Judges: ROBERT E. MEALE
Agency: Agency for Health Care Administration
Latest Update: Aug. 01, 1989
Summary: The issue in this case is whether Petitioner should discipline Respondent for his failure to file fingerprint and abuse-registry screening forms for one of his employees, in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code, and failure to employ a person certified in first aid, in violation of Rule 10M-12.004(1), Florida Administrative Code.Fine of $1140 for child-care facility's failure to obtain submit background info on employees
89-2471STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES )
)
Petitioner, )
)
vs. ) CASE NO. 89-2471
)
HILTON J. SOTO, d/b/a ) LITTLE THERESA CHILD CARE ) CENTER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on June 2, 1989, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented as follows:
For Petitioner: James A. Sawyer, Jr.
District 7 Legal Counsel Department of Health and
Rehabilitative Services
400 West Robinson Street, Suite 911 Orlando, Florida 32801
For Respondent: Hilton J. Soto
6501 Palmetto Drive Winter Park, Florida
STATEMENT OF THE ISSUES
The issue in this case is whether Petitioner should discipline Respondent for his failure to file fingerprint and abuse-registry screening forms for one of his employees, in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code, and failure to employ a person certified in first aid, in violation of Rule 10M-12.004(1), Florida Administrative Code.
PRELIMINARY STATEMENT
On January 5, 1989, Petitioner filed an Administrative Complaint against Respondent with respect to the issues set forth above. The Administrative Complaint alleged that Respondent received warnings as to both violations and was given deadlines for the correction of the deficiencies. The Administrative Complaint alleged that Respondent failed to eliminate the violations by the respective due dates. Petitioner requested a fine in the total amount of $360
for the failure to file fingerprint and abuse-registry forms and $780 for the failure to employ a person certified in first aid.
On February 6, 1989, Respondent filed a letter disputing the factual allegations and requesting a formal hearing.
At the hearing, Petitioner called three witnesses and offered into evidence five exhibits. Respondent called one witness and offered into evidence no exhibits. All exhibits were admitted into evidence.
No transcript was ordered. Neither party filed a proposed recommended order.
FINDINGS OF FACT
Petitioner issued Respondent license number 288-7 on February 15, 1988, for the operation of a child-care facility at 261-B S. Central Avenue in Oviedo, Florida. The license was amended on October 3, 1988.
On November 15, 1988, Larry D. Lowe, a Human Services Program Analyst employed by Petitioner, conducted an inspection of the subject facility. At the conclusion of the inspection, he prepared a checklist noting deficiencies as to background screening. Specifically, Mr. Lowe noted that the fingerprint cards and abuse-registry forms had not been completed for an employee named Cindy Samons and that these omissions were in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code.
Mr. Lowe gave Ms. Samons a copy of the checklist, which gave Respondent until November 22, 1988, to submit the required forms.
Mr. Lowe returned to the subject facility on December 28, 1988, and discovered that the forms had been completed and placed in the employee's file, but they had never been submitted to Petitioner. Thus, Petitioner had never had the chance to conduct the necessary background screening on Ms. Samons, who was at the time the sole employee at the facility.
Mr. Lowe recommended an administrative fine of $360 based upon a daily fine of $10 for the 36-day period between the initial corrective due date and the date of the follow-up inspection.
On October 11, 1988, Ms. Marilyn Willming, R.N., who is a public health nurse with the Seminole County Public Health Unit, performed a medical inspection of the subject facility and discovered that, among other things, no employee on the premises had obtained a current first-aid certificate and that this omission was in violation of Rule 10M-12.004(1), Florida Administrative Code. Ms. Willming gave one of the employees a copy of the medical inspection checklist, which gave Respondent until October 25, 1988, to correct this problem.
Flora Kavitch, R.N., who is also an employee of the Seminole County Public Health Unit, conducted a reinspection of the facility on December 23, 1988, and discovered, among other things, that the facility still had no employee with a current first-aid certificate. She recommended an administrative fine of $780 based upon a daily fine of $10 for the 78-day period between the date of the initial inspection and the date of the follow-up inspection.
