STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES TOWARD d/b/a ) GLENDALE MONTESSORI PRESCHOOL, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4462

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on February 2, 1988 in Stuart, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert P. Summers, Esquire

James A. Minix, Esquire Swann & Haddock

200 Seminole Street Stuart, Florida 33494

For Respondent: Peggy G. Miller, Esquire

Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

On September 25, 1987, the Respondent issued a Notice of License Denial indicating that the Petitioner's Request for renewal to operate a child care facility would be denied for reasons discussed therein. The Petitioner disputed the factual allegations contained in the Notice of License Denial and requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

PROCEDURAL BACKGROUND

At the final hearing, the Petitioner presented the testimony of the following witnesses: James Toward, Rosario Toward, Linda Rachko, Priscilla Gayle-Gibson and Giselle Sexsmith. Petitioner's Exhibits 1 and 2 were duly offered and admitted into evidence. The Respondent presented the testimony of the following witnesses: Linda Rachko, Bridgette Laverne Jones, Mary Ann Wayman, and Marcia Kaye. Respondent's Exhibits 1, 2, 3 and 4 were duly offered and admitted into evidence. In addition, Joint Exhibit 1 was admitted into

evidence. At the conclusion of the DHRS' case, the Petitioner made a Motion to Dismiss. Ruling on the motion was reserved. After due consideration, the Motion to Dismiss is denied.

FINDINGS OF FACT

1. The Petitioner, James Toward, is the Director of the Glendale Montessori School in Stuart, Florida and is the licensee of a license issued by the Florida Department of Health and Rehabilitative Services ("DHRS") pursuant to Section 402.308, Florida Statutes (1987).

   
   

2. DHRS granted Petitioner License Number 093088 to operate a child care facility at 1055 East Tenth Street, Stuart, Florida. DHRS also granted Petitioner License No. 093087 which is not affected by this proceeding.

   
   

3. The Glendale Montessori School is based upon the Montessori method of teaching and offers a toddler program, a preschool program, a lower elementary school program, an upper elementary school program and a junior high school. At the time of the hearing, there were approximately one hundred and fifty students at the school, of which fifty-three were in preschool.

   
   

4. Brenda Williams was employed at the Glendale Montessori School by James Toward. She was an employee at the school from 1983 through the summer of 1987. Ms. Williams was hired as a receptionist, but her duties evolved into secretarial duties, bookkeeping, escorting children to and from their cars to the school and vice-versa, receiving parents of the children, taking prospective parents through the school, maintaining records and taking payments. She also looked after children when they were hurt, administered first aid and transported children.

   
   

5. Brenda Williams' office was located in the front office of the main school building. The office was adjacent to the preschool and the children passed through her office enroute to and from the classroom.

   
   

6. On May 26, 1987, Susan K. Barton, District Screening Coordinator for DHRS, sent a letter to the Director of Glendale Montessori School. This letter was received by Petitioner shortly after that date.

   
   

7. In her letter, Ms. Barton advised Petitioner that DHRS had conducted a background check on Brenda Williams and that she was disqualified from employment in a sensitive position involving children. The letter further advised Petitioner that "refusal on the part of the licensee or facility to remove a person who has been found to be in noncompliance with minimum standards for good moral character from direct contact with children ... may result in denial, suspension or revocation of ... licensee's license, as well as other penalties." The letter also requested that Petitioner supply written confirmation that Brenda Williams "has been removed from any direct contact with children ... at your facility."

   
   

8. The background check conducted by DHRS on Brenda Williams revealed that she had previously been arrested and pled no contest to a controlled substance violation. Adjudication was withheld. Ms. Barton did not direct Petitioner to "fire" Brenda Williams nor to remove her from contact with elementary school children. Her focus was to remove Brenda Williams from direct contact with preschool children by which she believed meant "being in general proximity" of the preschool children.

9. In response to DHRS' letter, Petitioner removed Brenda Williams from her secretarial duties and changed the location of her office. She was given responsibility for bookkeeping and accounting for the school. Her new duties included working on financial books, closing accounts, preparing registration documents and contacting parents by telephone. Brenda Williams' office location was removed from the front office of the main school building and placed in a separate building approximately fifty yards from the classroom building where the preschool children were located.

   
   

10. On June 1, 1987, Petitioner sent a letter to Ms. Barton in response to her letter and stated that Brenda Williams had been removed from direct contact with the children of the school.

    
    

11. The Petitioner did not inform any of the other employees or the parents of Brenda Williams' shift in responsibilities because he did not want to cause her any embarrassment since she had been employed there for five years and had done excellent work.

    
    

12. Although Petitioner changed Brenda Williams' office location and responsibilities, Ms. Williams performed some of her old duties while Petitioner was not on the premises. On occasion during July and August of 1987, Brenda Williams occupied her initial position at the front office and escorted children to and from the school. In addition, during the same time period, children would sleep or rest in her office while no other employees of the school were present.

    
    

13. On September 26, 1987, Petitioner received a Notice of License Denial dated September 25, 1987, notifying him that DHRS was denying the renewal of his license to operate a preschool day care facility. The notice further stated that the license denial was predicated upon the fact that although he was previously notified that one of his child care personnel was disqualified from working at his facility in contact with children, the employee had continued in such capacity during the summer of 1987.

