STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 05-1185

)

CHILD CARE 2000, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 6, 2005, in Wildwood, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: T. Shane DeBoard, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

For Respondent: Lawrence J. Marchbanks, Esquire

Lawrence J. Marchbanks, P.A.

110 Cleveland Avenue Wildwood, Florida 34785

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Respondent committed the offenses described in the Administrative Complaint and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On February 17, 2005, the Department of Children and Family Services (Department) issued an Administrative Complaint charging Respondent with failing to maintain an appropriate staff-to-children ratio in violation of Section 402.305(4), Florida Statutes, and Florida Administrative Code Rule 65C- 22.001(4)(a) and (b). The Administrative Complaint imposed an administrative fine in the amount of $100.

Petitioner disputed the allegations in the Administrative Complaint and requested an administrative hearing. The Department forwarded the request for hearing to the Division of Administrative Hearings on or about April 1, 2005. A formal hearing was scheduled for June 6, 2005.

At hearing, Petitioner presented the testimony of Clark Henning and Mary O'Quinn. Petitioner’s Exhibits numbered 1 through 6 were admitted into evidence. Respondent presented the testimony of Alicia Barrett, Michelle Mayo, and Melody Welch.

Respondent's Exhibits numbered 1 and 2 were admitted into evidence.

A Transcript of the hearing was filed on June 20, 2005. Petitioner and Respondent timely filed Proposed Recommended Orders which have been considered in the preparation of this Recommended Order.1/

FINDINGS OF FACT

1. Respondent, Child Care 2000, Inc. No. 2, is a licensed child care facility located in Wildwood, Florida.

2. Clark Henning is employed by the Department and is responsible for overseeing child care facilities in Wildwood, Florida.

3. Mr. Henning went to Respondent's facility on January 25, 2005, to perform a routine inspection.

4. While conducting the routine inspection, he observed a group of 11 children of mixed ages and one staff member. He observed two of the children, which he believed to be between one and two years old, in the group of 11. The inspection report reflects that there were a total of 15 children and two staff members in the day care facility at the time of the report.

5. When making inspections, Mr. Henning counts the children present and, if he has any question as to a child's age, he checks the facility's records to determine the child's age. He is not certain that he checked the facility's records on January 25, 2005, but believes there is a "high degree of possibility" that he did so.

6. As a result of his observation of what he believed to be two one-year-olds in the group of 11 children, Mr. Henning found Respondent to be in violation of the required staff-to-

   children ratio. The staff-to-children ratio was the only category which he found to be in non-compliance on his written inspection checklist. He signed the inspection checklist and gave it to a staff member. The section of the inspection report entitled "Due Date" states, "Correction made at time of inspection." According to Mr. Henning, he did not seek to impose a fine because the Department does not routinely impose a fine on a first violation.

7. Michelle Mayo is the staff member who signed for the January 25, 2005, report. Ms. Mayo disagrees with Mr. Henning's observations regarding the ages of the children present in the group of 11 children on January 25, 2005. Ms. Mayo was caring for four of the 15 children in the infant room. She took an infant and three one-year-olds with her to the infant room, leaving no children in the group of 11 under the age of two. Mr. Henning did not ask Ms. Mayo about the ages of the children.

8. While both Mr. Henning's and Ms. Mayo's testimony were equally credible, Ms. Mayo was in a position of knowing first- hand the ages of the children she was caring for. Accordingly, the weight of the evidence does not establish that a staff-to- children ratio violation existed on January 25, 2005.

9. On or about January 31, 2005, the Department received a complaint regarding Respondent's facility. On February 4, 2005,

   Mr. Henning went to Respondent's facility to make a surprise inspection.

10. During the February 4, 2005, inspection, Mr. Henning found no evidence to support the allegations raised in the complaint he was investigating. However, he did observe fifteen children and only one staff member present. Mr. Henning identified the children's ages to be one infant, one one-year- old, and three two-year-olds. According to Mr. Henning, there should have been three staff members for this group of children for an appropriate child-to-staff ratio.

11. His written report of the February 4, 2005, complaint inspection found Respondent to be in violation of staff-to- children ratio requirements. Again, the section of the report entitled "Due Date" states, "Correction made at time of inspection."

12. A staff-to-children ratio violation is classified as a Class 2 violation in that there is potential harm to the children. As a result of his finding a class 2 violation, he issued an Intent to Impose Administrative Action which was again signed for by Ms. Mayo.

13. Mr. Henning recommended imposing a fine upon Respondent to his supervisor, Diana McKenzie, because he found this to be a second violation of the same type. Ms. McKenzie made the final decision to impose a fine of $100 against

    Respondent. While the Administrative Complaint only references the February 4, 2005, incident, it is clear from the evidence presented that the Department's decision to impose a fine was based on the finding that this was a second violation of the same type.

