STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YVONNE LEARNING CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0128

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 10, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Patrick St. George Cousins, Esquire

25 West Flagler Street Penthouse

Miami, Florida 33130

For Respondent: Caridad Planas, Esquire

Department of Health and Rehabilitative Services

401 N.W. 2nd Avenue N1014 Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether Petitioner committed the violations alleged by Respondent and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Petitioner is a child care center owned and operated by Mr. and Mrs. Patrick Beauregard. Petitioner's license, which is issued by Respondent's licensing division, was scheduled to renew in November 1991. In anticipation of the renewal, the licensing division requested that its health division conduct an inspection of Petitioner's facilities. The initial inspection noted several deficiencies. After several follow-up inspections, the facility was found to be in compliance and its license was renewed. Thereafter, Respondent sought to impose an administrative fine against Petitioner for the days it was found not to be in compliance with health regulations. Petitioner challenged the proposed fine, and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Patrick Beauregard and of Yvrose Beauregard, his wife. Respondent presented the testimony of Louisa Spicer, Respondent's supervisor for day care licensure. The

parties presented eleven documentary exhibits, each of which was accepted into evidence. Petitioner presented one additional exhibit, which was accepted into evidence.

No transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent hereto, Petitioner was a licensed day care center located in Dade County, Florida, that was owned and operated by Patrick Beauregard and Yvrose Beauregard, his wife.

   
   

2. Respondent is a state agency charged with the duty of inspecting and licensing day care facilities. The licensing division and the health inspection division are two separate divisions of Respondent.

   
   

3. The day care license of Petitioner was scheduled to expire on November 3, 1991. On August 29, 1991, the licensing division asked the health inspection division to conduct a health inspection of the Petitioner's facilities located at 7561 N.E. 1st Avenue, Miami, Florida. This request was made in connection with Petitioner's application for renewal of its license.

   
   

4. Pursuant to the request made by the licensing division, the health division conducted inspections of Petitioner's facilities at 7561 N.E. 1st Avenue, Miami, Florida, on each of the following days in 1991: September 27, October 11, October 23, October 25, October 28, November 4, and November 15.

   
   

5. On November 25, 1991, the licensing division received a copy of each report from the health division pertaining to inspections of Petitioner's facilities. The following reports were received by the licensing division:

   
   

   1. Child Care Facility Inspection Report dated September 27, 1991;

   2. Food Service Inspection Report dated September 27, 1991;

   3. Call Back/Re-Inspection Report dated October 7, 1991;

   4. Call Back/Re-Inspection Report dated October 11, 1991;

   5. Call Back/Re-Inspection Report dated October 23, 1991;

   6. Call Back/Re-Inspection Report dated October 25, 1991;

   7. Call Back/Re-Inspection Report dated October 28, 1991;

   8. Call Back/Re-Inspection Report dated November 4, 1991; and

   9. Call Back/Re-Inspection Report dated November 15, 1991.

6. Petitioner was provided a copy of each of these reports following each inspection.

   
   

7. The Child Care Facility Inspection Report dated September 27, 1991, found that Petitioner was in noncompliance with health standards in the following areas:

   
   

   1. Plumbing problems (clogged toilets and broken float in one toilet) in the north and east side toilets;

   2. Rodent infestation; and

   3. Personnel disease control problems in that there was a torn pad on the changing table on the east side near the sink.

      
      

8. The Child Care Facility Inspection Report dated September 27, 1991, advised Petitioner to correct the deficiencies noted thereon within 72 hours.

   
   

9. The Food Service Inspection Report dated September 27, 1991, noted two "major" violations. The first pertained to the presence of rodents in the food storage area near the kitchen. The second pertained to the manner in which soaps and other toxic materials were stored near food. That report also noted the following:

   
   

   1. Four minor violations under the category Food, Equipment and Utensils;

   2. One minor violation under the category Toilet and Handwashing Facilities; and

   3. Two minor violations under the category Floors, Walls and Ceilings.

      
      

10. The Food Service Inspection Report dated September 27, 1991, advised Petitioner that the major and minor violations noted thereon had to be corrected by October 4, 1991.

