STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1598

)

CHILDREN'S PARADISE, d/b/a )

LOURDES GUANLAO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to due notice, the above-styled matter was heard on July 24, 1996, at Lake City, Columbia County, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frances S. Childers, Esquire

Department of Health and Rehabilitative Services

1000 Northeast 16th Avenue, Box 3

Gainesville, Florida 32601

For Respondent: Michael M. Naughton, Esquire

3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257

STATEMENT OF THE ISSUE

Whether the Department of Health and Rehabilitative Services properly assessed an administrative fine in the amount of $150.00 on Lourdes Guanlao d/b/a Children's Paradise for violations of Sections 402.305(4) and 402.305(12), Florida Statutes, and Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.

PRELIMINARY STATEMENT

On January 13, 1995, Petitioner Department of Health and Rehabilitative Services (Petitioner) issued an Administrative Complaint alleging that Respondent Lourdes Guanlao d/b/a Children's Paradise (Respondent) had violated Section 402.301 et. seq., Florida Statutes, and Rules 10M-12, Florida Administrative Code. Respondent requested a formal administrative hearing in a pleading dated February 8, 1995. On November 7, 1995 the administrative complaint and Respondent's request for a hearing were filed with Petitioner's Clerk. Petitioner referred the case to the Division of Administrative Hearings on April 2, 1996.

On April 29, 1996 the parties filed a Response to Initial Order. On April 30, 1996, the undersigned issued a Notice of Hearing scheduling this matter for hearing on July 24, 1996.

During the hearing, Petitioner presented the testimony of two witnesses and offered three exhibits which were accepted into evidence. The Respondent testified on her own behalf and presented the testimony of seven witnesses. The Respondent had one item marked for identification but did not offer it as evidence.

Respondent filed her proposed recommended order on August 23, 1996.

Petitioner filed proposed findings of fact and conclusions of law on August 26, 1996. The transcript of the hearing was filed on August 30, 1996.

FINDINGS OF FACT

1. The Department issued a Child Day Care Facility license to Lourdes Guanlao to operate a facility known as Children's Paradise on October 9, 1991.

   
   

2. From 1991 to 1994 Petitioner conducted routine facility inspections at Children's Paradise. These inspections included a determination whether the facility was operating with appropriate staff-to-child ratios.

   
   

3. On April 1, 1992, Sandy Looney, Respondent's Senior Children's and Families' Counselor, conducted an inspection of Children's Paradise. When Ms. Looney arrived at the facility, Jeane Weiss was the only staff member present.

   
   

4. There were seven children present in the center. Two children were under the age of one year and two children were between one and two years old. There should have been two staff members at the facility for the grouping of children present.

   
   

5. Within ten minutes of Ms. Looney's arrival, Ms. Guanlao, arrived at the facility thereby correcting the staffing violation. Ms. Guanlao signed the inspection checklist. Ms. Looney discussed the staffing violation with Mrs. Guanlao and left a copy of the checklist with her.

   
   

6. On July 27, 1993, Ms. Looney conducted an inspection of Children's Paradise. There were two staff members present at the facility, Ms. Weiss and Ms. Tan. There were sixteen children present in the center. Three children were under the age of one year, six children were between one and two years old. Three staff members were required for the grouping of children present. Ms. Weiss signed the inspection checklist. Ms. Looney left the checklist with staff. Before Ms. Looney left the premises, a staff member arrived for work thereby correcting the staffing violation.

   
   

7. On August 17, 1994, Ms. Looney conducted a re-licensure inspection of Children's Paradise. There were two staff members present at the center, Ms. Weiss and Ms. Guanlao. There were twenty-one children present in the center. Seven were under the age of two. Three staff members were required if the children were separated in groups and four staff members were required if the children were all together. Ms. Weiss signed the inspection checklist. Mrs. Looney discussed the violation with Mrs. Guanlao who advised there was no substitute or other staff member available to call to work. Correction of the staffing violation was due on August 18, 1994.

8. On August 18, 1994, Ms. Looney returned to Children's Paradise to determine if Ms. Guanlao had corrected the staffing violation. At that time there were eighteen children present. Six children were under the age of two. The same two staff members were present, Ms. Weiss and Ms. Guanlao. Mrs. Guanlao called a ten year old child to assist and again indicated that there was no adult available to call.

