STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 95-3041
) ELMER ROGER PILLSBURY AND KAREN ) PILLSBURY d/b/a WHITFIELD ACADEMY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on November 1, 1995, in Bradenton, Florida.
APPEARANCES
For Petitioner: Raymond R. Deckert, Esquire
Department of Health and Rehabilitative Services
District 6 Legal Office
4000 West Martin Luther King Jr. Boulevard Tampa, Florida 33614
For Respondent: Earl W. Baden, Jr., Esquire
1101 Sixth Avenue West Post Office Box 1907 Bradenton, Florida 34206
STATEMENT OF THE ISSUES
The issue for determination in this case is whether Respondent's license to operate a child day care facility should be revoked for violations of Chapter 402, Florida Statutes, and Rule Chapter 10M-12, Florida Administrative Code.
PRELIMINARY STATEMENT
On May 13, 1995, Petitioner, DEPARTMENT OF HEALTH AND REHABILITATIVE
SERVICES (HRS), filed an Administrative Complaint against Respondents, ELMER ROGER PILLSBURY and KAREN PILLSBURY d/b/a WHITFIELD ACADEMY, a licensed child day care facility, alleging thirty-five incidents of various and repeated violations of Florida statutes and rules dating from 1989 to 1995, and seeking revocation of Respondents' child day care license. The allegations of the administrative complaint include the following violations: failure to comply with staff/child ratio rules; improper storage of dangerous chemicals; failure to provide direct supervision; confirmation of child abuse; roach infestation; fire code violations; corporal punishment; failure to have designated staff in
charge; unsanitary bathrooms; nonconstructive discipline of a child; failure to repair shattered window glass; and, failure to cooperate with health officials responding to an outbreak of Hepatitis A.
On May 18, 1995 Respondents filed an Answer denying the material allegations of the Administrative Complaint, and a timely request for formal administrative hearing. The case was referred to the Division of Administrative Hearings on June 19, 1995.
On August 28, 1995, Respondents filed a Motion to Dismiss or in the Alternative to Sever, which was denied by order entered September 5, 1995.
At hearing on November 1, 1995, Petitioner presented the testimony of Laura Winfrey, Pauline Hodges, Joseph Busciglio, Trudy L. Bentley, Kerry Dennis, Chris Paganelli, Andrea Carano, Joyce West, and Connie Jimenez. Petitioner also presented twenty-seven exhibits (marked a-1 through kk). Respondents' objection to Exhibit marked gg was sustained, all remaining exhibits were received into evidence.
Respondents ROGER ELMER PILLSBURY and KAREN PILLSBURY testified in their own behalf. Respondents renewed their Motion to Dismiss and/or Sever, and objected to the admissibility of any evidence relating to allegations against Karen Pillsbury. For the reasons set forth below, Respondents' motions and objections are denied.
Petitioner asserts that the cumulative and repeated violations alleged to have been committed by Respondents warrant revocation of the child care facility license issued to Respondent ROGER ELMER PILLSBURY to operate WHITFIELD ACADEMY. Petitioner also asserts that beginning in 1989 the department has made good faith efforts to work with Respondents to correct deficiencies found at the child day care facility; however, Respondents have not been cooperative in addressing such problems. The only disciplinary action sought by HRS in this proceeding is licensure revocation.
Respondents take the position that beginning in 1989 some members of the department's staff have had a personal antagonism toward Respondents and have been attempting to create an unfounded basis for seeking revocation of the child care facility license to operate WHITFIELD ACADEMY. Respondents assert that the personal antagonism of departmental staff against them has resulted in more frequent departmental inspections of their child day care facility than other such facilities, and unreasonable citations for minor deficiencies. Respondents also contend that they have reasonably cooperated with the department and reasonably corrected the citations found at WHITFIELD ACADEMY in a timely manner, and that the actions alleged in the Administrative Complaint do not warrant licensure revocation.
A transcript of the hearing was not filed. On November 20, 1995, Petitioner filed a proposed recommended order. Respondents did not file a proposed recommended order. Separate rulings on Petitioner's proposed findings are set forth in the Appendix attached hereto.
FINDINGS OF FACT
Petitioner, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, HRS, is the agency of the State of Florida vested with the statutory authority to license and inspect child day care facilities.
Respondent ELMER ROGER PILLSBURY holds a provisional license issued by HRS to operate WHITFIELD ACADEMY, a child day care facility located in Manatee County, Florida.
Respondent KAREN PILLSBURY is the manager of WHITFIELD ACADEMY, and is responsible for the day-to-day operations of the facility. In addition to managing WHITFIELD ACADEMY, Respondent KAREN PILLSBURY also operates Kinder Kare Day Care, another licensed child day care center in Manatee County, Florida.
At all material times, Respondents ELMER ROGER PILLSBURY and KAREN PILLSBURY have been married.
WHITFIELD ACADEMY was first licensed by HRS on June 27, 1989. At that time KAREN PILLSBURY was the owner of the facility. On June 1, 1990, ownership of the facility was transferred from KAREN PILLSBURY to ROGER ELMER PILLSBURY. After the transfer of ownership, KAREN PILLSBURY continued as the operator of the facility, and was in control of the management of the facility.