Each of the above-described deficiencies is a condition or occurrence related to the operation and maintenance of a facility and indirectly or potentially threatens the physical or emotional health, safety, or security of the children.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner has the authority to revoke, suspend, or otherwise discipline the license of any person operating a child care facility for any violation of applicable law. Section 402.310, Florida Statutes. The maximum administrative fine is $100 per day per violation. Section 402.310(1)(a), Florida Statutes.
Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The range of daily fine is from $10 to $30 for each Class III violation. A Class III violation is any condition or occurrence related to the operation or maintenance of a facility when such condition or occurrence indirectly or potentially threatens the physical or emotional health, safety, or security of the children. Rule 10M-12.011(7)(c), Florida Administrative Code. The above-described conditions violate the respective rules stated in the two citations.
Petitioner may not impose a fine for any but the most serious class of violations (Class I) if the licensee corrects the situation within the time established by the inspector. Rule 10M-12.011(7), Florida Administrative Code. Nothing else in the statutes or rules addresses the manner of calculating the duration of a violation. The most reasonable reading of the rules is that the violation exists at least by the time of the initial citation. Therefore, the licensee who fails to take advantage of the grace period is in noncompliance from the date of the initial citation, rather than from the expiration of the grace period.
Respondent failed to correct the above-cited violations within the applicable grace periods. The violations are properly classified as Class III violations.
Petitioner has sought to impose an administrative fine of $1140, which does not exceed the amount authorized by the above-cited rules.
RECOMMENDATION
In view of the foregoing, it is hereby
RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1140.
ENTERED this 1st day of August, 1989, in Tallahassee, Florida.
ROBERT E. MEALE
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 1st day of August, 1989.
COPIES FURNISHED:
James A. Sawyer, Jr. District 7 Legal Counsel
Department of Health and Rehabilitative Services
400 West Robinson Street, Suite 911 Orlando, Florida 32801
Hilton J. Soto
6501 Palmetto Drive Winter Park, Florida Sam Power
Clerk
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller General Counsel
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Hilton J. Soto
Little Theresa Child Care 261-B South Central Avenue Oviedo, Florida 32765
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Petitioner,
vs. CASE NO.: 89-2471
HILTON J. SOTO, d/b/a LITTLE THERESA CHILD CARE CENTER,
Respondent.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
FINDINGS OF FACT
The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except for conclusion of law number 3 wherein the Hearing Officer concluded that Ferris vs. Turlington, 510 So2d 292 (Fla. 1987) requires the department to prove the allegations of the complaint by clear and convincing evidence. Ferris is applicable to revocation of a professional license, not imposition of a fine as in the present case. The correct burden of proof is the preponderance test. American Insurance Association vs. Department of Insurance, 518 So2d 1342 (Fla. 1st DCA 1987).
Based upon the foregoing, it is
ADJUDGED, that a fine of $1,140.00 be imposed on respondent, Hilton J. Soto, d/b/a Little Theresa Day Care Center.
The fine shall be paid by check or money order payable to Treasurer, State of Florida and shall be mailed or delivered to Department of Health and Rehabilitative Services, Licensing Office, Suite 409-B, The Hurston Building,
400 W. Robinson Street, Orlando, Florida 32801. The fine shall be paid no later than 30 days from the entry of this Order.
DONE and ORDERED this 30th day of August, 1989, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Deputy Secretary for Operations
COPIES FURNISHED:
Hilton J. Soto
261B South Central Avenue Oviedo, Florida 32765
James Sawyer, Jr., Esquire District 7 Legal Office
400 West Robinson, Suite 701 Orlando, Florida 32801
Robert E. Meale Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 5th day of September, 1989.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700 904/488-2381
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
Docket for Case No: 89-002471
Orders for Case No: 89-002471
| Issue Date |
Document |
Summary |
|
Aug. 30, 1989 |
Agency Final Order
|
|
|
Aug. 01, 1989 |
Recommended Order
|
Fine of $1140 for child-care facility's failure to obtain submit background info on employees
|