   
   

9. Each time that Ms. Looney inspected Respondent's facility, she actually counted the number of children present and asked staff to verify their age. Evidence to the contrary is not persuasive.

   
   

10. On August 29, 1994, Petitioner issued an Administrative Complaint imposing a fine in the amount of $75.00 for the August 17, 1994, staffing violation which Respondent had not corrected at the time of reinspection on August 18, 1994. This complaint properly advised Respondent of her right to a proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

11. By letter dated September 13, 1994, Ms. Looney advised Ms. Guanlao that if she disputed the imposition of the fine, she could request an administrative hearing. The letter further stated that if Ms. Guanlao did not dispute the fine, she could pay it by mailing a check or money order.

    
    

12. Ms. Guanlao tendered check number 1839 dated September 22, 1994, in the amount of $75.00 with "Adm. Fine" noted thereon. Ms. Looney transmitted this check to the fiscal office for deposit on or about October 7, 1995. There is no persuasive evidence that Ms. Looney told Ms. Guanlao she had to pay the administrative fine or risk losing her license.

    
    

13. Gerald Stephens, Protective Investigator for Petitioner went to Children's Paradise on November 18, 1994. The purpose of his visit was associated with an investigation unrelated to this proceeding. When Mr. Stephens arrived at the facility, Ms. Guanlao was the only staff member present. He observed ten children in the center. The youngest child present at the center was eighteen months old. This number of children required at least two staff members to be present at the facility.

    
    

14. Mr. Stephens interviewed one of Ms. Guanlao's staff members on the morning of November 18, 1994. There is no persuasive evidence that Mr. Stephens prevented the staff member from showing up for work that morning by telling her he was going to shut the facility down.

    
    

15. Seven witnesses testified that they were volunteers at the center and had agreed to act as substitute staff on an as needed basis. Only two of these people had been properly screened and trained to work in a day care center or with children. One of these two volunteers did not receive her certification to work in a day care facility until October 3, 1994.

    
    

16. Some of the volunteers had other full time jobs. Consequently, the times they were available to help Ms. Guanlao was limited. There is no evidence that Ms. Guanlao called any of these people to substitute on April 1, 1992, July 27, 1993, August 17, 1994, August 18, 1994 or November 18, 1994.

    
    

17. Ms. Guanlao attended a training course that Ms. Looney conducted prior to October 9, 1991. One purpose of the course was to familiarize participants with the rules regulating child day care centers. During the training Ms. Looney provided Ms. Guanlao with written material including the Child Care

    Standards contained in Rule 10M-12, Florida Administrative Code. This rule sets forth staffing requirements and child discipline standards.

    
    

18. Ms. Looney and Ms. Guanlao discussed subsequent changes in the rules related to staffing requirements. Ms. Looney also explained to Ms. Guanlao that the staffing requirements applied at all times the children were in the center regardless of the activity that was taking place. In other words, the staff-to- child ratios applied even if the children were napping.

    
    

19. On August 19, 1994 Ms. Looney received a complaint involving the day care center on an unrelated licensing issue. As a result of the subsequent investigation, Ms. Looney was at the facility on August 24, 1994. During that visit, Ms. Guanlao admitted that she sometimes slapped the children on the hands as punishment.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding pursuant to Sections 120.57 and 120.60, Florida Statutes.

    
    

21. Petitioner has met its burden of proving by a preponderance of the evidence that Respondent failed to maintain adequate staff-to-child ratios and punished children by slapping them on the hand.

    
    

22. Section 402.305, Florida Statutes, requires Respondent to establish licensing standards that each licensed child care facility must meet regardless of the origin or source of the fees used to operate the facility or the type of children served by the facility.

    
    

23. Section 402.305(1)(d), Florida Statutes states:

    
    

    The minimum standards for child care facilities shall be adopted in the rules of the department and shall address the areas delineated in this section.

    
    

24. Section 402.305(4), Florida Statutes, provides the minimum standards for staff-to-child ratios as follows in relevant part:

    
    

    1. For children from birth through 1 year of age, there must be one child care personnel for every four children.

    2. For children 1 year of age or older, but under 2 years of age, there must be one child care personnel for every six children.