    
    

14. Brenda Williams was no longer employed at the Glendale Montessori School when the Notice of License Denial was issued on September 25, 1987.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

16. Section 402.3055(5)(g) provides in part that:

    
    

    Refusal on the part of an applicant or licensee to dismiss child care personnel who have been found to be in non- compliance with personnel standards of

    s. 402.305(1) shall result in automatic denial or revocation of the license in addition to any other remedies pursued by the department or the local licensing agency.

    
    

17. The Petitioner argues that the statute provides a penalty only for the refusal to dismiss a disqualified child care employee when notified by DHRS.

    The Petitioner asserts that DHRS cannot show a refusal to dismiss in this case because DHRS did not establish that it demanded Brenda Williams' dismissal. In addition, the Petitioner argues that DHRS did not provide adequate notice pursuant to DHRS regulations and did not make a reasonable attempt to discuss corrective action with the Petitioner. For the reasons discussed below, the Petitioner's arguments must fail.

    
    

18. The evidence established that the Petitioner was notified on May 26, 1987 that Brenda Williams was disqualified from employment in direct contact with children and thereafter allowed Ms. Williams to continue in such contact. The Petitioner's token actions in changing Ms. Williams' job duties while informing no other employee of the matter and otherwise failing to institute some control mechanism to ensure that Ms. Williams did not have direct contact with preschool children in his absence does not demonstrate a good-faith effort to comply with the DHRS directive. DHRS' letter of May 26, 1987 was not so much a demand to dismiss Ms. Williams from any employment whatsoever as it was a demand to "dismiss" Ms. Williams from the opportunity for employment necessitating or involving direct contact with children. While the Petitioner took some steps to comply with DHRS' directive, his actions were inadequate and failed to achieve the mandated objective of removing Brenda Williams from employment in direct contact with children.

19. Rule 10M-12.011, F.A.C. provides in pertinent part as follows: When the Department determines that a child-

    care facility is not in compliance with the child-care standards, the Department shall make a reasonable attempt to discuss each violation with the owner or operator of the facility and the time which the Department will establish for the owner or operator to complete corrective action for any violation.

    * * *

    The violations cited shall be in writing and shall include the following information:

    1. A reference to the statute or rule upon which the violation is premised: (b) A factual description of the nature of the violation, fully stating the manner in which the owner or operator failed to comply with a specified statute or rule: (c) A specific statement as to how the violation should be corrected, if deemed necessary or appro- priate: and, (d) A date by which each violation shall be corrected unless the violation is of an imminent threat to the health and safety of the children, in which case the violation shall be corrected within

       24 hours.

       
       

       DHRS' letter of May 26, 1987 was sufficient to satisfy the above stated procedures. The Petitioner was informed in writing of his obligation to remove Brenda Williams from employment in direct contact with children. The Petitioner responded on June 1, 1988 that he had received the directive and had, in fact, complied with it. The Petitioner did not request clarification of the directive and evidenced by his letter in response, that he understood the nature of the violation and what actions were necessary in order to comply with it.

20. In view of the totality of the circumstances of this case, including the fact that Brenda Williams was no longer employed at the facility when the Notice of License Denial was issued, denial of the license seems to be an unduly harsh sanction. Nevertheless, the requirements of Section 402.3055(5)(g), Florida Statutes are mandatory in nature and provide for "automatic denial or revocation" of the license.

RECOMMENDATION:

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

RECOMMENDED that the Glendale Montessori Preschool and Toddlers' license renewal be DENIED.

DONE and ORDERED this 13th day of May, 1988 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4462

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

14. Addressed in Findings of Fact 9, 10, 11.

15.(a)-(d) Rejected as argument and/or a recitation of testimony.

1. Rejected as contrary to the weight of the evidence.

2. Adopted in substance in Finding of Fact 13.

3. Adopted in substance in Finding of Fact 4.

4. Rejected as misleading and/or subordinate.

5. Addressed in Conclusions of Law section.

6. Addressed in Conclusions of Law section.

7. Addressed in Procedural Background section.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in substance in Finding of Fact 1.

2. Adopted in substance in Finding of Fact 4.

3. Adopted in substance in Finding of Fact 5.

4. Adopted in substance in Finding of Fact 7.

5. Adopted in substance in Finding of Fact 10.

6. Rejected as subordinate and/or unnecessary.

7. Adopted in substance in Finding of Fact 13.

8. Addressed in Conclusion of Law section.

9. Rejected as a recitation of testimony.

10. Rejected as subordinate and/or a recitation of testimony.

11. Rejected as a recitation of testimony.

12. Adopted in substance in Finding of Fact 12.

13. Rejected as a recitation of testimony.

14. Rejected as subordinate and/or unnecessary.

COPIES FURNISHED:

Robert P. Summers, Esquire John Miller, Esquire James A. Minix, Esquire Department of Health and Swann and Haddock Rehabilitative Services

200 Seminole Street 1323 Winewood Boulevard Stuart, Florida 33494 Tallahassee, Florida 32399-0700

Peggy G. Miller, Esquire Sam Power, HRS Clerk Department of Health and Department of Health and Rehabilitative Services Rehabilitative Services

111 Georgia Avenue 1323 Winewood Boulevard

West Palm Beach, Florida 33401 Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-004462

Orders for Case No: 87-004462