vs. )
Respondent. )
Case No. 05-3385
Notice was provided and on January 4, 2006, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2005). The hearing location was the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060.
Charles C. Adams, Administrative Law Judge, conducted the hearing.
Should Respondent have her application to renew her child care facility license denied by Petitioner for reasons set forth in the Administrative Complaint brought by Petitioner?
§§ 402.308 and 402.310, Fla. Stat. (2005).
On July 6, 2005, Petitioner brought an Administrative Complaint against Respondent as the owner of Sunniland Nursery and Preschool for alleged violations at the child care facility (the facility) as set forth in Sections 402.301-402.319, Florida Statutes (2005), and Florida Administrative Code Chapter 65C-22. In addition to the "current violations," the Administrative Complaint detailed what was described as a "past history of violations" at the facility.
In correspondence received by Petitioner on July 27, 2005, Petitioner requested an administrative hearing to contest allegations in the Administrative Complaint. On August 4, 2005, Respondent through counsel executed and served a petition requesting a formal hearing before the Division of Administrative Hearings (DOAH). Fla. Admin. Code R. 28-106.201. The petition by Respondent set forth issues of material fact in dispute in relation to the "current violations," while admitting paragraphs 1, 2, and 4 found at the beginning of the Administrative Complaint.
On September 21, 2005, DOAH received a request by Petitioner for assignment of an Administrative Law Judge to conduct a formal proceeding and issue a Recommended Order. Consistent with that request, the case was assigned to Diane Cleavinger, Administrative Law Judge in DOAH Case No. 05-3385. Later the case was transferred to the undersigned.
Initially the case was set to be heard December 8, 2005.
On Respondent's motion, the case was continued and heard on January 4, 2006.
Petitioner filed a motion for judgment on the pleadings or in the alternative to determine material facts in dispute based on the pleadings. On December 20, 2005, an order was entered denying that motion.
On December 30, 2005, Respondent filed an emergency motion to continue the hearing. Petitioner filed a response in opposition to the motion. On January 3, 2006, that motion was denied by a written order.
Petitioner filed a motion for sanctions and for an order for Respondent to pay witness fees. Respondent answered that motion. At hearing, Respondent was ordered to pay the witness' fees in dispute in full. No other forms of sanctions were imposed. It was reiterated that the case would proceed to hearing on the scheduled date. These rulings and that
discussion are reflected in the hearing transcript which has been prepared.
This injunction will be dissolved on motion of the Plaintiff [Respondent] if the Administrative Law Judge in DOAH 05-2285 [DOAH Case No. 05-3385] finds against revocation of Plaintiff's [Respondent's] childcare license.
At hearing, Petitioner presented Dannie Williams and Joseph Alexander as its witnesses. Petitioner's Composite Exhibit numbered 1 and Exhibits numbered 2 and 3 were admitted.
Respondent testified and called Dinah Gallon and Joseph Alexander as her witnesses. Respondent's Exhibits numbered 1 through 3, and Composite Exhibits numbered 4 and 5 were admitted.
The hearing transcript was filed with DOAH on January 24, 2006. The parties timely submitted proposed recommended orders, which have been considered in preparing the Recommended Order.
The Department of Children and Family Services has jurisdiction over Respondent by virtue of the provisions set forth in Sections 402.301-402.319, Florida Statutes (2005).
The Respondent, Sherlane Craig, is licensed to operate Sunniland Nursery and Preschool, as a child care facility in compliance with Chapter 402, Florida Statutes (2005), and Florida Administrative Code Chapter 65C-22.
Petitioner is the administrative agency of the State of Florida, charged with the duty to enforce and administer the provisions of Chapter 402, Florida Statutes (2005).
Petitioner issued a child care facility certificate of license to Respondent for the Sunniland Nursery and Preschool effective June 1, 2004, through June 1, 2005.
Petitioner issued Respondent a child care facility certificate of license that was provisional for the period June 1, 2005, through August 1, 2005. The provisional license was sent to Respondent on June 7, 2005, and was received by Respondent later in June 2005.
In addition to the license itself, the transmittal letter to Respondent stated:
Enclosed is the provisional license from the Department of Children and Families to
operate a childcare facility. A provisional license is being issued at this time based on the facility's continued non-compliance with the state's minimum standards.
