STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TUTOR TIME LEARNING SYSTEMS, ) INC., )
)
Petitioner, )
)
vs. ) Case No. 00-3859
) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )
)
Respondent. )
_____________________________)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on November 21 and 22, 2000.
APPEARANCES
For Petitioner: Ira L. Young
General Counsel
Tutor Time Learning Systems, Inc. 621 Northwest 53rd Street, Suite 450 Boca Raton, Florida 33487
For Respondent: Eugenie G. Rehak
District Legal Counsel Department of Children and
Family Services Post Office Box 60085
Fort Myers, Florida 33906 STATEMENT OF THE ISSUE
The issue is whether Respondent should grant Petitioner’s application for an annual license to operate a child day care center in Naples, Florida.
PRELIMINARY STATEMENT
By Notice of Denial of License dated August 16, 2000, Respondent informed Petitioner that it was denying Petitioner’s application for renewal of its license to operate a child day care center. The Notice of Denial of License states that Petitioner had been operating, for the past year, under two provisional six-month licenses, which Respondent had issued due to Petitioner’s noncompliance with licensing standards. The Notice of Denial states that Florida law prohibits the issuance of a third consecutive provisional license.
The Notice of Denial explains that Petitioner has experienced serious and repetitive deficiencies during the three-year history of the facility, which has been the subject of 49 routine inspections, recall inspections, complaint investigations, and other official visits. The Notice of Denial identifies five major categories of violations: staff- to-child ratios, direct supervision, background screening and personnel records, health-related requirements, and incident reporting.
Petitioner requested a formal hearing.
At the hearing, Petitioner called three witnesses and offered into evidence 10 exhibits: Petitioner Exhibits 1-10. Respondent called four witnesses and offered into evidence 86
exhibits: Respondent Exhibits 1-67, 69, and 71-88. All exhibits were admitted except Respondent Exhibit 51. The Administrative Law Judge admitted conditionally the following exhibits: Respondent Exhibits 3 (for the purpose of showing that Respondent conducted an inspection), 4 (for the purpose of showing that Respondent conducted an inspection), 6 (for the purpose of showing that Respondent conducted an inspection and for the truth of items 40, 43, and 59), 10 (for the purpose of showing that Respondent conducted an inspection and for the truth of items 9, 15, 20, 39, and 53), and 46 (for the purpose of showing that Respondent conducted an inspection).
The parties did not order a transcript.
By Joint Response to Initial Order and Motion to Consolidate, as to this case and DOAH Case Nos. 00-4677 and 00-5108, the parties requested that the Administrative Law Judge enter an order consolidating this case with the later- filed cases, which involve the same child day care center in Naples. Given the timing of the motion and the issuance of this recommended order two days later, the Administrative Law Judge is denying the motion to consolidate these later cases with the present case, without prejudice to a motion to incorporate all or part of the record in this case into the record of the later cases.
FINDINGS OF FACT
With headquarters in Boca Raton, Petitioner is a corporation owning, operating, and franchising child day care centers in 25 states, including Florida, and Canada and Indonesia. Petitioner owns and operates 70 centers and franchises 145 centers. In the eastern United States, Petitioner owns 40 centers and franchises 55 centers from Florida to Massachusetts.
This case involves Petitioner’s child care center at 1275 Airport Road South in Naples, Florida (Center). Petitioner has owned and operated the Center since its inception in 1997. The Center occupies 10,000 air-conditioned square feet in a building that was constructed to Petitioner’s specifications. With a licensed capacity of 187 children, the Center has typically operated with an enrollment of 117-119 children.
Respondent has licensed the Center as a child day care facility from August 18, 1997, through July 31, 2000. As is customary, Respondent initially issued Petitioner a provisional license, which ran from August 18, 1997, through January 31, 1998. Dissatisfied with aspects of the Center’s operation, Respondent granted Petitioner a second provisional license from February 1, 1998, through July 31, 1998. Prohibited by statute from granting a third consecutive
provisional license, Respondent issued Petitioner an annual license from August 1, 1998, through July 31, 1999. At the expiration of that license, still dissatisfied with the Center’s operation, Respondent issued Petitioner provisional licenses for two additional six-month periods, which ended July 31, 2000.
When the second provisional license expired on July 31, 2000, Respondent denied Petitioner’s application for an annual license. In its Notice of Denial dated August 16, 2000, Respondent based the denial on repeated violations by the Center in five major areas: staff-to-child ratios, direct supervision, background screening and personnel records, health-related requirements, and incident reporting. The Notice of Denial reports that Respondent’s inspectors have made 49 official visits to the Center during its three-year history and have repeatedly identified numerous deficiencies.
In this case, Petitioner challenges Respondent’s denial of Petitioner’s application for an annual license starting August 1, 2000. Petitioner candidly admits to a “rocky” past in operating the Center. However, Petitioner claims that it has progressed significantly toward satisfactory operations from October 1999 through July 31, 2000, which is, by stipulation, the closing date for analysis in this case. Respondent counters this claim by noting
repeated violations at the Center, even after Petitioner assigned a corporate general manager to oversee daily operations at the Center. Respondent contends that Petitioner has demonstrated its unsuitability to continue to operate the Center.
For two reasons, the most relevant facts in this case arise after January 31, 2000. First, Respondent last issued a license for the Center starting February 1, 2000, which means that the deficiencies before February 1 did not preclude licensing. Prior operations of the Center remain relevant, as they assist in assessing Petitioner’s willingness or ability to operate the day care facility in compliance with the law. However, the deficiencies arising after February 1 are of greater relevance because Respondent has not issued a license in reliance upon, or despite of, these facts.
Second, aware that the Center’s recurring problems were jeopardizing its ability to retain a license, in December 1999, Petitioner hired a former consultant as its vice- president of operations for the eastern region. The new vice- president replaced the individual who, previously responsible for Florida operations, had been unable to correct all of the problems at the Center.
The new vice-president hired Jamilet Melendez in January 2000 as the new general manager for the Florida
region. Ms. Melendez holds an Associate of Arts degree and is working on a bachelor’s degree at Florida International University. Prior to becoming a general manager, Ms. Melendez had been employed by Petitioner for six months as the director of a center in Plantation, Florida. Previously, Ms. Melendez had been employed by Toddler Tech, starting as a teacher’s aide and working her way to a center director.
As a general manager, Ms. Melendez is responsible for overseeing finances, quality, and operations of the seven Tutor Time schools in central and south Florida. On the instructions of the vice-president, Ms. Melendez devoted nearly all of her time to the Center from mid-January to mid- March, after which time she spent about half of her time at the Center. From mid-January to mid-March, Ms. Melendez visited the Center daily; after mid-March, she visited the Center three times weekly. Thus, the deficiencies arising after February 1, by which time Petitioner had assigned these additional corporate resources to assist the operation of the Center, are especially relevant in determining whether Petitioner is able to correct the Center’s problems.
By letter to Respondent dated February 25, 1998, a parent complained about excessive staff turnover; the failure to conform to posted schedules; unsupervised children going to the restroom or playing on the playground, one staff person
shouting at several children; several bites, lacerations, and a swollen lump on the head sustained by her two children at the Center; and the absence of ensuing incident reports.
Responding to the complaint, on February 27, 1998, Respondent conducted an inspection. The inspector found that Petitioner lacked documentation that Gloria Badillo, Lisa Colgan, Alma del Rio, Tamara Griffin, Tina Ortegon, and Mirella Roman had completed 30 hours of the required training; Yermi Torres and Brianne Torres had obtained a tuberculosis test; Yermi Torres had completed her local law enforcement screening and affidavit of good moral character; Brianne Torres had completed her local law enforcement screening and her employment history; and Fran Starr had completed her local law enforcement screening. Ms. Starr became the director of the Center by March 2, 1998.
Ms. Starr prepared a Plan of Correction dated March 2, 1998. As for personnel files, Ms. Starr sent all employees a memorandum warning that they risked termination if their files were not current by March 7. In response to a note on the inspection form, Ms. Starr also sent a second memorandum requesting all employees to submit copies of their certificates documenting training in First Aid and cardiopulmonary resuscitation.
However, in a separate note, Ms. Starr stated that some of the citations for staff training were inaccurate because some employees were recent hires who could still timely obtain the required training, one employee had left the employment of the Center, and the local vocational center that had trained some employees had not yet provided them with certificates.
In the Plan of Correction, Ms. Starr also stated that she had advised all staff persons by memorandum that they must be able to see all the children whom they were supervising. She added that the general manager and director would continue to conduct 15-minute counts to monitor staffing ratios and supervision.
As stated in the Conclusions of Law, an employee has five days after her date of hire to submit her fingerprints to the employer, which has five days to submit the data for background screening; a new employee has 90 days after her date of hire to commence 40 hours of required training (consisting of variably stated components of 30, 20, or 10 hours) and one year after the date of commencement to complete the training; a new employee has 10 days after her date of hire to submit the results of a tuberculosis test; and a child has 30 days after enrollment to submit documentation of a physical examination and immunizations. No statutes or rules
provide any grace periods for the other background screening, personnel, enrollment, and health requirements.
The record does not establish the dates of hire of the six employees who had not completed 30 hours of the required training or the two employees who had not obtained their tuberculosis tests, so Respondent has not proved these deficiencies. The record does not establish the dates of hire of the three employees missing additional information, so Respondent has not proved the deficiencies concerning background screening. There are no grace periods for the affidavits of good moral character and employment histories, so Respondent has proved these two deficiencies.
On March 6, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios, but found deficiencies in supervision, apparently because three teachers reported to the inspector a different number of children under their supervision than were in their respective classrooms. The inspector also found a deficiency in recording classroom attendance.