14. Alicia Barrett is President of the corporation which owns Child Care 2000, Inc. Ms. Barrett acknowledges that there was a brief period of time on February 4, 2005, when the facility was out of compliance concerning the staff-to-student ratio. According to Ms. Barrett, the problem was the result of a staff member whose car broke down on the way to work. One staff member arrived to open the facility. A second staff member was scheduled to arrive ten to 15 minutes later. However, it was that staff member whose car broke down. A third staff member arrived and left briefly to pick up the second staff member whose car had broken down nearby. Mr. Henning arrived after the staff member left to pick up her co-worker.

15. After the February 4, 2005, incident, Ms. Barrett fired the staff member who left the facility to pick-up her co- worker while she should have been watching the children in her care.

16. Prior to the incidents described herein, Respondent's facility had not received a citation for a staff-to-children ratio violation.

17. The Department's Enforcement Fact Sheet reads in pertinent part as follows:

    The Department is given enforcement authority by sections 42.310, 402.311,

    402.312, [sic]and 402.313, 402.3131, Florida Statutes, and shall take the following actions in accordance with the following guidelines:

    
    

    Require corrective action.

    
    

    -Corrective action plan documents all standards cited for non-compliance with corrective action, task, and due dates.

    
    

    * * * Impose an administrative fine.

    -If corrective action is not completed within specified time frame, an administrative fine may be levied.

    
    

    CONCLUSIONS OF LAW

    
    

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

19. The Department of Children and Family Services is the agency charged with the responsibility of licensing child care centers in the state of Florida. Chapter 402, Fla. Stat.

20. The Department seeks to impose an administrative fine in the amount of $100. Accordingly, as the party asserting the affirmative of an issue before this administrative tribunal, the Department has the burden of proof. Florida Department of

    Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981). Because this is a penal sanction, the Department has the burden of proving by clear and convincing evidence the specific allegations in the Administrative Complaint. Department of Banking and Finance v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996).

21. Section 402.310, Florida Statutes, reads in pertinent part:

    (1)(a) The Department or local licensing agency may...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....

    
    

    (b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:

    
    

    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. 402.310-402.319 have been violated.

       
       

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

       
       

    3. Any previous violations of the licensee.

    
    

22. Subsection 402.305, Florida Statutes, reads in pertinent part as follows:

    1. STAFF-TO-STUDENT 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.

          
          

       3. For children 2 years of age or older, but under 3 years of age, there must be one child care personnel for every 11 children.

       
       

23. Section 402.3125, Florida Statutes, requires the posting of each citation for a violation of any standard requirement of Section 402.310, Florida Statutes, that has resulted in disciplinary action.

24. Florida Administrative Code Rule 65C-22.001(4), reads in pertinent part:

    1. Ratios.

       
       

       1. 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. Mixed Age Groups.

       
       

       1. In groups of mixed age ranges, where children under 1 year of age are included, one staff member shall be responsible for no more than 4 children of any age group.

       2. In groups of mixed age ranges, where children 1 year of age but under 2 years of age are included, one staff member shall be responsible for no more than 6 children of any age group.

       
       

25. The Department's Enforcement Fact Sheet, which apparently has not been adopted as a rule but is published for licensees to read and observe, contemplates that upon the first offense, a licensee will be given a corrective action plan with a due date and that if the corrected action is not completed within a specified time frame, an administrative fine may be levied.

26. The Department has not established clearly and convincingly that a staff-to-children ratio violation occurred on January 25, 2005. However, the Department has met its burden of proof in establishing that a staff-to-student ratio violation existed on February 4, 2005, at Respondent's facility.

27. Even if a violation had occurred on January 25, 2005, applying the Department's Enforcement Fact Sheet, no corrective action time frame was given. Moreover, the correction was made at the time of the inspection.

28. At this juncture, it is appropriate to apply the factors that must be considered in imposing a fine pursuant to Section 402.310(1)(b), Florida Statutes, regarding the February 4, 2005, violation:

    1. Severity of the violation:

       
       

       This violation is considered a class 2 violation with potential harm, no actual harm occurred;

    2. Actions taken by the licensee to correct the violation:

       The violation was corrected almost immediately as it the inspection report states that the violation was corrected while the inspector was still there and the employee who inappropriately left the facility was fired;

    3. Any previous violations of the licensee: There were no previous violations.

29. Based upon the evidence presented applied to the pertinent law, the imposition of a fine is not warranted in this case.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order dismissing the Administrative Complaint issued against Respondent.

DONE AND ENTERED this 3rd day of August, 2005, in Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 3rd day of August, 2005.

ENDNOTE

1/ All references to Florida Statutes unless otherwise indicated are to 2004.

COPIES FURNISHED:

Lawrence J. Marchbanks, Esquire Lawrence J. Marchbanks, P.A.

110 Cleveland Ave. Wildwood, Florida 34785

T. Shane DeBoard, Esquire Department of Children

and Family Services

1601 West Gulf Atlantic Boulevard Wildwood, Florida 34785

Gregory Venz, 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 1317 Winewood Boulevard

Building 2, Room 204

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: 05-001185

Orders for Case No: 05-001185