The Issue The issue to be resolved in this proceeding concerns whether violations of Sections 402.305 and .310, Florida Statutes, and Section 65C-22.001, Florida Administrative Code, have been committed with regard to the care of children at the Petitioner's facility, such that its license should be revoked or other penalty imposed.
Findings Of Fact The Petitioner Gwendolyn Gobler was licensed to operate a daycare facility called Discovery Christian Learning Center, by the Department of Children and Family Services (Department) from August 13, 2001 through August 12, 2002. The Petitioner has a Bachelor's degree in early childhood education and has had a license for a family daycare home or center since sometime in 1998. Discovery Christian Learning Center, the subject facility, is located in St. Augustine, Florida at Number 260, State Road 16. State Road 16 is a busy four-lane highway in St. Augustine connecting Interstate 95 to downtown St. Augustine. On the day in question, January 17, 2002, an insurance agent Bill Matetzsck and his passenger, Ms. Lee Stec, were traveling on Highway 16 in the outer-left lane when they observed two children playing near the street on the outside of the Petitioner's facility. The children, a boy almost aged two and a girl aged two and one-half were playing on the sidewalk throwing leaves in the gutter. The little boy was observed to step into the highway while chasing leaves. Mr. Matetzsck stopped his car after observing the children and Ms. Stec retrieved them before they could be hit by a car and took them back into the facility. Ms. Stec became somewhat upset about the discovery of the children outside of the facility and immediately called the police, local television stations, the Florida Times Union Newspaper and waited for the police to arrive. Mr. Matetzsck observed that the double gate on the side of the property in the area of the backyard had a chain wrapped around it, but there was no lock on the chain. The Petitioner acknowledged to the law enforcement officer who investigated the incident that, although chained, the gate had not been properly fastened or secured. During that same time period Ms. Stec had also made a call to the Department of Children and Family Services reporting the incident. This triggered an inspection and investigation by the Department. Carmen Baselice is a Family Services Counselor assigned to St. John's County. The territory of her regulation and inspection of child care facilities includes the Discovery Christian Learning Center operated by the Petitioner. Ms. Baselice's duties include regulating and inspecting child care facilities and family daycare homes. Ms. Baselice initiated her investigation into the complaint by visiting the Discovery Christian Learning Center and discussing the complaint with Ms. Gobler. Ms. Gobler had noticed that the children were missing from her playground in the backyard and had just gone inside to see if they had gone back in the house at the time the children were being brought inside from the front of the house by Ms. Stec. Ms. Baselice observed that the front door of the facility was not properly fastened due to tape being placed around the doorknob locking mechanism. The door could only be locked by use of a deadbolt. Ms. Baselice felt at the time that the children may have exited the facility by that door. Ms. Gobler, however, stated that the only possible way that the children could have gotten out was by the gate which she acknowledged was not properly fastened. On January 17, 2002, Ms. Baselice received another complaint from a parent who was concerned that it was her child who had gotten out of the facility. The parent was concerned because her own child had gotten out of the facility by the front door in December 2001. Ms. Baselice reviewed the complaint with Ms. Gobler who confirmed that the child had gotten out of the facility by way of the front door by turning the deadbolt, but that she had apprehended the child while the child was still on the front porch and returned her to safety inside the house. On January 8, 2002, before the incident with the two children, Ms. Baselice conducted an annual renewal inspection on the facility. She observed an infant in a crib unattended and the facility "out-of-ratio" for more than thirty minutes. Out of ratio means that there was an insufficient number of staff members for the number of children being kept at the facility. On this occasion there were four children being kept, as well as the infant asleep in the crib in the infant room. Ms. Gobler was the only person present at the time of this inspection, on January 8, 2002. Thirty minutes later the second worker came on duty. The thirty-minute delay in being properly staffed was caused by that worker having a flat tire on her way to work. Ms. Gobler was attending to the toddlers in the larger room and the infant was asleep in the crib in the adjoining infant room, a separate room. However, it is also true that Ms. Gobler had the infant in plain sight from her station in the room with the four other children and could hear the infant through the open or sliding door. Through her testimony, and through Respondent's Exhibit two, in evidence, Ms. Baselice established that Ms. Gobler had a long history of incidents investigated and inspected by the Department and a substantial number of attendant violations. The incidents reported in Respondent's Exhibit two and in Ms. Baselice's testimony began prior to 1998 and there was a history of non-compliance which continued to the present time. During these years Ms. Gobler operated in disregard of the law in a number of instances, either by non- compliance with specific regulatory requirements concerning how her child care facility operated or was equipped, or without licensure in all instances. When the violations were cited she would often correct the immediate problem but later repeat the same type of violation. Many of the violations in her regulatory history are germane to child safety. The subject violations involving the children escaping form the home obviously are directly and dramatically involved with child safety. The little boy in question was about to get into the street and was barely missed by an oncoming car when Ms. Stec retrieved him. Those repetitive violations in the past are referenced in Respondent's Exhibit two and are incorporated herein by reference.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services revoking the Petitioner's license. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Gwen Gobler, pro se Post Office Box 1122 Ponte Vedra, Florida 32004 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul F. Flounlacker, Jr., 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 Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Department should deny the Petitioner's pending application for a new one-year license effective June 8, 2005, because of an alleged violation that occurred on June 7, 2005, where a three-year-old child was left in a van, suffering purportedly life-threatening injuries (heat stroke). See § 402.305(10), Fla. Stat. and Fla. Admin. Code R. 65C-22.001(5). If the violation occurred, it must also be determined whether denial of license renewal or some other authorized penalty should be imposed.