Respondent has proved these deficiencies in supervision and attendance recordkeeping. It is impossible for a staff person to discharge her supervision duties without knowing the number of children for whom she is responsible. Careful recordkeeping of arrival and departure times for each
child is essential to determine from the records whether a facility was on-ratio at various points in time.
A note on the March 6 inspection report states that, during nap time, the required minimum staffing ratios may be relaxed, if sufficient staff are onsite to maintain the required ratio. Reportedly, the Center director had allowed staff to leave the site during nap time. The inspector suggested that the Center employ a floater, who would help supervise the children during nap time and outside play.
On April 14, 1998, Respondent received an anonymous complaint that the complainant and several other parents of children attending the Center had complained vainly to management of deficiencies in staffing ratios and supervision. The anonymous complainant also cited insufficiently supervised older children hurting younger children in the same classrooms, excessive staff turnover, and an injury to the complainant’s child that required four stitches in his chin.
Responding to the complaint, on April 14, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies for failing to follow planned activities in the transitional toddler room, label supplies, clean up “a few cups (plastic) and plastic bag” littering the outdoor play
area, and clean up a previously cleaned pink house on the playground that had become muddy and dirty.
Respondent has proved the deficiencies for failing to follow planned activities and label supplies. The former deficiency can, and in this room probably did, contribute to a lack of structure and misbehavior among the children. The latter deficiency poses a danger to the safety of the children.
Respondent has not proved the deficiencies concerning litter and a muddied playhouse. No statute or rule supports the finding of a deficiency on these facts.
On April 29, 1998, Respondent received a complaint from a parent who had spoken to a Center employee on the telephone about enrolling her child at the Center.
Reportedly, the Center employee had told her that the staffing ratio for one- to two-year-olds was one staff person for eleven children.
Responding to the complaint, Respondent conducted an inspection on May 1, 1998, and found no deficiencies in staffing ratios or supervision.
On June 4, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies in failing to follow one of two schedules posted in a classroom, clean up tissue
and a plastic wrap on the playground, maintain food trays at a safe distance from the diapering area, replace bean bags with holes, maintain a medical card for several medicine containers kept onsite, and maintain daily attendance records.
The inspector found that Petitioner lacked documentation that “Alma”--presumably, Alma del Rio--had completed 20 hours of the required training, “Anne” had completed 30 hours of the required training, and “Brianne”-- presumably, Brianne Torres--had enrolled in 30 hours of the required training. The inspector found that Petitioner lacked documentation that “Emily” and “Christine” had obtained tuberculosis tests. The inspector found that Petitioner lacked documentation that “Brianne”--again, presumably Brianne Torres--had completed her local law enforcement screening and that Respondent needed to resubmit her fingerprints, “if necessary.” The inspector found that Petitioner lacked documentation that more than two of its employees had obtained Child Development Associate (CDA) certificates, despite the fact that 98 children attended the Center.
Respondent has proved the deficiencies in following
posted schedules, maintaining the required numbers of staff persons with CDA certificates, and maintaining food trays, medical cards, and attendance records, but not in maintaining the playground or equipment.
Absent proof of hire dates, Respondent has not proved the deficiencies in tuberculosis testing of “Emily” and “Christine,” who were not named previously in prior inspection reports as employees. Absent proof of hire dates, Respondent has not proved the deficiencies in the 30 hours of required training for Ms. del Rio or “Anne.” However, the deficiency noted for Ms. Brianne Torres was that she had not enrolled-- i.e., begun--her required training. Although the record does not establish her hire date, Ms. Brianne Torres was employed at the Center on February 27, 1998, and it is a reasonable inference that she remained continuously employed through the date of this inspection on June 4, 1998, which is over 90 days from her date of hire. Thus, Respondent proved a deficiency in the training of Ms. Brianne Torres. Respondent also proved a deficiency in the local law enforcement screening for
Ms. Brianne Torres, who had been cited in the February 27
report for the same deficiency.
On June 22, 1998, Respondent received another complaint from a parent about staffing ratios, staff turnover, and maintenance and supervision in the toddler room. The complaint was that unremoved garbage bags with fecal material had remained all weekend in the room and children were unsupervised while staff cleaned up the room.
Responding to the complaint, Respondent conducted an inspection on June 23, 1998, and found no deficiencies in staffing ratios, supervision, or sanitation. The inspector found deficiencies in failing to post a plan of activities in one classroom, repair or replace a couch with tears, and record daily attendance in four classrooms.
Respondent has proved all of these deficiencies, except the failure to repair or replace a couch with tears in it.
On July 7, 1998, Respondent conducted an inspection and found no deficiency in staffing ratios, but found a deficiency in supervision in the toddler room. Due to the unusual configuration of the room, a single teacher could not see children throughout the room. Taking advantage of the situation, several children were misbehaving, and the classroom had become disorderly. Respondent has proved this deficiency in supervision.
The inspector found deficiencies in failing to follow a posted schedule (a substitute teacher was showing a movie when the schedule called for academic work), repair two holes in walls from doors hitting them in one room (they were under repair at the time of the inspection), clear an exit area that was blocked by a sleeping mat that had been left adjacent to a hallway door, maintain napkins at a safe
distance from the diapering area, repair or remove bean bags and “a yellow triangle” that had tears, remove food from the counter, label bottles, and record attendance accurately in two classrooms.
Respondent has proved the deficiencies that Petitioner failed to follow a posted schedule, maintain napkins safely, remove food from the counter, label bottles, and record classroom attendance, but failed to prove the deficiencies for repairing the door that was under repair, clearing an exit blocked by a sleeping map, and repairing or removing equipment with tears.
The inspector also found that Petitioner lacked documentation of physicians’ information and enrollment forms for W. B. and A. E., current immunizations for V. B. and R. B., and a completed immunization card for W. B. Absent evidence of enrollment dates or, as to the last cited deficiency, the omitted information, Respondent has not proved these deficiencies concerning immunizations. However, the physician’s information is required of each child prior to enrollment, so Respondent has proved the deficiency as to physicians’ information and enrollment forms for two children.
Nine days prior to the expiration of the second provisional license on July 31, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or
supervision. The inspector found a deficiency in failing to repair a new hole caused by another door banging into a wall (again, under repair at the time of the inspection).
Respondent has failed to prove this deficiency.
The inspector found that Petitioner lacked documentation that Hannah Hogan (who was not present at the time of the inspection and worked only as a substitute), Alixia Mia, Danielle Mains, and Beverly Hall had obtained tuberculosis tests; Tracy Tingley, Lera Sammons, and Paula Jones had filed affidavits of good moral character and statements acknowledging their duty to report child abuse; “Hannah”--presumably, Hannah Hogan--had had her fingerprints submitted; V. B. [same as V. B. mentioned in the July 7 inspection report] and M. V. had current immunizations; and W.
B. [same as W. B. mentioned in the July 7 inspection report] and A. E. [same as A. E. mentioned in the July 7 inspection report] had physicians’ information.
Absent hire dates, Respondent has not proved deficiencies concerning tuberculosis tests or submittal of fingerprints. However, Respondent has proved the deficiencies that three employees lacked affidavits and abuse-reporting acknowledgements. Respondent has not proved either of the deficiencies concerning immunizations because of the absence of an enrollment date for M. V. and the absence of an
intervening 30 days since V. B. had been first mentioned in an inspection report. Respondent has proved the deficiencies concerning the physicians’ information for the two children.
On July 29, 1998, Respondent received a complaint from a parent that the one-year-old class was off-ratio.
Responding to the complaint, Respondent conducted an inspection the next day and found that the two-year-old class had one staff person for 12 children, which is one over the minimum allowable ratio. The notes state that the second teacher, who was 15 minutes late to work, arrived 15 minutes after the twelfth child. Because the two-year-old classroom is in the room with the unusual configuration, the inspector found a separate supervision deficiency for this 15-minute lapse.
The inspector found that the one-year-old class was in-ratio on the day of the inspection, but had been off-ratio the prior day when one of the two teachers had had to leave the one-year classroom “momentarily” to retrieve snacks because the cook had been absent due to illness. The Center director reported that several teachers and children had had the flu.
Staffing ratios are more flexible than supervision, as is evidenced by the nap time rule that allows off-ratio staffing during nap time, as long as supervision is maintained
and the staff persons required to meet ratio are on the same floor of the building and readily available if summoned. For this reason and the absence of evidence that the tardy employee was chronically late or of managerial status, Respondent has not proved that a 15-minute lapse in staffing, which left a teacher with one two-year-old too many, constitutes a deficiency.
Supervision is less flexible. Respondent has proved the requirement that two staff persons must be present in the oddly configured room, when any part of the entire room is accessible to children. Respondent had already cited Petitioner in the July 7 inspection for not keeping at least two staff persons in this room. Although normally even small departures from supervision constitute a deficiency, however, this deficiency would be based on the fact that one staff person could not see every corner of a single room for 15 minutes. Petitioner could not rely on a single staff person supervising this room for a significant period of time, but Respondent has failed to prove that the 15-minute lapse, with a teacher still in the same room, constitutes a deficiency in supervision.
Likewise, Respondent has failed to prove that the “momentary” departure of one staff person, required to maintain staffing ratios, to go get snacks constitutes a
staffing ratio deficiency, at least where, as here, flu had short-staffed the Center, which was missing its cook, who normally delivered the snacks.
On August 13, 1998, Respondent received a complaint from a parent that her one-year-old child had been pushed by another child into a door hinge and had chipped off half of his tooth. The parent also complained that the Center had not completed an incident report. The parent reported that three staff had been in the one-year-old room with 17 children, which met ratio requirements, but that supervision was nonetheless lacking.
Responding to the complaint, Respondent conducted an investigation on August 19, 1998, and found no deficiencies.
