STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0849

)

BETTY GELZER, d/b/a PEABO )

DAY CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above- styled case on April 12, 1993, in Orlando, Florida.

APPEARANCES

For Petitioner: Laurie A. Lashomb, Esquire

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

For Respondent: Betty Gelzer, pro se

PEABO Day Care Center 815 Hills Alley

Orlando, Florida 32805 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent violated Florida Administrative Code Rule 10M-12.002(5)(a)(2) by failing to directly supervise children in her care.

PRELIMINARY STATEMENT

Respondent requested a formal hearing on January 20, 1993. The matter was referred to the Division of Administrative Hearings on February 15, 1993, for assignment of a Hearing Officer and assigned to the undersigned on February 22, 1993. A formal hearing was scheduled for April 13, 1993, pursuant to a Notice of Hearing issued on March 15, 1993. At the request of the undersigned, the parties agreed to conduct the formal hearing on April 12, 1993.

At the formal hearing, Petitioner submitted the testimony of Ms. Linda Shaul, Licensing Representative for Petitioner. Petitioner submitted one exhibit for admission in evidence consisting of the Child Day Care Inspection Checklist. Petitioner's Exhibit 1 was admitted in evidence without objection.

Ms. Betty Gelzer, Owner, testified on behalf of Respondent. Respondent submitted no exhibits for admission in evidence.

A transcript of the formal hearing was not requested by either party. Petitioner timely filed proposed findings of fact and conclusions of law on April 19, 1993. Petitioner's proposed findings of fact are accepted in this Final Order.

FINDINGS OF FACT

1. On December 3, 1992, Ms. Linda Shaul, HRS Licensing Representative, conducted a routine inspection of PEABO Day Care Center, located at 815 Hills Alley, Orlando, Florida. Two infants were left in a bed in a back bedroom. Respondent had no staff watching and directing the infants' activities within close proximity in the same room.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. The parties were duly noticed for the formal hearing.

   
   

3. Petitioner has the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise specifically established by statute. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

4. Petitioner must show by a preponderance of evidence that Respondent failed to provide direct supervision of all children in its child care facility at all times within the meaning of Florida Administrative Code Rule 10M- 12.002(5)(a)(2). Petitioner satisfied its burden of proof in this proceeding with competent and substantial evidence.

   
   

5. "Direct Supervision" is defined in Florida Administrative Code Rule 10M-12.002(5)(a) as "watching and directing children's activities within close proximity within the same room inside. . .". Respondent failed to provide the requisite "direct supervision" by leaving two infants in a bedroom unattended.

   
   

6. Failure to provide direct supervision of the two infants constituted overt negligence related to the operation of PEABO Day Care Center and presented an imminent danger to the infants. Such an act or omission by Respondent is a Class I violation under Florida Administrative Code Rule 10M-12.011(7)(a) subject to the imposition of a fine of $100.00 per day.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that:

Petitioner enter a Final Order finding Respondent guilty of the allegations in the Administrative Complaint and imposing a fine against Respondent in the amount of $100.00.

DONE AND RECOMMENDED this 22nd day of April, 1993, in Tallahassee, Leon County, Florida.

DANIEL S. MANRY

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 22nd day of April, 1993.

COPIES FURNISHED:

Laurie A. Lashomb, Esquire Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

Betty Gelzer, Owner PEABO Day Care Center 815 Hills Alley

Orlando, Florida 32805

Robert L. Powell, 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 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: 93-000849

Orders for Case No: 93-000849