STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-4304

)

LUCY ANDERSON, OPERATOR, ) ANDERSON'S CHILD CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Crestview, Florida before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on June 26, 1986. The Division of Administrative Hearings received the transcript of the final hearing on November 20, 1986. Petitioner's proposed findings of fact have been addressed by number in the attached appendix.

APPEARANCES

The parties were represented by counsel:

For Petitioner: Donna S. Harkness

Post Office Box 12836 Pensacola, Florida 32576

For Respondent: Dale E. Rice

Post Office Box 687 Crestview, Florida 32356

By amended administrative complaint, dated March 24, 1986, petitioner alleges that respondent "Lucy Anderson holds a license to operate Anderson's Child Care Center . . . [in] Crestview, Florida, as a child care facility . . . [and] is operating in violation of the minimum standards for a child care facility as established by Sections 402.301 through 402.319, Florida Statutes, and Chapter 10M-12, Florida Administrative Code" in that "Anderson's Child Care Center is operated within the residence of Lucy Anderson, the operator, and . . . a family member residing with Lucy Anderson has been found to have a substantiated indicated report of abuse, as defined in Section

415.503, Florida Statutes . . . in violation of Section 402.305(1)(a), Florida Statutes, and Rule 10M-12.01 Florida Administrative Code"; and that while "Justin Seeley, D.O.B. 1/5/82, was left in the care and custody of Lucy Anderson's Child Center . . . said child changed from being outgoing and affectionate to being passive, fearful, and clinging and reverted from being completely toilet trained to having frequent accidents as a result of the practices at Anderson's Child Care Center concerning toileting and discipline"; and that while "Jared Narlock D.O.B. 1/4/84, was left in the care and custody of Lucy Anderson at Anderson's Child Care Center . . . said child began biting two of his fingers to the point where they became infected and required medical attention and began running to cower in a corner whenever he would have a bowel movement"; and that Respondent "failed to maintain a proper ratio of personnel to children as required . . . on or about October 9, 1985, [when she] was found to be caring for at least 65 children with only 4 child care workers in attendance . . . in violation of Section 402.305(1)(e), Florida Statutes, and 10M-12.02, Florida Administrative Code." Petitioner seeks the revocation of respondent's license "pursuant to Section 402.310(1)(a), and (2), and Section 402.3055(5), Florida Statutes, and Rule 10M- 12.11(1)(a), Florida Administrative Code."

Respondent moved to strike that portion of the amended administrative complaint seeking revocation of her license on grounds that a substantiated indicated report of child abuse had been lodged against respondent's husband, who allegedly resided with her. Because at the time the hearing in the present case began this report of child abuse had neither been judicially determined nor administratively established, in the fashion contemplated by the court's opinion on rehearing in Anderson v. Department of Health and Rehabilitative Services, 485 So. 2d 849 (Fla. 1st DCA 1986), the motion to strike was granted, on the ground that "it would be inappropriate to take disciplinary action against Ms. Anderson on account of a report which has not yet been substantiated." (T.22) The administrative complaint in the present case does not allege the facts underlying the child abuse report, and petitioner's motion to consolidate the present case with the case in which the propriety of listing her husband in the child abuse registry was at issue, Case No. 85-4302, was denied. Although the report of child abuse naming respondent's husband as responsible has subsequently been substantiated, State of Florida, Department of Health and Rehabilitative Services v.

Charles N. Anderson, No. 85-4302 (RO; November 21, 1986), at

least to the point of recommended order, action against respondent premised on her husband's status, if any, must await subsequent disciplinary proceedings.

ISSUE

Whether petitioner should take disciplinary action against respondent for the reasons (other than the alleged existence of a substantiated indicated abuse report) alleged in the amended administrative complaint?

FINDINGS OF FACT

1. Anderson's Child Care Center at 507 Texas Avenue in Crestview was one of the day care centers Mr. Brown of the Okaloosa County Health Department routinely inspected. Respondent testified without contradiction that she has operated a child care center at her Texas Avenue home since September of 1973, with the exception of the time petitioner closed her down. See Anderson v. Department of Health and Rehabilitative Services,

   482 So. 2d 491 as clarified on reh. 485 So. 2d 849 (Fla. 1st DCA 1986). From this evidence it is inferred that she holds a license for a child care center. No evidence suggested otherwise. In the summer and fall of 1985, Lucy's husband Charles lived with her and worked at the child care center.

