STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3381

)

AUGUSTINA ACADEMY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding by video conference before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 6, 1995, in Orlando, Florida. The parties, witnesses, and court reporter attended the formal hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: James A. Sawyer, Jr., Esquire

District Legal Counsel Department of Health and

Rehabilitative Services

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

For Respondent: David Cannon, Esquire

Casselberry Oaks, Suite 101

101 Sunnytown Road Casselberry, Florida 32707

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent failed to maintain direct supervision of four minor children and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on May 17, 1995. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of Ms. Patricia Hamilton, an investigator for Petitioner's Division of Child Care Licensing.

Petitioner submitted three exhibits for admission in evidence.

Petitioner's Exhibit 1 is a copy of a floor plan for Augustina Academy, Inc. ("Augustina Academy"). Petitioner's Exhibits 2 and 3 are inspection

reports for November 7, 1994, and April 17, 1995, respectively. Petitioner's Exhibits 1-3 were admitted in evidence without objection.

Respondent presented the testimony of Ms. Matilda Peash, Respondent's employee, and Ms. Augustina Peash, the owner of Augustina Academy. Respondent submitted no exhibits for admission in evidence.

Neither party requested a transcript of the formal hearing. Respondent requested, without opposition, an extension of time in which to file a late filed exhibit. On December 14, 1995, the parties filed a letter notifying the undersigned that Respondent would not be filing the late filed exhibit. Neither party submitted proposed recommended orders.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating child day care facilities in Florida. Respondent is licensed as a child care facility within the meaning of Section 402.302(4), Florida Statutes. 1/ Respondent is licensed to care for 36 children, ages 0-12, pursuant to license number 994-39.

   
   

2. Ms. Augustina Peash is the owner of Augustina Academay within the meaning of Section 402.302(7). Ms. Peash operates Augustina Academy at 1307 Pinehills Road, Orlando, Florida, 32808.

   
   

3. On April 7, 1995, Petitioner conducted a quarterly inspection of Respondent. Four children were alone with no direct supervision.

   
   

4. Two children were sweeping the kitchen. Another child was alone in a classroom. An infant was alone in a crib in a room adjacent to the director's office. Ms. Augustina Peash was in the director's office.

   
   

5. The potential harm to the children was not severe within the meaning of Section 402.310(1)(b)1. All of the children were on the premises of Augustina Academy and within close proximity of supervising personnel.

   
   

6. The period in which Respondent failed to maintain direct supervision of the children was not substantial. Respondent's employees corrected the failure immediately. Respondent's failure to maintain direct supervision of the children did not result in any actual harm to the children.

   
   

7. Respondent has a history of prior discipline within the meaning of Section 402.310(1)(b)3. On November 7, 1994, Petitioner cited Respondent for a similar violation. Petitioner informed Respondent in writing of the violation

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the appropriateness of any disciplinary action to be taken. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

10. Petitioner satisfied its burden of proof. Petitioner showed by clear and convincing evidence that Respondent failed to maintain direct supervision of four minor children.

    
    

11. Respondent's violation was not severe within the meaning of Section 402.310(1)(b)1. The period in which Respondent failed to maintain direct supervision was insubstantial for purposes of Section 402.310(1)(b)2.

    
    

12. Respondent's failure to maintain direct supervision of four minor children is a Class I violation within the meaning of Florida Administrative Code 10M-12.011. 2/ Petitioner is authorized to impose a fine of up to $150 for such a violation.

    
    

13. An administrative fine of $100 is proposed by Petitioner. The proposed fine is appropriate when all of the facts and circumstances in this proceeding are considered.

    
    

14. Respondent's failure to maintain direct supervision of the children was not a severe violation. It did not result in actual harm and did not exist for a substantial amount of time and was corrected immediately for purposes of Section 402.310(1)(b). However, Respondent's failure is a recurring violation based on Respondent's prior disciplinary history.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of the charges in the Administrative Complaint and imposing an administrative

fine of $100.

RECOMMENDED this 5th day of January, 1996, in Tallahassee, 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 5th day of January, 1996.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

2/ All references to rules are to rules promulgated in the Florida Administrative Code as of the date of this Recommended Order.

COPIES FURNISHED:

James A. Sawyer, Jr., Esquire District Legal Counsel Department of Health and

Rehabilitative Services

400 W. Robinson Street, Suite S-827 Orlando, Florida 32801

David Cannon, Esquire Casselberry Oaks, Suite 101

101 Sunnytown Road Casselberry, Florida 32707

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert L. Powell, Agency Clerk 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: 95-003381

Orders for Case No: 95-003381