STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

JUST LITTLE PEOPLE, INC.,

Respondent.

)

)

)

)

)

) Case No. 04-1602

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on June 14, 2004, in Wauchula, Florida.

APPEARANCES

For Petitioner: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Brenda Braxton, pro se

Just Little People, Inc. 3950 Aurora Avenue

Bowling Green, Florida 33834 STATEMENT OF THE ISSUE

Whether the administrative fine levied by Petitioner, Department of Children and Family Services, is appropriate.

PRELIMINARY STATEMENT

On March 31, 2004, Petitioner, Department of Children and Family Services, advised Respondent, Brenda Braxton, owner and licensee of Just Little People, Inc. (Respondent), that it intended to levy an administrative fine of $200.00 for specific violations discovered during a licensing inspection which took place on March 10, 2004, at the Just Little People II child care center. On April 19, 2004, Respondent requested an administrative hearing on the appropriateness of the fine.

On April 29, 2004, the Division of Administrative Hearings received Petitioner's Notice which requested an administrative hearing to resolve the disputed facts. On April 30, 2004, an Initial Order was sent to both parties.

On May 13, 2004, the case was scheduled for final hearing in Wauchula, Florida, on June 14, 2004. The case was presented as scheduled. Petitioner presented three witnesses: Vicki Richmond, Glynnis Green and Pat Hamilton. It offered four exhibits which were received into evidence without objection and numbered Petitioner's Exhibits 1 through 4. Respondent testified on her own behalf and offered one exhibit which was received into evidence and marked Respondent's Exhibit 1.

Official recognition was taken of Sections 402.301-.319, Florida

Statutes (2003), and Florida Administrative Code Chapter 65C-22, Child Care Standards.

No transcript of the hearing was prepared. Petitioner submitted a Proposed Recommended Order which was thoughtfully considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made:

1. Respondent operates a licensed child care facility licensed by Petitioner.

2. On July 11, 2003, Vicki Richmond, child care licensure inspector, conducted a re-licensure inspection of the Respondent's facility. This inspection noted 15 areas of non- compliance, each a violation of a particular section of Florida Administrative Code Chapter 65C, which were specifically noted in the six-page inspection report (Petitioner's Exhibit 3). This inspection took approximately four hours.

3. On July 30, 2003, a re-inspection took place; all areas of non-compliance had been corrected. On August 9, 2003, the license was re-issued.

4. On March 10, 2004, Glynnis Green, a child care licensure inspector, conducted an unannounced, routine inspection. These inspections are conducted approximately every four months.

5. During the March 10, 2004, inspection (Petitioner's Exhibit 2) 14 areas of non-compliance were noted. Six of these areas of non-compliance duplicated areas of non-compliance noted on the July 11, 2003, inspection.

6. In particular, the following areas of repeat non- compliance raised particular concern: (1) a toxic/poisonous cleaning product, Greased Lightning, was accessible to children;

   (2) medications were not stored in a locked area out of the reach of children; (3) the outdoor play space was not adequately enclosed-fencing was not safely secured; (4) sleeping mats were not cleaned and sanitized daily; (5) garbage cans did not have lids; and (6) dates were not present on enrollment applications.

7. Most of the instances of non-compliance were "cured" upon being noted. For example, the Greased Lightning was immediately removed.

8. The repeat nature of the instances of non-compliance and the fact of the availability of toxic substances and medications to children all suggest that a fine is appropriate. Petitioner, through its child care licensure supervisor, an individual with in excess of 20 years in child care licensing experience, made the decision to levy fines of $50 for the two violations involving serious child safety hazards, the availability of toxic substances and medications to children,

   and $25 per repeat non-compliance (3 through 6, paragraph 6, supra). The amounts of the fines are appropriate.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat. (2003).

10. Petitioner alleges that Respondent should be subjected to a total administrative fine of $200.00 for violations of Section 402.305, Florida Statutes (2003), and Florida Administrative Code Rule 65C-22.

11. All areas of non-compliance noted in the two inspections (July 11, 2003, and March 10, 2004) are violations of particular sections of Florida Administrative Code

    Chapter 65C, as noted in the inspection checklists (Petitioner's Exhibits 2 and 3).

12. Section 402.310, Florida Statutes (2003), 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. Leaving toxic substances and medications accessible to children are serious and potentially hazardous violations of the Child Care Standards cited in Florida Administrative Code Chapter 65C. A $50 fine for each violation is warranted.

14. The remaining four repeat violations: the outdoor play space not being adequately enclosed; sleeping mats not being cleaned and sanitized daily; garbage cans not having lids; and dates were not present on enrollment applications, while not presenting immediate child hazards, still present concern. A

$25 fine for each of these repeat violations is appropriate.

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 Respondent in the amount of $200.00.

DONE AND ENTERED this 9th day of July, 2004, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 9th day of July, 2004.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Brenda Braxton

Just Little People, Inc. 3950 Aurora Avenue

Bowling Green, Florida 33834

Paul Flounlacker, 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: 04-001602

Orders for Case No: 04-001602