STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0328

) LITTLE PROFESSORS EARLY CHILD ) DEVELOPMENT CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on March 21, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Anthony N. DeLucci, Jr., Esquire

Department of Health and Rehabilitative Services District 8 Legal Office Post Office Box 06085 Fort Myers, Florida 33902

For Respondent: No appearance was entered at hearing.

By letter dated December 15, 1988, the Petitioner, Department of Health and Rehabilitative Services (hereinafter the Department), notified the owners of the Respondent, Little Professors Early Child Development Center (hereinafter the Center), that the child care facility license which expires on December 31, 1988, would not be renewed. The owners of the Center dispute the allegations of fact set forth in the denial letter, and have requested a formal administrative hearing to contest the determination that the license will not be renewed.

The owners of the Center did not appear at hearing. During the hearing, the Department presented two witnesses and one composite exhibit, which was admitted into evidence. A transcript of the proceedings was not ordered, and proposed findings of fact were not submitted by the parties.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, the Center was a child care facility owned and operated by Pasquale (Rick) and Barbara Diana at 648 Ortiz Avenue, Fort Myers, Florida, Lee County, Florida.

   
   

2. The Department is the authority which issues and renews child care facility licenses in the county where the Center was located.

3. At the time the application for license renewal was made by the Center, the facility was an ongoing business, and was authorized to care for a maximum of forty-one children.

   
   

4. As part of the regulatory process, the Department inspects all of the child care facilities within the Lee County area. During the first five inspections during 1988, the Center was cited for the following violations: delinquent submissions of background screening requirements, insufficient staff ratios, inadequate direct supervision of children, and excess use of the facility beyond the licensed capacity of forty-one children.

   
   

5. In an attempt to reduce these, and other citations for violations of the minimum standards for child care facilities at the Center, the owners agreed to weekly inspections by the Department beginning in September 1988. The purpose of these inspections was to promote change within the Center, and to assure the Department that the facility was able to function within the required minimum standards.

   
   

6. The first weekly inspection of September 19, 1988, revealed that the Center was exceeding its licensed capacity. Forty-four children were being cared for in the Center. Soap was needed in one bathroom, and indoor equipment needed cleaning.

   
   

7. On September 27,1988, bedding and crib requirements were not being met by the Center. Two cribs were broken, and in need of repair. One crib mattress and some nap mats needed to be replaced. Soap was unavailable in both bathrooms.

   
   

8. On October 6, 1988, nap mats needed to be replaced and electrical outlet caps needed to be placed upon exposed outlets.

   
   

9. On October 20, 1988, there was an insufficient staff ratio for the thirty-three children present at the Center. Nap mats and electrical outlet caps were still needed. An unlocked, outdoor shed contained fire ant killer insecticide, and was accessible through the playground area. The lunch served to the children was not the lunch posted upon the menu.

   
   

10. As a result of the violations discovered during the October 20, 1988 inspection, a citation letter was issued by the Department to the Center on October 27, 1988. The letter cited the Center for the insufficient staff ratio violation, and reminded the owners that previous citations had been issued for this violation on February 15, 1988, June 16, 1988, and August 31, 1988. The unlocked outdoor shed near the outdoor play area was the subject of previous citations on June 23, 1988, and August 31, 1988. The failure to serve the lunch posted on the menu had also occurred previously on August 31, 1988. The Center was told to comply with all of the minimum standards set forth in Chapter 10M- 12, Florida Administrative Code. The Corrective Action Plan set forth in the letter directed the owners to accept only the number of children allowed under the license, to plug all exposed electrical outlets, to provide soap, toilet paper and towels in each bathroom, and to replace the torn nap mats currently in use.

11. On October 28, 1988, the inspector observed two children who were not directly supervised within the Center. Three of the four staff members were new employees whose background screenings had not been submitted to the Department. Child abuse/staff training requirements were incomplete, and soap was needed in one bathroom.

    
    

12. On November 3, 1988, a broken crib previously cited on September 27, 1988, was being used in its broken state. The playground area contained an unanchored swing set and there were exposed nails in the fence surrounding the area

    
    

13. On November 10, 1988, all of the background screenings were not complete on current staff.

    
    

14. On November 15, 1988, the owners submitted an application for license renewal to the Department. The current license was scheduled to expire on December 31, 1988.

    
    

15. On November 18, 1988, background screenings were still incomplete. Torn nap mats were still in use, and proper enrollment information on new children had not been completed.

    
    

16. On December 11, 1988, a background screening was still incomplete on one employee. There was an insufficient ratio of personnel to children under the required minimum standards for personnel. Towels were needed in the back bathroom, and the posted menu was not dated to assure that it was current and reflected the day's meal plan.

    
    

17. On December 13, 1988, the Center was evaluated for license renewal purposes. The constant turnover in staff who were not promptly screened, the ongoing insufficient staff ratios and direct supervision violations, coupled with the physical facility violations such as improper bedding and mats, and the failure to maintain a safe playground area, resulted in a decision to deny the application for license renewal.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Section 402.305, Florida Statutes, delegates the authority to establish minimum standards in child care facilities to the Department. These minimum standards are set forth in Chapter 10M-12, Florida Administrative Code. These standards must be met in order for a child care facility to have its license renewed by the Department.

    
    

20. Section 402.308, Florida Statutes, provides in pertinent part:

    
    

    Every child care facility in the state shall have a license which shall be renewed annually.

    
    

    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 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.

    
    

21. In this case, the facts presented demonstrate the minimum standards for licensing have not been met by the Center. During inspections throughout 1988, the Center's staff ratio to children did not always meet the minimum standards set forth in Rule 10M-12.002(5)(a)1, Florida Administrative Code. Children were not always directly supervised as required by Rule 10M- 12.002(5)(a)2, Florida Administrative Code. The staff screening requirements in Rule 10M-12.002(1)(d)2 and Rule 10M-12.002(3)(e) Florida Administrative Code, were violated on a continuing basis.

    
    

22. The Corrective Action Plan of October 27, 1988, was not implemented by the Center. Areas of special concern set forth by the Department in the plan were not cured, as demonstrated by inspection reports completed after the plan was received by the Center. Based upon the foregoing, the Department adduced the evidence to support the determination that the Center's license as a child care facility should not be renewed. Dubin v. Department of Business Regulation, 262 So.2d 273 (Fla. 1st DCA 1972).

RECOMMENDATION

It is therefore, RECOMMENDED:

1. That the application for license renewal as a child care facility submitted by the Center for January 1, 1989, through December 31, 1989, be denied.

DONE and ENTERED this 9th day of May, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1989.

COPIES FURNISHED:

Anthony N. DeLuccia, Jr., Esquire Department of Health and Rehabilitative Services

District 8 Legal Office Post Office Box 06085 Fort Myers, Florida 33902

Pasquale & Barbara Diana 7407 Coon Road

North Fort Myers, Florida 33917

R. S. Power, Esquire Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

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: 89-000328

Orders for Case No: 89-000328