By letter dated August 25, 1998, Respondent informed Petitioner that it intended to impose an administrative fine for the staffing ratio deficiency occurring on July 29, 1998, in the one-year-old room and for the staffing ratio deficiency occurring the next day in the two-year-old room. The letter warns that future deficiencies in staffing ratios may result in fines or the denial or revocation of Petitioner’s license. The letter adds that the configuration of the toddler room precludes direct supervision by one teacher of an entire class.
In response to a complaint either unrecorded or recorded illegibly, Respondent conducted an inspection on September 28, 1998. The inspector found staffing ratio deficiencies in the one-year-old classroom where one staff person was supervising eight, rather than the permitted six, children, and the two-year-old classroom where one staff person was supervising 12, rather than the permitted 11, children.
However, the inspector reported these deficiencies during nap time, during which, as noted above and discussed in the Conclusions of Law, the staffing ratios are relaxed. The inspector opined that if any children were awake, the nap time exception did not apply; however, the rule refers only to “nap time” and not whether, as happens during nap time, one or more children were awake. The notes are largely illegible, but, absent evidence that the staff persons required to maintain ratio were not in the building, Respondent has not proved this staffing ratio deficiency.
On November 12, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found deficiencies in failing to label supplies, maintain the playground free of “a few plastic cups,” repair or replace a torn sleeping mat, maintain at least 18 inches between two sleeping mats in the older two-
year-old room, and maintain accurate daily attendance records in one classroom.
Respondent has proved the deficiencies in failing to label supplies, maintain at least 18 inches between sleeping mats, and keep accurate attendance records, but not the remaining cited deficiencies.
On November 25, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Maria Theresa Tvarbe, Danielle Mains, Kelly Walling, Amber Litreal, and Christine Quigg had enrolled in 30 hours of the required training; only one staff person had a CDA certificate, although several staff persons might possess an equivalent; Marsha Studie and Maria Robenalt (whose hire date was January 17, 1998) had obtained tuberculosis tests; and Tracy Constantini, Gladys Perez, Elba Valdes, and Marsha Studie had completed employment histories.
Absent evidence of hire dates, Respondent has not proved any deficiencies in the 30 hours of required training. The suggestion that several staff persons might have a CDA equivalent (expressed in the inspection report as an exemption from the CDA requirement) precludes a finding of a deficiency on this issue. The absence of a hire date for Marsha Studie and the hire date within 10 days of the inspection for Maria
Robenalt preclude a finding of any deficiencies in their tuberculosis testing. However, Respondent has proved the deficiencies in employment histories for four employees.
On December 15, 1998, Respondent filed an administrative complaint against Petitioner for, on February 27, 1998, a supervision deficiency in the two-year-old room; on July 7, 1998, a supervision deficiency in the toddler room when an inspector saw children misbehaving because the teacher could not see all of the children due to the configuration of the room; on July 30, 1998, a staffing deficiency (by one child) in the two-year-old room and inadequate supervision due to the room’s configuration; and on September 28, 1998, a staffing deficiency (by two children per teacher) in the one- year-old room. The administrative complaint proposes an administrative fine of $50, which Petitioner paid.
Respondent received a complaint on December 17, 1998, from a parent that her child had contracted a bad diaper rash while attending the Center and that a teacher had “sternly command[ed]" a child at nap time, “You close your eyes right now.”
Responding to the complaint, on December 17, 1998, Respondent conducted an inspection and found no deficiencies of staffing ratios or supervision. The inspector found deficiencies involving the availability of the disciplinary
policy, labeling of bottles, and sanitary handling of diapers and diapering. A note states that Petitioner would terminate the staff person who had spoken sternly to a child and that this employee had not normally worked in the classroom.
Respondent has proved the deficiencies, except concerning discipline. The evidence insufficiently details this deficiency.
On January 5, 1999, Respondent received a complaint from an unidentified source that many children did not wear their socks and shoes while at the Center, a child had stood alone at the front entrance to the Center, one staff person had supervised 21 three-year-olds, and the Center director had posted a sign asking parents to “help out” during their lunch time so the teachers could take a break.
Responding to the complaint, Respondent conducted an inspection the next day and found no children without socks and shoes on their feet, no children unsupervised, and a sign requesting help from parents during their lunchtime. The inspector found a staffing ratio deficiency ”due to weather conditions and illness[, which] was quickly corrected.” The inspector also found a deficiency in the presence of a mud, rust, or food carpet stain. Respondent has not proved these deficiencies.
The inspector also found that Petitioner lacked documentation that “Danielle,” “Kelly,” “Amber,” and “Marsha” had completed the 30 or 40 hours of required training; “Tracy,” “Gladys,” “Amber,” and “Marsha” had completed employment histories; “Maria,” “Marsha,” and “Donna” had obtained tuberculosis tests; and more than one staff person had obtained a CDA certificate.
Absent evidence of hire dates, Respondent has not proved deficiencies in the completion of the 30 or 40 hours of required training or, as to “Donna,” the tuberculosis test. However, Respondent has proved deficiencies in the lack of tuberculosis tests for “Maria” and “Marsha”--presumably, Maria Robenalt and Marsha Studie, who were first named in inspection reports dated January 17, 1998, and November 25, 1998, respectively. Respondent has also proved deficiencies in the employment histories of the three staff persons and an insufficient number of staff persons holding CDA certificates.
The next day, January 7, Respondent received another complaint from a parent who reported that the Center director was refusing to accept the children of 20 parents because the Center lacked sufficient staff to meet the staffing ratios. Reportedly, 8-10 children with head lice were also in the lobby without supervision.
Responding to the complaint, at 10:00 a.m. on January 7, Respondent conducted an inspection. The inspector found no staffing ratio deficiencies, but saw four children with head lice in the hallway awaiting their parents to come pick them up. At the inspector’s request, a staff person found an empty classroom for the lice-infested children to wait in isolation until their parents arrived. The inspector cited this as a deficiency in the isolation and supervision of ill children.
The inspector found a supervision deficiency when the teacher on the playground accompanied two children to the bathroom, leaving 12 children unsupervised on the playground. The inspector also found deficiencies because of dusty vents and a bathroom light that had burned out in the bathroom in one classroom, the storage of supplies, diapering and sanitation, and two classrooms with uncompleted attendance records as of 11:00 a.m. The inspector did not find as a deficiency the action of the Center director in declining to accept enrolled children, who would have placed the Center off-ratio.
Respondent has proved all of the deficiencies cited by the inspector in the January 7 inspection. However, with the exception of the supervision deficiencies, the other deficiencies were overshadowed by a larger problem, which,
although not a deficiency in itself, had been the source of repeated complaints. This larger problem was staff’s inability to control the children. Trained staff and structured classroom settings were in short supply; out-of- control children, frustrated staff, and angry parents were abundant. Although the Center director properly declined to accept more children, knowing that more children would throw the Center off-ratio, the disorderly drama that unfolded in the lobby, as confused parents found themselves unable to drop off their children--accompanied by unsupervised, lice-infested children wandering the hallway--graphically revealed the poor organization afflicting the Center at its inauspicious start to 1999.
Seeking to relieve the January 7 situation, the Center director prepared a Plan of Action, which she faxed to Respondent on January 7. Marsha Studie had become the Center director in mid-December 1999, after several persons had served in this position since Ms. Starr.
Noting that staff illnesses had contributed to the staff shortage, the Plan of Action describes scheduling changes to bring more teachers into the school at the start of the day. Immediately, Petitioner would pay overtime for this coverage, eventually hiring additional staff for this purpose. The Plan of Action reports that one new teacher would start on
the same day as the plan, and one would start on January 25. The Plan of Action also promises that attendance sheets will be promptly and correctly filled out everyday.
On January 8, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that the attendance records for several classrooms were incomplete, as of 8:25 a.m. The inspector also found that Petitioner lacked any documentation, besides an application, for one staff person, Susan Cox, whose hire date was December 17, 1998. Respondent has proved all of the cited deficiencies.
By letter dated January 12, 1999, Respondent advised Petitioner of its intent to take administrative action for the deficiencies in staffing ratios and supervision observed on December 15, 1998, and January 6 and 7, 1999, as well as other deficiencies cited on the latter two dates. Acknowledging the receipt of the Plan of Action, the letter requires a corrective action plan to ensure that enrollments do not exceed minimum required staffing levels, to provide a plan for specialized training and support for the director, and to provide inservice training of staff to cover child care, documentation, health care, sanitation, and certifications.
The letter recommends that Petitioner assign a corporate representative to the Center until the director obtains child care training.
On January 15, 1999, Respondent conducted an inspection and found deficiencies in staffing ratios and supervision, but inspections on January 19 and 22 found no such deficiencies. Respondent has proved the deficiencies found in the January 15 inspection.
By letter dated January 20, Petitioner’s Director of Training informed Respondent that it was changing staff schedules to accommodate better the arrival and departure times of children. The letter transmits a 30-day training calendar for the Center director and staff.
By administrative complaint dated February 4, 1999, Respondent alleged numerous deficiencies in staffing ratios and supervision during the past six months and proposed a fine of $400, which Petitioner paid.
Respondent conducted inspections on February 18 and March 16 and found no deficiencies in staffing ratios or supervision. However, both inspections revealed numerous documentation deficiencies.
On February 18, 1999, the inspector found a deficiency in attendance records in one classroom. The inspector also found that Petitioner lacked documentation that
Danielle Mains, Gladys Perez, Kelly Walling, Amber Litreal, Marsha Studie, Tracy Constantini, and Darlene Vasquez had enrolled in 30 hours of the required training; more than one staff person had obtained a CDA certificate; Maria Robenalt, Donna Solovey, Pauline Squires, and Allison Arnold had obtained tuberculosis tests; Traci Constantini, Gladys Perez, Elba Valdes, Susan Cox, Pauline Squires, Allison Arnold, and Jennifer Ealy had completed employment histories; Pauline Squires and Allison Arnold had obtained local law enforcement screenings; Allison Arnold had submitted her fingerprints; Florence Steven had filed an affidavit of good moral character; and Pauline Squires, Allison Arnold, and Florence Steven had filed abuse-reporting acknowledgements. The inspector found that the employment records lacked hire dates for Donna Solovey, Susan Cox, Allison Arnold, Lisa Clary, Jennifer Ealy, and Florence Steven.