   J. S.

   
   

2. On July 18, 1985, J.S., who was born January 5, 1982, spent his first day at the Anderson Child Care Center. J.S. was "right about the age [for] learning but c[ould]n't void on command." (T.48). He lacked "the voluntary control" (T.48) to "void on command," but he had learned to restrain himself before attending the Anderson Child Care Center. Although he was toilet trained before he began attending Anderson Child Care Center, he "started having lots of accidents and messing in his pants" (T.

   73) after July 18, 1985.

   
   

3. When left at the center, J.S. "got where he would throw a fit. He would not want to stay. And when . . . [Mrs. S.] would go pick him up, he would still be crying." (T. 77 ) September 11, 1985, was his thirteenth and final day at the Anderson Child Care Center.

   
   

4. On September 12, 1985, A.S.'s mother took her to Eglin Regional Hospital in order to be examined, on account of the redness of her 23-month-old vaginal area. (T.74) J.S. accompanied his mother and sister. Leslie Price Kurtz, an Air Force Officer and pediatrician who saw A.S., diagnosed a rash on her nates as impetigo.

   
   

5. In the course of inquiring about A.S., Dr. Kurtz was told by Mrs. S (who relayed information she had received from M.S., 8-year-old brother of J.S. and A.S.) that J.S. did not like to go to the bathroom at Anderson's Child Care Center, which all three S. children attended, because of immodest conditions there. The story Dr. Kurtz got was that the children were directed to use the bathroom at specific times and had no privacy when they did. (T.50) Based on this information, and on Mrs. S's report that J.S. had once been potty trained but had recently regressed, Dr. Kurtz suggested to Mrs. S. that she remove her children from

   Anderson's Child Care Center. Dr. Kurtz contacted the Department of Health and Rehabilitative Services which, as far as she knew, took no action at that time.

   
   

6. In Dr. Kurtz's opinion, "a disturbance . . . had occurred with [J.S.] . . . secondary to the child's behavior as described . . . by the mother." (T.50)

   
   

   J. N.

   
   

7. On September 25, 1985, Dr. Kurtz saw J.N. who was brought to her with complaints of an ear infection. There was no mention of any problem with his hands but Dr. Kurtz noticed that J.N., who was 20 months old at the time, had red and macerated fingers.

   
   

8. J.N., who was born January 4, 1984, began at the Anderson Child Care Center on July 15, 1985, and attended regularly through September 27, 1985, although he missed a total of nine days, for sickness and other reasons. His parents drove him to the Center on their way to work, dropping him off about seven in the morning, and returned to pick him up about quarter past four in the afternoon.

   
   

9. The first day he was there, three or four fingers were swollen a little when his parents picked him up. But in general things seemed to go well, at first. There were no more swollen fingers for two to four weeks and his parents saw him try to sing along with songs and do exercises at home they assumed he had learned at Anderson Child Care Center.

   
   

10. There came a point when J.N. began to cry and cling to his mother when he was dropped off at respondent's. From then on, he cried nine times out of ten when he was left at the Anderson Child Care Center and he also frequently chewed on his fingers.

    
    

11. One day when his father came for him, J.N. was sitting on the ground looking as if he had been crying. He refused to get up even though his father called him twice. Only after Charles Anderson told J.N. to go to his father did the child go to him.

    
    

12. His parents never noticed J.N. chew his fingers before he began at the Anderson Child Care Center and this behavior has all but disappeared since he began attending another child care center. Only during the time he attended Anderson's did his fingers become red, swollen and infected. "[I]t was almost like he had bit right through his fingernails he had been chewing on

    them so much." Deposition of J.N., p.ll. They have healed completely since he left Anderson's Child Care Center.

    
    

13. J.N. was not toilet trained when he started at Anderson's Child Care Center. He was still in diapers. After he had been at the Center two weeks, Mrs. Anderson told his mother that he seemed to have "a bowel movement after naptime when he would be outside playing,"(T.115) and suggested that he "be put on the potty at that time of the day." (T.115) Mrs. N. did not object to this proposal.

    
    

14. Thereafter J.N. was placed on the toilet "after naptime" and regularly defecated, without crying or complaining. Child care center personnel did not punish him for accidents. Only after J.N. began at Anderson's Child Care Center, however, did his parents notice J.N. at home "go behind the furniture to go potty. It seemed like he was afraid . . ." (Deposition of J.N., P. 11) J.N. also seems to fear toilets. Id., P. 2.

    
    

15. After J.N.'s parents related his circumstances to Dr. Kurtz, Dr. Kurtz concluded that the changes in his behavior were "most likely . . . [attributable to] conditions at Anderson Day Care Center," (T. 52) and contacted HRS. She also advised J.N.'s parents to remove him from Anderson Child Care Center immediately.

