STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MUSICAL RAINBOW, ECC, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-0395

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Orlando, Florida, on March 19 and April 3, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hilda R. Berrios, Executive Director

Musical Rainbow, ECC, Inc. 2500 North Beaumont Avenue Kissimmee, Florida 34741

For Respondent: Laurie A. Lashomb, Esquire

Department of Health

and Rehabilitative Services

400 West Robinson Street South Tower, Suite 827 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Petitioner should be issued a provisional or unconditional license to operate a child care facility.

PRELIMINARY STATEMENT

By letter dated November 9, 1995, Carol Solomon, a

Human Services Program Specialist, and M. K. Swaggerty, her program supervisor in the Department of Health and Rehabilitative Services' District Seven office, advised Petitioner's Executive Director that a provisional license had been recommended for issuance for the Petitioner's facility in Kissimmee because of continuing deficiencies identified in previous inspections conducted by the Department. Petitioner thereafter requested a formal hearing to dispute that determination and this hearing followed.

At the hearing, Petitioner presented the testimony of Hilda Berrios, its Executive Director; and Carol Solomon, the Department's program specialist. It also filed a letter to the Hearing Officer after the hearing outlining its position on the alleged deficiencies. A copy of this letter was also sent to counsel for the Department.

Respondent also presented the testimony of Ms. Solomon, and that of Ms. Swaggerty, the program supervisor. The Department introduced Respondent's Exhibits 1 through 13.

No transcript was provided. Subsequent to the hearing, neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner, Musical Rainbow, ECC, Inc., (MREI), operated a child care center in Kissimmee, Florida with Hilda Berrios as its Executive Director. The Department of Health and Rehabilitative Services (HRS), was the state agency responsible for the inspection, licensing and regulation of child care facilities in this state.

   
   

2. As a result of inspections conducted by the Respondent, Petitioner was issued a provisional license to operate its facility on May 2, 1995. Inspections are made consistent with a Departmental check list. The inspector does a walk-through of the facility and checks off its compliance with the factors on the list which define minimum standards. If a violation is issued, the facility is given a "get well date", and if the deficiency is not corrected by that date, disciplinary action is taken.

   
   

3. Provisional licenses are issued by the Department when repeated violations are found during an inspection cycle. Ordinarily, administrative fines are imposed when

   the deficiencies are found and not timely corrected; but when the deficiency is repeated and continues uncorrected, a provisional license is issued as the next, more serious action. At the time the provisional license was issued on May 2, 1995, the Petitioner's representative was advised in writing and in person by the inspector what a provisional license was and why it was being issued.

   
   

4. This provisional license was to be in effect from May 2, 1995 until November 5, 1995. The facility had this time period to bring itself into compliance with the Department criteria. If, after re-inspection at the six month period, the facility were not in compliance, the Department could either revoke the license to operate or issue a second provisional license. It is this second provisional license that is in issue here.

   
   

5. In this case, after the initial May 2, 1995 inspection, Ms. Solomon, the Department's licensing representative, again visited the facility on June 8, 1995 and found an expired operating license was still being displayed. Ms. Berrios was not present at the time but called in later to state that was an oversight and the new license had been put up.

   
   

6. Another follow-up inspection was conducted of the facility on July 17, 1995. This was a monthly inspection conducted of all facilities holding a provisional license. On this date, several deficiencies were found which were discussed with Ms. Berrios when discovered. These included:

   
   

   1. torn mats.

      
      

   2. large sticks on the playground (these constituted a danger to the children).

      
      

   3. menus were not accurate - substitutions not posted.

   
   

7. On July 31, 1995, Ms. Solomon wrote to Ms. Berrios asking for a report of corrective action taken on the previously identified discrepancies. Ms. Berrios responded in writing on August 9, 1995 indicating the corrective action taken.

   
   

8. Another follow-up inspection was done on August

   29, 1995. On this date the inspection showed several discrepancies which were discussed at the scene with Ms. Hernandez, a staff member. These included:

   
   

   1. torn mats (repeat)

      
      

   2. large sticks on the playground (repeat)

      
      

   3. some children's files did not have all required documentation in them (d) immunization records not complete.

   
   

9. By undated letter, received by the Department on September 27, 1995, Ms. Berrios certified the discrepancies noted had been corrected. Another follow-up inspection was conducted by Ms. Solomon on September 8, 1995 showing deficiencies which were discussed at the time with Ms. Berrios. These concluded:

   
   

   1. torn mats (repeat)

      
      

   2. large sticks on the playground (repeat),

   3. a ratio of 1 teacher to 23 children in the ages 4 to 6 year group which exceeded the required ratio of 1 to 15.

