STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5341

)

BEACH UNITED METHODIST )

EARLY LEARNING CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on December 12, 1990, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Scott D. Leemis, Esq.

Department of Health and Rehabilitative Services

P.O. Box 2417

Jacksonville, Florida 32231-0083

For Respondent: Mary S. Kearsey, Esq.

13000 Sawgrass Village Circle Suite 16

Ponte Vedra Beach, Florida 32082 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent complied with Rule 10M- 12.002(5)(a)1., and 2., Florida Administrative Code, relating to requirements for direct supervision of children three years of age at a licensed child day care facility.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 18, 1990, Petitioner's representative charged Respondent with a Class II violation of Respondent's rule governing staffing ratios for child day care centers.

Respondent timely requested a formal administrative hearing. Thereafter, the matter was transferred to the Division of Administrative Hearings for the conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of three witnesses. Respondent presented the testimony of one witness. None of the parties requested a transcript of the final hearing. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent's facility is a duly licensed child care facility.

   
   

2. Rule Section 10M-12.002(5), Florida Administrative Code, requires direct supervision of groups of children by specified numbers of a child care facility's staff personnel. The number of staff personnel required for supervision is generated by the age and number of children to be supervised. Children three years of age must be supervised by at least one staff member for each group of 15 or less children.

   
   

3. On June 12, 1990, two of Respondent's staff members were assigned to oversee 16 three-year-old children. The children were taken by the two staff members to the facility's outdoor play ground.

   
   

4. While on the playground, one staff member left for a period of time not exceeding two minutes to retrieve snacks for the children. The 16 children were left to the supervision of another staff member while the one staff member walked alone approximately seventy-six (76) feet from the playground to an area inside a building where the snacks are kept. During the brief time she was inside the building, she could not see or observe children on the playground.

   
   

5. During the staff member's absence, one of the children became entangled in playground equipment. Upon her return with the snacks, the staff member spotted the child. The child appeared to be unconscious. Mouth-to-mouth resuscitation was administered by the staff member and another Respondent employee telephoned emergency medical personnel.

   
   

6. Immediately after the incident, Respondent's facility manager reported the matter by telephone to an investigator employed by Petitioner's licensing division. One week later, the investigator visited Respondent's facility, conducted a review of the premises and found no violations at that time.

   
   

7. However, based upon the momentary absence of the one staff worker at the time of the incident the previous week, Petitioner's investigator determined that Respondent had violated provisions of Chapter 10M-12.002(5), Florida Administrative Code, relating to the number of staff members required to provide direct supervision of the children in Respondent's facility at that time.

   
   

8. Petitioner's investigator interpreted the "ratio" provision of Rule Section 10M-12.002(5), Florida Administrative Code, to require issuance of a citation for a violation at any time an assigned worker left the exact area in which children were at the time such children were playing.

   
   

9. Petitioner has cited other child care providers for staffing ratio violations, even when the absence of a facility's supervising staff member was temporary.

10. Petitioner's interpretation of the requirements of Rule Section 10M- 12.002(5), Florida Administrative Code, does not exclude a facility from the exercise of reasonable alternatives which would prevent a citation for staffing ratio violations. Such an alternative would include having another facility employee temporarily provide supervision when one of the staff supervisors is required to leave the children.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Petitioner is authorized by Section 402.310(1)(a), Florida Statutes (1989), to impose an administrative fine not to exceed $100 for violation of Petitioner's rules adopted pursuant to Sections 402.301-402.319, Florida Statutes. The administrative complaint issued by Petitioner proposes the imposition of an administrative fine of $75 upon Respondent.

    
    

13. Rule Section 10M-12.002(5), Florida Administrative Code, is such a rule. It requires direct supervision of groups of children by specified numbers of staff personnel. The number of staff personnel required for supervision is generated by the age and number of children to be supervised.

    
    

14. Children who are three years of age must have at least one supervising staff member for any group of 15 children or less. Respondent correctly provided two supervisors on the playground with the 16 children until that moment in time when one supervisor went alone into the nearby building to obtain the children' s snacks.

    
    

15. The term "direct supervision" is defined in Rule Section 10M- 12.002(5)(a) 2. ,Florida Administrative Code, as follows:

    
    

    Direct supervision means watching and directing children's activities within close proximity within the same room inside or within a designated outdoor play area. Child care personnel and volunteers at a facility must be assigned to provide care to a specific group of children and be present with that group of children at all times during the day including during meals, napping and snack time. (Emphasis supplied.)

    
    

16. Respondent argues that Petitioner's issuance of a citation to Respondent's facility, as the result of a momentary omission of the supervision required by the rule, is an unreasonable interpretation of the rule.

    
    

17. Respondent's argument is unpersuasive Petitioner's interpretation appears to be nothing more than a literal application of the rule's requirement that child care personnel be present "at all times". Such interpretation is not unreasonable.

    
    

18. Further, Rule Section 10M-12.002(5)(a)4., Florida Administrative Code, provides that "in the absence of regular staff members, there shall be substitutes available."

19. Petitioner must establish by clear and convincing evidence that Respondent violated provisions of Rule Section 10M-12.002(5), Florida Administrative Code. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner has met this burden.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered imposing an administrative fine of $75 against Respondent.

DONE AND ENTERED this 16th day of January, 1991, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1500

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1991.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS

1.-12. Adopted in substance, but not verbatim. 13.-18. Rejected as unnecessary to result.

PETITIONER'S PROPOSED FINDINGS

1.-15. Adopted in substance, though not verbatim.

COPIES FURNISHED:

Scott D. Leemis, Esq. Department of Health and

Rehabilitative Services

P.O. Box 2417

Jacksonville, FL 32231-0083

Mary S. Kearsey, Esq.

13000 Sawgrass Village Circle Suite 16

Ponte Vedra Beach, FL 32082

General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Sam Power Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning its rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005341

Orders for Case No: 90-005341