Findings Of Fact The Petitioner is a large daycare center owned and operated by Joann Jones. It is located in Ocala, Florida and has been licensed since 1992. The Petitioner normally operates its daycare center caring for as many as 250 to 275 children with a staff of 45 to 50 people. The Petitioner and its owner Ms. Jones, has provided child care in Marion County for many years, operating as many as five daycare centers. Ms. Jones has an extensive history in training, education and experience in operating daycare centers and her experience includes working with the former Department of Health and Rehabilitative Services and the Department of Children and Family Services on various committees and licensing groups for the State of Florida. Prior to the incident on June 7, 2005, the Petitioner had had relatively minor infractions of the Agency's administered statutes and rules involving operation of a daycare center. These infractions primarily included compliance documentation errors and an instance in which a first aid kit did not have all of required the type of supplies, and an instance where a van driver failed to have in his possession and make proper use of a head count check-list on a field trip. In these instances when the Petitioner was found not to be in compliance, compliance was corrected normally by the close of the inspection day when the infraction was discovered. The van driver who failed to have his checklist with him was terminated for violating the Petitioner's policy that a roster including all childrens' names would go on the van at any time the van was being used to transport children. In addition to the above instances, the Petitioner was documented on an inspection checklist on May 13, 2003, for failure to properly maintain a transportation log; for enrollment form violations; for failing to document law enforcement background checks for staff; and for failing to maintain appropriate documentation of Level II screening for staff members. These were violations of Florida Administrative Code Rules 65C-22.006(4)(5) and 65C-22.001(6)(f). The Petitioner's exhibit thirty-five references a re- inspection from October 9, 2003, and is a checklist. At this time the facility was in violation of Florida Administrative Rule 65C-22.003(2)(a), for failure to have staff appropriately trained and the training certificates documented; for violating Florida Administrative Code Rule 65C-22.004(2)(a), and for failure to maintain first aid kit in the facility's vans and buses (the violation referenced above involving not having all required items in one first aid kit on this occasion). The Petitioner was also in violation of Florida Administrative Code Rule 65C-22.006(2), for failure to properly maintain immunization records and Rule 65C-22.003(2)(a) for failure to properly maintain relevant documentation. An inspection was conducted April 22, 2004. At this time, the facility was in violation of Florida Administrative Code Rule 65C-22.003(2)(a), for failing to document that all staff had completed a 40-hour training course and for failure to properly document the training course. An inspection made April 26, 2005, revealed that the facility was in violation of the proper staff to child ratio established in Section 402.805, Florida Statutes. The proper staff to child ratio on that occasion was 17 to 5 and the Petitioner, when observed, had a 17 to 4 staff to child ratio. The problem was corrected on the spot that same day. On April 27, 2005, an inspection was conducted and the facility was found to be out of compliance with Florida Administrative Code Rules 65C-22.004(2) and 65C-22.006(5)(d), and Section 435.04, Florida Statutes, for, respectively, failing to properly maintain first aid kits; and failing to properly provide finger prints to the Florida Department of Law Enforcement for the purpose of obtaining required background screening for staff. These prior infractions mostly involved documentation errors rather than actual deficiencies in the operation of the Petitioner's facility and daycare services. The Petitioner has not had a proceeding actually filed against her facility and license by the Department prior to this one, with the possible exception of an occurrence some seven years ago when the Petitioner received a $100.00 fine related to a documentation error. These prior infractions were not shown to have been serious ones involving an immediate threat to the health or safety of the children in Petitioner's care. Most of these infractions were shown to have been corrected on the same day they were noted on the relevant inspection reports. A three-year-old child was inadvertently left in a van when it was returned and parked at Petitioner's daycare center, on June 7, 2005. this incident caused the instant proceeding to deny the Petitioner's re-licensure. On that day two vans from the Petitioner's facility left to take a group of three-year- olds on an outing for lunch for pizza party. On that date the Petitioner had in operation, policies that required all teachers to keep rolls of their children, to count their children every hour and to complete a log which was to be turned into the directors of the daycare center at the end of the day. The Petitioner was responsible for providing these logs to the Respondent Agency upon routine inspections. There was also a policy in effect regarding operation of vans and buses for transportation of children. The teachers and bus drivers were required to keep a log of the children riding on the vans. The teachers were required to take a "head count" when the children left the classroom and when they entered and exited the vans or buses. The teachers were required to carry a roll with all the children's names with them at all times. They were required to carry this roll on a clip board and this policy even if the teachers took the children out on the playground, where they were still required to do head counts. The Petitioner held meetings periodically with its employees and informed them regarding the policy concerning head counts and the log for using the vans, which involved head counts. Ladonna Cunningham