WHITFIELD ACADEMY has an authorized licensed capacity of one hundred and thirty five children. During the period relevant to this proceeding the facility has had a daily census ranging from thirty to ninety children, with an average between fifty and sixty children per day. Staffing at the facility has ranged from four to nine employees.
Pursuant to statutory authority, HRS routinely conducts quarterly inspections of licensed child day care facilities. HRS also routinely investigates complaints filed against licensed child day care facilities.
Beginning in 1989 and continuing through 1995, HRS has cited Respondents for numerous statutory and rule violations including the following charges set forth in the Administrative Complaint: child abuse; failure to comply with staff/child ratios; failure to maintain direct supervision; improper storage of dangerous chemicals; roach infestation; fire code violations; failure to repair shattered glass in a window; corporal punishment; unsanitary bathrooms; failure to designate staff left in charge; nonconstructive discipline; and failure to cooperate with health officials in responding to an outbreak of Hepatitis A.
Child Abuse
On or about April 25, 1989, Respondent KAREN PILLSBURY, while working at Kinder Kastle Day Care, disciplined an eighteen-month old child for biting other children by "popping" the child on his mouth with her finger. Respondent KAREN PILLSBURY considered this form of discipline appropriate to prevent small children from biting other children. It is accepted practice by some child development professionals that nonexcessive physical contact may be used as a deterrence to prevent children from biting others. HRS has promulgated Rule 10M-12.013(1)(c), Florida Administrative Code, which prohibits any form of physical punishment in a child care facility.
As a result of this incident, a complaint was filed with HRS against KAREN PILLSBURY. HRS investigated the complaint and on May 30, 1989, filed an Administrative Complaint against KAREN PILLSBURY d/b/a/ Kinder Kastle Day Care for violations of HRS's child care standards which, as set forth above, prohibit any corporal discipline on a child in a child care facility. As a result of this administrative action, KAREN PILLSBURY was assessed a fine of $100, which was paid on January 16, 1990.
In addition to the administrative fine imposed on Kinder Kastle, on September 29, 1989, as a result of this incident, HRS also proposed to confirm a report of child abuse against Respondent KAREN PILLSBURY for using excessive corporal punishment. Respondent did not seek administrative review of HRS's decision to classify the report as confirmed child abuse. Instead, Respondent applied for an exemption to continue working in a child day care facility. Respondent's application for exemption was denied by HRS on November 20, 1989, and Respondent then sought administrative review of HRS's decision to deny her request for exemption filed with DOAH as Case No. 90-007C.
During the pendency of the administrative review denying Respondent KAREN PILLSBURY's application for exemption, Respondent continued to have contact with children at her child care facilities. HRS thereafter filed an Emergency Complaint seeking injunctive relief against Respondent in circuit court, (Case No. CA90-912, Fla. 12th Cir.), and on March 26, 1990 an injunction was issued by the court prohibiting Respondent from being present at Kinder Kastle or Whitfield Academy.
Prior to hearing scheduled in the administrative case, HRS and Respondent KAREN PILLSBURY, on May 22, 1990, entered into a stipulated settlement, under the terms of which HRS agreed to grant Respondent an exemption to work at child day care facilities, and Respondent agreed to dismiss the administrative action, receive counseling with regard to alternative ways to modify a child's behavior without the use of corporal punishment, and obtain instruction in social behavior modification.
Respondent KAREN PILLSBURY has complied with the terms of the stipulated settlement in DOAH Case No. 90-007C. On June 4, 1990, the circuit court injunction against Respondent was set aside, and Respondent resumed her duties at Kinder Kastle and Whitfield Academy.
Staff/Child Ratio Violations
HRS has promulgated Rule 10M-12.002(5)(a)1., Florida Administrative Code, which establishes ratios for personnel to children in child day care facilities. The ratios are dependent upon the ages of the children at the facility. During inspections of child day care facilities HRS staff observe the number of children being supervised by facility personnel and record the ratios. HRS staff does not personally check the ages of the individual children in a supervised group, but relies on personal observation as well as the representations made by the facility personnel to determine the ages of the children and whether the ratios are appropriate.
Since 1989, WHITFIELD ACADEMY has been cited by HRS for staff/child ratio deficiencies on at least twelve occasions.
On September 14, 1989, during a routine quarterly inspection at WHITFIELD ACADEMY, an HRS inspector observed there was one staff member for fourteen children between the ages of one year and two and one half years. The HRS staff/child ratio at that time required one staff member for eight children aged one to two years old and one staff member for twelve children aged two to three years old. The inspection report cited WHITFIELD ACADEMY for this deficiency. At the reinspection of the facility on October 2, 1989, the ratio for this group of children remained at one staff member to fourteen children, and had not been corrected. At reinspection on October 16, 1989, the deficiency was corrected.
