STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3382

) WESLEY CHILD DEVELOPMENT CENTER II, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in this case on September 15, 1995, by teleconference. The parties, their witnesses and court reporter participated from a conference room in the Hurston Building, Orlando, Florida. The hearing officer presided from her office in 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: Elizabeth Jenkins, Director

Wesley Child Development Center II

142 East Jackson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

The Department of Health and Rehabilitative Services (HRS) seeks an administrative fine of $100 from the Wesley Child Development Center (Wesley) for violation of rules related to child supervision. The issues are whether the violation occurred and whether the fine is appropriate.

PRELIMINARY STATEMENT

The case was referred to the Division of Administrative Hearings when Respondent requested a hearing on the administrative complaint dated May 23, 1995.

At the hearing, Petitioner presented testimony of Dana Schmidt, an HRS protective services investigator; and Pat Vetter, a teacher at Wesley.

Elizabeth Jenkins, Wesley's Director, testified for Respondent and Ms. Jenkins also presented testimony of Linda Shaul, an HRS facility inspector.

Petitioner's exhibit #1 (an investigation file) was marked for identification but was not offered into evidence. Petitioner's exhibit #2, a sketch of the playground and child care facility, was received without objection.

No transcript, nor proposed recommended orders were filed. The material underlying facts were not disputed.

FINDINGS OF FACT

1. Wesley Child Development Center II is a child care facility licensed by the Department of Health and Rehabilitative Services (HRS) for operation at 42 East Jackson Street, Orlando, Florida. It is a pre-school facility associated with First United Methodist Church.

   
   

2. On January 31, 1995, some time between 3:50 and 4:50 p.m., there were approximately seventeen (17) children and four (4) staff on the playground. The playground is confined with a sturdy, four-foot chain link fence.

   
   

3. A.N. was a two-year old toddler on the playground; his teacher was Pat Vetter. A.N. had been playing with buckets and cars by himself near the fence and Ms. Vetter could see him through a play tunnel where two other children were playing. After he played alone for about 10-15 minutes, Ms. Vetter needed to start picking up toys. A.N. gave her his bucket. She turned from him and had taken about five steps when she heard him cry out with an angry cry. She turned back and saw him sitting on the ground with his legs out in front; he had been standing at the fence looking out at the parking lot.

   
   

4. Ms. Vetter picked up A.N. and he stopped the angry cry, but continued whimpering. She consoled and held him until his mother arrived. There were no visible signs of any injury: no bruises, blood, scratches or swelling.

   
   

5. When his mother picked him up, A.N. did not want to walk. She took him to a restaurant for supper, but later took him to the doctor for an examination. X-rays detected a spiral fracture of the child's femur bone.

   
   

6. The cause of the injury remains a mystery to the child care facility staff, who were appropriately dismayed, and to the HRS staff who thoroughly investigated the incident. Dr. Seibel, the child protection team physician, conjectured that A.N. must have attempted to climb the fence, hooked his foot and fell, twisting his leg.

   
   

7. No one observed the fall. Ms. Vetter was responsible for A.N.'s supervision and that of three other children on the playground. She was near him and aware of what he was doing. The accident occurred in the brief instant that she turned away to put up some toys; she did not leave the playground.

   
   

8. The direct supervision staff to child ratio at the facility and on the playground was better than the 1:6 or 1:11 required by HRS' rules. There is no evidence that the staff were gossiping or engaged in any non-supervisory activity. There has never been a problem with supervision at this facility before, according to the HRS inspectors.

   
   

9. No one contests that the child was injured at the facility. Ms. Vetter believes that he could not have had the fracture when he came to school that

   morning. Although other children have climbed on the fence, she has never observed A.N. trying to climb it. Still, the fence is the only plausible explanation for the injury.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

11. Subsection 402.310(1)(a), Florida Statutes, provides that the department may discipline a child care facility license, including imposing an administrative fine of $100.00 per violation, for violation of statutes or rules relating to standards for child care facilities. The administrative complaint alleges a single violation of rule 10M-12.002(5)(a)2., Florida Administrative Code, which provides, as follows:

    
    

    1. Ratios for Personnel to Children

       1. General:

          * * *

          2. 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.

          
          

12. The agency wishes to apply a strict liability standard: the accident occurred, therefore the supervision was not adequate. No legal authority was presented to support this standard and it is unreasonable here.

    
    

13. For children less than a year old and up to five years of age or older, rule 10M-12.002(5)(a)1., Florida Administrative Code, dictates staffing ratios from 1:4 to 1:25, with additional staff required for swimming activities. At the time that the accident occurred, A.N.'s teacher was responsible for four children, fewer than the maximum allowed for his age group. The standard sought by the agency would require a one-on-one supervision, and even then, would fail to prevent every accident, unless a staff person held the child. This, as suggested by the facility director, would be oppressive and inappropriate for the child.

    
    

14. Evidence in this case established that a required number of staff were engaged in direct supervision (as defined above) of the children at Wesley Child Development Center. The violation of rule 10M-12.002(5)(a)2., Florida Administrative Code, was not established.

RECOMMENDATION

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

That the Department of Health and Rehabilitative Services enter its final order dismissing the administrative complaint.

RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of October, 1995.

MARY W. CLARK, 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 27th day of October, 1995.

COPIES FURNISHED:

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

Rehabilitative Services Suite S-827

400 West Robinson Street Orlando, Florida 32801

Elizabeth Jenkins Director

Wesley Child Development Center II

142 East Jackson Street Orlando, Florida 32801

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.

Docket for Case No: 95-003382

Orders for Case No: 95-003382