Specifically the facility was cited five times during the last licensing year for non-compliance regarding the maintenance of fall zone material on the playground. The Department has offered suggestions on creating a framing system to hold fall zone material in place. As of today the Department has been unable to verify compliance.
This license is valid until August 1, 2005. An annual license will be issued when all of the above requirements have been met. The license is not transferable to another owner or any other location. If at some point in the future you discontinue operation of your facility, we would appreciate you notifying our childcare licensing office.
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In advance of the decision to provide Respondent with a provisional license, Petitioner had performed inspections of the facility on May 2, 18, and 24, 2005. On June 8 and June 10, 2005, additional inspections were made at the facility.
The May 18 and May 24, 2005 inspections revealed problems with the fall zone on the playground that was the subject of the letter informing Respondent that she had been issued a provisional license. The May 24, 2005, investigative report referred to as a reinspection checklist made mention of the citation for the fall zone during previous inspections.
The June 8, 2005, inspection continued to note a problem with the playground area and the fact that Petitioner had issued Respondent a provisional license for continued non- compliance by the failure to maintain the proper cover or protective surface in the fall zone area on the playground.
The June 10, 2005, report on the inspection did not mention the fall zone on the playground. More importantly, Respondent testified without being refuted that the fall zone area on the playground was corrected on a date beyond June 8, 2005, the more recent inspection date noting non-compliance for conditions on the playground. To that end, during a visit on June 29, 2005, Dinah Gallon and Kathy Schmitz Petitioner's employees found the conditions of the outdoor play area with the addition of the sand to be satisfactory. Dinah Gallon is a license counselor for Leon County, employed by Petitioner.
Respondent also presented evidence in the form of an invoice from Esposito's Nursery concerning the purchase of "2/3 cu yd of coarse sand" and for its installation. That invoice was dated June 22, 2005.
On July 8, 2005, Respondent wrote Joseph Alexander, Childcare Services Supervisor, District Two, Department of Children and Family Services, concerning the status of the playground called into question under the terms of the
provisional license. That correspondence was received at District Two on July 11, 2005. It stated:
Responding to previous instruction from your office to pad our playground with sand in an effort to add protection, in the way of ground cushioning, for our attendants; I have five loads of large gravel, beach sand delivered and spread through our outdoor play area.
In the instruction I received it was suggested that barriers be placed around the areas where sand was necessary in an attempt to prevent its erosion. Upon purchasing the large gravel, beach sand from Esposito's,
I was informed that barriers for this particular sand was not necessary due to the fact that the sand would absorb the water therefore would not wash away.
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Although Respondent explained the difficulty experienced in providing resilient and proper cover for the fall areas near the playground equipment, she has not denied the lack of compliance over time with the requirement to maintain a safe fall zone by providing appropriate cover material in those areas. In response to the problem, the type of sand more recently placed has been less prone to erode.
Aside from the lack of adequate maintenance of fall zone material on the playground, it is the failure to meet child ratio standards and the failure to provide adequate supervision as observed in the more recent inspections that has led Petitioner to bring the Administrative Complaint, which could
lead to the denial of the annual license renewal. The Administrative Complaint is also drawn in recognition of the past history by the Respondent of violations of various kinds.
In the category of what is described in the Administrative Complaint as "current violations," the May 2, 2005, inspection of the facility revealed non-compliance with Section 402.305(4), Florida Statutes, and Florida Administrative Code Rule 65C-22.001(4)(a) and (b). In particular, the one 1:4 ratio of staff to children for 0-to-12-month-old children required was not met, in that the ratio found was 1:6. The two- year-old category which called for a 1:11 ratio was not complied with, in that the ratio was 1:12 at the facility. Two of the three rooms in which the children were found were out of compliance with the ratio requirement. These problems were corrected on the date of inspection.
On May 18, 2005, in a return visit to the facility, the inspection revealed continuing problems in relation to staff to children ratios under the statutory and rule provisions that have been previously described. In this visit, the 0-12 month category calling for a ratio of 1:4 was in actuality 1:5. The mixed group involving 1-to-5-year-olds was not in compliance in that it had a ratio 2:23. In a second observation involving the 0-to-12-months-age group, the ratio was then 1:6, instead of the called for 1:4. Every classroom was found out of compliance
with the needed ratio upon this re-inspection. The problem was corrected when additional staff arrived to cover the classes.