On April 11, 1990, during the investigation of a complaint filed against WHITFIELD ACADEMY, HRS cited the facility for a staff/child ratio deficiency because two staff members were supervising a group of thirty-eight children who appeared to be of varying ages ranging from three to five years old. The inspection report cautioned WHITFIELD ACADEMY with respect to mixing children of different ages in supervised groups. Upon reinspection by HRS staff on April 25, 1990, this deficiency was corrected.
As a result of a complaint filed against WHITFIELD ACADEMY, an inspection was also conducted on April 25, 1990, regarding the staff/child ratio for younger children. At that time HRS staff observed twelve children who appeared to be from under one year old to two years old in the care of one staff member. The staff/child ratio required for children under one year old was one staff member to six children, and for children of one year of age was one staff member for eight children. WHITFIELD ACADEMY was cited for this deficiency. Upon reinspection by HRS staff on May 2, 1990, this deficiency was corrected.
On July 11, 1990, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervising fourteen children, some of whom appeared to be under one year old. Upon reinspection on July 25, 1990, this deficiency was corrected.
The staff/child ratio deficiencies at WHITFIELD ACADEMY did not reoccur until March 31, 1992. At that time an HRS inspector cited the facility as deficient when the inspector observed one staff member supervising seven children under the age of one year old in the nursery for a short period of time, approximately twenty to thirty minutes. The required staff/child ratio at that time was one staff member to six infants. Upon reinspection on April 14, 1992, this deficiency was corrected.
On August 4, 1992, HRS again cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervise seven infants for a short period of time when another staff member was on leave. Upon reinspection on September 10, 1992, this deficiency was corrected.
On January 14, 1993, a complaint was filed with HRS against Respondents WHITFIELD ACADEMY and KAREN PILLSBURY for a staff/child ratio deficiency of one staff member for eight infants under one year old. The deficiency lasted for approximately one hour. In addition, the complaint alleged that on one occasion a staff member left children in the toddler area alone to obtain records for a health nurse, and that two children were sleeping out of the sight of a staff member. As a result of this complaint, on March 10, 1993, administrative action was taken against Respondents, and a fine in the amount of $250 was assessed. Respondents paid the fine on April 8, 1993. On April 21, 1993, Respondents submitted a corrective action plan to HRS to address the problems identified in this complaint.
On August 18, 1993, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervise five infants under one year old. At this time the required ratio had changed from one staff member to six infants, to one staff member to four infants. Upon reinspection on September 1, 1993, this deficiency was corrected.
On February 9, 1994, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency when an inspector observed two toddlers among a group of older children in the playground. This deficiency was immediately corrected.
On March 29, 1994, and on April 20, 1994, HRS received complaints that on two separate occasions the staff/child ratios at WHITFIELD ACADEMY were improper because of the mixing of children of different ages. The allegations of the complaints were verified by HRS, and an administrative fine was assessed against WHITFIELD ACADEMY in the amount of $300 on May 12, 1994. The fine was paid on August 18, 1994.
On February 23, 1995, HRS initially cited WHITFIELD ACADEMY for a staff/child ratio deficiency; however, on the same date, when the age of the child in question was verified by reviewing the facility's records, this citation was found to be without basis.
On March 23, 1995, HRS cited WHITFIELD ACADEMY for a staff/child deficiency for having one staff member for seventeen children ages two and three when the required ratio was one staff member for eleven two year olds and one staff member for fifteen three year olds. Upon reinspection on April 11, 1995, this deficiency was not corrected. Upon another reinspection on April 21, 1995, this deficiency was corrected.
WHITFIELD ACADEMY has experienced difficulty in retaining qualified staff. Some instances of noncompliance with staff/child ratios resulted from staff at the facility being ill, taking breaks, and the failure of staff to report for work. Except for the citations issued on September 14, 1989, and March 23, 1995, all instances of staff/child ratio deficiencies at WHITFIELD ACADEMY were corrected in a timely manner.
Failure to Provide Direct Supervision
On six occasions WHITFIELD ACADEMY has been cited by HRS for failure to comply with departmental rules governing direct supervision of children at a child day acre facility. HRS has promulgated Rule 10M-12.005(5)(a)2., Florida Administrative Code, which requires personnel at a child day care facility to watch and direct the children's activities with close proximity, within the same room or enclosed outdoor play area, and to be present with the children at all times during the day, including during meals, nap time, and snack time.
On September 14, 1989, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because a staff member at the facility was going in and out of her classroom to assist another staff member at snack time. Upon reinspection on October 2, 1989, the HRS inspector observed children left alone at the facility, and determined that this deficiency had not been corrected. Upon a further reinspection on October 6, 1989, the deficiency was corrected.
On April 11, 1990, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because children were being allowed to leave the playground to go inside to use the bathroom unattended by a staff member. This deficiency was corrected at reinspection on April 25, 1990.
On August 4, 1992, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because volunteers at the facility were being allowed to supervise children out of the presence of a trained staff member. At reinspection on September 10, 1992, this deficiency was corrected.