    
    

16. J.N.'s parents sent him to Anderson Child Care Center the next day nevertheless.

    
    

    [T]hen we talked some more; we decided we would take him out because in -- when you're in the air force, you have your family. But in matter of speaking, the air force can run that family for you -- because if we wouldn't have taken him out of there and the doctor would have found out about it, she could have forced us to take him out of there.

    Deposition of J.N., P. 19.

    
    

    Respondent learned of dissatisfaction with the care J.N. received at the Center only after the present proceedings began.

    
    

    Toileting Generally

    
    

17. In response to petitioner's interrogatories, Mrs. Anderson described toileting procedures at the Anderson Child Care Center. Petitioner offered her description in evidence:

    
    

    Under two years of age, after the parents agree the time for pottie training is to

    start, The children are exposed to the pottie usually during diaper change time. After pottie training depending on liquid ingestion, weather, child, time of day, and other variables, the children are given an opportunity periodically to use the pottie.

    If the children are inside they are given the opportunity every hour. If the children are outside they are given an opportunity every

    1-1/2 to 2 hours. If the children need to go in the interim they are allowed to do so. If the children are going on a field trip or leave the center they are encouraged to use the bathroom before leaving. The children are also encouraged to use the bathroom right after lunch. The same procedure is employed for the children 2 through 5 and older as is the case with the children under 2 years of age after those children under 2 are pottie trained as above outlined. Usually the children are selected randomly while listening to a story for the purpose of an opportunity to use the bathroom.

    Petitioner's Exhibit No. 2.

    
    

    Mrs. Anderson's testimony at hearing was consistent with this account, as regards events after July 1, 1985.

    
    

    Staffing

    
    

18. On October 9, 1985, Lucy Anderson was at Anderson's Child Care Center all day. At eight that morning Debbie Underwood and Pat Todd arrived and began work. At noon Charles Anderson came home. Thirty minutes later Debbie Underwood left the premises for lunch and at one o'clock Pat Todd left for the day. At 1:30 p.m., Debbie Underwood returned from lunch and Ann Parker reported for work. At half past two, Mr. Anderson left, but Kelley Anderson came home ten minutes later. Both Mrs. Parker and Mrs. Todd left for the day at five, but Kelley helped her mother till six.

    
    

19. Between two and three o'clock on the afternoon of October 9, 1985, Arthur Alvin Brown, an inspector with the Okaloosa County Health Department, called at Anderson's Child, Care Center. Mrs. Anderson and three other women supervised the children while Mr. Brown was there. He stayed "probably somewhere in the neighborhood of fifteen, twenty, thirty minutes." (T.89) He counted four children inside sleeping on mats, and approximately 65 outside playing. Because he "knew the licensed capacity was fifty-five [he counted] a number of times."

    (T.89) Children were coming and going while he was there and he tried to take that into account. No more than five children left during his stay, however.

    
    

20. Of the children who respondent's own records reflect were at the Center from two or earlier till three or later on the afternoon of October 9, 1985, four were ten years old, three were nine years old, eight were eight years old, two were seven years old, five were six years old, five were five years old, six were four years old, three were three years old, four were two years old and Matthew Newell was the only one-year-old. Petitioner's Exhibit No. 2. According to respondent's records, 29 other children were at the Center for some part of the time between two and three o'clock that afternoon. The age of one of the children in this group is not clear from the record. Of the others, two were two years old, only Candace Cox was three years old, two were five years old, four were six years old, eight were seven years old, three were eight years old, four were nine years old, three were ten years old and Kevin Barrow was the only eleven- year old. Petitioner's Exhibit No. 2.

    CONCLUSIONS OF LAW

    
    

21. Petitioner is authorized to "suspend or revoke a license or 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." Section 402.310(1)(a), Florida Statutes (1985).

    
    

22. In the present case, petitioner alleges that respondent has violated the statutory provision that prohibits "[d]iscipline

    . . . associated with toileting," Section 402.305(8)(b), Florida Statutes (1985); and that respondent has violated Rule 10M- 12.02(5)(a)(3), Florida Administrative Code, promulgated under Sections 402.301, 402.305(1)(e) and 4G2.308, Florida Statutes (1985). The rule provision specifies staffing ratios:

    
    

    1. Ratios for Personnel to Children:

       
       

       1. General:

          
          

          1. The following staff ratio is based on primary responsibility for the direct supervision of children:

             
             

             Age of Children Ratio

             
             

             Under 1 year of age 1 person for 6 infants

             1. years of age 1 person for 8 infants

             2. years of age 1 person for 15 children

             3. years of age 1 person for 20 children

             4. years of age or 1 person for 25 older

             children

             
             

          2. Direct supervision means watching and directing children's activities within close proximity within the same room inside or within a designated outdoor play areas.