On May 24, 2005, when the facility was inspected there were continuing ratio problems contrary to the statute and rule. Among the observations, there was one in the initial contact calling for a 1:4 ratio for infants. The ratio found was 1:5. A mixed group of one to five-year-olds calling for a ratio of 1:6, in fact had a ratio of 2:21. All rooms observed were out of compliance with the ratio standards during the first observation. Upon the last observation of the rooms, corrections had been made and the rooms were in compliance. On that same visit, the facility was not compliant with Florida Administrative Code Rule 65C-22.001(5)(a), (b), and (d). It was noted that there was "A classroom of two-year-old children that had no direct supervision. There were three napping in a room and no adult was present." These conditions related to supervision were corrected at the time of the inspection.
On June 8, 2005, when an inspection was made at the facility there was a problem found in relation to Florida Administrative Code Rule 65C-22.001(5)(a), (b), and (d). It was observed that the children had gone to Levy Park with one adult present, when an additional adult was needed to supervise the outing.
On June 10, 2005, at the next inspection of the facility continuing problems with ratios were found contrary to the statute and rule. On this occasion, two of the three classrooms observed were out of compliance during the initial observation. During a second observation, the infant room remained out of compliance with the ratio standards. The initial observation for the 0-to-12-month-old infants showed a ratio of 1:5, when the ratio called for was 1:4. On the second observation for that age group, the ratio found was 1:4. There was also a problem related to non-compliance with Florida Administrative Code Rule 65C-22.001(5)(a), (b), and (d), in that "Direct supervision of children in the [2 year old] group was inadequate in that [while the provider of the two year old group assisted children in the bathroom, the remainder of her [sic] was left unattended]."
By way of history, as far back as July 31, 2000, problems were observed at the facility in relation to non- compliance with standards pertaining to direct supervision. Over time, problems of compliance with ratio standards were also found. A similar pattern was found on August 4, 2000,
December 8, 2000, August 7, 2001, April 2, 2002, August 6, 2002,
January 30, 2004, and April 27, 2005. Other forms of violation were also found on those dates and additional dates as well.
Significantly, in the past, formal discipline has been imposed against Respondent. On April 8, 2002, a $100.00 fine was imposed against Respondent by the Leon County Health Department, predecessor to Petitioner. The basis for that administrative fine was "Your center was found operating over capacity with 46 children (19 children at the center and 26 children at Levy Park). Your current capacity is 45." That was as of August 10, 2001. On April 2, 2002, a visit had also been made in which it was discovered that the number of children present was 48 as opposed to the capacity of 45.
On June 3, 2002, the Leon County Health Department imposed a $50.00 fine associated with the May 28, 2002, inspection in which it was found that one of the rooms had children in which the ratio of staff to children was not in compliance.
On October 31, 2002, the Leon County Health Department imposed a $100.00 fine premised upon non-compliance with ratio standards on September 30, 2002.
On February 6, 2004, Petitioner brought an Administrative Complaint against Respondent. This was premised upon non-compliance with ratio standards on January 30, 2004, and February 6, 2004. A $1,000.00 fine was imposed, consistent with the proposed administrative fine suggested in the Administrative Complaint.
In each instance recounted, the administrative fines were paid by the Respondent.
Petitioner's Composite Exhibit numbered 1, which sets out the inspection reports during the period contemplated by the overall Administrative Complaint, demonstrates that Petitioner through its employees explained the nature of the problems to Respondent and provided her copies of the inspection reports. By these arrangements, Respondent was reminded of the need to comply with the requirements related to the license. Given the findings made during the inspections, those reminders were frequently stated, to the extent that Respondent could not reasonably contend that she was unaware of her obligation to comply with the law.
Concerning the internal process within the Petitioner Agency as to the classification of violations, there is no formal rule. The response to the violations from the policy perspective is to perceive the staff ratio and supervision issues as being more serious than other forms of violations. Class 1 violations are those posing a more immediate threat to safety and harm to the children in a facility. Under Petitioner's internal policy staff ratio and supervision, violations fall within Class 1.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2005).
