that Petitioner violated Florida Administrative Code Rule 65C-22.004(4)(e) by allowing children at its facility to play in an unfenced outdoor play area that had not been approved by the Department and that was being supervised by only one teacher. Ms. Pride’s testimony was consistent with Ms. Green’s testimony regarding the material facts related to the children playing in the handicapped parking

       area and the child running in front of Ms. Green’s car; and, the Loydds and Ms. Pride candidly acknowledged at the hearing that the facility was in violation of the rule at the time of

       Ms. Green’s inspection because it did not have approval from the Department to use an outdoor play area without a fence as required by Florida Administrative Code Rule 65C-22.002(4)(e)4., and because the additional staff member required by Florida Administrative Code Rule 65C-22.002(4)(e)2. was not present.

   45. An administrative fine imposed by the Department is typically limited to $100.00 unless the violation “could or does cause death or serious harm” whereupon the Department may impose a fine “not to exceed $500.” See § 402.310(1)(a), Fla. Stat. (emphasis supplied).

   46. Allowing children to play in a parking lot that is accessible to cars (even cars traveling at a slow rate of speed) certainly “could” cause serious harm or death to a child, which is all that Section 402.310(1)(a), Florida Statutes, requires the Department to establish in order to impose the higher fine. Even though the relative inaccessibility of the handicapped parking area and its distance from Scenic Highway make it less likely that a child would be hit by a car while playing in that area, the possibility certainly exists as shown by the child chasing a ball in front of Ms. Green’s car. Accordingly, the Department may impose a fine of up to $500.00 in this case.

   47. In determining the amount of the fine within the statutory range, the Department must consider the following factors:

       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 ss. 402.301-402.319 have been violated.

       2. Actions taken by the licensee to correct the violation or to remedy complaints.

       3. Any previous violations of the licensee.

          
          

          § 402.310(1)(b), Fla. Stat. (emphasis supplied).

          
          

   48. The $250.00 fine proposed by the Department is not reasonable under the circumstances of this case; each of the factors in Section 402.310(1)(b), Florida Statutes, weighs in favor of a lower fine.

   49. First, although the children playing in the unfenced handicapped parking area “could” have been seriously injured if they were hit by a car driving through that area or along Scenic Highway, the “probability” (which is the word used in Section 402.310(1)(b)1., Florida Statutes, for purposes of determining the amount of the fine15) of that happening is low. A car driving through the handicapped parking area would be traveling slowly because of the narrow driveway and breezeway that provides

       the primary access to the parking area and, as a result, the car would likely be able to avoid any children playing in that area as Ms. Green was able to do. Moreover, it is improbable that a child playing in the handicapped parking area would run into Scenic Highway chasing a ball or otherwise because that road is more than 90 feet away from the handicapped parking area.

   50. Second, Petitioner took prompt action to correct the violation cited by the Department. See § 402.310(1)(b)2., Fla. Stat. The children were immediately taken inside by Ms. Pride, and the facility no longer allows the children to play in the handicapped parking area; and, Mr. Loydd purchased approximately

       $275.00 of safety materials the day after Ms. Green’s inspection pursuant to her suggestion as to how the handicapped parking area might be approved for use as an outdoor play area. Whether or not that approval is ultimately given by the Department,

       Mr. Loydd’s prompt action in response to Ms. Green’s suggestion reflects Petitioner’s good faith efforts to correct the violation cited by the Department and ensure the safety of the children at its facility. Indeed, the Department stated in its PRO (at page 7) that "[c]ertainly, the Loydds are to be commended for their quick pursuit of a remedy."

   51. Third, Petitioner’s facility has not been previously cited for violations related to the use of the handicapped parking area as an outdoor play area. See § 402.310(1)(b)3.,

       Fla. Stat. Indeed, the evidence fails to establish that Petitioner has been previously cited for violations of any Department rule relating to the safety of children at its facility.

   52. In light of these mitigating circumstances, a $100.00 fine is appropriate in this case. A fine in that amount, coupled with Petitioner’s expenditure of approximately $275.00 to enclose the handicapped parking area while it is being used by the children as a play area, is sufficient to achieve

       Ms. Hamilton’s “objective” of impressing the significance of the violation on Petitioner so that the violation does not happen again and the children at Petitioner's facility remain safe.