    
    

11. The Call Back/Re-Inspection Report dated October 7, 1991, reflects that none of the violations from the reports of September 27, 1991, had been corrected.

    
    

12. The Call Back/Re-Inspection Report dated October 11, 1991, reflects that Mr. Beauregard had begun an extermination program for the rodent problem, but that the facility still showed evidence of active rodent infestation. The report required that further exterminating and cleaning be done, that an additional pad for the changing table be provided, and that a cracked light bulb be replaced. The October 11 report continued to find Petitioner to be in noncompliance. The time for Petitioner to come into compliance was extended to October 21, 1991.

    
    

13. The Call Back/Re-Inspection Report dated October 23, 1991, reflects that the Beauregards were working to alleviate the rodent infestation, but that Petitioner was still in noncompliance with health standards because of the rodent infestation. The time for Petitioner to come into compliance was extended to October 25, 1991.

    
    

14. The Call Back/Re-Inspection Report dated October 25, 1991, noted the presence of live rodents and the presence of rodent droppings. The time for compliance was extended through October 28, 1991.

15. The Call Back/Re-Inspection Report dated October 28, 1991, noted the efforts the Beauregards were making to correct the rodent problem, but that Petitioner continued to be in noncompliance with health standards. The time for compliance was extended through November 1, 1991.

    
    

16. The Call Back/Re-Inspection Report dated November 4, 1991, noted that the Beauregards continued to make efforts to correct the rodent problem, but that Petitioner continued to be in noncompliance with health standards.

    
    

17. The Call Back/Re-Inspection Report dated November 15, 1991, noted that the Beauregards continued to make efforts to correct the rodent problem, but that Petitioner continued to be in noncompliance with health standards.

    
    

18. Petitioner was found to be in compliance with health standards on November 25, 1991, and its license was subsequently renewed. Both Mr. and Mrs. Beauregard were aware of the rodent infestation as early as June 1991. They cooperated with the health inspectors and acted in good faith to alleviate the problem. The Beauregards relied on the services of Truly Nolen, who had been their exterminator for five consecutive years in dealing with the rodent infestation.

    
    

19. Despite the Beauregard's good faith efforts, Petitioner was in noncompliance with pertinent health standards between September 27, 1991, and November 25, 1991.1/

    
    

20. Louisa Spicer is an experienced supervisor employed by Respondent's child care licensing division. On November 25, 1991, Ms. Spicer received for the first time a copy of each of the inspection reports prepared by the health division. Upon receiving the inspection reports, Ms. Spicer determined that the noncompliance with health conditions denoted in the reports should be considered a Class III violation and that a fine of $10.00 per day should be imposed. A Class III violation is not as serious as a Class I or a Class II violation. Respondent has the authority to impose a fine of between $10 and $30 per day for a Class III violation.

    
    

21. The health division inspectors did not advise the Beauregards that Petitioner's noncompliance with health standards could result in the imposition of a fine.

    
    

22. Ms. Spicer testified that she computed the fine based on the number of working days between September 27, 1991, (the date of the first inspection finding Petitioner to be in noncompliance) and November 25, 1991 (the date Petitioner was found to be in compliance). For each of the 40 working days between those dates, Petitioner was assessed a fine of $10, which resulted in the fine totaling $400 that is at issue in this proceeding.

    
    

23. By the Call Back/ Re-Inspection Report dated October 28, 1991, the inspector from the health division extended the time for Petitioner to come into compliance by correcting the noted deficiencies until November 1, 1991. Petitioner did not come into compliance within the time given for it to do so.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

25. The presence of rodents is a violation of the health standards pertinent to day care centers adopted by Respondent. See, Rule 10M-12.003(1)(b) and (c), Florida Administrative Code. Petitioner was in violation of those standards between September 27, 1991, and November 25, 1991.

