STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0571

) CHEERS EARLY LEARNING CENTER, ) INC., d/b/a CHEERS EARLY )

LEARNING CENTER III, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing by videoconference on April 19, 1996, from Tallahassee. The parties, attorneys, witnesses, and court reporter attended the hearing in Ft. Myers.

APPEARANCES

For Petitioner: Susan Mastin Scott

Senior Attorney Department of Health and

Rehabilitative Services Post Office Box 60085

Fort Myers, Florida 33906

For Respondent: Robert L. Pollack

Robert L. Pollack, P.A.

11983 North Tamiami Trail, Suite 101-102

Naples, Florida 33963 STATEMENT OF THE ISSUE

The issue is whether Respondent failed to maintain at its child care facility a sanitized diaper-changing surface in violation of Rule 10M- 12.003(9)(b)2, Florida Administrative Code.

PRELIMINARY STATEMENT

By Administrative Complaint dated December 12, 1995, Petitioner alleged that Respondent operates a licensed child care center in Fort Myers known as Cheers Early Learning Center III. The Administrative Complaint alleges that Petitioner's inspector cited the diaper-changing area as unsanitary during routine inspections on May 11, July 13, and August 10, 1995. The Administrative Complaint alleges that the inspector cited the same violation on October 5, 1995, noting a hole in the mat on the diaper-changing table and the uncleanliness of the table under the mat.

On November 13, 1995, the Administrative Complaint alleges that the inspector observed an unsanitary diaper-changing mat in the infant room. The mat allegedly had a buildup of dirt and sand in the seams. The inspector also noted dirt and sand under the mat on the diaper-changing table in the three year old class.

The Administrative Complaint alleges that above-described acts are violations of Rule 10M-12.003(9)(b)2, which requires a sanitary diaper-changing area. This is allegedly a Class II violation with a fine of $50-$100 per day per incident. The Administrative Complaint requests a fine of $50.

By form filed January 12, 1996, Respondent demanded a formal hearing on the allegations.

At the hearing, Petitioner called three witnesses and offered into evidence

12 exhibits. Respondent called four witnesses and offered into evidence one exhibit. All exhibits were admitted.

The court reporter filed the transcript June 3, 1996. Rulings on timely filed proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. Respondent is licensed through June 30, 1996, to operate Cheers Early Learning Center III in Fort Myers as a child care facility, pursuant to Certificate No. 086194.

   
   

2. Each of the inspections of Respondent's child care facility in 1995 revealed deficiencies with the sanitary diaper- changing areas of the facility.

   
   

3. Cleanliness of the diaper-changing areas is important in preventing the transmission of diseases, especially diarrhea. Staff must carefully clean the area after changing diapers containing fecal material in order to reduce the chances of communicable diseases passing from an infected child to an uninfected child.

   
   

4. On the January 5, 1995, inspection, the inspector found items stored on diaper-changing table. Routine use of such items undermined efforts to maintain clean conditions in the diaper- changing area. The inspector cited this deficiency, and Respondent presumably corrected it.

   
   

5. On the February 17, 1995, inspection, the inspector found that the diaper-changing table under the changing mat in the two year-old room needed to be thoroughly cleaned, according to the inspection sheet. Respondent cleaned the table the same day.

   
   

6. On the May 11, 1995, inspection, the inspector found that Respondent kept the disinfectant in a cabinet in the diaper-changing area in the one year- old room. This meant that staff would have to touch the cabinet every time they washed the changing table and the cabinet would become contaminated. Respondent moved the disinfectant bottle the same day as ordered.

   
   

7. On the July 13, 1995, inspection, the inspector found that the mat in the diaper changing area in the infant room and one year-old room had tears.

   The inspection report asks Respondent to "remind staff to thoroughly clean the cracks and corners on the diaper changing area." This reference probably refers

   to the thick, plastic-covered mat, which contains large creases where it can be folded. Respondent presumably corrected the deficiencies the same day.

   
   

8. On the August 10, 1995, inspection, the inspector found that the changing table in the infant room needed to be cleaned at all times and the changing table should not be used to store unnecessary items, like art projects. The inspector added that the mat had a hole and needed to be repaired or replaced and soap was needed at the changing table so staff could wash their hands after changing diapers.

   
   

9. On August 14, 1995, Petitioner's inspector wrote Respondent a letter concerning the deficiencies in the diaper-changing area. The letter notes the importance of cleanliness in this area and offers technical assistance from a Public County Health Nurse. The letter warns that further violations could result in administrative action.