   53. An administrative fine of $100.00 is also more proportionate to the fines levied by the Department in recent cases, which involved a larger number and/or repeat violations. For example, in Department of Children and Family Services v. Just Little People, Inc., Case No. 04-1602 (DOAH July 9, 2004), the Department sought and the Administrative Law Judge (ALJ) recommended the imposition of a $200.00 fine for six violations, including two serious violations ($50.00 each) and four repeat violations ($25.00 each), one of which was that “the outdoor play space was not adequately enclosed-fencing was not safely secured"; and, in Department of Children and Family Services v. Best Academy, Case No. 04-1321 (DOAH June 10, 2004), the

Department sought and the ALJ recommended the imposition of a

$150.00 fine for a repeat violation of the staffing-ratio

requirement for infants.

RECOMMENDATION

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

RECOMMENDED that the Department issue a final order imposing an administrative fine on Petitioner in the amount of

$100.00.

DONE AND ENTERED this 16th day of August, 2004, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II 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 16th day of August, 2004.

ENDNOTES

1/ All statutory references in this Recommended Order are to the 2003 version of the Florida Statutes.

2/ The layout of the church buildings is shown on Exhibit P1.

3/ Exhibit P5-G is a photograph of the fenced playground. The playground equipment that can be seen in the photograph was added in response to criticisms raised in the Department’s inspection regarding the age-appropriateness of the equipment on the playground. Those criticisms were unrelated to the violation of the Department's rule governing outdoor play areas, which was the sole basis of the administrative fine imposed by the Department in this case.

4/ Exhibit P5-E is a photograph of the handicapped parking area.

5/ Exhibit P5-A is a photograph showing the driveway access off Sessoms Avenue. Exhibits P5-B and P5-C are photographs showing the narrowness of the driveway through the breezeway. Exhibit P5-D is a photograph showing how the driveway turns into the handicapped parking area.

6/ Exhibit P5-F is a photograph of the main parking area. Scenic Highway is visible on the left side of the photograph, and a portion of the handicapped parking area is visible in the upper right part of the photograph between the two church buildings.

7/ The approximate location where Ms. Green’s car was located when the child ran in front of her path is marked with a “B” on Exhibit P1.

8/ The approximate location where the children were playing is marked with a “C” on Exhibit P1.

9/ The approximate location where Ms. Pride was sitting while she was supervising the children is marked with a “D” on Exhibit P1.

10/ The other violations, which are no longer at issue, were a sticky floor which needed to be cleaned, keeping bleach and bleach water in an area accessible to the children, keeping bleach water in bottle that was not properly labeled, an absence of documentation showing that monthly fire drills had been completed, and equipment on the fenced playground that was not age/developmentally appropriate.

11/ Exhibits P4-A through P4-C are photographs of the materials purchased by Mr. Loydd.

12/ The approximate locations where the cones will be placed are marked with a “1” and “2” on Exhibit P1. The approximate locations where the posts and fencing will be located is marked with a “2” and “3” and dashed lines on Exhibit P1.

13/ Even without this testimony, the Department could not have taken disciplinary action against Petitioner in this proceeding based upon the other violations because the Department’s

April 9, 2004, letter to Petitioner, which constitutes the administrative complaint in this matter, only made reference to the alleged violation of the Department’s outdoor play area rule. See, e.g., Cotrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (agency may not find a licensee guilty of acts not alleged in the administrative complaint).

14/ The approval of Mr. Loydd’s plan to enclose the handicapped play area with the cones, posts, and fencing is something that will occur outside of this proceeding. Mr. Loydd and

Ms. Hamilton were urged at the hearing to coordinate with each other regarding the formal submittal of the proposal to the Department for its prompt consideration.

15/ Accord K.P. v. Dept. of Children & Family Servs., Case No. 03-3464, at 14 (DOAH Jan. 27, 2004)("The severity of the violation is to be determined by considering the probably [sic] of death or serious harm to any person. 'Probability' is defined as 'the quality of condition of being probable, the likelihood of reoccurrence of this specific event.'"), adopted in pertinent part, Order No. DCF-04-089 (DCF May 7, 2004).

COPIES FURNISHED:

Jerry Regier, Secretary Department of Children and

Family Services Building 1, Room 202

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

Paul Flounlacker, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

James Loydd

209 East Sessoms Avenue Lake Wales, Florida 33853

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: 04-001832

Orders for Case No: 04-001832