Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.
Cool School, Inc.
$150.00 civil penalty for violating Rule 65C-22.001, Florida Administrative Code, in three respects.
This matter began on November 13, 2000, when Petitioner, Department of Children and Family Services, advised Respondent, Cool School, Inc., a licensed child care facility, that it intended to impose a $150.00 civil penalty for three rule violations which allegedly occurred at the facility in September 2000.
Respondent disputed these allegations and requested a hearing under Section 120.569, Florida Statutes (2000), to contest the proposed action. The matter was referred by Petitioner to the Division of Administrative Hearings on December 28, 2000, with a request that an Administrative Law Judge be assigned to conduct a hearing. By Notice of Hearing dated January 12, 2001, a final hearing was scheduled on March 6, 2001, in Jacksonville, Florida. On March 5, 2001, the case was transferred from Administrative Law Judge Don W. Davis to the undersigned.
At the final hearing, Petitioner presented the testimony of Susan Kipen, a family services counselor. Also, it offered Petitioner's Composite Exhibit 1, which was received in evidence. Respondent was represented by its owner, Antoinette Garrity, who testified on her own behalf and presented the testimony of Sharon Dunn and Regina Harewood, two employees.
Finally, the undersigned took official recognition of Rules 65C-22.001(5)(a) and (6)(d), Florida Administrative Code, Section 402.310, Florida Statutes (2000), and the Final and Recommended Orders in DOAH Case No. 00-1421.
There is no transcript of the hearing. Proposed Findings of Fact and Conclusions of Law were filed by Respondent and Petitioner on March 15 and 16, 2001, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.
In this case, Petitioner, Department of Children and Family Services (DCFS), has filed an Administrative Complaint against Respondent, Cool School, Inc., a licensed child care facility, seeking to impose a $150.00 civil penalty on Respondent for allegedly violating an agency rule in three respects. Respondent, which operates a facility at 57 College Drive, Orange Park, Florida, disputes the allegations and contends that the charges are either not true, or there are extenuating circumstances present which require dismissal of the charges or a reduction in the penalty.
Rule 65C-22.001(5)(a), Florida Administrative Code, underpins this action and requires in relevant part that
"[c]hild care personnel at the facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times." The Administrative Complaint alleges that in September 2000 Respondent violated this rule by (a) allowing a two-year-old child to exit the facility to the playground, without supervision, clad only in a shirt and shoes; (b) allowing two children under the age of thirteen to change the diaper of a seven-month-old infant in the bathroom, without supervision by the staff; and (c) allowing at least five school-aged children to leave the premises and get items from their book bags on the front porch, without supervision. The DCFS proposes to impose a $50.00 civil penalty for each violation, or a total of $150.00.
DCFS has the responsibility of periodically inspecting licensed child care facilities to ensure that they are complying with agency rules and state law. To carry out this duty, DCFS typically assigns its licensing counselors a number of facilities to monitor. In this case, Susan Kipen, a licensing counselor stationed in Jacksonville, was assigned the task of monitoring more than 90 such facilities in the Jacksonville area, including Respondent.
In response to a complaint filed by an unnamed parent on September 18, 2000, Kipen inspected Respondent's facility
on the afternoon of September 20, 2000. The parent had reported that her two-year old child had wandered into the playground area without supervision, and that the diapers on her seven-month-old child had been changed by two school age children without appropriate supervision.
During her visit, Kipen prepared a document entitled Complaint Investigation in which she recited the alleged violations for which Respondent was being charged. They included, among other things, the two complaints previously lodged by the parent, namely, that a "two year old did get outside by himself, he only had shirt and shoes," and that a "7 month [old] was changed by two schoolers."
Although the licensing counselor did not actually observe the two incidents reported by the parent, she included them in her report because she says Respondent's owner, Antoinette Garrity, "confirmed" that they were true by reading and signing the report. However, Garrity understood that her signature merely confirmed that she had read the reported charges, not that she agreed with them. The only first-hand evidence on these two charges was that presented by Respondent. The complaining parent did not testify.
In addition to the above two charges, the counselor also charged Respondent with allowing "at least five (5) school-aged children, one at a time, and unsupervised, [to
leave] the center by the front door to get items from their book bags located on the front porch." This charge was based on a personal observation by the licensing counselor during her inspection.