   
   

10. On the October 5, 1995, inspection, the inspector found that the diaper table under the mat in the one year-old room needed to be cleaned and the mat had a hole in it. The inspector also found the same deficiencies in the infant room.

    
    

11. The inspector left a document disclosing an intent to impose administrative action, citing Rule 10M-12.003(9)(b)2. The document informs Respondent that the "diaper area needs to be cleaned thoroughly--this needs to be maintained." The inspector classified the violation as a Class II violation with a fine range of $50-$100 per violation per day. The form warns: "If you fail to comply with the time frames set forth in this notice, or the same deficiencies continue, you may anticipate receipt of an administrative fine."

    
    

12. On the November 13, 1995, inspection, the inspector found that the diaper-changing table under the mat in the three year-old room mat needed to be cleaned. The inspector also found that the mat in the diaper-changing area in the one-year old room needed to be cleaned because the seams or folds of the mat were "filled with dirt and sand."

    
    

13. The inspection report notes that the deficiency cited in the three year-old room was corrected on site, but the deficiency cited in the one year- old room was referred for administrative action.

    
    

14. Respondent's staff was not cleaning the mat with a sanitizing solution after each use. Otherwise, sand and dirt would not accumulate in the folds of the mat. Petitioner repeatedly warned Respondent of sanitary lapses in the diaper- changing areas, and Respondent repeatedly allowed these lapses to continue. A $50 fine is suitable given the importance of cleanliness in this area and the repeated failures of Respondent to deal with this ongoing problem.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

16. Rule 10M-12.003(9)(b)2 provides in relevant part:

    
    

    When infants under 2 years of age or children in diapers are in care, there shall be a

    diaper changing surface with an impermeable surface which shall be replaced or cleaned with a sanitizing solution after each use. ...

    
    

17. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

18. Petitioner has proved by clear and convincing evidence that Respondent did not clean the diaper-changing surface with a sanitizing solution after each use.

    
    

19. Section 402.310(1)(a) provides that, where the violation could not cause death or serious harm, Petitioner may suspend or revoke a license or impose an administrative fine of not more than $100 per violation per day for violations of Sections 402.301-402.319 and the rules promulgated under these statutes. These statutes authorize Rule 10M-12.003(9)(b)2.

    
    

20. Section 402.310(1)(b) provides that Petitioner shall consider the following factors in determining the appropriate discipline: the "severity of the violation," "[a]ctions taken by the licensee to correct the violation or remedy the complaints," and "previous violations."

    
    

21. Rule 10M-12.011 sets forth guidelines for determining the severity of the violation. The rule divides violations into three classes with Class II violations as violations that 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." According to Rule 10M- 12.011(7)(b), Class II violations are penalized by fines of between $50 and $100 per violation per day.

    
    

22. Rule 10M-12.011(7)(b) states: "The fine will be levied for every day that the violation occurred, if uncorrected within the time frame specified by the department or for repeated occurrences of this violation."

RECOMMENDATION

It is

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing an administrative fine in the amount of $50 against Respondent.

ENTERED on June 14, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

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 on June 14, 1996.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-11: adopted or adopted in substance.

12-13: rejected as recitation of evidence and subordinate. 14: adopted or adopted in substance.

Rulings on Respondent's Proposed Findings

1-3: adopted or adopted in substance.

4-6: rejected as subordinate and recitation of evidence. 7-8: adopted or adopted in substance.

9: rejected as legal argument.

10-16: rejected as recitation of evidence and subordinate. 17: rejected as legal argument.

18-19: rejected as subordinate.

20: rejected as unsupported by the appropriate weight of the evidence and subordinate.

21: rejected as subordinate.

22: rejected as unsupported by the appropriate weight of the evidence. The subject mat today would not be expected to have the sand and dirt in its seams or folds that it had on the day of the inspection.

23-25: rejected as unsupported by the appropriate weight of the evidence.

COPIES FURNISHED:

Richard Doran, 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

Susan Mastin Scott, Senior Attorney Department of Health and

Rehabilitative Services Post Office Box 60085

Fort Myers, Florida 33906

Robert L. Pollack Robert L. Pollack, P.A.

11983 North Tamiami Trail Suite 101-102

Naples, Florida 33963

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 longer period within which to submit written exceptions. You should contact the agency that will issue the final order 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.

Docket for Case No: 96-000571

Orders for Case No: 96-000571