STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-832

) TED PORTH AND JUANITA PORTH, ) d/b/a KIDDIE WORLD, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, at 6501 Arlington Expressway, Building "B", Suite 205, Jacksonville, Florida, at 9:00 A.M., August 17, 1978.

APPEARANCES

For Petitioner: Robert M. Eisenberg

Department of Health and Rehabilitative Services

District IV Counsel Post Office Box 2417F

Jacksonville, Florida 32231

For Respondents: William Nussbaum

549 Florida National Bank Building Jacksonville, Florida 32202

ISSUES

1. Whether or not on or about November 8, 1977, a licensing worker of the Petitioner visited and encountered several violations of the staff ratios in the facility of the Respondents, (among these, five infants completely unsupervised in one room, and eighteen children in two connecting rooms without supervision), in violation of Rule 10C-10.22(2)(e), Florida Administrative Code.

   
   

2. Whether or not on January 24, 1978, the visit by an employee of the Petitioner to the facility of the Respondents disclosed that the infant area was short one staff member, in violation of Rule 10C-10.22(2)(e), Florida Administrative Code.

   
   

3. Whether or not on March 8, 1978, an employee of the Petitioner visited the Respondents' facility and found seventeen infants, eleven of whom were under one year of age, supervised by only one staff worker, in violation of Rule 10C- 10.22-(2)(e), Florida Administrative Code.

4. Whether or not on March 8, 1978, an employee of the Petitioner visited the Respondents' facility and discovered one child alone in a room in the facility completely unsupervised, in violation of Rule 10C-10.22(2)(e), Florida Administrative Code.

   
   

5. Whether or not on March 15, 1978, an employee of the Petitioner in a visit to the Respondents' facility found two children in a room completely unsupervised, in violation of Rule 10C-10.22(2)(e), Florida Administrative Cede.

   
   

6. Whether or not on March 15, 1978, an employee of the Petitioner visiting the licensed facility of the Respondents found eleven infants in one room supervised by one staff person, in violation of Rule 10C-10.22(2)(e), Florida Administrative Code.

   
   

7. Whether or not on March 15, 1978, an employee of the Petitioner while visiting the Respondents' facility discovered on the outside part of the premises, four infants with a group of about fifteen older children being supervised by only two staff persons of the Respondents, in violation of Rule 10C-10.22(2)(e), Florida Administrative Code.

   
   

8. Whether or not subsequent to March 15, 1978, an employee of the Petitioner visited the Respondents' facility on three separate occasions and found less than the minimum required staff on duty in violation of Rule 10C- 10.22(2)(e), Florida Administrative Code.

   
   

9. Whether or not on April 5, 1978, an employee of the Petitioner visited the Respondents' facility and found nine infants completely unattended in the infant area of Respondents' licensed premises, in violation of Rule 10C-10.22 (2)(e), Florida Administrative Code. Whether or not on that same date, an employee of of the Petitioner visited the facility of the Respondents and discovered that a mattress and springs of one of the cribs had become dislodged in one corner, so that the corner of the mattress and springs had fallen to the floor causing one of the nine infants that was in the crib to be trapped between the mattress and the bottom of the crib.

FINDINGS OF FACT

1. This cause came on for consideration on the complaint letter of the Petitioner dated April 17, 1978, served upon Mr. Ted and Juanita Porth d/b/a Kiddie World. The petitioner, State of Florida, Department of Health and Rehabilitative Services, is an agency of the State of Florida, charged with the duty of licensing and regulating "Child-care facilities" under the authority of Chapter 402, Florida Statutes. The Respondents, led and Juanita Porth are licensed by the Petitioner to operate a "Child-care facility" and under that license do business as Kiddie World at the location 8142 Lone Star Road, Jacksonville, Florida.

   
   

2. This action has been brought by the Petitioner against the Respondent under the terms and conditions of Chapter 402, Florida Statutes. Section 402.301, Florid Statutes, sets out the legislative intent and declaration of purpose and policy and Section 402.302, Florida Statutes, defines "Child-care and "Child-care facility." The Respondents are providing "Child-care" within the meaning of that definition and are operating a "Child-care facility" within the definition set forth. The Respondents by Section 402.302, Florida Statutes, are within the meaning of the Section, the "Operators" of the "Child-care facility."