Petitioner through the Administrative Complaint intends to take action against Respondent that is penal in nature. Therefore the proof necessary to establish the "current violations" must be by clear and convincing evidence. See Department of Banking and Finance, Division of Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); and Section 120.57(1)(j), Florida Statutes (2005). Clear and convincing evidence is defined in In re: Davey, 645 So. 2d 398,404 (Fla. 1994), quoting, with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).
Respondent is the owner of Sunniland Preschool and Nursery, a child care facility operated under requirements set forth in Sections 402.301-402.319, Florida Statutes (2005).
As a licensee, Respondent must adhere to licensing standards established by Petitioner under authority set forth in Section 402.305, Florida Statutes (2005). Those standards are designed to address, according to Section 402.305(1)(a), Florida Statutes:
The health, sanitation, safety, and adequate physical surroundings for all children in child care.
The health and nutrition of all children in child care.
The child development needs of all children in child care.
Minimum standards for child care facilities are promoted by rule adoption in accordance Section 402.305(1)(c), Florida Statutes (2005).
More specifically, Section 402.305(4)(a), Florida Statutes (2005), establishes mandatory staff-children ratios, in association with the rule adoption process wherein it is stated:
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:
For children from birth through 1 year of age, there must be one child care personnel for every four children.
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.
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.
For children 3 years of age or older, but under 4 years of age, there must be one child care personnel for every 15 children.
For children 4 years of age or older, but under 5 years of age, there must be one child care personnel for every 20 children.
For children 5 years of age or older, there must be one child care personnel for every 25 children.
When children 2 years of age and older are in care, the staff-to-children ratio shall be based on the age group with the largest number of children within the group
Florida Administrative Code Rule 65C-22.001(4) pertaining to staff-to-children ratios states:
The staff-to-children ratio, as established in s. 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.
Mixed Age Groups
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.
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.
Allegations in the Administrative Complaint are related to problems with staff-to-children ratios being maintained.
Another violation alleged in the Administrative Complaint relates to the adequacy of supervision. Florida Administrative Code Rule 65C-22.001(5) in discussing the requirements for supervision 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. 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.
During nap time, supervision means sufficient staff in close proximity, within sight and hearing of all the children. All other staff to meet the required staff-to- children ration 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.
* * *
(d)1. In addition to the number of staff required to meet the staff to child ratio, one additional adult must be present on all field trips away from the child care facility, for the purpose of safety, to assist in providing direct supervision.
* * *
3. A telephone or other means of communication shall be available to staff responsible for children during all field trips. Cell phones, two-way radio devices, citizen band radios, and other means of instant communication are accepted.
The final category of violation contemplated in the Administrative Complaint relates to the playground area.
The requirements set forth in Florida Administrative Code Rule 65C-22.002(9)(b)3, state:
3. Permanent playground equipment must have a ground cover or other protective surface under the equipment which provides resilience and is maintained to reduce the incidence of injuries to children in the event of falls.
The "current violations" contemplated by the Administrative Complaint in the categories set forth above allegedly took place on May 2, 18, and 24 and June 8 and 10, 2005.
Generally stated, the Administrative Complaint under "current violations" alleges:
A subsequent inspection on May 2, 2005 revealed that the facility remained out of compliance regarding sufficient staff to child ratio standards.
Another subsequent inspection on May 18, 2005 revealed that the facility
remained out of compliance regarding staff to child ratio standards and maintenance of fall zone material on the facility playground.
On May 24, 2005 during a licensing re- inspection, your facility was found out of compliance with supervision, ratio, and outdoor equipment safety standards.
* * *
On June 8, 2005 during a complaint investigation, your facility was found out of compliance with supervision standards.
* * *
On June 10, 2005 during a complaint investigation, your facility was found out of compliance with supervision and ratio standards.
Pertaining to the importance of any violation described in the Administrative Complaint, Section 402.308, Florida Statutes (2005), deals with the issuance of licenses for a child care facility wherein it states:
(1) ANNUAL LICENSING.--Every child care facility in the state shall have a license which shall be renewed annually.
