STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES )

)

Petitioner, )

)

vs. ) CASE NO. 96-1223

) PROGRESSIVE LEARNING CENTER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 10, 1996, a formal hearing was held in this case pursuant to Section 120.57(1), Florida Statutes. The hearing location was Jacksonville, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Roger L.D. Williams, Esquire

Department of Health and Rehabilitative Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

For Respondent: Marie Flood (Owner/Operator)

Progressive Learning Center 1855 Hamilton Street

Jacksonville, Florida 32210 STATEMENT OF ISSUES

Should Petitioner impose an administrative fine against Respondent for failure to maintain the appropriate staff to child ratio in a child care facility?

PRELIMINARY STATEMENT

By administrative complaint dated November 17, 1995, Petitioner sought to impose an administrative fine against Respondent for failure to maintain the appropriate staff to child ratio at Respondent's child care facility.

Respondent contested the administrative complaint concerning the factual basis for the complaint. As a consequence Petitioner forwarded the case to the Division of Administrative Hearings for consideration through a formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing took place on the aforementioned date.

At hearing Petitioner presented Joyce E. Bates and Andrea J. Trzcinski as witnesses together with five exhibits which were admitted as evidence.

Respondent presented Marie Flood as a witness.

Official recognition is given to Chapter 10M-12, Florida Administrative Code.

Although a transcript was not prepared, the hearing was recorded by electronic means. The tapes produced in that recording are included with the recommended order. The parties were granted ten days from the hearing date to file proposed recommended orders. The proposals submitted by the parties have been considered and are addressed in an appendix to the recommended order.

FINDINGS OF FACT

1. Respondent corporation operates a licensed day care center in Duval County, Florida. Marie Flood owns Respondent and personally operates the day care center. She holds 51 per cent of the corporate stock for the Respondent corporation. Her husband is a 49 per cent stock holder.

   
   

2. In the day care center is located a large room. The room is divided into smaller spaces by shelves which are called "cubbies". Those shelves are three feet high. The areas divided by the shelves constitute separate rooms for purposes of defining the proper ratio for day care staff members to children cared for in the facility.

   
   

3. In May, 1995, an inspection was made at the day care center facility by an inspector working for Petitioner. That inspector was Joyce E. Bates. During the visit Ms. Bates observed a day care worker leave one of the small areas in the large room that was divided from other spaces in the room by the presence of the shelves. The worker went to put plates out for toddlers who were cared for at the facility. When the worker left the first area to go and put the plates in place, Ms. Bates considered that the appropriate staff ratio to children had been compromised in the area where the worker had been located. Ms. Bates indicated in her inspection report that this departure by the worker from one area where children were kept to another area where the plates were being placed constituted a deficiency in delivering the care to the children by not maintaining the proper ratio for staff and children.

   
   

4. Ms. Flood did not believe that the departure by the worker for a brief period of time necessary to set out plates for the toddlers constituted non- compliance with the proper arrangement for staff in the requirement to monitor the children's activities. Ms. Flood believed that the worker while in another area placing the plates was still able to directly supervise the children in the area that had been left by watching and directing their activities within close proximity to the children. Given the difference of opinions Ms. Flood asked Ms. Bates to arrange for Ms. Flood to meet with Ms. Bates' supervisor to discuss the disagreement between those individuals concerning maintenance of the proper ratio for staff and children.

   
   

5. Shortly after the May, 1995 inspection was conducted Ms. Flood met with Andrea J. Trzcinski, a supervisor for Petitioner for whom Ms. Bates worked in the child care licensure field. At this meeting Ms. Flood told Ms. Trzcinski about the concern that workers would be temporarily away from the areas in which children were located in the small spaces within the large room where care was provided. Ms. Flood explained that those short intervals where the workers were unavailable in the immediate areas where children were being attended were associated with various types of staff emergencies, staff preparing bottles for infants, or staff going to the restroom. Ms. Flood believed that to meet the exact terms for the staff to children ratio would require extra staff to meet

   the various contingencies where workers were absent from the discrete space where care was delivered to the children. Ms. Flood believed at the time and continues to believe that she cannot afford to have extra staff available to meet the contingency where the principal care giver has left the discrete space.