             
             

          3. The groups of mixed age ranges, where infants under one (1) year are included, one

          (1) person shall not be responsible for more than six (6) children of any age group.

          Where infants over one (1) year are included, one (1) person shall not be responsible for more than eight (8) 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. Rule lOM- 1.02, Florida Administrative Code.

          
          

          For purposes of the rule, children younger than two are deemed infants. See, e.g., Rule lOM-12.02(5)(b)(L), Florida Administrative Code. Ratios are not established for child care facilities as such, but only with regard to the manner in which children are trouped.

          
          

          Burden of Proof

          
          

23. Petitioner concedes it has the burden to establish the violations it has alleged, but contends it need do so only by a preponderance of the evidence, citing Florida Department of_ Health and Rehabilitative Services v. Career Service Commission,

    289 So. 2d 412 (Fla. 4th DCA 1974). The cited case involved the burden of proof on an employer seeking to take action against an employee, not on a licensing agency seeking to revoke a license. Cf. Davis v. Department of Professional Regulation, 457 So. 2d 1074(Fla. 1st DCA 1984) (employment case distinguished on grounds "the risk was the loss of a teaching position, but not the loss of a teaching certificate" at 1078).

    
    

24. Although a recent decision lends support to petitioner's position, Turlington v. Ferris, No. BH-37 (Fla. 1st., DCA; October 2, 1986), license revocation proceedings have been said to be "'penal' in nature." State ex ref. Vining v. Florida Real Estate Commission, 281 So. 2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So. 2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). The prosecuting agency has the burden of proof, Associated Home Health Agency,

    Inc., v. State Department of Health and Rehabilitative Services,

    453 So.2d 104 (Fla. 1st DCA 1984), and strict procedural protections apply. The prosecuting agency's burden is generally believed to be to prove its case clearly and convincingly. See generally Addington v. Texas, 441 U.S. 426 (1979); Ferris v. Austin, 487 So. 2d 1163, (Fla 5th DCA 1986); Anheuser-Busch, Inc. v. Department of Business Regulation, etc., 393 So. 2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So. 2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So. 2d 846, 851 (Fla 2nd DCA 1966). But see Turlington v. Ferris, No. BH-37(Fla 1st DCA; October 2, 1986). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling v. Department of Insurance, 394 So 2d 165, 173 (Fla. 1st DCA 1981), in the evidence, unless applicable statutes and rules create the duty clearly. Id.

    Allegations Not Proven

    
    

25. Even under a preponderance standard, the evidence was insufficient to prove that Lucy Anderson, her husband or anybody in her employ, administered discipline to J.S. or J. N. "associated with . . . toileting." Section 402.305(8)(b), Florida Statutes (1985). Mrs. Anderson denied it and the only evidence tending to establish the allegations was evidence of changes in the children's behavior which Dr. Kurtz attributed to "conditions" at Anderson's Child Care Center. Mrs. Anderson admitted "expos[ing the children] to the pottie usually during diaper change time . . . [and] giv[ing them] an opportunity periodically to use the pottie." Petitioner's Exhibit No. 2. She also admitted encouraging children to use the bathroom right after lunch and before leaving the center for field trips or other purposes. Petitioner's Exhibit No. 2. These admitted practices do not violate the law of Florida.

    
    

26. Petitioner established by a preponderance of the evidence that only four staff persons were supervising some 69 children at the time of Mr. Brown's visit to the Center October 9, 1985. The evidence established clearly and convincingly that the number of children exceeded 63. Since petitioner has not charged respondent with a violation for taking in more children than the facility was licensed to care for, no disciplinary action can be taken against respondent on those grounds in this proceeding. Wray v. Department of Professional Regulation v. Board of Medical Examiners, 435 So. 2d 312 (Fla. 1st DCA 1983) "[C]harges respecting revocation of a license must be 'particularly and specifically stated.'" Davis v. Department of Professional Regulation, 457 So. 2d 1074, 1076 (Fla. 1st DCA 1984) quoting Bowling v. Department of Insurance, 394 So. 2d 165,

    171 (Fla. 1st DCA 1981).