    3. For children 2 years of age or older, but under 3 years of age, there must be one child care personnel for every 11 children.

    4. For children 3 years of age or older, but under four years of age, there must be

       one child care personnel for every 15 children.

    5. For children 4 years of age or older, but under 5 years of age, there must be one child care personnel for every 20 children.

    6. For children 5 years of age or older,

       there must be one child care personnel for every 25 children.

       
       

25. Section 402.305(12), Florida Statutes, requires minimum standards for child discipline practices in child day care facilities. Section 402.305(12)(a)(3), Florida Statutes, specifically prohibits spanking or any other form of physical punishment.

    
    

26. Section 402.310(1)(a), Florida Statutes, states in pertinent part:

    
    

    The department or local licensing agency may deny, suspend, or revoke a license or impose an administrative fine not to exceed

    $100 per violation, per day for the violation of any provision of ss. 402.301 -

    402.319 or rules adopted thereunder. . . .

    
    

27. Section 402.310(1)(b), Florida Statutes, states:

    
    

    In determining the appropriate disciplinary action to be taken for a violation . . .

    the following factors shall be considered.

    1. The severity of the violation the

       extent to which the provisions of this part have been violated.

    2. Actions taken by the licensee to correct the violation or to remedy complaints.

    3. Any previous violations of the licensee.

    
    

28. Rule 10M-12.002(5), Florida Administrative Code, states:

    
    

    Ratios of personnel to children

    1. General:

       1. The following staff ratio is based on primary responsibility for the direct supervision of children and applies at all times to the children who are cared for by the child care facility, with additional staff members being required for swimming

          activities as stated in Rule 10M-12.003(4)(i).

          AGE OF CHILDREN RATIO

          Under 1 year of age 1 staff member for 4

          infants

          1. year of age 1 staff member for 6 infants

          2. years of age 1 staff member for

             11 children

          3. years of age 1 staff member for

             15 children

          4. years of age 1 staff member for

             20 children

          5. years of age or older 1 staff member for

          25 children

       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.

       3. The groups of mixed age ranges where infants under one (1) are included, one (1 staff member shall not be responsible for more than four (4) children of any age group. Where infants over one (1) are included, one (1) staff member shall not be responsible for more than six (6) children of any age group. Where infants are not included, the staff ratio shall be based on the age of the majority of children in the group.

       4. For purposes of 10M-12.002(a), in the absence of regular staff members, there shall be substitutes available.

29. Rule 10M-12.013(1)(c) states:

Spanking or any other form of physical punishment is prohibited.

1. On November 18, 1994 there were 10 children in the day care facility. Mrs. Guanlao was the only staff member present. There was one child at the facility that was 18 months (1/1/2 years) old. In such a mixed age group, one staff member can not be responsible for more than six children regardless of the ages of the other children in the group. Therefore, Mrs. Guanlao was in violation of the staffing requirements of Section 402.305(4), Florida Statutes, and Rule 10M-12.002(5), Florida Administrative Code. She did not have a substitute at the facility in the absence of a regularly scheduled employee.

   
   

2. The November 18, 1994 staffing violation occurred after the imposition of a fine for a similar violation two months before. A fine of $75.00 is a reasonable fine considering that there were four prior violations, two of which were not corrected. Ms. Guanlao's argument that she was given no opportunity to correct the violation does not mitigate the violation under the facts of this case.

   
   

3. The owner/operator, Ms. Guanlao admitted to Petitioner's representative, Ms. Looney, that she slapped the children's hands while in the day care facility. This is a clear violation of the statute and rule prohibiting physical punishment. Section 402.305(12), Florida Statute; Rule 10M-12.013(1)(c), Florida Administrative Code. An administrative fine in the

amount of $75 is a reasonable penalty for this violation under the circumstances presented here.

RECOMMENDATION

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

That Petitioner Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine on Respondent Lourdes Guanlao d/b/a Children's Paradise in the amount of $150 for violating Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.

DONE and ENTERED this 16th day of October, 1996, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1996.

COPIES FURNISHED:

Frances S. Childers, Esquire District 3 Legal Office Department of Health and

Rehabilitative Services 1000 NE 16th Avenue, Box 3

Gainesville, Florida 32601

Michael M. Naughton, Esquire

3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, Esquire Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001598

Orders for Case No: 96-001598