   
   

6. Ms. Trzcinski explained to Ms. Flood that the choices which Ms. Flood had concerning the staff to children ratio were to divide the large room into discrete areas to deliver care or to leave the room as one area where care was given, thus requiring more staff than would be needed to maintain smaller areas within the large room.

   
   

7. In the conversation between Ms. Flood and Ms. Trzcinski, Ms. Flood expressed the belief that the ability to look over the tops of the dividers which were only three feet tall would meet the requirements for maintaining the proper ratios when the staff was away from the immediate area where the children were located. Ms. Trzcinski explained to Ms. Flood that Ms. Flood's perception concerning the ability to maintain direct supervision by looking over the divider walls was not providing the direct supervision that was necessary. Ms. Trzcinski made Ms. Flood aware that Ms. Trzcinski's interpretation was that direct care meant having staff in the immediate area of the infants not monitoring from some other part of the overall large room by looking over the divider walls back into the area where the infants had been left. In summary, Ms. Trzcinski told Ms. Flood that a caregiver could not leave the discrete space where the children were located and move to another area and still maintain the called for ratio for staff to children.

   
   

8. On October 11, 1995, Ms. Bates made another visit to the facility. The visit was as a follow up to an inspection that was conducted on September 29, 1995, unrelated to proper ratios for staff to children and upon a complaint that had been made concerning care provided to a child in the facility, again, unassociated with the proper ratio of staff to children.

   
   

9. While Ms. Bates was inspecting the facility on October 11, 1995, she observed that in the room referred to as an infant room there were five children and one staff member. One child in that room was younger than one year old. Consequently, the ratio which Ms. Bates believed was appropriate for staff to children was 1 to 4, there being a child in the group who was not a year old.

   
   

10. During the October 11, 1995 inspection Ms. Bates spoke to Marjorie James who was in charge of the facility on that occasion and explained the problem concerning the ratio in the infant room, in that the Florida Administrative Code required a ratio of 1 staff member to 4 children, not 1 staff member to 5 children as discovered in the inspection. Ms. Bates expressed to Ms. James the importance of maintaining those ratios in an instance where infants are involved in the receipt of care. A check-list for the inspection was prepared and provided to Ms. James who signed for the document. The document pointed out the problem of the ratios for staff to children wherein an infant not 1 year old was in the group of children.

    
    

11. Ms. Bates made Ms. Trzcinski aware that the inspection of October 11, 1995, was being conducted and the results pertaining to that inspection wherein the ratio problem for staff to children had been identified.

    
    

12. On November 8, 1995, Ms. Flood intended to work at the facility as a caregiver. By that arrangement it would allow Ms. James to leave the facility and go to a different location to pick up children from a kindergarten and return those children to the facility for care.

13. Before arriving at the facility on November 8, 1995, Ms. Flood called the personnel at the facility and stated that Ms. Flood was going to be late. Ms. Flood recognized that the consequence would be that the ratios for staff to children would not be met for a short period of time. The reason Ms. Flood was tardy for her assignment was based upon an automobile accident on the road between her location and the facility. Ms. Flood explained to the other caregiver at the facility that she wanted to place a 22-month old child in the front room of the facility creating a problem for the staff to children ratio in that room, while maintaining the proper ratio in another room where infants less than one year old were found. As described before, the ratio for staff to children in the infant room should be 1 staff member for 4 children. The staff member who received Ms. Flood's call abided by the instructions and moved the

    22-month old child to the front room. That meant that the ratio for staff to Children should be 1 to 6. In reality the ratio of staff to children was 1 to 9.

    
    

14. Coincidentally on November 8, 1995, beyond the point and time at which Ms. James left to pick up the kindergarten children and the ratios where modified for staff to children in the front room, Ms. Bates arrived to conduct a follow-up inspection to check the ratios of staff to children. Ms. Bates discovered that the ratio of staff to children in the front room was 1 staff member for 9 children, whereas the ratio anticipated by Ms. Bates for the front room in which the 22-month old child was found should have been 1 staff member for 6 children.

    
    

15. When Ms. Bates arrived to conduct the inspection on November 8, 1995, Virginia Sikes was caring for the children in the front room, and another caregiver was taking care of children in the infant room.

    
    

16. Shortly after Ms. Bates arrival Ms. Flood came into the facility to provide care, thus the problem with the ratio with staff to children was corrected. Not long after Ms. Flood arrived Ms. James returned to the facility with the kindergarten children.