27. But petitioner did plead that respondent failed to provide sufficient staff to meet the staffing ratio requirements laid down by Chapter 10M-12, Florida Administrative Code. Under Rule 10M-12.02(5), Florida Administrative Code, one staff person should have been "within the same room," Rule 10M-12.02(5)(a)(2), Florida Administrative Code, as the four sleeping children. The evidence did not establish that the sleeping children were not properly supervised.

    
    

28. The number of staff persons the rule required to supervise the children out of doors depends not only on the number of the children out of doors, but also on their ages. If Matthew Newell was outside, it could be argued that eight staff persons would have been required to supervise the children. outside, under the rule. Otherwise, only three supervisors would have sufficed, unless (a) a majority of the children outside was not five years old or older or, (b) unless a majority of the children outside was not four years of age or older, and more than 60 children were outside.

    
    

29. The evidence did not establish that Matthew Newell, the only child at the Center shown by the evidence to be less than two years of age, was out of doors at the time Mr. Brown inspected. Nor did the evidence show that a majority of the children who were out of doors were younger than five years of age. The evidence suggested the contrary. Of the 41 children shown by respondent's records to be present from before two till after three o'clock on the afternoon of October 9, 1985, thirty- three were four years old or older, of whom 27 were five years old or older. Of the other 29 children shown by respondent's records to have been present during part of the hour, only three were shown to be younger than four years of age, and nobody other than these three was shown to be younger than five years of age. Petitioner failed to prove a violation of Rule 10M-12.02, Florida Administrative Code.

It is, accordingly, RECOMMENDED:

That petitioner dismiss the administrative complaint filed against respondent.

DONE AND ENTERED this 12th day of December, 1986, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1986.

COPIES FURNISHED:

Donna S. Harkness Post Office Box 12836

Pensacola, Florida 32576

Dale E. Rice

Post Office Box 687 Crestview, Florida 32356

APPENDIX

Petitioner's proposed findings of fact Nos. 1,4,5,7,8,10,11 and 14 have been adopted, in substance, insofar as material.

Petitioner's proposed finding of fact No. 2 has been adopted, in substance J. S. first attended Anderson Child Care Center on July 18, 1985, not earlier.

Petitioner's proposed finding of fact No. 3 has been adopted, in substance, except that the evidence did not establish that J. S. had never soiled his clothes before attending the Center.

The first and final sentences of petitioner's proposed finding of fact No. 6 have been adopted, in substance, insofar as material, but the second sentence has been rejected as unsupported by the evidence. As regards the third sentence, Dr. Kurtz's testimony was that not all children J. S.'s age had learned to empty the bladder on command or in response to the sensation of fullness. Dr. Kurtz testified that, if a child J. S.'s age had been punished, physically or verbally, for failing to go to the bathroom on command, she would expect "some disturbance in their pattern of voiding." (T.49) She did not testify that J. S. had been punished for failing to go to the bathroom on command, nor did other evidence establish this. For lack of this factual predicate, Dr. Kurtz's opinion on this point was immaterial, irrelevant, and inadmissible. Section 90.702, Florida Statutes (1985). In response to respondent's timely

objection that there was no evidence that the child had been punished, the hearing officer, relying on the evidence code, note the "ethics code" (T.49), [viz., Section 90.705, Florida Statutes (1985)], ruled that Dr. Kurtz could testify without prior disclosure of the underlying facts or data, and that counsel for respondent could cross-examine; but that, in the absence of a factual predicate, Dr. Kurtz's "opinion on that point will certainly prove immaterial." (T.49) Transcription of the hearing officer's ruling at hearing was pretty well garbled. (T.49)

Petitioner's proposed finding of fact No. 9 has been adopted in substance except that Dr. Kurtz testified that J. N.'s fingers were macerated, not lacerated, as the court reporter has it.

Petitioner's proposed finding of fact No. 12 has been adopted, in substance, except that evidence that the children were encouraged to go to the bathroom did not prove that they were "pressured" to do so.

Petitioner's proposed finding of fact No. 13 has been rejected as immaterial in part and unsupported by the evidence in part. The evidence did not show that J. S. began at the Center before July 1, 1985 and practices before that date are immaterial to the allegations of the administrative complaint.

Petitioner's proposed finding of fact No. 15 treats matters fully discussed in paragraph Nos. 18, 19 and 20 of the recommended order.

Respondent's proposed finding of facts have been adopted, in substance insofar as relevant.

Docket for Case No: 85-004304

Orders for Case No: 85-004304