STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1555

) FUN AND LEARNING CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on July 13, 1995, in Orlando, Florida.

APPEARANCES

For Petitioner: James A. Sawyer, Esquire

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite 827 Orlando, Florida 32801

For Respondent: Altagracia Munoz, pro se

Fun and Learning Center 2630 Martina Avenue

Kissimmee, Florida 34744 STATEMENT OF THE ISSUE

Whether the allegations of the Administrative Complaint are correct and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed February 24, 1995, the Department of Health and Rehabilitative Services alleges that based on a November 10, 1994 inspection, the Fun and Learning Center was not in compliance with regulations related to staffing ratios. The Respondent requested a hearing. The matter was forwarded to the Division of Administrative Hearings for further proceedings.

At the hearing the Petitioner presented the testimony of one witness and had one exhibit admitted into evidence. The Respondent testified on her own behalf.

No transcript of the hearing was filed. No proposed recommended orders were filed.

FINDINGS OF FACT

1. The Fun and Learning Center is a child care facility operated by Altagracia Munoz (Respondent) and licensed by the Department of Health and Rehabilitative Services (Petitioner.)

   
   

2. On November 13, 1994, an employee of the Petitioner conducted a routine inspection of the Fun and Learning Center.

   
   

3. At the time of the inspection, the staff members present were insufficient to comply with regulations established by the Petitioner.

   
   

4. According to the regulations, one staff member must be present for every four infants in the facility.

   
   

5. Seven children were located in the "infants" room with one staff person present.

   
   

6. According to the regulations, one staff member must be present for every six one-year old children in the facility.

   
   

7. Six children were located in the "one-year" room with no staff person present.

   
   

8. According to the regulations, one staff member must be present for every eleven two-year old children in the facility.

   
   

9. Eleven children were located in the "two-year" room with no staff person present.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The burden of proof is on the Department to establish that the factual allegations of the administrative complaint are correct and that the facts constitute a violation of the statutes and rules. In this case, the burden has been met.

    
    

12. The evidence in this case establishes that the Respondent failed to comply with the established staffing ratios.

    
    

13. Rule 10M-12.002(5), Florida Administrative Code, sets forth staffing ratios which must be met by licensed child care facilities as follows:

    
    

    AGE OF CHILDREN RATIO

    Under 1 year of age 1 staff member for 4 infants

    1. year of age 1 staff member for 6 infants

    2. years of age 1 staff member for 11 children

    
    

14. At the hearing, the Respondent asserted that she was present in the facility and should be counted as one of the two required supervisors required in the infants room. In her opinion, the staffing ratio for the infant room were met. The assertion is contrary to the language of the regulation.

15. According to Rule 10M-12.002(5)(a)1., Florida Administrative Code, staff ratios are "based on primary responsibility for the direct supervision of children...." The rule "applies at all times to the children who are cared for by the child care facility. "

    
    

16. Rule 10M-12.002(5)(a)2., Florida Administrative Code, rule defines direct supervision 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.

    
    

17. The evidence establishes that the Respondent was not in the infant room at the time of the inspection. The fact that the Respondent was in the facility does not meet the requirement of "direct supervision."

    
    

18. Further, the Respondent explained that staffing ratios were not met because some employees had not come to work that morning and others were at lunch.

    
    

19. Rule 10M-12.002(5)(a)4., Florida Administrative Code, requires that substitutes be available in the absence of regular staff members. There is no evidence that the Respondent had substitutes available for the missing employees.

    
    

20. In the Administrative Complaint, the Petitioner seeks imposition of a

$50.00 fine. The fine is within the appropriate range of penalties set forth at Rule 10M-12.011, Florida Administrative Code.

RECOMMENDATION

It is hereby RECOMMENDED that the Petitioner enter a Final Order imposing a fine of $50.00 on the Respondent.

DONE and RECOMMENDED this 30th day of August, 1995 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 30th day of August, 1995.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

James A. Sawyer, Esquire Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite 827 Orlando, Florida 32801

Altagracia Munoz

Fun and Learning Center 2630 Martina Avenue

Kissimmee, Florida 34744

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 ten 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: 95-001555

Orders for Case No: 95-001555