   
   

10. The monthly inspection conducted by the Department on October 12, 1995, which had been scheduled with Ms. Berrios in advance, showed several deficiencies including:

    
    

    1. some employee records did not show evidence of required law enforcement screening

       
       

    2. floor mats were cloth covered rather than waterproofed

       
       

    3. emergency telephone numbers were not posted

       
       

    4. limbs on trees in the playground needed trimming

       
       

    5. accident permission slips were not signed by some parents (repeat)

       
       

    6. immunization files were not complete (repeat).

    
    

11. By undated letter received in the Department on October 26, 1995, Ms. Berrios indicated the deficiencies noted in the October 12, 1995 inspection report had been corrected. However, at an inspection conducted on November 29, 1995, some violations were again noted and were discussed with Ms. Berrios at the time.

    
    

    These included:

    
    

    1. the basketball goal on the playground was broken

       
       

    2. children were allowed to hang on the goal.

    
    

12. By corrective action statement dated December 4, 1995, Ms. Berrios indicated the basketball goal and post had been removed.

    
    

13. None of the reports prepared by Ms. Solomon, as a result of the several inspections made, was any different than those done by her on other similar facilities, and in the course of her inspections she utilized only those criteria provided for by statute and departmental rule.

14. Ms. Solomon subsequently coordinated her report with her supervisor, Ms. Swaggerty, and as a result of the continuing and repeat deficiencies noted during the several inspections conducted during the term of the first provisional license, a decision was made by Ms. Swaggerty to recommend the issuance of a second provisional license to this facility. It should be noted that a decision could have been made to deny licensure entirely, and the issuance of a second provisional license afforded the licensee an opportunity to continue operations and additional time to make the required corrections. This decision, and that not to impose any administrative fines, were made in an effort to allow the facility staff more time to bring it into compliance. The decision to issue the second provisional license instead of an unconditional license was taken without any advance coordination with Ms. Berrios because the agency staff had no requirement to do so, and in light of the repeated and ongoing identification of deficiencies at the time of inspections, could see no reason to do so.

    
    

15. Throughout the taking of testimony at both sessions of this hearing, Ms. Berrios repeatedly alluded to a conflict of personalities between her and Ms. Solomon.

    No specifics were mentioned, however, and there was no direct evidence that even if the conflict existed, it in any way impacted the inspector's evaluations of the facility. Ms. Berrios also indicated, in her late-filed exhibit, that she repeatedly but unsuccessfully requested Ms. Swaggerty personally come to the facility to do the inspections. There is no requirement that the supervisor do this, and no showing that her failure to do so improperly or unfairly prejudiced the Petitioner.

    
    

    C0NCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

17. Petitioner protests the Department's indicated intention to award a second provisional license to its child care facility based on continuing and repeated deficiencies found during inspections conducted since the issuance of the first provisional license six months previously.

    
    

18. Section 402.309, Florida Statutes, authorizes the

    issuance of a provisional license to a child care facility which is unable to conform to the licensing standards provided for in Sections 402.301 through 402.319, Florida Statutes. A provisional license is issued for a period of six months and may be renewed one time for an additional period not in excess of six months.

    
    

19. In the instant case, after an inspection prior to May 23, 1995, Petitioner was issued a provisional license to operate a child care center, which provisional license was due to expire on November 5, 1995. In the period between those dates, the Department conducted the several required periodic inspections during which repeated discrepancies from the required standards were observed. Though in each case the identified discrepancies were subsequently reported by Petitioner to have been corrected, several of those discrepancies, along with newly discovered discrepancies, were noted to still exist. On the basis of those repeated and newly discovered discrepancies, the Department notified Petitioner of its intent to issue a second provisional license. This was well within its authority to do and appears justified from the evidence of record.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a Final Order issuing a provisional license to operate a child care center for six months from November 5, 1995 to May 5, 1996 to Petitioner, Musical Rainbow, ECC, Inc.

DONE and ENTERED this 26th day of April, 1996, in Tallahassee, Florida.

_

ARNOLD H. POLLOCK, 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 26th day of April, 1996.

COPIES FURNISHED:

Hilda R. Berrios Executive Director

Musical Rainbow, ECC, Inc. 2500 North Beaumont Avenue Kissimmee, Florida 34741

Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services

400 West Robinson Street South Tower Suite 827 Orlando, Florida 32801

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran 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 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: 96-000395

Orders for Case No: 96-000395