STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEAD START AT GREEN COVE SPRINGS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-4174

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RECOMMENDED ORDER

Following notice to all parties, Diane Cleavinger, Administrative Law Judge for the Division of Administrative Hearings, held a final hearing in the above-styled case on April 5, 2002, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether Petitioner, as a child day-care facility operator, committed the violations of Florida Statutes and Florida Administrative Code, as alleged in the Administrative Complaint, of failing to obtain

or maintain proof that at least one staff member physically has a valid certificate of training in first-aid and infant and child cardiopulmonary resuscitation procedures and that such staff member is physically present at the facility.

PRELIMINARY STATEMENT

Petitioner, a child day-care facility operator licensed by the Department of Children and Family Services (Department), was the subject of an Administrative Complaint filed by the Department on October 25, 2001. The Administrative Complaint alleged that Petitioner's facility was in violation of certain provisions of Chapter 402, Florida Statutes, and Chapter 65C, Florida Administrative Code, by failing to obtain or maintain proof that at least one staff member has a valid certificate of training in first-aid and infant and child cardiopulmonary resuscitation procedures and that such staff member is physically present at the facility.

Respondent timely requested an administrative proceeding to contest the violations pursuant to Section 120.57, Florida Statutes. The case was transferred to the Division of Administrative Hearings.

At the final hearing, the Department presented one witness and introduced five exhibits into evidence. Petitioner failed to appear at the final hearing and no evidence was presented on its behalf.

Official recognition was taken of Chapter 402, Florida Statutes, and Rule 65C-22.004(3)(e), Florida Administrative Code.

The Department did not submit a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is a licensed day-care facility licensed by the Department of Children and Family Services (Department).

2. On May 11, 2001, Susan Kipen, Family Services Counselor, Day-Care Licensure, of the Department, conducted an inspection of the Petitioner's facility.

3. During the May 2001 inspection, Kipen discovered that no member of the facility's staff had the required training in first-aid and infant and child cardiopulmonary resuscitation (CPR) and that no evidence of such training was contained in the facility's records.

4. The Department cited the facility for noncompliance.

   
   

   On May 29, 2001, a warning letter was issued regarding the lack of training. The letter established a correction date of

   June 8, 2001.

   
   

5. On August 28, 2001, the Department again inspected Petitioner's facility. The inspection revealed that no staff present at the facility had the required first-aid or CPR training and no certificate of such training was maintained in the facilities records. At least one staff person had completed

   the training, however, that person was not physically present at the facility.

6. The Department again cited Petitioner for noncompliance.

   CONCLUSIONS OF LAW

   
   

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

8. The Department alleges that Respondent should be subjected to an administrative fine of $50.00 for violations of Section 402.305, Florida Statutes, and Rule 65C-22, Florida Administrative Code.

9. Rule 65C-22.004(3), Florida Administrative Code, states in part:

   1. First Aid, Cardiopulmonary Resuscitation and Emergency Procedures.

      1. Each child care facility must have at least one staff member with a valid certificate of course completion for first aid training and infant and child cardiopulmonary resuscitation procedures. One staff member satisfying these training requirements shall be present at all times that children are in the care of the facility, both on-site and on field trips. A field trip includes all activities away from the facility excluding regular transportation to and from the facility, i.e., pick-up and drop-off.

         
         

10. Rule 65C-22.006(5), Florida Administrative Code, states in part:

    (5) Personnel Records. Records shall be maintained and kept current on all child care personnel, as defined by s. 402.302(3), F.S., . . . These shall include:

    
    

    * * *

    
    

    (f) Copies of training information and credentials.

    
    

11. Petitioner violated the above-cited rules by not timely training its staff in first-aid and CPR, not maintaining records of such training, and not having trained staff physically present at the facility when children are there. Therefore, Petitioner is subject to disciplinary action for these violations.

12. Section 402.310, Florida Statutes, states in part:

    
    

    (1)(a) The department or local licensing agency may deny, suspend, or revoke a license or impose an administrative fine not to exceed $100 per violation, per day, for the violation of any provision of ss.

    402.301-402.319 or rules adopted thereunder. However, where the violation could or does cause death or serious harm, the department or local licensing agency may impose an administrative fine, not to exceed $500 per violation per day.

    (b) In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:

    1. The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 402.301-402.319 have been violated.

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

    3. Any previous violations of the licensee.

    
    

13. The failure to either maintain or timely maintain training information, while not posing an immediate threat to the health, safety, and well being of a child in this case, posed potential harm. Likewise, the failure to have trained staff physically present at the facility posed potential harm. The violations were repeat violations. On the other hand, Petitioner did make an attempt, albeit an incomplete attempt, to comply with the training requirements. Petitioner's unlawful practice, if undisciplined, could result in eventual harm to a child in a medical emergency through Petitioner's provision of untrained persons in the facility.

14. Further, the failure to document the training information necessarily hinders the licensing agency from being able to determine the progress, if any, a facility has made in training its employees. Under the circumstances, an administrative fine of $50.00 is reasonable.

RECOMMENDATION

Having considered the foregoing Findings of Facts, Conclusions of Law, the evidence of record, and the candor and demeanor of the witness, it is

RECOMMENDED that a final order be entered confirming the imposition of an administrative fine against Petitioner in the amount of $50.00.

DONE AND ENTERED this 2nd day of May, 2002, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 2nd day of May, 2002.

COPIES FURNISHED:

Temple DePlato

Head Start at Green Cove Springs

100 Bel Tel Way, Suite 100 Jacksonville, Florida 32216

Robin Whipple-Hunter, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Peggy Sanford, 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-004174

Orders for Case No: 01-004174