As set forth in Paragraph 23, above, the complaint filed on January 23, 1993, against Respondents WHITFIELD ACADEMY and KAREN PILLSBURY alleged, in
addition to a staff/child ratio deficiency, a failure by Respondents to provide direct supervision, in that on one occasion a child was left unattended when a staff member retrieved records for a health nurse, and further alleged that during nap time, some children could not be directly observed by facility staff. This complaint was verified by HRS and resulted in an administrative fine of
$250, which Respondents paid on April 21, 1993. Respondents also submitted a corrective action plan which addressed these problems.
On August 3, 1994, HRS received a complaint that children at WHITFIELD ACADEMY were not being supervised because one staff member was observed sleeping, and another staff member would, on occasion, leave the room. On August 11, 1994, HRS sent WHITFIELD ACADEMY a warning letter concerning the complaint, and by August 29, 1994, Respondents took corrective action, including dismissal of the staff member found sleeping.
On December 19, 1994, HRS received a complaint against WHITFIELD ACADEMY alleging that a five month old child, while strapped in an infant chair, was pushed off a table by a one year old child and received a concussion. The complaint alleged that the two staff members present at the time of the incident were not watching the children. This incident occurred because a child had spilled milk, and one staff member was momentarily involved in cleaning up the spilled milk. The infant was not seriously injured.
Improper Storage of Dangerous Chemicals
Beginning in 1989, HRS has cited WHITFIELD ACADEMY for improper storage of dangerous chemicals on thirteen occasions. In this respect, HRS has promulgated Rule 10M-12.003(1)(d), Florida Administrative Code, which requires that cleaning supplies, flammables, and other potentially poisonous or dangerous supplies be kept out of the reach of children, and in such a manner as to insure the safety of children. The thirteen citations issued by HRS against WHITFIELD ACADEMY for this deficiency largely result from a failure to lock a supply storage room door at the facility. The supply storage room at the facility is located next to the boys' bathroom and contains cleaning supplies, as well as cans of paint. The supplies and paint are stored on shelves beyond the reach of children.
On September 14, 1989, during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed the door to the supply storage room unlocked. This deficiency was corrected at reinspection on October 2, 1989.
On November 13, 1989 during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed a can of Lysol spray disinfectant on the toilet tank in the toddler bathroom. This deficiency was corrected at reinspection on November 30, 1989.
On February 20, 1990, during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed the door to the supply storage room unlocked. This deficiency was corrected at reinspection on March 6, 1990.
During the inspection of WHITFIELD ACADEMY conducted on April 11, 1990, as set forth in Paragraph 18, above, the supply storage door was not locked. This deficiency was corrected at reinspection on April 25, 1990.
At a routine quarterly inspection of WHITFIELD ACADEMY on July 11, 1990, items used for crafts, such as paint and hair spray, were observed in an
unlocked cabinet in the playroom. This deficiency was corrected at reinspection on July 25, 1990.
During a routine quarterly inspection of WHITFIELD ACADEMY on October 16, 1990, the door to the supply storage room was unlocked. This deficiency was corrected at reinspection on October 30, 1990.
During a routine quarterly inspection of WHITFIELD ACADEMY on January 9, 1991, the door to the supply storage room was unlocked. This deficiency was not corrected at reinspection on January 24, 1991, but was corrected at reinspection on February 7, 1991.
On May 31, 1991, during a food service inspection at WHITFIELD ACADEMY, cleaning chemicals were observed stored over a food preparation counter. At reinspection on June 17, 1991, this deficiency was corrected.
Except for the January 9, 1991 citation, all storage deficiencies relating to storage of cleaning supplies and other such materials were corrected in a timely manner. Children at WHITFIELD ACADEMY did not have access to cleaning supplies, flammables, or other potentially poisonous or dangerous chemicals.
Pest Control Deficiencies
On three occasions since 1989, WHITFIELD ACADEMY has been cited for failure to maintain appropriate sanitation due to problems with pest control. On each occasion evidence of roaches was found at the facility.
On January 24, 1991, HRS conducted an inspection of WHITFIELD ACADEMY in response to two complaints filed with the department which alleged that evidence of roaches had been observed at the facility, and that the facility did not conduct appropriate fire drills.. During the inspection, live roaches were observed in the kitchen, behind the soda machine, and in cabinets above and beside the sink. This deficiency was classified as a major infestation. At reinspection on February 8, 1991, the deficiency had been corrected.
During a routine food inspection at WHITFIELD ACADEMY on May 31, 1991, live roaches were observed in three different areas. This deficiency was classified as a significant infestation. A routine quarterly inspection conducted on June 6, 1991 also showed evidence of live roaches in the nursery and playroom. At reinspection by the food inspector on June 17, 1991, the deficiency had been corrected, and reinspection again by HRS on July 5, 1991, confirmed that the problem was corrected.
All deficiencies cited by HRS against WHITFIELD ACADEMY relating to maintaining proper pest control were corrected in a timely manner.
Failure to Designate Staff In Charge
On two occasions since 1989, HRS cited WHITFIELD ACADEMY for failure to designate a staff member left in charge of the facility contrary to Rule 10M- 12.002(2)(a), Florida Administrative Code, which requires that when the operator of a facility is absent, a person over 21 years of age must be in charge of, and present at the facility at all times.