    
    

26. Petitioner's contention that Respondent should not be permitted to assess the fine because the health inspector did not specifically advise Petitioner's staff that it could be fined is rejected. As a licensee, Petitioner is charged with knowledge of Respondent's ability to enforce the rules pertaining to the operation of day care centers. Licensees are clearly alerted by Respondent's rules as to Respondent's enforcement powers, which include the authority to impose administrative fines.

    
    

27. Respondent is authorized by Rule 10M-12.011, Florida Administrative Code, to impose fines against licensees for violations of health standards, and provides, in pertinent part, as follows:

    
    

    1. In determining the amount of fine to be levied ... the department will consider each of the factors listed in Section 402.310(1)(b), F.S. as amended by Chapter

       83-248, Florida Statutes. These factors are:

       1. Any previous violations of the licensee.

       2. Actions taken by the licensee to correct the violations or to remedy the complaint.

       3. The severity of the violations including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of this part were violated.

    2. The Department will use the following classifications as a guideline for determining the severity of the violation and the amount of the fine.

    
    

    * * *

    
    

    (c) Class III violations: Those conditions or occurrences related to the operation and maintenance of a facility which the Department has determined will threaten indirectly or potentially the physical or emotional health, safety or security of children other than Class I or Class II violations. Class III violations are subject to a fine not less than $10 nor

    more than $30 per day for each violation. No fine shall be imposed for a Class III violation which the owner or operator corrects within the time established by the Department.

28. Class III is the least serious of the three categories for violations provided by Rule 10M-12.011, Florida Administrative Code. Respondent appropriately classified the violations by Petitioner as Class III violations.

    
    

29. While Respondent has discretion as to whether to impose an administrative fine, the amount of $10 is the least amount that a licensee is to be fined for a Class III violation under the provisions of Rule 10M-12.011(7), Florida Administrative Code. The evidence established that Ms. Spicer was aware of the efforts on the part of Petitioner to correct the noted deficiencies. Respondent established that all pertinent factors were considered in determining the amount of the fine to be imposed. Respondent acted well within its discretion in assessing a fine in the amount of $400 against Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the assessment

against Petitioner by Respondent of the fine in the amount of $400.

DONE AND ORDERED this 4 day of June, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 4 day of June, 1992.

ENDNOTES

1/ The testimony that Petitioner was in compliance between a week and ten days prior to November 25, 1991, is rejected as being contrary to the greater weight of the evidence.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-0128

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 4, 7, 8, 10, and 11 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraphs 2 are rejected as being unnecessary as findings of fact, but are incorporated in the Conclusions of Law portion of the Recommended Order.

3. The proposed findings of fact in paragraphs 3 are rejected as being unnecessary as findings of fact, but are incorporated in the Conclusions of Law portion of the Recommended Order.

   
   

4. The proposed findings of fact in paragraphs 5 and 6 are rejected as being the recitation of testimony that is subordinate to the findings made.

   
   

5. The proposed findings of fact in paragraph 9 are rejected as being contrary to the findings made.

   
   

6. The proposed findings of fact in paragraph 12 are rejected as being unnecessary to the conclusions reached.

   
   

7. The proposed findings of fact in the first sentence of paragraph 13 are rejected as being unnecessary to the conclusions reached, but are set forth in the Conclusions of Law portion of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 13 are rejected as being contrary to the conclusions reached.

   
   

8. The proposed findings of fact in paragraph 14 are rejected as being contrary to the findings made and to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 5, 6, 7, 13, 15, and 16 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraph 25 are rejected as being contrary to the finding that the request was dated August 29, 1991.

   
   

3. The proposed findings of fact in paragraphs 8, 9, 10, 11, 12, 14, 17, and 19 are rejected as being the recitation of testimony and subordinate to the findings made.

   
   

4. The proposed findings of fact in paragraph 18 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Patrick St. George Cousins, Esquire

25 West Flagler Street Penthouse

Miami, Florida 33130

Caridad Planas, Esquire Department of Health and

Rehabilitative Services

401 N.W. 2nd Avenue N1014 Miami, Florida 33128

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 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 contact the agency that will issue the f/inal order in this case concerning agency 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: 92-000128

Orders for Case No: 92-000128