Respondent has proved the deficiencies in failing to
keep accurate classroom attendance records; to employ the required number of staff persons with CDA certificates; to complete employment histories for seven staff persons; to obtain an affidavit of good moral character for one staff person and abuse-reporting acknowledgements for three staff persons; to enroll in 30 hours of the required training for Danielle Mains (who was first mentioned in the July 22, 1998,
inspection report), but not Gladys Perez, Kelly Walling, Amber Litreal, and Marsha Studie (who were all first mentioned in the November 25, 1998, inspection report, so that 90 days may not have expired since their hire dates); and to obtain a tuberculosis test for Maria Robenalt (who was first mentioned in the January 17, 1998, inspection report). Respondent has failed to prove the remaining deficiencies due to the lack of hire dates.
On March 16, 1998, the inspector found deficiencies in children’s health records because Petitioner lacked documentation of a physical examination for A. R. and current immunizations for M. M., B. M., and A. P. However, Respondent has failed to prove these deficiencies because of the lack of enrollment dates.
The inspector also found that Petitioner lacked documentation of enrollment in 30 hours of the required training for Danielle Mains, Gladys Perez, Kelly Walling, Mariana Baitrage, Lisa Clary, Marsha Studie, and Tracy Constantini; employment of more than one staff person with a CDA certificate; employment histories for Tracy Constantini, Marla Squinos, and Staci Pernell; an abuse-reporting acknowledgement for Madelyne Guillaume; and an incident report for repeated incidents of sexually inappropriate activity by one child. Respondent proved the deficiencies in enrollment
in training for Danielle Mains, Gladys Perez, Kelly Walling, Marsha Studie, and Tracy Constantini; employment of the required number of staff persons with CDA certificates; employment histories for three staff persons; an abuse- reporting acknowledgement for one staff person; and preparing an incident report.
Sometime between March 8 and June 2, Amy Harmon replaced Marsha Studie as the Center director.
On June 7, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found deficiencies in failing to post planned activities, maintain the outdoor play area (due to the presence of an empty plastic soda bottle), maintain a bathroom (which had run out of paper towels), and clean certain toys. Respondent has proved the deficiencies in failing to post planned activities and maintain the bathroom, but not the remainder of the deficiencies described in this paragraph.
The inspector also found that Petitioner lacked documentation that Gladys Perez, Mariana Baitrage, Jennifer Ealy, Lillie Guillaume, Staci Pernell, Kelly Walling, and Tracy Constantini had enrolled in 30 hours of the required training; any staff person had obtained a CDA certificate; Amy Harmon and Jill Burke had obtained tuberculosis tests; Amy Harmon and Staci Pernell had completed employment histories;
Amy Harmon and Jill Harmon had filed affidavits of good moral character; Amy Harmon had filed an abuse-reporting acknowledgement; and Amy Harmon had completed a local law enforcement screening.
Respondent has proved the deficiencies in enrollment in the required training for Gladys Perez, Jennifer Ealy, Kelly Walling, and Tracy Constantini; the required number of staff persons with CDA certificates; the employment histories and affidavits of good moral character for two staff persons; and the abuse-reporting acknowledgement for one staff person. Respondent has failed to prove the remaining deficiencies due to the lack of hire dates.
The inspector also found that Petitioner lacked documentation of current immunizations for J. B. and J. H and physicians’ information for J. C., C. C. and C. C. Respondent has proved the deficiencies concerning physicians’ information, but has failed to prove the deficiencies concerning immunizations due to the lack of enrollment dates.
On June 25, 1999, Respondent received a complaint from an anonymous source that after 5:00 p.m. on that day one staff person was supervising ten children, including one child estimated to be four years old.
Responding to the complaint, Respondent conducted an inspection on July 6, 1999, and found no deficiencies in
staffing ratios or supervision. However, the inspector found deficiencies in failing to post activities and storing bleach within the reach of children. Respondent has proved both of these deficiencies.
The inspector also found that Petitioner lacked documentation that Gladys Perez, Lillie Guillaume, and Jennifer Ealy had enrolled in 30 hours of the required training; and Amy Harmon and Jill Burke had obtained tuberculosis tests and affidavits of good moral character. Respondent has proved all of these deficiencies.
The inspector also found that Petitioner lacked documentation of current immunizations for J. C., H. C., T. P., J. S., R. V., A. W., J. B. and J. H.; a current physical examination for A. S.; and completed enrollment forms for J. C., C. C., C. C., C. N., J. O., N. P., A. R., C. S., F. S., S. S., and A. S. Only 29 days had passed since the previous inspection, which is the only evidence of enrollment dates for any of these children. Respondent has thus failed to prove the deficiencies for current immunizations and the physical examination. Respondent has proved the deficiencies for the failure to maintain completed enrollment forms for 11 children.
On July 29, 1999, Respondent received a complaint from an anonymous source reporting that, three days earlier at 10:30 a.m., one staff person had supervised 14 two year olds.
Responding to the complaint, Respondent conducted an inspection on July 30, 1999, and found no deficiencies in staffing ratios or supervision.
On July 30, 1999, Respondent declined to renew Petitioner’s annual license, but issued a third provisional license. The July 30 letter explains that the issuance of a provisional license is “pending resolution of recent complaints involving staff-to-child ratios.” The letter adds that the Center lacks a sufficient number of credentialed staff.
On August 24, 1999, Respondent conducted an inspection and found a deficiency in the staffing ratio in the 0-12 month classroom, where the ratio was one staff person to seven infants, rather than one staff person to four infants. The inspector found no supervision deficiencies, although there were deficiencies in posting or following planned activities, labeling bottles, and maintaining equipment. The inspector also found that Petitioner lacked documentation that Jennifer Pohlmann had completed local law enforcement screening. Respondent has proved these deficiencies, except for the screening deficiency in the absence of a hire date.
At some point between August and October 1999, Raquel Revuelta replaced Amy Harmon as the Center Director.
On October 4, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, Respondent found deficiencies in failing to post and follow planned activities, maintain a garbage pail lid, and repair or replace two pedals on a bicycle. Respondent has proved all of these deficiencies.
The inspector also found that Petitioner lacked documentation that more than one staff person had a CDA certificate; Sherry Williams had obtained an updated tuberculosis test; Jamie van de Mortel, Barbara Hernandez, and Jennifer Pohlmann had filed affidavits of good moral character; Barbara Hernandez had filed an abuse-reporting acknowledgement; Jennifer Pohlmann had had her fingerprints submitted; Elba Valdez had completed her 30 hours of required training; and Amanda Banboom and Jamie van de Mortel had started their 30 hours of required training.
Respondent has proved the deficiencies concerning the required numbers of staff persons with CDA certificates, three staff persons without affidavits of good moral character, one staff person whose fingerprints had not been submitted, and one staff person without an abuse-reporting
acknowledgement. Respondent has not proved the remaining deficiencies due to the lack of hire dates.
By letter dated October 13, 1999, Respondent provided Petitioner an administrative warning for various deficiencies in personnel requirements at the Center. The letter states that inspectors had found on eight occasions in the past year deficiencies in training, background screening, and tuberculosis testing. The letter also expresses concern over the lack of a sufficient number of credentialed staff persons at the Center.
On October 19, 1999, Respondent received a complaint from an anonymous source that, at the morning drop-off that day, one staff person was supervising 30 children, including some less than two years old.
Responding to the complaint, on October 20, 1999, Respondent conducted an inspection and found a deficiency in the staffing ratio, based on the records for the preceding day, when only one staff person supervised 28 children, ages 1 to 4 years, in the toddler room from 7:30 a.m. to 7:50 a.m. The Center director, Raquel Revuelta, explained that two infants had arrived earlier than scheduled, and she had been
20 minutes late that morning. Ms. Revuelta agreed to schedule another employee to arrive at work at 7:30 a.m., starting the next day. The unexplained tardiness of a director is
attributable to Petitioner, so Respondent has proved a staffing ratio deficiency.
The inspector found no supervision deficiencies, but found deficiencies in failing to post planned activities for the toddler classroom, to ensure the presence of a staff person certified in cardiopulmonary resuscitation until 7:50
a.m. on October 19 (only two staff persons had such certification), and to repair or replace the damaged garbage can lid and bicycle pedals, which had both been cited in the October 4 inspection report. Respondent has proved these deficiencies.
The inspector found that Petitioner lacked documentation for the completion of tuberculosis tests by Sherry Williams, Barbara Hernandez, and Rebecca Esquivel; local law enforcement screenings for Rebecca Esquivel and Jennifer Pohlmann; employment histories for Rebecca Esquivel and Barbara Hernandez; fingerprinting for Rebecca Esquivel; an affidavit of good moral character and abuse-reporting acknowledgement for Rebecca Esquivel; and 30 hours of the required training for Rebecca Esquivel. Additionally, the inspector found that Petitioner had not completed, until October 19, 1999, a local law enforcement screening or submitted to Respondent the fingerprints of Jennifer Pohlmann, who had been hired on August 16, 1999.
Respondent has proved the deficiencies concerning tuberculosis tests for Sherry Williams and Barbara Hernandez, local law enforcement screening for Jennifer Pohlmann, employment histories for Rebecca Esquivel and Barbara Hernandez, and the affidavit and acknowledgement for Rebecca Esquivel. Respondent has not proved the remaining deficiencies due to a lack of hire dates.