On October 14, 1992, an HRS food service inspector during a routine inspection of WHITFIELD ACADEMY was unable to locate a specific staff member at
the facility willing to accept the food service inspection report. At the time of the inspection KAREN PILLSBURY was absent from the facility. The report was eventually accepted and signed for by Connie Jimenez, an employee of the facility at that time, who was more than 21 years of age.
On May 10, 1994, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to designate a person in charge. The HRS inspector did not observe or review a posted list of employees of the facility to determine if any employee had been designated in charge at that time. This deficiency was corrected at reinspection on May 24, 1994.
Respondent KAREN PILLSBURY, the operator of WHITFIELD ACADEMY, posts a list of employees in her office which designates the employee in charge in her absence.
Because of the chronic problems encountered during inspections by HRS at WHITFIELD ACADEMY, employees of the facility were reluctant to acknowledge responsibility for the facility and accept HRS inspection reports.
Fire Code Violations
On January 24, 1991, in response to the complaints described in Paragraph 48, above, a deputy fire marshal with the Southern Manatee Fire & Rescue District, verified that WHITFIELD ACADEMY did not comply with appropriate fire code standards in that the employees were not properly trained in fire drill procedures, the fire drill log was not properly completed, and the fire drill log inaccurately reflected that fire drills had been regularly conducted at the facility. These deficiencies were corrected at reinspection on February 8, 1991.
Premises Safety Hazards
On October 10, 1990, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to maintain outdoor equipment free from hazards. This deficiency was cited because of a shattered window pane glass located on the side of the building next to the playground. At reinspection on October 30, 1990 the deficiency had not been corrected. The deficiency had been corrected by reinspection on November 13, 1990.
Respondents replaced the shattered window pane glass with a shatterproof new window which required a special order. The delay in correcting this deficiency was caused by the shipping time for this special order.
Unsanitary Conditions
On February 23, 1995, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to maintain adequate toilet facilities in violation of Rule 10M-12.003(6)(b), Florida Administrative Code, because of a clogged toilet in the boys' bathroom. The toilet was clogged again at reinspection on March 9, 1995. At reinspection on March 23, 1995, this deficiency was corrected.
Children at WHITFIELD ACADEMY occasionally placed items in the toilets. Respondents cleaned and unclogged the toilets on a timely basis. The incident described in Paragraph 59, above, resulted from a child.
Corporal Punishment
On or about August 17, 1994, an abuse report was filed with HRS alleging that an employee of WHITFIELD ACADEMY used corporal punishment in the discipline of her own child who was attending the facility. The report further alleged that the corporal punishment was inflicted on the child with the permission of Respondent KAREN PILLSBURY in violation of Rule 10M-12.013(1)(c), Florida Administrative Code. This incident resulted in a proposed confirmed report of abuse.
Respondent KAREN PILLSBURY did not authorize or otherwise permit the infliction of corporal punishment by an employee of WHITFIELD ACADEMY in the discipline the employee's child on or about August 17, 1994.
Nonconstructive Discipline
During a routine quarterly inspection on April 7, 1995, HRS cited WHITFIELD ACADEMY for subjecting a child to severe, frightening or humiliating discipline in violation of Rule 10M-12.013(1)(b), Florida Administrative Code. At this time an employee was attempting to restrain a child from biting other children, and was overheard by an HRS investigator to say to the child, "Are you crazy, are you out of your mind?" Respondent KAREN PILLSBURY was not present at the facility when this incident occurred.
Respondent KAREN PILLSBURY took remedial measures to address this incident with the employee, and upon reinspection on April 21, 1995, this deficiency was corrected.
Hepatitis A Outbreak
At the end of July of 1992, twenty-one cases of Hepatitis A, a highly infectious disease, were reported in Manatee County, Florida. At least one reported case was related to a child who had formerly been in attendance at WHITFIELD ACADEMY. The Manatee County Public Health Unit determined that in addition to the former attendee at the facility, thirteen of the other twenty- one reported cases had an association with WHITFIELD ACADEMY. There were no confirmed cases of Hepatitis A found in children in attendance at WHITFIELD ACADEMY, nor in any employees of the facility at that time.
As a result of the association of reported cases of Hepatitis A with WHITFIELD ACADEMY, Manatee County Public Health officials recommended that preventative measures be taken at the facility, and that attendees and employees of the facility be tested for immunity to the disease, and if not immune receive Immune Globulin injections. Notifications were also sent to the parents of attending children.
Arrangements were made with Manatee County Public Health to provide Immune Globulin injections at WHITFIELD ACADEMY. On the day the injections were given, there was insufficient Immune Globulin available to provide immunizations to all attendees, parents, and employees of the facility, including the Respondents and their family, who had requested the injections. Persons unable to obtain injections at the facility were instructed to contact the Manatee County Public Health Unit; however, there were further problems with obtaining sufficient Immune Globulin which resulted in delays in the inoculation of some of those persons requesting the treatment. Respondents and their family members were inoculated with Immune Globulin.