3. Section 402.305, Florida Statutes, enables the Petitioner to establish certain licensing standards for the operation of a "Child-care facility." Among those are minimum standards, to include standards for personnel working in a "Child-care facility." Specifically, in Section 402.305(1), Florida Statutes, the language reads:

   
   

   402.305 Licensing standards.--

   The state minimum standards shall be designed to protect the health, sani- tation, safety, and well-being of all children under care by ensuring com- petent personnel, adequate physical surroundings, and healthful food. All standards established under this act shall be in accordance with the appro- priate minimum standards used by the state fire marshal for child-care facilities. The minimum standards for child-care facilities shall include the following areas:

   (1) PERSONNEL.-- Minimum standards for child-care personnel, whether employees

   or volunteers, which shall include minimum age requirements, periodic health exami- nations, minimum levels of training in first aid, and ratios of personnel to children.

   
   

   It is the minimum standards for personnel, in terms of the ratios of personnel to children, which is the underlying basis of action against the Respondents.

   
   

4. The rule on minimum standards for personnel which the Petitioner claims to have been violated by the Respondents. is Rule 10C-10.22(2)(e), Florida Administrative Code, and it states the following:

   
   

   (e) Ratios of Personnel to Children:

   
   

   1. General

      1. The following staff ration is based on direct supervision of children:

         AGE OF CHILDREN RATIO

         Under 1 year of age 1 person for 6 children

         1. year of age 1 person for 8 children

         2. years of age 1 parson for 12 children

         3. years of age 1 person for 15 children

         4. years of age 1 person for 20 children

         5. years of age 1 person for 25 children

      2. The groups of mixed age ranges, where infants are included, one (1) person shall not be responsible for more than six (6) children of any age group. Where infants are not included, the staff ratio shall be based on the age of the majority of children in the group.

      3. There shall be an arrangement for another adult to be readily available to substitute

         for the adult in charge in case of emergency.

      4. If both non-handicapped and handicapped children are served, it may be necessary for the operator to make an adjustment in the staff ratio to insure adequate and propar care of the handicapped child . . .

   
   

   One further reference is necessary. In defining the meaning of "infant," reference is made to Rule 10C-10.22(1)(i), Florida Administrative Code, which defines "infant" as ". . . child less 24 months of age."

   
   

5. For the alleged violation of the minimum standards established under the provisions of Section 402.305(1), Florida Statutes, the Petitioner is attempting to revoke the Respondent "Operator's" license to operate a "Child- care facility" as Kiddie World, at 8142 Lone Star Road, Jacksonville, Florida. The authority for such action and revocation is found in Section 402.310(1), Florida Statutes, which states:

   
   

   402.310 Hearings upon denial or revocation of license.--

   (1) When the department or local licensing agency, whichever is applicable, has rea- sonable cause to believe that grounds for the denial or revocation of a license exist, it shall notify the applicant or licensee in writing, stating the grounds upon which the license is being denied or revoked. If the applicant or licensee makes no written request for a hearing to the local licensing agency or the department, whichever is applicable, within 15 days from receipt of such notice, the license shall be deemed denied or revoked.

   
   

   The Petitioner by its letter of April 17, 1978, served upon the Respondents, has notified the licensees/Respondents of the grounds upon which the license is being subjected to possible revocation. In particular, the actionable part of the complaint letter is found, beginning on the first page where it points out selected alleged violations beginning with November 8, 1977, (inclusive of the beginning of the second page) through incidents alleged to have occurred on April 5 1978.

   
   

6. The facts in the case show that on November 8, 1977, Nancy Corley, an employee of the Petitioner, working in the area of day-care licensing, went to the licensed premises to make a routine check. During the course of that inspection, she found five infants, (within the meaning of Rule 10C-10.22(1)(i), Florida, Administrative Code), who were unattended by any adult in the room in which the children were seen. This was a violation of the minimum standards for ratio's of the personnel to children, within the meaning of Rule 10C- 10.22(2)(e), Florida Administrative Code. On that same visit, the inspector found eighteen additional children in two connecting rooms, who were without supervision, again in violation of Rule 10C-10.22(2)(e), Florida Administrative Code. Ms. Corley waited in the office area of the licensed premises and made one of the Respondents aware of the violation and that Respondent agreed with the findings and indicated that corrections would be made.

7. Ms. Corley testified that she made a later visit to the licensed premises on January 24, 1978, and discovered that the operators were short one adult in the infant room. No further testimony was offered in support of this ultimate face conclusion, therefore, no violation has been established of the requirement of ratios of personnel to children, as set forth in Rule 10C- 10.22(2)(e), Florida Administrative Code.