By letter dated November 16, 1999, Respondent informed Petitioner that it was considering administrative action for the staffing deficiency of October 19, as well as Petitioner’s use of one employee to supervise 28 children in the room whose configuration precludes effective supervision and whose size permits only 22 children. The letter also notes Petitioner’s ongoing failure to correct deficiencies in personnel files.
On November 23, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision, equipment, isolation practices, planning and posting activities, classroom attendance records, sanitation, or documentation of the completion of tuberculosis tests or required training.
However, the inspector found that Petitioner lacked documentation of immunizations for T. B., J. B., A. B., and
A. C.; a physical examination for A. B.; and physician’s
information for C. C. The only one of these children previously mentioned is C. C., who had also lacked physician’s information in the June 7, 1999, inspection report. Absent enrollment dates or previous citations in inspection reports not made in the past 30 days, Respondent has not proved any of these deficiencies, except the failure to maintain physician’s information for C. C.
On January 4, 2000, Respondent conducted an inspection and found no staffing ratio deficiency, but found a supervision deficiency. While the inspector was observing the poorly configured two-year-old toddler classroom, she saw primarily English-speaking children who were misbehaving and a teacher who, primarily a Spanish speaker, had trouble redirecting them. One child had a finger accidentally caught in a door that was closing.
Although the quality of the supervision was questionable, the record does not support a determination that the teacher was not physically within sight and sound of the children at all times. Respondent has thus failed to prove this supervision deficiency.
The inspector also found deficiencies in posting and following planned activities, discipline (because a staff person yelled at a child), an unrepaired hole in a classroom wall, broken plastic blinds in a classroom, bleach stored
within reach of children, unsanitary diapering practices, and the consumption of cookies outside without napkins or plates. Respondent has not proved the deficiencies for posting and following planned activities, as the record does not explain the inadequacy of the block scheduling after the normal school day; discipline, as the record does not establish the contents or context of the yelling or that the yelling violated Respondent’s disciplinary policy or was in violation of Respondent’s rules as “severe, humiliating, or frightening”; or the consumption of cookies outside without napkins or plates, as the record does not reveal, among other things, whether each child had more cookies than he or she had hands. Respondent has proved the remaining deficiencies.
The inspector also found a deficiency in isolation.
The inspector found a child in the four-year-old classroom with a fever. When asked why she did not isolate the child, the teacher responded that she had nowhere to send the child. When the inspector brought this situation to the attention of the Center director, who was Ms. Revuelta, Ms. Revuelta isolated the child in her office, at one time leaving the child alone in the office with only the inspector to watch her. These facts constitute a deficiency in maintaining and using isolation areas and raise doubts as to Ms. Revuelta’s judgment.
The next day, Respondent conducted another inspection and found no supervision deficiency, but found a staffing ratio deficiency. During nap time, the inspector found one one-year-old child awoke screaming, and the screaming awoke half of the 19 napping children in this one- to two-year-old classroom. Five children got up and took seats at a table where, during nap time, they were eating crackers. The inspection report notes that two staff persons had “just returned from an hour break,” but neither the report, nor the testimony of the inspector, describes how long the two staff persons had been gone after the children had awoken or where they had been during nap time. Respondent does not contend that the staffing ratio was insufficient while the children napped, but only after one of them waked up the others.
As noted in the Conclusions of Law, the relaxation
of the staffing ratio rule applies during “nap time” and does not necessarily end with the first child waking or the waking of several children, as long as nap time remains in effect for a significant number of children. Thus, absent evidence that nap time ended before the return of the additional staff persons and that the classroom was off-ratio even at the end of nap time, Respondent has not proved this staffing ratio deficiency.
The inspector also found deficiencies in failing to maintain 18 inches between mats and an unobstructed exit, as one mat blocked a door. Respondent has proved the former deficiency, but not the latter.
The inspector found that Petitioner lacked documentation that “Barbara” and “Maria” had started 30 hours of the required training, “Jamie” had completed the 20-hour component, more than one staff person had obtained a CDA certificate, and “Crystal” and unnamed volunteers had obtained tuberculosis tests. Absent evidence of hire dates, Respondent has not proved these deficiencies, except for the failure to maintain the required number of staff persons with CDA certificates.
The inspector found that Petitioner lacked documentation that A. B. had current immunizations and a current physical examination. The inspector had cited A. B.’s files on November 16, 1999, so Respondent has proved these deficiencies.
By letter dated January 11, 2000, to Ms. Revuelta, the inspector, who had conducted nearly all of the inspections of the Center, informed Ms. Revuelta that the next CDA course would start January 24 and another course would not begin locally until August. Although not required to have done so, the inspector not only obtained this information, but asked a
person affiliated with the group sponsoring the course to send application and scholarship materials to the Center. The inspector noted that Ms. Revuelta, who had finished half of the CDA course, could still enroll in the January session and obtain her certificate.
By administrative complaint dated January 24, 2000, Respondent alleged the October 19 staffing ratio deficiency, the January 4 supervision deficiency, and the October 4 deficiencies in employment history and tuberculosis testing. Respondent sought to impose a $250 administrative fine, which Petitioner paid.
By letter dated January 31, 2000, Respondent issued a second consecutive (fourth overall) provisional license.
The letter explains that the license is provisional due to the deficiencies in staffing ratios, supervision, credentials, training, and personnel documentation. The letter warns that Respondent could not legally issue a third consecutive (fifth overall) provisional license and requires that Respondent submit by February 15, 2000, a written plan of action to bring the Center into compliance.
On February 4, 2000, Respondent received a complaint from an identified source that a staff person had left 15 children locked in a van, unattended, the previous November while she went into a store to buy them treats.
Responding to the complaint, Respondent conducted an inspection on February 8. The inspector interviewed the Center director and staff person, who had driven the van on the day in question three months earlier. The driver stated that she had left the children in the van momentarily while she picked up a previously paid-for bag of ice from the outside of a convenience store and that she had watched the children at all times while out of the van. If the employee’s hearsay testimony is true, and nothing in the record discredits it, she never was out of sight of the children for the few seconds that it took to obtain the bag of ice. Respondent has thus failed to prove this supervision deficiency.
The inspector found no deficiencies in staffing ratios in what appears to have been a brief investigation of a somewhat stale incident.
By letter dated February 10, 2000, from Ms.
Melendez to the inspector, Ms. Melendez stated that she was looking forward to working with Respondent in making the necessary changes at the Center to improve the quality of care. Ms. Melendez identified six steps that the Center would take to achieve this improvement, including three inservice sessions at which attendance would be mandatory, the use of a consultant to recommend how to improve the child care and
classroom management, financial assistance from Petitioner so three employees could attend the consultant’s CDA class starting in February, and already-completed updating of all staff persons’ files to ensure that they contained all required documentation.
On February 15, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios, supervision, tuberculosis tests, the required number of staff persons certified in cardiopulmonary resuscitation, and the required background screenings.
However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, “Maria,” “Heather,” and “Crystal” had begun 30 hours of the required training, Jamie van de Mortel had completed or exempted 30 hours of the required training, and more than one staff person had obtained a CDA certificate. Respondent has proved the deficiency in failing to maintain the required number of staff persons with CDA certificates. Because the October 4, 1999, inspection report mentions Barbara Hernandez and the February 15 citation is for failing to start, not finish, the required training, Respondent has proved the training deficiency as to Ms. Hernandez.
Absent evidence of hire dates, Respondent has failed to prove the remaining deficiencies. Although Jamie
van de Morel was first mentioned in the October 4, 1999, inspection report, the citation concerning her file is that she failed to complete 30 hours of the required training.
Using October 4, 1999, as evidence of her earliest date of employment, Petitioner would have until January 4, 2001, to obtain documentation of the completion of this training.
On February 28, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision.
However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, Heather Stallmer, Crystal Rumpot, Jamie van de Mortel, and Jennifer Pohlmann had enrolled in 30 hours of the required training. Respondent has proved this deficiency in the files of Barbara Hernandez, Jamie van de Mortel, and Jennifer Pohlmann. Absent evidence of hire dates more than 90 days prior to the inspection date, Respondent has failed to prove this deficiency as to the remaining staff persons.
The inspector also found that Petitioner lacked documentation that M. S. and C. W. had current physical examinations. Absent evidence of enrollment dates, Respondent has failed to prove these deficiencies.
By a note added to the inspection report at the time of the recheck on March 3, 2000, the inspector mentioned
that the Center was advertising for a new director to replace Ms. Revuelta.
On March 13, 2000, Respondent received a complaint from a parent that her one-year-old child had been bitten five times this week, including three times the preceding day. The parent reported that one bite had broken the skin and that the Center had prepared incident reports for only two of the bites. The parent added that five children had been identified as the children biting her child.
Responding to the complaint, on March 14, 2000, Respondent conducted an inspection and observed the child with healing bite wounds on her stomach and arms, as well as “many incident reports” from this classroom for biting. The teachers explained that they had separated the biters and used time out to punish them. The inspector discussed the biting problem with Ms. Melendez and the new director, Jane Wissocki. They agreed to divide the children into small groups, train staff in classroom safety, and distribute literature to the parents. The inspector noted that, although the staffing ratio in the one-year-old classroom met the minimum requirement, and thus warranted no citations for deficiencies in staffing ratio or supervision, the quality of supervision was inadequate to protect the children from harm.
On March 29, 2000, Respondent received a complaint from a different parent that her child had been bitten weekly for the past six weeks by the one child and all the bites had broken the skin.
Responding to the complaint, Respondent conducted an inspection on March 31, 2000. The inspector spoke with the director, who was again Ms. Revuelta. Ms. Wissocki had quit after a short time, and Ms. Revuelta had agreed to return until Petitioner could find a replacement.
Ms. Revuelta told the inspector that she had spoken with the parents of the child about his biting of the complainant’s child and aggressiveness with other children and staff persons, even to the point of hitting staff persons.