As a result of the initial failure of the Respondents to receive Immune Globulin, and other problems relating to the recommendations for preventative measures at the facility, on August 7, 1992, HRS instituted proceedings in circuit court, Case No. CA-92-003149, Fla. 12th Cir, seeking a temporary restraining order against WHITFIELD ACADEMY from operation for at least sixty days. To resolve this action, WHITFIELD ACADEMY agreed to close from August 12, 1992 through August 23, 1992, to complete a terminal cleaning of the facility by August 24, 1992, to continue immunizations for at least six weeks after any reported case of Hepatitis A was associated with the facility, and to implement certain sanitation measures. The agreement was incorporated into an Order entered by the circuit court on August 24, 1992. Respondents complied with the terms of this agreement.
Respondents reasonably cooperated with HRS officials in addressing the problems associated with the outbreak of Hepatitis A in July of 1992.
Subsequent to August 24, 1992, there were no confirmed reports of cases of Hepatitis A associated with WHITFIELD ACADEMY.
Other Violations
On October 30, 1990, an employee of WHITFIELD ACADEMY informed HRS inspectors that a reinspection of the facility could not be conducted until Respondent KAREN PILLSBURY returned. After being shown Section 402.311, Florida Statutes, which authorizes HRS inspections, the employee allowed the inspectors to conduct a partial reinspection. Upon Respondent's return, an inspection was completed. This violation has not reoccurred.
During a routine inspection on September 11, 1990, HRS cited WHITFIELD ACADEMY for failure to maintain proper medical examination certificates or immunization records in violation of Rule 10M-12.008, Florida Administrative Code. This deficiency was not corrected at reinspection on September 28, 1990; however these records were subsequently brought into compliance.
As a result of the continuing problems at WHITFIELD ACADEMY relating to the record-keeping and other deficiencies, two meetings were conducted on April 16, 1991, with HRS representatives and Respondents and their counsel, at which time agreement on a course of action for resolving these problems was reached. Respondents have made a reasonable effort to comply with this agreement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
Petitioner, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, has authority to take disciplinary action against a license to operate a child care facility pursuant to the provisions of Section 402.310(1), Florida Statutes, which provides in pertinent part:
(1)(a) The department or local licensing agency may deny, suspend, or revoke a license or impose an administrative fine not to exceed
$100 per violation, per day, for the violation of any provision of ss. 402.301-402.319 or rules adopted thereunder. However, where the violation
could or does cause death or serious harm, the department or local licensing agency may impose an administrative fine, not to exceed $500 per violation per day.
(b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:
The severity of the violation, 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 have been violated.
Actions taken by the licensee to correct the violation or to remedy complaints.
Any previous violations of the licensee.
Rule 10M-12.011, Florida Administrative Code sets forth guidelines for the exercise of this disciplinary authority and provides in pertinent part:
10M-12.011 Enforcement.
The Department is given enforcement power
by Sections 402.301, 402.310, 402.311, and 402.312,
F.S., and shall take the following actions in accordance with the following guidelines.
Deny, suspend or revoke a license. Denial will be based on noncompliance with the licensing standards. Suspension shall be for a fixed amount of time not to exceed 90 days and will be based on the nature and severity of the violation and the well-being of the children and the public. Revoca- tion will be based on the nature and severity of the violation, repetition of the violation, and actions of the center to correct the violation.
The Department will use the following classifications as a guideline for determining the severity of the violation and the amount of the fine:
Class I Violations: Are the most serious in nature and could result or do result in death or serious harm to the health, safety and well-being of a child and include overt abuse and negligence related to the operation and maintenance of a facility.
Class II Violations: Are serious in nature but do not pose an immediate threat to the health,
safety and well-being of a child but could reasonably be expected to cause harm within 90 days (for example, a leaking roof that could collapse) and include those conditions or occurrences related to the operation
and maintenance of a facility other than Class I violations.
Class III Violations: Are the least serious in nature and pose no threat to the health, safety and well-being of a child and include those condi- tions or occurrences related to the operation and
maintenance of the facility other than Class I or Class II violations.
Licensure revocation proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487, 491 (Fla 1973); Bach
v. Florida State Board of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1980). The prosecuting agency's burden is to prove its case by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
"Clear and convincing evidence" requires evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).
Respondents' Renewed Motion to Dismiss is based on the rationale that many of the charges in the Administrative Complaint relate to previous violations that were corrected or resolved judicially. Under Section 402.310(1)(b)3., Florida Statutes, however, previous violations of the licensee may be considered in revocation proceedings. Accordingly, Respondents' renewed Motion to Dismiss is DENIED.
Respondents' Renewed Motion to Sever is also DENIED. The evidence established that subsequent to the transfer of the license of WHITFIELD ACADEMY to Respondent ELMER ROGER PILLSBURY on June 1, 1990, Respondent KAREN PILLSBURY continued at all material times to manage and operate the facility, and her previous violations are relevant under Section 402.310(1)(b)3., Florida Statutes.