   
   

8. On March 8, 1978, a new employee of the Petitioners working in the day- care licensing unit of the Department of Health and Rehabilitative Services went to the address of Kiddie World. That employee was Nora Hall. Her inspection was unannounced. (Neither one of the Respondents were at the licensed premises at that time.) In one room she discovered seventeen children being supervised by one adult and there were children in the group who were under the age of two years, thereby being classified as infants. Consequently, this was a violation of the ratios of personnel to children in that this mixed group which included infants could not have had a ratio of supervisory persons to children in which any one supervisory person was responsible for more than six children of any age group, as explained in Rule 10C-10.22(2)(e) 1.B., Florida Administrative Code. On that same visit, Ms. Hall found one child in the lobby who was completely unattended by a supervisory person, in violation of the ratios of personnel to children required by Rule 10C-10.22(2)(e), Florida Administrative Code. Ms. Hall spoke to the person working in the infant room and explained the violations and later explained the violations to the Respondent Mrs. Porth.

   
   

9. On March 15, 1978, Ms. Hall returned to Kiddie World for a further inspection. She observed one staff member in one of the rooms attending eleven children two years old or younger. Again, this is in violation of Rule 10C- 10.22(2)(e), 1.B., Florida Administrative Code, which requires that groups with mixed age ranges which contain infants should have a ratio of supervisory personnel to children which has at 1oat one adult for every far every six children. On the outside, she found a group of twenty children, including four infants, which were being supervised by two persons. This was also a violation of Rule 10C-10.22(2)(e) 1.B., Florida Administrative Code, requiring a minimum of one personnel for every six children in a group of mixed age ranges whereby infants are in the group. There was a further allegation in the complaint letter that stated that on the same date, two children were in a room totally unsupervised. There was no testimony to that effect and no violation has been established.

   
   

10. On March 17, 1978, on a further visit Ms. Hall again found some children unattended by personnel of the operators, in violation of Rule 10C- 10.22(2)(e), Florida Administrative Code. No other violations as alleged to have occurred subsequent to March 16, 1978 and before April 5, 1978 were proven.

    
    

11. Ms. Hall made her next inspection on April 5, i978. At that time she discovered nine children in the so-called infant room of the operators' facility who had no adult in attendance. This is a violation of the requirements of ratios of personnel to children set forth in Rule 10C-10.22 (2)(e), Florida Administrative Code. It was several minutes before any adult came into the room. Testimony revealed that some of the children in the room were asleep; however, one of the children had become lodged between the mattress of the baby bed and the railing of that bed and was struggling to become free of this entanglement.

    
    

12. Mrs. Porth was made aware of the observations of Ms. Hall on a visit subsequent to April 5, 1978.

13. It was shown in the course of the hearing that a meeting was held between Mr. Porth, one of the Operators, and Bruce Rhodes, a day-care licensing supervisor employed by the Petitioner, on May 31, 1978, at which time discussions were entered into on the issue of the necessity to maintain proper personnel to children ratios within the Child-care facility. On July 21, 1977, Mr. Rhodes wrote to Respondents, as seen by Petitioner's Exhibit No. 1 admitted into evidence. This letter apprises the Respondents of some problems with the ratios. Respondents replied by letter of July 28, 1977, indicating the corrective actions and the observations of Respondents. That letter of July 28, 1977, may be found as Petitioner's Exhibit No. 2. Mr. Rhodes subsequently wrote to the Respondents on March 16, 1978, setting out some of the alleged violations which were the basis for the complaint letter of April 17, 1978, and which violations have been proven in the course of this hearing. These alleged violations alluded to in the March 16, 1978, correspondence from Mr. Rhodes to the Respondent were discussed in the meeting between Rhodes and the Respondents at a time prior to the April 17, 1978, complaint letter.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

15. The motion to dismiss which has been presented by the Respondents was and is denied, with leave of the Respondents to make further attacks on the constitutionality of Chapter 402, Florida Statutes, as they deem appropriate.

    
    

16. Based upon a consideration of the facts which show that on November 8, 1977, five infants were found in one room of the "Child-care facility" without adult supervision, it is concluded as a matter of law that this was in violation of Chapter 402.305(1), Florida Statutes, and Rule 10C-10.22(2)(e), Florida Administrative Code, thereby subjecting the Respondents to the penalty found in Section 402.310(1), Florida Statutes.