Ms. Revuelta reported that the parents thought their child’s hearing difficulties, due to be corrected by surgery in mid- April, were the source of his aggressiveness.
However, even though he had only attended the Center for a couple of months, the troubled child had generated at least 12 incident reports for pinching, choking, biting, and poking other children. Staff persons had repeatedly placed the child in timeout and even sent him home on occasions. When needed, a staff person remained near the child. Ms. Revuelta therefore promised the inspector to require the parents to remove the child from the Center if
another incident occurred. Not citing any deficiencies in staffing ratios or supervision, the inspector concluded that the Center was supervising the children, but this aggressive child was unsuitable for the Center.
On April 3, 2000, Respondent received a complaint from a parent who had visited the Center to decide whether to enroll her child there. The parent reported that she had waited outside for 15 minutes before a child opened the door to admit her. During that time, she had seen two school-aged children playing in the lobby without supervision.
Responding to the complaint, Respondent conducted an inspection on April 6, 2000, and found that the two children were the children of Ms. Revuelta, who claimed that she never left them alone. She explained that, after she had resigned from the Center, she had begun homeschooling the children. She brought the children with her to the Center while she was serving as director until Petitioner could find her replacement.
Not citing the Center for the complained-of incident, the inspector found no staffing ratio deficiencies, but found a supervision deficiency because five children were receiving dance lessons from a dance instructor who had not been screened. Respondent has proved this supervision deficiency.
On April 20, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Heather Stallmer, Barbara Hernandez, Maria Cardentey, Crystal Rumpot, and Tammy Alfonso had enrolled in 30 hours of the required training; Jamie van de Mortel and Jennifer Pohlmann had completed 10 hours of the required training; Tammy Alfonso and Rebecca Esquivel had obtained tuberculosis tests; and Rebecca Esquivel had completed an employment history.
Respondent has proved the deficiencies of failing to enroll in the required training within 90 days of employment for Maria Cardentey and Crystal Rumpot, who were mentioned in the January 5, 2000, inspection report, and Barbara Hernandez, who was mentioned in the October 4, 1999, inspection report. Respondent has proved the deficiencies of failing to document the tuberculosis tests and employment history of Rebecca Esquivel, whose records were first cited in the October 20, 1999, inspection report. Absent evidence of hire dates, Respondent has failed to prove the remaining deficiencies.
On May 5, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found a discipline deficiency because a
teacher was sternly and loudly telling a student, “now, now.” Absent evidence of the context, Respondent has failed to prove this deficiency.
The inspector found that Petitioner lacked documentation that Heather Stallmer, Barbara Hernandez, Maria Cardentey, Crystal Rumpot, Michelle Valentine, and Tammy Alfonso had enrolled in 30 hours of the required training; Jamie van de Mortel and Jennifer Pohlmann had completed 10 hours of the required training; Patti Eggnatz had completed background screening and filed an affidavit of good moral character; and Rebecca Esquivel had completed an employment history.
Respondent proved the deficiencies for failing to enroll in the required training within 90 days of employment for Barbara Hernandez, Maria Cardentey, and Crystal Rumpot, but not Heather Stallmer, who is first mentioned in the February 15, 2000, inspection report; Michelle Valentine, who is first mentioned in this inspection report; and Tammy Alfonso, who is first mentioned in the April 20, 2000, inspection report. Respondent also proved the deficiencies of Patti Eggnatz lacking an affidavit of good moral character and Rebecca Esquivel lacking documentation of an employment history. Respondent failed to prove the remaining deficiencies due to the lack of hire dates.
The inspector added a note to the inspection report that Ms. Revuelta and Ms. Eggnatz would meet with her to discuss the Center and its operating history. Respondent had designated Ms. Eggnatz as the new Center director starting June 1, 2000. Ms. Eggnatz, who has a CDA certificate, had worked for several years at other centers operated by Respondent--most recently, as the director of the center in Miramar, Florida.
On May 24, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision, equipment, planning and following posted activities, sanitation, eight-hour inservice training, tuberculosis test results, the number of staff persons trained in cardiopulmonary resuscitation, and classroom attendance records.
However, the inspector found deficiencies in failing to discard all medication not currently being dispensed and failing to obtain parental signatures to incident reports, as several forms from February and March lacked such signatures. Respondent has proved these deficiencies.
The inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, and Tammy Alfonso had enrolled in 30 hours of the required
training. Respondent has proved these deficiencies as to Barbara Hernandez and Maria Cardentey, but not Tammy Alfonso, who was first mentioned in an inspection report dated April 20, 2000.
On June 12, 2000, Respondent received a complaint from an anonymous source that the Center had sent children on long field trips without water and sunscreen and there had been 19 children in one teacher’s three-year-old classroom between 8:00 a.m. and 9:00 a.m. that morning.
Responding to the complaint, Respondent conducted an inspection on the next day at 1:00 p.m. and found no deficiencies in staffing ratios or supervision. The inspector found that staff persons had taken the children on a field trip without ensuring that they had received sunscreen, so that some children became sunburned. However, water had been available from fountains. The Center agreed to shorten the field trips, ask parents to be sure to apply sunscreen in the morning and send sunscreen to school with their children, and use a water cooler on trips. The inspector concluded that the situation did not constitute a deficiency.
However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, and Tammy Alfonso had enrolled in 30 hours of the required training; “Willis” had a current physical examination; and A.
S. had current immunizations. Respondent has proved these training deficiencies for Barbara Hernandez and Maria Cardentey, but not Tammy Alfonso. Respondent has proved the deficiency in immunizations, as A. S. was mentioned in the July 6, 1999, inspection report, but not in the physical examination of “Willis,” who does not appear to have been identified in any previous inspection report.
On June 13, 2000, Respondent received a complaint from a parent, who was also an employee at the Center. The parent complained that her two-year-old child had been assigned to a teacher’s two-year-old classroom, over the objection of the teacher, who had said that the child was not yet ready for her class. Concerned that the teacher was using intimidating toilet-training tactics on her child, the parent noted that the child had complained of pain in his genitalia. A physician had examined the child, but found no evidence of abuse.
Responding to the complaint, Respondent conducted an inspection on the same day, at 5:00 p.m. Obviously, the sexual content of the complaint necessitated an immediate investigation, but, nonetheless, this inspection was the second inspection of the Center on June 13, 2000. The inspector found no basis to the implied allegation of some form of abuse in what seems to have amounted to one employee
seeking an ally in Respondent in a dispute with another employee.
Finding no deficiencies in staffing ratios or supervision for a second time on the same day, the inspector unsurprisingly found that the deficiencies cited earlier in the day had not yet been corrected in the intervening four hours.
On June 23, 2000, Respondent received complaints from several parents concerning child safety, supervision, incident reporting, discipline, communication, and communicable diseases. The parent of the child who had previously been bitten on her stomach and arms by several other children complained that, on June 16, her one-year-old child had been bitten over 40 times by red ants, and Ms. Eggnatz, the director, had failed to communicate the seriousness of the situation to the mother when Ms. Eggnatz had called her to report the incident.
Responding to the complaint, Respondent conducted an inspection on June 27. The inspector was unable to see Ms. Eggnatz, who was attending an out-of-town conference, or the supervising teacher, who was on leave on the day of the visit. The assistant director told the inspector that the bites were considerably fewer than 40, but the inspector had seen the child and counted at least 40 bites. The assistant
director also stated that an incident report had not been prepared.
Returning to the Center the next day, the inspector spoke with Ms. Eggnatz and Ms. Melendez. They told her that they had had the playground treated for ants on June 21.
The teacher responsible for supervising the children on the playground was present when the child was bitten by the ants. The teacher saw and heard the child as she was crying, but misinterpreted the crying. Thinking the child was merely crying as an extension of earlier behavior, the teacher merely called the child to come to her. When the child did not respond, but continued to cry, the teacher returned to the other children on the swing, erroneously thinking that the child would come to her or stop crying when she was ready.
A short time later, the teacher approached the child when the employee realized that the crying had been too hard, and the teacher had found the child’s legs covered in red ants. The teacher immediately sprayed water on the child to remove the ants.
Ms. Eggnatz promptly called the child’s mother, told her of the ant bites, and asked her if she wanted to pick up her child. The mother, who testified, felt that Ms. Eggnatz minimized the severity of the incident. When the
mother arrived at the school and saw the severity of the bites, she asked Ms. Eggnatz why she had not taken precautions for a possible allergic reaction. Ms. Eggnatz admitted that she had not known what to look for in determining if someone was having an allergic reaction.
By chance, the child already had a physician’s appointment for later in the day, but the mother brought her to the physician without waiting for the appointment. Fortunately, the child did not suffer an allergic reaction, or other lasting injury or scarring from the bites. After examining the child, the physician prescribed an over-the- counter cortisone ointment.
The mother returned to the Center after visiting the physician. Missing Ms. Eggnatz, the mother asked the assistant director for a copy of the incident report, but the assistant director told her that she did not have one. The mother spoke with the teacher who had been supervising the child on the playground. The teacher candidly described the incident, as it has been described in this recommended order.
After an intervening weekend, the mother returned to the Center the next Monday and met with Ms. Eggnatz. Again, the mother asked for an incident report, but Ms.
Eggnatz did not give her one. The mother gave Ms. Eggnatz the two weeks’ notice required before removing a child from the
Center. Notwithstanding the incident, the mother testified that she remained quite fond of the teacher, whom the child loved and the mother did not blame for the incident. However, the mother felt that her child was no longer safe at the Center, largely due to excessive staff turnover.
Respondent produced an incident report concerning the ant bites. The incident report provides a brief description of the incident and notes that the mother was upset and refused to sign it. There are two separate issues concerning the incident report: whether the mother refused to sign it and whether Center staff prepared the incident report at the time of the incident.