The evidence establishes that since 1989 WHITFIELD ACADEMY has been cited for violations of Rule Chapter 10M-12, Florida Administrative Code, on a number of occasions. The most serious of these violations, the Class I violations, related to staff/child ratios, failure to provide direct supervision, and failure to secure the storage room. All of these serious deficiencies were corrected, and on almost every occasion, the deficiencies were corrected in a timely manner. The evidence does not show a consistent failure by Respondents to address serious deficiencies.
Although Section 402.310(1)(b) 3., Florida Statutes, provides that previous violations of the licensee shall be considered in disciplinary actions, HRS has by prior order stated that those deficiencies which are corrected by the licensee in a timely manner should not constitute the basis for further disciplinary action. Department of Health and Rehabilitative Services v. Alice
P. White d/b/a Miss Patty's Day Care Center, DOAH consolidated Cases Nos. 92- 7148 and 92-7447, HRS Final Order entered November 3, 1993. In this case Respondents have, over this six-year period, addressed each violation cited by HRS and corrected the deficiency in a reasonable manner
The evidence fails to establish that Respondent did not take reasonable efforts to cooperate with HRS and to correct violations and remedy complaints in a timely manner.
Considered under the applicable strict standards required for licensure revocation, the evidence fails to establish that the actions of
Respondents warrant licensure revocation, which is the only penalty sought in the Administrative Complaint.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:
A Final Order be entered finding that the charges against Respondents ELMER ROGER PILLSBURY, KAREN PILLSBURY, and WHITFIELD ACADEMY are insufficient to warrant licensure revocation, and that the Administrative Complaint filed against Respondents be DISMISSED.
RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995.
RICHARD HIXSON
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 29th day of November, 1995.
APPENDIX
As to Petitioner's Proposed Findings
1 - 2. Accepted and Incorporated.
3 - 5. Accepted and Incorporated except that Respondent also has complied with the terms of the settlement agreement.
6 - 7. Accepted and Incorporated except that the deficiencies were corrected.
8. Accepted, except that Respondents and their counsel agreed to cooperate with HRS to remedy the problems.
9 - 15. Accepted and Incorporated, except that the cited deficiencies were corrected.
16. Accepted, except that the replacement glass was on special order, and the problem was corrected.
17 - 25. Accepted, except that the deficiencies were corrected.
26. Accepted, except that Respondents reasonably cooperated with health officials and were finally inoculated.
27 - 35. Accepted and Incorporated, except that the deficiencies were corrected.
Rejected to the extent that Respondent authorized corporal punishment.
Rejected as irrelevant.
38 - 42. Accepted and Incorporated, except that the deficiencies were corrected.
COPIES FURNISHED:
Raymond R. Deckert, Esquire DHRS, District 6 Legal Office
4000 W. Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614
Earl W. Baden, Jr., Esquire 1101 Sixth Avenue West
Post Office Box 1907 Bradenton, Florida 34206
Robert L. Powell, Agency Clerk DHRS
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 their 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.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
Petitioner,
CASE NO. 95-3041
v. RENDITION NO. HRS-96-3FOF-OLC
ELMER ROGER PILLSBURY AND KAREN PILLSBURY d/b/a WHITFIELD ACADEMY
Respondents.
/
FINAL ORDER
This cause is before me for entry of a Final Order.
The November 29, 1995, Recommended Order concluded that the department failed to establish that respondents have not reasonably cooperated with the department to correct in a timely manner violations of law and department rules governing the operation of child care centers. The department filed several exceptions to the hearing officer's conclusions of law. Having carefully considered the relevant facts and applicable law, I reject the hearing officer's conclusion that license revocation was not warranted.
A close reading of the hearing officer's findings of fact reveals that the department has cited respondents' facility for noncompliance with applicable statutes and rules on forty-eight occasions since late 1989, not counting those instances where the hearing officer indicated the citation was without foundation. The violation citations include staff/child ratio, dangerous chemical storage, inadequate supervision, fire code noncompliance (including falsification of fire drill logs), roach infestation, premises safety, unsanitary conditions, corporal punishment, no designated staff in charge, refusal to allow inspection, and lack of child medical/immunization records.
The hearing officer' s findings of fact are approved and adopted with the exception of paragraph 2 of the Recommended Order. Paragraph 2 finds that, on April 16, 1991, the department and respondents met and executed a corrective action plan to correct the continuing problems with "record-keeping and other deficiencies" at respondents' facility. The final sentence of this paragraph posits that "[r]espondents have made a reasonable effort to comply with this agreement." Although framed as a "finding of fact," the hearing officer's determination that respondents' actions constitute reasonable compliance with the agreement is actually a conclusion of law and is rejected as unsupported by the evidence. Nineteen of the 48 cited violations, approximately 40 percent, occurred after the implementation of the corrective action plan. On three occasions in 1993 and 1994, violations required the imposition of administrative fines. Contrary to the hearing officer's conclusion, the evidence demonstrates that respondents did not reasonably comply with the April, 1991 agreement.
I reject the conclusion of law in the last sentence of paragraph 80 of the Recommended Order that "[t]he evidence does not show a consistent failure by Respondents to address serious deficiencies." Although in most cases the cited deficiencies were corrected prior to reinspection, the evidence shows a persistent and disturbing refusal by respondents to maintain compliance. As noted by the hearing officer, many of the deficiencies were Class 1 violations, which are those which produce or could produce death or serious harm to the health, safety, or well-being of children at the facility.
