STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 06-4777

) CHILDREN'S CHRISTIAN SCHOOL ) HOUSE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on January 31, 2007.

APPEARANCES

For Petitioner: Kimberly D. Coward, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128

For Respondent: Ileana Echevarria

Qualified Representative

Children's Christian School House, Inc.

380 West 21st Street Hialeah, Florida 33010

STATEMENT OF THE ISSUES

The issues are whether Respondent, a child care facility, violated the minimum staffing ratio in one of its classes and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By letter dated June 21, 2006, Petitioner informed Respondent that it was imposing a $100 civil penalty for a violation of the staff-to-child ratio on June 20, 2006.

Respondent timely requested a hearing.

At the hearing, Petitioner and Respondent each called one witness and offered into evidence two exhibits. All exhibits were admitted.

The court reporter filed the transcript on March 8, 2007.

Petitioner filed its proposed recommended order on March 12,

2007.

FINDINGS OF FACT

1. Respondent owns and operates the Children's Christian School House, which is a licensed child care facility. Ileana Echevarria is the director of Respondent.

2. Each year, Petitioner's inspectors conduct three routine and one annual-renewal inspection of each licensed child care facility. On one such inspection, conducted on June 5, 2006, the inspector observed that the facility's two-year-old room had 12 children and only one adult. Pursuant to Petitioner's policy not to fine a facility for the first violation, the inspector directed Ms. Echevarria to telephone one of the parents and have her come and pick up her child.

   Ms. Echevarria did so, and the violation was corrected before the inspector left the facility.

3. The same inspector returned to the facility on June 20, 2006, to perform a re-inspection. On this occasion, the facility was out of compliance in a different room. The room occupied by children five years old and older contained 39 children and one adult.

4. On June 20, two of the teachers were on vacation and another teacher had called in sick. A new teacher had reported to work for her first day, but she was sitting in the cafeteria and was not supervising any children. Ms. Echevarria herself had been sick, had come to school earlier, and had returned home to retrieve her medicine, so she was not at the facility at the time of the re-inspection of the out-of-compliance classroom.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

6. Section 402.305(4), Florida Statutes, authorizes Petitioner to adopt, by rule, minimum staffing standards for licensed child care facilities. The statute provides:

   STAFF-TO-CHILDREN RATIO.--

   
   

   1. Minimum standards for the care of children in a licensed child care facility

as established by rule of the department must include:

* * *

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.

* * *

1. For children 5 years of age or older, there must be one child care personnel for every 25 children.

2. 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.

1. Florida Administrative Code Rule 65C-22.001(4)(a) provides that the staff-to-child ratio "is based on primary responsibility for the direct supervision of children and applies at all times while children are in care." Florida Administrative Code Rule 65C-22.001(5)(a) provides:

   Direct supervision means watching and directing children's activities within the same room or designated outdoor play area and responding to the needs of each child. 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, capable of responding to emergencies and are accountable for children at all times, including when children are separated from their groups.

2. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v.

   Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

3. Petitioner has proved that, on June 20, 2006, Respondent's five-year-old class contained considerably in excess of the 25 students allowed by law.

4. Section 402.310(1)(a)1, Florida Statutes, authorizes Petitioner to impose a fine of $100 per violation per day for violations that are not of a nature that could result in death or serious harm.

5. In its proposed recommended order, Petitioner cites a "CF Pamphlet 175-2 Enforcement Section ("Desk Reference"), which the Administrative Law Judge has not found in the Florida Administrative Code, to support its contention that Class II violations shall be penalized by fines of $50-100. However, the

$100 fine proposed by Petitioner is authorized by statute.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Family Services enter a final order imposing a civil penalty of $100 against Respondent for a violation of the staff-to-children ratio during the June 20, 2006, inspection.

DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 April, 2007.

COPIES FURNISHED:

Gregory Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert A. Butterworth, Secretary Department of Children and

Family Services Building 1 Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 Kimberly D. Coward, Esquire Department of Children and

Family Services

401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128

Ileana Echevarria Qualified Representative

Children's Christian School House, Inc.

380 West 21st Street Hialeah, Florida 33010

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 06-004777

Orders for Case No: 06-004777