On the first issue, it is very unlikely that the mother saw the incident report, so it is very unlikely that she declined to sign it. Respondent has thus proved that Petitioner never attempted to obtain the signature of the mother to the incident report.
On the second issue, it is harder to determine whether Petitioner’s employees prepared the incident report at, or even a few days after, the incident. It is possible that the teacher, who spoke primarily Spanish, and the assistant director did not know of the existence of the incident report. The failure of Ms. Eggnatz to provide the mother of the requested report may be explainable, although
not justifiable, by the presumably tense and possibly confrontational nature of their meeting the following Monday. But this omission does not establish that Petitioner’s employees failed to prepare the report.
Although the Center was sometimes lax about preparing incident reports, on balance, the record does not permit a finding that one of Petitioner’s employees prepared the report substantially after the incident in an attempt to make it appear as though someone had prepared the report in a timely manner. Additionally, although an incident report serves many purpose, the communication by telephone of the incident by Ms. Eggnatz to the mother served the primary purpose, which is to ensure that a parent learns of the incident and, if necessary, can obtain timely medical attention for her child.
As to the ant-bite incident and the incident report, Respondent has proved no deficiencies except for the failure of Petitioner to obtain the signature of the parent on the incident report.
During the June 27 inspection, the inspector found no deficiencies in staffing ratios, but found deficiencies in discipline because the inspector heard an employee sternly tell children to “sit down” and another employee yelling in a classroom, isolation because the assistant director had
remained at work twice with her sick children, and supervision because staff had allowed one- to two-year-old children to cover their heads with blankets during nap time and one teacher had laid down with a child rubbing her back during nap time.
Lacking evidence of the context or a violation of the Center’s disciplinary policy, Respondent has not proved either of the two disciplinary deficiencies. Lacking additional detail, Respondent has not proved an isolation deficiency in the assistant director keeping her two sick children with her at the Center.
Lacking explicit support in the evidence, statutes, or rules, Respondent has not proved either of the two supervision deficiencies. The record does not reveal, at any given time, how many day care teachers may be lying down with a child soothingly rubbing the child’s back or how many teachers may be allowing toddlers to cover their heads with blankets to induce them to take a nap. The evidence does not support a finding of the potential for harm from these two incidents.
By administrative complaint dated July 11, 2000, Respondent alleged a lack of supervision for the June 16 ant- bite incident because of the alleged inability of one teacher to supervise the entire area of the playground involved in the
case, and the failure of the Center to complete an incident report. The administrative complaint also alleges two additional failures in supervision in lying down with a child and rubbing her back and allowing the children to nap with their heads under the covers. Lastly, the administrative complaint alleges that the Center was not adequately staffed to isolate ill children. The administrative complaint seeks a fine of $450, which Petitioner paid.
On July 20, 2000, Respondent received a complaint from an unidentified source stating that one staff person had taken 14 children on a field trip and one child had become separated from the group for an unreported period of time. The complainant also asserted that the three- and four-year-
old classrooms had been off-ratio on two days during the prior week. Lastly, the complainant reported that there were untreated wasp nests and ant mounds on the playground.
Responding to the complaint, Respondent conducted the final inspection on July 19, 2000. (There appears to be an error in the date of the inspection or the date of the receipt of the complaint.) The inspector found no staffing ratio deficiencies. The inspector saw no wasp nests, but her ability to check for ant mounds was impeded by rain; however, the inspector saw receipts from an exterminator for treatments on June 21 and July 18.
As for the field trip, the inspector learned that, on July 12, one employee had driven 13 children to the movie theater. One child was separated from the group and remained in the lobby after the rest of the group had seated themselves in the theater. A theater employee helped the child find the group, whose supervisor seemed not to have realized that she was missing a child. Upon learning of the incident, Ms. Eggnatz terminated the employee.
When the inspector discussed this incident with
Ms. Eggnatz, Ms. Eggnatz did not say that she had also been at the theater. Ms. Eggnatz later claimed that she had been at the theater, but this is untrue. The stress of repeated complaints--many of which were unfounded--and repeated inspections--many lasting several hours and two occurring on the same day--affected Ms. Eggnatz to the point that she briefly quit as director. Perhaps these same factors prompted her to misrepresent the facts to the inspector concerning the movie field trip.
However, Respondent has proved a supervision deficiency because the rules require an additional staff person on field trips.
By letter dated August 16, 2000, Respondent informed Petitioner that it was denying Petitioner’s application for an annual license. The letter cites five
major areas as grounds for the denial: staffing ratios, supervision, background screening and personnel records, health-related requirements, and incident reporting.
Analysis of the Center’s performance is facilitated by breaking down its three-year licensing history into four periods: August 19, 1997, through July 31, 1998 (the first two provisional licenses); August 1, 1998, through July 31, 1999 (the annual license); August 1, 1999, through January 31, 2000 (the third provisional license); and February 1, 2000, through July 31, 2000 (the fourth provisional license).
In the first year, Respondent conducted eight inspections of the Center. (All references to inspections in this recommended order are to inspections for which Respondent produced admissible evidence; there were additional inspections.) Staffing ratios and supervision were in compliance at each of the seven inspections monitoring staffing ratios and supervision, except for one supervision deficiency in the March 6, 1998, inspection.
In the second year, Respondent conducted 16 inspections of the Center. Staffing ratios and supervision were in compliance at each of these 16 inspections, except for one supervision deficiency in the January 7, 1999, inspection; and one staffing ratio and one supervision deficiency in the January 15, 1999, inspection.
In the first half of the third year, Respondent conducted six inspections of the Center. Staffing ratios and supervision were in compliance at each of these six inspections, except for staffing ratio deficiencies in the inspections of August 24, 1999, and October 20, 1999.
In the second half of the third year, Respondent conducted 13 inspections of the Center. Staffing ratios and supervision were in compliance at each of these 13 inspections, except for supervision deficiencies in the inspections of April 6, 2000, when an unscreened dance instructor was supervising children, and July 19, 2000, when an additional staff person failed to accompany the movie field trip.
As reflected by the frequency of monitoring staffing ratios and supervision, these two items are crucial to the safety of children at a child day care center. The evidence demonstrates no significant shortcomings in the operation of the Center regarding these two items during the Center’s three years of operation.
The Center’s operations have not been as good regarding background screening, personnel records, enrollment records, and health records. For these documentary requirements, the Center was not in compliance 14 times the first year, 70 times the second year, 18 times the first six
months of the third year, and 21 times the second six months of the third year. There was some improvement in the last year of operation, but the second year was an easy year to follow.
These screening and records requirements enable a child day care center to serve its children by providing quality care in a safe, healthy environment. However, the deficiencies proved in this case, while serious, do not constitute sufficient grounds for denial of a license at this time, although additional evidence of a pattern of ongoing deficiencies in these important documentation requirements would be indicative of unsuitability for licensure.
As for incident reporting, which is the last basis for the denial, Petitioner demonstrated substantial, although not invariable, compliance. The Center was not in compliance once in the second year and twice in the second half of the third year, although one of these two deficiencies involved several incident reports and the other involved a failure to obtain the signature of the mother of the child bitten by ants.
The remaining deficiencies, on which Respondent has not relied directly in declining to renew Petitioner’s license, range from relatively minor deficiencies involving equipment and sleeping mats to more troubling deficiencies
involving classroom attendance records (through which staffing ratios are monitored), isolation practices, sanitation, and posting and following planned activities. The cumulative impact of the demonstrated deficiencies in these requirements does not alter the result in this case.
In its three years, Respondent has fined Petitioner a total of $1150. Although Respondent has failed to prove many of the alleged deficiencies that supported the administrative fines, the many deficiencies that Respondent chose not to include in these administrative complaints would have sustained several times the total amount that Respondent fined Petitioner.
CONCLUSIONS OF LAW
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.)
An applicant typically bears the burden of proof.
Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). In this case, Respondent has denied Petitioner’s application due to Petitioner’s past violations of the child day care licensing requirements.
Thus, Petitioner must make a prima facie showing of
entitlement to a license, and then the burden of going forward with the evidence shifts to Respondent to prove sufficient grounds for denial. Department of Banking and Finance v.
Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996).
The Osborne Stern decision holds that the standard of proof imposed upon the agency, after the burden of going forward with the evidence has shifted to the agency, is a preponderance of the evidence. However, the applicant in Osborne Stern had not previously been licensed. Petitioner has previously held, in chronological order, two provisional, one annual, and two provisional licenses.
An agency declining to renew a license typically may not wait until the term of the license expires, deny the application to renew, and then obtain the benefit of the preponderance standard on the issues as to which the agency bears the burden of going forward with the evidence. See, e.g., Coke v. Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998). In such a situation, the agency choosing not to renew a license must prove by clear and convincing evidence the items on which it relies in declining to renew, just as it would have to prove these items if the agency chose, during the license term, to revoke the license.
This case presents a situation that does not fall neatly into either category: already licensed or never
licensed. Strictly speaking, the present application is not an application to renew. The last license was a provisional license, which, by law, could not be reissued three times consecutively. Thus, the application seeks a new license: an annual license. Of course, Petitioner has held an annual license.
However, the standard of proof is not outcome determinative in this case. The resolution of each factual issue discussed in this recommended order is the same regardless whether the standard is clear and convincing evidence or a preponderance of the evidence.
Section 402.308(1) provides that every child care facility shall have a license, which shall be subject to annual renewal. Section 402.308(3)(d) provides that Respondent shall issue or renew a license “upon being satisfied that all standards required by ss. 402.301-402.319 have been met.” The second sentence of this subsection adds that Respondent may issue a license if all screening materials have been timely submitted, but Respondent may not issue or renew a license “if any of the child care personnel at the applicant facility have failed the screening required by ss. 402.305(2) and 402.3055.”