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STATE ADMINISTRATION OF LICENSING.--In any county in which the department has the authority to issue licenses, the following procedures shall be applied:
Application for a license or for a renewal of a license to operate a child care facility shall be made in the manner and on the forms prescribed by the department. The applicant's social security number shall be included on the form submitted to the department. Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each applicant is required to provide his or her social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.
Prior to the renewal of a license, the department shall reexamine the child care facility, including in that process the examination of the premises and those records of the facility as required under s. 402.305, to determine that minimum standards for licensing continue to be met.
The department shall coordinate all inspections of child care facilities. A child care facility is not required to implement a recommendation of one agency that is in conflict with a recommendation of another agency if such conflict arises due to uncoordinated inspections. Any conflict in recommendations shall be resolved by the secretary of the department within 15 days after written notice that such conflict exists.
The department shall issue or renew a license upon receipt of the license fee and upon being satisfied that all standards required by ss. 402.301-402.319 have been met. A license may be issued if all the screening materials have been timely submitted; however, a license may not be issued or renewed if any of the child care personnel at the applicant facility have failed the screening required by ss. 402.305(2) and 402.3055.
The last annual license held by Respondent expired June 1, 2005. Its renewal depended on a consideration of the merits of that renewal. It was not merely a matter of having the Petitioner perform a ministerial act. Respondent was not granted an annual license after June 1, 2005. Instead, Petitioner exercised its authority under Section 402.309, Florida Statutes (2005) to grant the Respondent a provisional license. That section states:
The local licensing agency or the department, whichever is authorized to license child care facilities in a county, may issue a provisional license to applicants for a license or to licensees who are unable to conform to all the standards provided for in ss. 402.301-402.319.
No provisional license may be issued unless the operator or owner makes adequate provisions for the health and safety of the child. A provisional license may be issued if all of the screening materials have been timely submitted; however, a provisional license may not be issued unless the child care facility is in compliance with the requirements for screening of child care personnel in ss. 402.305 and 402.3055.
The provisional license shall in no event be issued for a period in excess of 6 months; however, it may be renewed one time for a period not in excess of 6 months under unusual circumstances beyond the control of the applicant.
The provisional license may be suspended if periodic inspection made by the local licensing agency or the department indicates that insufficient progress has been made toward compliance.
At the time the provisional license was issued, Petitioner had determined that Respondent had not complied with the requirement for maintenance of fall zone material on the playground which relates to Florida Administrative Code Rule 65C-22.002(9)(b)3. in its expectation that the groundcover or other protective surface beneath the playground equipment be
resilient and maintained to reduce problems of injuries to children if they fell from the equipment.
Respondent remedied the problem with the fall zone.
Had that been the only concern, Petitioner would have been in a position to convert the Respondent's status from holder of a provisional license to an annual license but that was not the only problem. On the dates that have been described under the category "current violations" to the Administrative Complaint and as discussed in the Findings of Fact, Respondent had numerous ratio problems of staff to children in violation of Section 402.305(4), Florida Statutes (2005), and Florida Administrative Code Rule 65C-22.001(4), as well as problems with supervision in violation of Florida Administrative Code Rule 65C-22.001(5), holding over from the period of the end of the annual license that expired on June 1, 2005, and continuing through June 10, 2005. Those violations were similar to violations found in the past, in a setting in which Respondent had been fined on numerous occasions.
Under the circumstances, Petitioner is empowered to deny Respondent a further child care license. This authority is found in Section 402.310(1)(a), Florida Statutes (2005), allowing denial for violation of statutory provisions set forth in Sections 402.301 through 402.319 or rules adopted thereunder.
In determining the appropriate response to Respondent's failure to comply with the statute and rules related to staff to children ratios and supervision, Section 402.310(1)(b), Florida Statutes (2005), offers guidance where it states:
(b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:
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.
Actions taken by the licensee to correct the violation or to remedy complaints.
Any previous violations of the licensee.
Here there was the probability of harm to the health and safety of the children in Respondent's care given the nature of the violations. Respondent made corrections when the violations were discovered in the category of "current violations," but the pattern of violations persisted. There had been numerous violations of this kind in the past.
Upon the consideration of the facts found and the conclusions of law reached, it is
That a Final Order be entered denying Respondent's child care facility license.
DONE AND ENTERED this 27th day of February, 2006, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2006.
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.