I also reject the conclusion of law stated in paragraph 81 of the Recommended Order. The hearing officer erred as a matter of law by refusing to consider past violations of the applicable child care statutes and rules in determining whether license revocation was warranted in this case. The hearing officer ignored both statute and rule directing that such evidence be considered, and chose instead to rely upon a 1993 final order wherein the department declined to consider prior violations as a basis for licensure revocation.
While an agency's interpretation of a statute administered by it must ordinarily be accorded deference, that interpretation must comport with, and not
vitiate, the statute or a portion thereof. See St. Joe Paper Co. v. Dept. of Community Affairs, 65 So.2d 2 (Fla. 1st DCA 1995). As the hearing officer acknowledged, section 402.301(1)(b)3., Florida Statutes, provides that a licensee's prior violations "shall be considered" in subsequent disciplinary actions. Rule 10M-12.011(1)(a), Florida Administrative Code, provides that license revocation proceedings must involve consideration of repetition of the violation." To the extent that the cited final order is inconsistent with the controlling statute and departmental rule, it cannot be followed.
Finally, I reject the conclusions of law in paragraphs 82 and 83 of the Recommended Order, wherein the hearing officer determined that respondents had reasonably cooperated with the department to correct violations and remedy complaints such that revocation of respondents' license was not warranted. The hearing officer's findings of fact establish a recurrent and willful pattern of noncompliance, citation, and temporary correction on the part of respondents.
Settlement agreements, the corrective action plan, and fines have failed to achieve lasting adherence to the statutes and department rules designed to ensure the safety of the children at respondents' facility.
The remainder of the hearing officer's conclusions of law, to the extent they are not inconsistent with the modifications set forth above, are approved and adopted. The department's exceptions to the Recommended Order have been adopted in substance and incorporated into the foregoing analysis. The hearing officer's recommendation, which is based on the erroneous conclusions of law, is rejected.
Accordingly, it is ORDERED that respondents' license to operate the subject child care facility is revoked
DONE and ORDERED this 10th day of July, 1996, in Tallahassee, Leon County, Florida.
EDWARD A. FEAVER, Secretary Department of Health and Rehabilitative Services
By: CHARLES KIMBER
Deputy Secretary for Human Services
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
COPIES FURNISHED:
Richard Hixson, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Raymond R. Deckert, Esquire District 6 Legal Office Department of Health and
Rehabilitative Services 4000 W. Dr. Martin Luther King, Jr., Blvd.
Tampa, Florida 33614
Earl W. Baden, Jr. Attorney at Law 1101 6th Ave. West
Bradenton, Florida 34205
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the above-named persons this 10th, day of July, 1996.
Gregory D. Venz Agency Clerk
Department of Health and Rehabilitative Services
1323 Winewood Blvd.
Tallahassee, Florida 32399-000
(904) 488-2381
| Issue Date | Proceedings |
|---|---|
| Feb. 16, 1998 | Amended Final Order on Remand filed. |
| Jul. 25, 1996 | Notice of Appeal filed. (filed by: ) Second DCA Case number 2-96-2964. |
| Jul. 11, 1996 | Final Order filed. |
| Dec. 26, 1995 | (Respondent) Response to HRS`s Exceptions to Hearing Officer`s Recommended Order filed. |
| Nov. 29, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 11/01/95. |
| Nov. 20, 1995 | (Petitioner) Proposed Recommended Order filed. |
| Nov. 01, 1995 | CASE STATUS: Hearing Held. |
| Sep. 14, 1995 | Petitioner`s Response to Respondent`s Claim for Relief filed. |
| Sep. 08, 1995 | Petitioner`s Response to Respondent`s Motion to Dismiss or in the Alternative, to Sever filed. |
| Sep. 05, 1995 | Order Denying Motion to Dismiss Or Sever sent out. (motion denied) |
| Aug. 31, 1995 | (Respondents) Claim for Relief Affirmative Defenses filed. |
| Aug. 28, 1995 | (Respondents) Motion to Dismiss, Or In the Alternative, to Sever filed. |
| Jul. 26, 1995 | Amended Notice of Hearing sent out. (hearing set for 11/1/95; 9:00am; Bradenton) |
| Jul. 20, 1995 | Notice of Hearing sent out. (hearing set for 11/1/95; 9:00am; Bartow) |
| Jul. 12, 1995 | (Petitioner) Amended Joint Response to Initial Order filed. |
| Jul. 10, 1995 | Joint Response to Initial Order filed. |
| Jun. 27, 1995 | Initial Order issued. |
| Jun. 19, 1995 | Answer to Administrative Complaint; Notice; Administrative Complaint; Request for Administrative Hearing, Letter Form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 12, 1998 | Agency Final Order | |
| Jul. 10, 1996 | Agency Final Order | |
| Nov. 29, 1995 | Recommended Order | Rule was valid in its language which conditioned tax exemption on offering property for sale. |