The first violation concerns a charge that a two- year-old left the facility unattended and was "discovered a few minutes later on the playground by the assistant director." On this issue, the evidence shows that the child was using the potty in the presence of a facility worker, Sharon Dunn, who was also changing a baby's diapers at the same time. The two-year-old suddenly jumped off the potty (without his pants), ran to the door, opened it, and went outside on the porch. Dunn, who had the child in her view at all times from the bathroom window, asked the facility's assistant director, Regina Harewood, who was nearby, "Can you get him?" Harewood acknowledged that she could and proceeded to grab the child and bring him back into into the classroom. The child was never in any danger since he was being observed at all times and was retrieved a few moments after he ran out the door. In addition, Harewood was close enough to be capable of responding to an emergency at all times. Under these circumstances, it is found that no violation of the rule occurred.
The second charge concerns an allegation that "two
(2) children under the age of 13 years changed the diaper of a 7-month-old infant in the bathroom and no staff was present to supervise [them]." The evidence shows that a new worker had a baby in the bathroom for the purpose of changing his diapers. Garrity acknowledged that when the worker left the room to go outside for a moment, the worker improperly allowed two schoolers who were in the same room to change the diapers. While the diapers were being changed, the baby's mother came into the room. She then complained to staff personnel and later filed a complaint with DCFS. Garrity admonished both the worker and children that this situation should never occur again. Although there was no evidence on how this set of events actually or potentially jeopardized the baby's safety or well-being, a technical violation of the rule has been established since there were no supervisory personnel in the bathroom for a few moments.
Finally, during her inspection, the counselor
observed at least five children, one at a time, walk outside the front door to retrieve items from their book bags, which were lying on the front porch of the facility, and then return inside. At that time, it was the practice of the children to leave their book bags on the front porch when they arrived at the facility each day. This evidence was not contradicted.
Because the front porch was no more than 25 or 30 feet from the sidewalk, which was used by the general public, and there was an apartment complex nearby, the children had the opportunity to gain access to areas frequented by the public. This is true even though the assistant director says that while she was on duty, she was by the front door "the majority of the time." Therefore, the children were potentially at risk when they briefly left the premises to retrieve items from their book bags.
Respondent's owner admitted that she "hadn't thought of this situation," and after the incident occurred, she instructed the children that all book bags must be brought into the dayroom. Notwithstanding this corrective action, a violation of the rule has been established.
In mitigation, Respondent's owner suggested that the entire matter was caused by a vindictive parent who owed her facility money and filed the charges after a heated confrontation. She also worries that each time the facility receives a civil penalty, it "kills" her business. Finally, she described her facility as a "pretty good" day care facility, and insisted that she puts safety first for the children.
Respondent has been the subject of one other disciplinary action in which she was found guilty of failing
to submit background screening documents within ten days of employment of seven staff members. In that matter, which was concluded after the Administrative Complaint in this case was issued, she was given a $350.00 civil penalty. See Cool School, Inc. v. Dep't of Children and Family Services, DOAH Case No. 00-1421 (Final Order, Feb. 28, 2001).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57 and 120.569, Florida Statutes (2000).
As the party seeking to impose a civil penalty, Petitioner bears the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence.
Section 402.310(1), Florida Statutes (2000), governs this proceeding and authorizes the Department to "impose an administrative fine not to exceed $100 per violation, per day, for the violation of any provision of ss. 402.301-402.319 or rules adopted thereunder." The same statute goes on to provide that in determining the appropriate disciplinary action to be taken for a violation, that the Department consider "[t]he severity of the violation," "[a]ctions taken by the licensee to correct the violation or to remedy complaints," and "[a]ny previous violations of the licensee."
The Administrative Complaint alleges that Respondent violated Rule 65C-22.001(5)(a), Florida Administrative Code, in three respects. That rule reads as follows:
(5) Supervision
(a) Direct supervision means watching and directing children's activities within the same room or designated outdoor play area and responding to each child's need. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times. When caring for school age children, child care personnel shall remain responsible for the supervision of the children in care and capable of responding to emergencies, and are accountable for children at all times, which includes when children are separated from their groups.
By clear and convincing evidence, Petitioner has established that Respondent violated the foregoing rule by allowing two children under the age of thirteen to change a baby's diapers in a bathroom, without supervision, and by allowing five children to walk onto the porch of the facility without direct supervision. The remaining violation has not been established and should be dismissed. The civil penalty suggested in the Administrative Complaint, $50.00 per violation, or a total of $100.00, is found to be appropriate for these violations.