    
    

17. Based upon a consideration of the facts which show that on November 8, 1977, eighteen children were found in two connecting rooms and no persons were in positions of supervision of those children, it is concluded as a matter of law that this was in violation of Chapter 402.305(1), Florida Statutes, and Rule 10C-10.22(2)(e), Florida Administrative Code, thereby subjecting the Respondents to the penalty found in Section 402.310(1) Florida Statutes.

    
    

18. Based upon a consideration of the facts of the observations of January 24, 1978, made by the employee of the Petitioner, no violation has been shown, because ultimate fact conclusions are insufficient to support a finding of fact, which would allow for the establishment of any actionable conduct on the part of the Respondents.

    
    

19. Based upon the consideration of the facts which show on March 8, 1978, seventeen children were found in one room of the "Child-care facility" who were under the age of two years old and were supervised by one adult person, when the ratio should be one adult to six children, it is concluded as a matter of law that this was in violation of Chapter 402.305(1) Florida Statutes, and Rule 10C- 10.22(2)(e) 1.B., Florida Administrative Code, thereby subjecting Respondents to the penalty found in Section 402.310(1), Florida Statutes.

    
    

20. Based upon a consideration of the facts which showed that on March 8, 1978, one child in the lobby area of the "Child-care facility" was unattended, it is concluded as a matter of law that this was in violation of Section

    402.305(1), Florida Statutes, and Rule 10C-10.22(2)(e), Florida Administrative Code, thereby subjecting the Respondents to the penalty found in Section 402.310(1), Florida Statutes.

    
    

21. Based upon a consideration of the facts which show that on March 15, 1978, eleven children two years of age or younger were found in a room supervised by only one staff member, when the ratio should be one adult to six children, it is concluded as a matter of law this was in violation of Section 402.305(1), Florida Statutes, and Rule 10C-10.22(2)(e)1.B., Florida Administrative Code, thereby subjecting Respondents to the penalty found in Section 402.310(1), Florida Statutes.

    
    

22. Based upon a consideration of the facts which showed that on March 15, 1978, in the "Child-care facility" twenty children were observed in an area, and in which four of those children were infants and in which the supervision was by two adults, when the ratio should be one adult to six children, it is concluded as a matter of law that this was in violation of Section 402.305(1), Florida Statutes, and Rule 10C-10.22(2)(e)1.B., Florida Administrative Code, thereby subjecting the Respondents to the penalty found in Section 402.310(1), Florida Statutes.

    
    

23. Petitioners have alleged a further violation to have occurred on March 15, 1978, pertaining to two children in a room, when those children were not supervised. No proof was offered to that effect and no violation has been established for any such incident.

    
    

24. Based upon a consideration of the facts which show that on March 17, 1978, in the "Child-care facility," certain children were unattended by supervisory personnel of the operators, it is concluded as a matter of law that this was in violation of Section 402.305(1), Florida Statutes, and Rule 10C- 10.22(2)(e), Florida Administrative Code, thereby subjecting the Respondents to the penalty found in Section 402.310(1), Florida Statutes.

    
    

25. By the complaint letter, is is alleged that between March 16, 1978, and April 5, 1978, that the employee of the Petitioner visited the "Child-care facility" and found less than the minimum required staff on three separate occasions. Other than the violation alluded to above, which occurred on March 17, 1978, no other violation was proven in the course of the hearing, which would have occurred between March 16, 1978, and April 5, 1978.

    
    

26. Based upon a consideration of the facts which show that on April 5, 1978, nine infants were located in a room of the "Child-care facility" unattended by supervisory persons, it is concluded as a matter of law that this was in violation of Section 402.305(1), Florida Statutes, and Rule 10C- 10.22(2)(e), Florida Administrative Code, thereby subjecting Respondents to the penalty found in Section 402.310(1) Florida Statutes.

RECOMMENDATION

After a full consideration of the facts in this cause and those matters in mitigation and aggravation, it is recommended that the license of the Respondents to operate a "Child-care facility" at 8142 Lone Star Road, Jacksonville, Florida, be revoked, but that that revocation be withhold pending the satisfactory completion of a two-year probationary period, during which time the Respondent shall abide by the provisions pertaining to their licensure as a "Child-care facility" with a condition of the probation being that the failure to abide by those requirements shall subject the Respondents to revocation.

DONE and ENTERED this 21st day of September, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert M. Eisenberg Department of HRS District IV Counsel Post Office Box 2417F

Jacksonville, Florida 32231

William Nussbaum

549 Florida National Bank Building Jacksonville, Florida 32202

Docket for Case No: 78-000832

Orders for Case No: 78-000832