Although the first sentence of Section 402.308(3)(d) seems to imply that an applicant must satisfy
all applicable requirements to be licensed or relicensed, the second sentence clarifies the first sentence by identifying only one violation as categorically precluding licensing or relicensing: a failure to pass the screening. By negative implication, other violations do not necessarily preclude licensing or relicensing.
Section 402.309(1) authorizes Respondent to issue a provisional license to a licensee that is “unable to conform to all the standards provided for in ss. 402.301-402.319.” However, Section 402.309(3) limits the term of provisional licenses to a maximum of six months and warns that the provisional license “may be renewed one time for a period not in excess of 6 months under unusual circumstances beyond the control of the applicant.” As is evident from the present case, in which Respondent issued two six-month provisional licenses, then an annual license, and then two more six-month provisional licenses, Respondent interprets Section 402.309(3) to mean only that Respondent cannot issue three consecutive provisional licenses, not that a licensee may receive no more than two provisional licenses ever.
Section 402.305(4)(a) sets minimum staffing ratios.
For children from birth through one year of age, one staff person may care for no more than four infants. For children at least one year of age, but under two years of age, one
staff person may care for no more than six children. For children at least two years of age, but under three years of age, one staff person may care for no more than 11 children. For children at least three years of age, but under four years of age, one staff person may care for no more than 15 children.
Section 402.305(4)(a)7 adds that, in mixed-age groups, the minimum staffing ratio is based on the age group with the largest number of children, except when any of the children are under two years of age. Rule 65C-22.001(4)(b)1 provides that, in mixed-age groups containing at least one infant under one year of age, the minimum staffing ratio is one staff person per four children. Rule 65C-22.001(4)(b)2 provides that, in mixed-age groups containing at least one child “under 1 year of age but under 2 years of age” [sic; probably intending “at least 1 year of age but under 2 years of age”], the minimum staffing ratio is one staff person per six children.
Although contained in the rule discussing the supervision requirements, an exception to the staffing ratio applies to napping children. Rule 65C-22.001(5)(b) provides: “During nap time, supervision means sufficient staff in close proximity, within sight and hearing of the children. All other staff to meet the required staff-to-children ratio shall
be within the same building on the same floor and be readily accessible and available to be summoned to ensure the safety of the children.”
Rule 65C-22.001(5)(a) requires that staff provide “direct supervision to a specific group of children and be present with that group of children at all times.” This rule defines supervision as “watching and directing children’s activities within the same room or designated outdoor play area and responding to each child’s need.” Rule 65C- 22.001(5)(d)1 requires that an “additional adult . . . be present on all field trips away from the child care facility, for the purpose of safety, to assist in providing direct supervision.”
For staff persons, Section 402.305(2)(a) requires “[g]ood moral character based upon screening,” using the level
2 standards stated in Chapter 435, Florida Statutes. Section 435.05(1)(a) gives new employees five days to submit their fingerprints to their employers and employers five days to submit the screening materials to Respondent. Section 402.3057 provides that facilities are not required to refingerprint or rescreen employees with not more than a 90- day break in service.
Section 402.305(2)(d)1 requires that all staff persons complete an approved 40-hour training course in child
care. Section 402.305(2)(d)1.f requires that all staff persons start their 40 hours of required training within 90 days of employment and complete it within one year of the date on which they started the training.
Rule 65C-22.003(2)(a) divides the 40 hours of training into two parts: Part I is 30 hours and Part II is 10 hours. Rule 65C-22.003(2)(c) requires documentation of the required training. Rule 65C-22.003(3) provides for exemptions from the 10 hours of required training for certain persons.
Section 402.305(3) provides that, for every 20 children, one staff person must have a CDA certificate or its equivalent. Rule 65C-22.003)(1)(b) and (6)(a) identifies the specific and equivalent credentials. Rule 65C-22.003(6)(d)2 clarifies that this requirement is for one such credentialed staff person for up to 39 children, two such credentialed staff persons for up to 59 children, and so on. Rule 65C- 22.003(6)(c) requires documentation of the satisfaction of the requirement of certain credentials.
Section 402.305(2)(d)3 requires that each employee complete eight hours of inservice training annually. Rule 65C-22.003(5)(a) imposes a June 30 year-end cycle for the inservice training requirement. Rule 65C-22.003(5)(c) requires documentation of the completion of the required inservice training.
Section 402.305(7)(a) imposes minimum standards for first aid and pediatric cardiopulmonary resuscitation, including the requirement that “at least one staff person trained in cardiopulmonary resuscitation, as evidenced by current documentation of course completion, . . . be present at all times that children are present.” Rule 65C- 22.004(3)(a) requires that each facility have one person with a valid certificate in first aid and pediatric cardiopulmonary resuscitation and that one such staff person “be present at all times that children are in the care of the facility, both on-site and on field trips.”
Section 402.305(2)(e) requires “periodic health examinations” of staff. Rule 65C-22.004(1)(a) requires: “Upon hire each employee must provide documentation of a tuberculosis test administered within the past two years and this documentation must be in the employee’s personnel file within 10 days of employment.”
Rule 65C-22.006(5) requires that a facility maintain among its personnel records for each staff person the employment application, tuberculosis test results, a signed statement acknowledging responsibility for reporting child abuse and neglect, level-2 screening information, and copies of all training and credentialing information.
Section 402.305(9)(a) requires for children attending a facility preadmission and periodic health examinations, immunization records, and other health and emergency information. Rule 65C-22.006(2)(a) and (b) requires that, within 30 days of enrollment, a child must supply the record of a physical examination, which is valid for two years. Rule 65C-22.006(2)(c) requires that, within 30 days of enrollment, a child must supply the record of immunizations.
Rule 65C-22.004(3)(d)3 requires: “All accidents and incidents which occur at a facility must be documented and shared with the custodial parent or legal guardian on the day they occur.” Rule 65C-22.006(6)(b) provides: “Records of accidents and incidents shall be documented daily and maintained for one year. Documentation shall include . . . appropriate signatures of facility staff and custodial parent or legal guardian.”
The statutes and rules cited above cover the five categories of deficiencies on which Respondent has relied in denying Petitioner’s application for an annual child day care license. The following statutes and rules apply to other deficiencies cited by Respondent, but not directly relied upon for the decision to deny the application.
Section 402.305(12)(a)1 prohibits discipline of children that is “severe, humiliating, or frightening.”
Section 402.305(a) requires discipline that is “age- appropriate [and] constructive . . ..” Rule 65C-22.001(8) requires that each facility supply to parents, and conform to, its written disciplinary policies.
Section 402.305(13) requires that each facility “has and implements a written plan for the daily provision of varied activities and active and quiet play opportunities appropriate to the age of the child.” Rule 65C-22.001(7) requires that the written plans promote emotional, social, intellectual, and physical growth.
Rule 65C-22.006(6)(a) requires each facility to record the children’s daily attendance to document when each child arrives and departs from the facility.
Rule 65C-22.004(1)(b) requires each facility to maintain an isolation area for children who become ill at the facility. The isolation area must have a bed, mat, or cot. The rule requires that a staff person must at all times be within sight and sound of the isolated child, who must be “carefully watched” for worsening conditions.
Rule 65C-22.002(1)(e) requires that potentially harmful items must be labeled.
Rule 65C-22.002(5)(e) provides for a minimum of 18 inches’ separation between sleeping spaces during nap time and
that exit areas must “remain clear” in accordance with fire safety regulations.
Rule 65C-22.002(9)(a)2 requires that all toys, equipment, and furnishings must be “safe and maintained in a sanitary condition.”
Rule 65C-22.006(4) requires that, prior to accepting a child in care, a facility shall obtain enrollment information concerning the child on a form incorporated by reference into the rule. The incorporated form presumably requires such basic information as the name, address, and telephone number of the child’s physician.
Petitioner is entitled to an annual license for one more year’s operation of the Center, retroactive to August 1, 2000. Undoubtedly, Petitioner’s operation of the Center has been less than exemplary, perhaps not even attaining average or mediocre. But Petitioner has shown marked improvement after, belatedly, it committed substantial corporate resources to the Center in late 1999 and early 2000. Most importantly, the operation of the much-inspected Center has not compromised the safety of the children by deficiencies in staffing ratios and supervision. If, during this one-year term, ending July 31, 2001, Petitioner is unable to improve substantially its compliance with all background screening, personnel, enrollment, and health requirements; improve its compliance
with incident report, as well as attendance reporting and other noncited requirements; and maintain its compliance with staffing ratios and supervision, then it should acknowledge the obvious fact that it is unable or unwilling to correct the Center’s problems and cannot expect another opportunity to demonstrate its lack of competence or commitment.
It is
RECOMMENDED that the Department of Children and Family Services enter a final order issuing Petitioner an annual child day care license for the Naples center with an effective date of August 1, 2000.
DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida.
___________________________________ ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2001.
COPIES FURNISHED:
Virginia A. Daire, Agency Clerk Department of Children and
Family Services
1317 Winewood Boulevard Building 2, Room 204B
Tallahassee, Florida 32399-0700
Josie Tomayo, General Counsel Department of Children and
Family Services
1317 Winewood Boulevard
Building 2, Room 204
Tallahassee, Florida 32399-0700
Ira L. Young General Counsel
Tutor Time Learning Systems, Inc. 621 Northwest 53rd Street, Suite 450 Boca Raton, Florida 33487
Eugenie G. Rehak District Legal Counsel
Department of Children and Family Services
Post Office Box 60085
Fort Myers, Florida 33906
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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 01, 2001 | Agency Final Order | |
| Jan. 05, 2001 | Recommended Order | Although agency proved numerous deficiencies in documentation over three-year licensing history of day care center, there were few deficiencies in staffing ratios and supervision; facility had improved sufficiently to justify renewal of license. |
