STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1717

)

TODDLER VILLAGE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on July 15, 1992, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: James A. Sawyer, Jr.

District 7 General Counsel

Department of Health and Rehabilitative Services

South Tower, Suite S827

400 West Robinson Street Orlando, FL 32801

For Respondent: Shirley Davenport

6510 Edgewater Drive

Orlando, FL 32810 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's child care facility has violated staff-child ratios and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed March 10, 1992, Petitioner alleged that, on October 1, 1991, one adult was supervising 11 children--some under two years old--at Respondent's day care facility. The Administrative Complaint alleges that, on January 16, 1992, one adult was supervising 10 children aged 12 months and older and one adult was supervising 25 children aged two years and older with the majority being less than five years old. The Administrative Complaint alleges that, on January 30, 1992, one adult was supervising nine children aged

12 months and older and one adult was supervising 21 children aged two years and older.

The Administrative Complaint alleges that Respondent took no corrective action after the first two inspections. The Administrative Complaint seeks a fine of $1210, which represents $10 per day for a single violation running from October 1, 1992, through February 3, 1992, which was the date that the District Administrator signed the Administrative Complaint.

By letter filed March 10, 1992, Respondent requested a formal hearing.

At the hearing, which was conducted with the hearing officer participating by telephone, Shirley Davenport was determined to be a qualified representative for Respondent. Petitioner called two witnesses and offered into evidence four exhibits. Respondent called one witness and offered into evidence three exhibits. The parties were given ten days to file their exhibits and proposed recommended orders, as no transcript was ordered.

Respondent submitted a proposed recommended order. All of her proposed findings are rejected as unsupported by the appropriate weight of the evidence, irrelevant, and legal argument.

FINDINGS OF FACT

1. Respondent owns and operates a licensed child care facility known as Toddler Village. The license number is 889- 15.

   
   

2. On October 1, 1991, at approximately 10:45 a.m., the facility had one adult supervising two children up to 12 months old, one adult supervising 11 children between 12-24 months old, and one adult supervising 17 children over two years old with the majority being four years old.

   
   

3. The inspector gave the inspection report to Shirley Davenport and explained that Respondent had to correct the deficiency immediately. Ms. Davenport is the president of Respondent and, with her mother, owns the company. The inspector ordered Respondent to report on compliance by October 2, 1992.

   
   

4. The evidence establishes that, following receipt of the letter, Respondent failed to reduce the number of children in the 12-24 months age group that each staff person was supervising.

   
   

5. On January 16, 1992, the inspector again visited the facility. The ratios were one adult supervising two children up to 12 months old, one adult supervising 10 children between 12 and 24 months old, and one adult supervising

   25 children over two years old with the majority being four years old.

   
   

6. The inspector left an inspection report with Melissa Davenport, who is Shirley Davenport's daughter and was an adult employee of the facility at the time. The report ordered Respondent to provide proof of sufficient staff ratios by January 20, 1992, or else Respondent would face administrative action.

   
   

7. On January 30, 1992, at approximate 9:25 a.m., the inspector again visited the facility. In the interim, Respondent had reported to Petitioner other corrective actions concerning alleged violations that are not involved in this case. However, Respondent failed to report corrective actions concerning the ratio of adults to children.

   
   

8. The ratios on January 30 were one adult supervising six children up to

   12 months old, one adult supervising nine children between 12 and 24 months old, and one adult supervising 21 children from two to four years old.

9. The Administrative Complaint was signed by the District Administrator on February 3, 1992. There are 124 days between October 1, 1991, and February 3, 1992.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

11. Rule 10M-12.002(5)(a)1. provides: "The following staff ratio is based on primary responsibility for the direct supervision of children and applies at all times to the children who are cared for by the child care facility . . .":

Age of Children Ratio

Under 1 year of age 1 staff member for 6 infants

1. year of age 1 staff member for 8 infants

2. years of age 1 staff member for 12 children

3. years of age 1 staff member for 15 children

4. years of age 1 staff member for 20 children

5. years of age or older 1 staff member for 25 children 12. Rule 10M-12.002(5)(a)3. states:

[In] groups of mixed age ranges, where infants under 1 year are included, one staff member shall not be responsible for more than six children of any age group. Where infants over 1 year are included, one staff member shall not be responsible for more than eight children of any age group. Where infants are not included, the staff ratio shall be based on the age of the majority of children in the group.

1. The rules require a ratio of one adult for eight infants when the infants are at least one year old, but have not yet reached their second birthday. The rules require a ratio of one adult for 20 children when children are at least four years old, but have not yet reached their fifth birthday. If children of different ages are mixed and none is less than two years old, the applicable ratio is for the children who constitute a majority of the mixed-age group. If any child in a mixed-age group has not reached his or her second birthday, the applicable ratio is for the youngest infant, which is a term reserved for children who have not reached their second birthday.

   
   

2. On October 1, 1991, the ratio of one adult for 11 infants at least one year old, but not yet two years old, was unlawful. The proper ratio was one adult for eight infants, even if some of the 11 infants had already reached their second birthday.

   
   

3. On January 16, 1992, the ratio of one adult for 10 infants at least one year old, but not yet two years old, was unlawful for the reason set forth in the preceding paragraph. Also, the ratio for children over two years old was unlawful because the majority of these children were four years old, but not yet

   five years old. The ratio for this age group was one adult for 20 children, not one adult for 25 children.

   
   

4. On January 30, 1992, the ratio of one adult for nine infants at least one year old, but not yet two years old, was unlawful for the reason set forth above. Also, the ratio of one adult for 21 children over two years old, with the majority four years old, was unlawful for the reason set forth in the preceding paragraph.

   
   

5. Petitioner has treated these violations as Class III violations, which "threaten indirectly or potentially the physical or emotional health, safety, or security of children ...." Such violations are subject to a fine ranging from

   $10 to $30 per day. Rule 10M-12.011(7)(c).

   
   

6. For noncompliance by a child care facility with child care standards, Petitioner is authorized to deny, suspend, or revoke a child care license or impose an administrative fine of not more than $100 per day. Rule 10M- 12.011(1).

   
   

7. The fine sought in this case is the minimum authorized fine. It is properly calculated from the date of the first inspection. Petitioner has elected to treat two violations of the adult to child ratio as a single violation.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondent guilty of violating the staff-child ratio for

121 days and imposing an administrative fine of $1210.

ENTERED this 28 day of July, 1992, in Tallahassee, Florida.

COPIES FURNISHED:

Robert B. Williams, Secretary

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28 day of July, 1992.

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye, 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

James A. Sawyer, Jr. District 7 General Counsel

Department of Health and Rehabilitative Services South Tower, Suite S827

400 West Robinson Street Orlando, FL 32801

Shirley Davenport 6510 Edgewater Drive

Orlando, FL 32810

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 final 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: 92-001717

Orders for Case No: 92-001717