    
    

17. The inspection which Ms. Bates conducted on November 8, 1995, was unannounced.

    
    

18. Because the problem with staff ratios for children had been observed on both October 11, 1995 and November 8, 1995, Petitioner determined to impose an administrative fine in the amount of $150.00. The fine was perceived by Ms. Trzcinski to be a fine of $50.00 for each child over the ratio allowed as discovered on November 8, 1995, in which the proper ratio was 1 staff member for

    6 children as opposed to the ratio discovered which was 1 staff member for 9 children. From Petitioner's view, expressed through Ms. Trzcinski, the violation was a Class II violation. Ms. Trzcinski characterized the violation as a "middle" violation.

    
    

19. Respondent, through Ms. Flood, takes no issue that the ratios discovered for staff to children in the inspections performed on October 11, 1995 and November 8, 1995 were incorrect. Her principle concern is that the Respondent not be required to pay an administrative fine for the events which transpired on November 8, 1995. Her reasoning is that you cannot get substitute personnel quickly when contingencies arise such as were encountered on November 8, 1995. Also, her belief is that the problem was quickly corrected making imposition of a fine uncalled for.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action consistent with Section 120.57(1), Florida Statutes.

    
    

21. To impose the administrative fine Petitioner must prove that the Respondent violated the requirements for maintaining the proper staff to children ratios. That proof must be by a preponderance of the evidence. The proof is incumbent upon the Petitioner as the party who is expected to prove the affirmative. See Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

22. Section 402.310(1), Florida Statutes, creates the opportunity for Petitioner to impose discipline on Respondent's child day care facility certificate. The discipline includes the right to impose an administrative fine. In this case the amount of administrative fine may not exceed $100.00 per violation per day for violations related to provisions found within Section

    402.301 through 402.319, Florida Statutes, or rules adopted pursuant to those provisions. This type violation is a Class II violation as defined in Rule 10M- 12.011(7)(b), Florida Administrative Code.

    
    

23. The particular violation for which Respondent seeks to impose a fine is associated Rule 10M-12.002(5)(a)1, Florida Administrative Code, wherein it is anticipated that the ratio of child care personnel to children in the instance where children between 1 year of age but less than 2 years of age are being cared for shall be 1 staff member for 6 children. As related in the facts that ratio was not maintained on November 8, 1995, rather the ratio was 1 staff member for 9 children. In that the ratio was one in which the number of children expected to be cared for by staff was 3 more than allowed, Petitioner believes that a fine of $150.00, amounting to $50.00 for each extra child is appropriate. That interpretation is contrary to Section 402.310(1)(a)(1), Florida Statutes, in that the violation found is perceived as one violation in the one room where the problem was discovered on that day. Therefore the maximum fine allowed would be $100.00.

    
    

24. The short term absence of necessary staff for November 8, 1995, is inexcusable, because the law required that the Respondent make available substitute staff to maintain the proper staff to children ratio. See Rule 10M- 12.002(5)(a)4, Florida Administrative Code.

    
    

25. Given Respondent's familiarity with the requirement to maintain proper ratios for staff to children in which the staff needed to maintain direct supervision of the children, a $100.00 fine is appropriate. See Rule 10M- 12.002(5)(a), Florida Administrative Code.

RECOMMENDATION

Upon the consideration of the findings of fact and the conclusions of law, it is,

RECOMMENDED:

That a Final Order be entered imposing a $100.00 administrative fine for the failure to comply with the requirements related to maintenance of ratio for staff to children on November 8, 1995.

DONE and ENTERED this 24th day of May, 1996, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 24th day of May, 1996.

APPENDIX CASE NO. 96-1223

The following discussion is given concerning the findings of fact by the parties:

Petitioner's facts are subordinate to facts found with the exception that Paragraph 2 is not necessary to the resolution of the dispute.

Respondent's submission constitutes legal argument which was considered in entering the recommended order.

COPIES FURNISHED:

Roger L.D. Williams, Esquire HRS District 4 Legal Office Post Office Box 2417 Jacksonville, FL 32231-0083

Marie Flood

Progressive Learning Center 1855 Hamilton Street

Jacksonville, FL 32210

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7 Suite 728

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 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: 96-001223

Orders for Case No: 96-001223