was a van driver for the Petitioner on the date in question, June 7, 2005. She established that she was aware of the policy of counting children before they got on the van, after they got on the van, and when they got off the van again, as well as the fact that the vans were to be checked ("van sweeps") after all the children were off the van to make sure that no one was still on the van. On June 7, 2005, she and the teacher going on the field trip with her van, Katrice Robinson, counted their children and Katrice did a van sweep when they returned to the daycare center after the trip. Ladonna Cunningham did a second van sweep to make sure that there were no children on her van and was aware that this was in accordance with the Petitioner's policy. On June 7, 2005, a three-year-old child (N.B.) was taken on the field trip to the pizza party. The van returned to the daycare center sometime after 1:40 p.m. There were two vans used on this field trip. One van was driven by Ladonna Cunningham, accompanied by the teacher Katrice Robinson. The second van, with N.B. aboard, was operated and supervised by two other employees, Amina Francious and Regina Brown. Neither Francious nor Brown made a head count of the children or a van sweep after returning to the daycare center. Regina Brown told investigators that she knew they were supposed to make a head count when they returned to the daycare center that day but neither she nor Amina Francios had done so. The evidence also shows that Katrice Robinson, who was N.B.'s teacher, "checked him off" as being in the classroom at 2:00 p.m., that day for a snack when he was in fact outside in the closed van. This erroneous fact was entered by Katrice Robinson on the head count sheet provided by the Petitioner. All teachers are required to make a head count every 30 minutes and to note the time a meal, snack, or lunch is served to a child. Later that afternoon the child N.B. was discovered either asleep or unconscious in the closed van which had been parked in the hot sun. The child was difficult to arouse or unresponsive and had an external Fahrenheit temperature of 104 degrees. At 4:02 p.m., he was taken by EMS personnel to the hospital where he was ultimately diagnosed with hyperthermia or heat stroke. He was unresponsive, having seizures, actively vomiting, and had to be intubated since his left lung had collapsed. The Department received abuse report 2005-396658 as a result of this incident. Fortunately, the child recovered. On June 8, 2005, Ms. Littell, a Department representative interviewed the three employees, Regina Brown, Katrice Robinson, and Amina Francois. Both Ms. Francios and Ms. Brown admitted failing to conduct a van sweep after they returned to the Petitioner's facility on June 7, 2005. All three of these employees were arrested for felony child neglect. These interviews, as well as Petitioner's owner and operator Joann Jones, in her testimony, confirmed that on June 8, 2005, the Petitioner's assistant director Irma Ramjit, had asked Ms. Francois and Ms. Brown to sign for an employee handbook that they had never actually received. Thus Ms. Ramjit had asked these employees to falsify documentation after the child had been left in the van, in an apparent attempt to show that the facility had followed its own procedures when in fact it had not. This action by Ms. Ramjit was not at the behest or condoned of the Petitioner's owner, Ms. Jones, however. The abuse report referenced above was ultimately closed and finalized as "verified for neglect and inadequate supervision" as a result of the child being left in the van. Physical injury had occurred as a result of the physical injury suffered by the child from heat exposure. Obviously the Petitioner's policy of conducting head counts every 30 minutes was not done properly on June 7, 2005. Indeed, the last head count for the class of the child who was left on the van was conducted at 9:30 a.m., on June 7, 2005. Joann Jones the Petitioner's owner was shocked and devastated by the events of June 7, 2005. She had never had such an occurrence previously in the 20 years she had been engaged in the daycare business. After this incident happened and before the issue regarding her license arose she had already acted to ban any further field trips for three-year-old children and had elected to hire a person to perform nothing but head counts each day to make sure that the policy was carried out and such an event never again occurred. The evidence shows that the Petitioner's facility has otherwise been operated in a quality manner, as shown by the testimony of Kimberly Webb. Ms. Webb was an employee of the Petitioner for some 15 years and was well aware of the Petitioner's rules concerning conducting head counts of children, doing "van sweeps" and the general policies to ensure child safety in the day-to-day operations of the care center. Marjorie McGee is employed by Child Hood Development Services and testified for the Petitioner. Ms. McGee went to the daycare center on numerous occasions to monitor the Childhood Development Services Program and the Head Start Program. Ms. McGee observed that Ms. Jones and the daycare center staff provided quality child care. Any concerns she ever had were immediately addressed and corrected by Ms. Jones or one of the directors of the center. Ms. McGee, in fact, established that the Petitioner's facility in one of the highest-rated daycare centers in Marion County. This testimony is corroborated by several parents who testified concerning the operation of the daycare center and by Juanita Thompson, who works as a childhood curriculum specialist and over the years had done consulting for the Petitioner in preparing curriculums. She attested to the high quality care provided by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services denying licensure to the Petitioner, Oakcrest Early Education Center, Inc., effective with the application of April 11, 2005, without prejudice to the Petitioner re-applying for licensure in June 2006, in conjunction with an appropriate monitoring program by the Respondent Agency designed to ensure that all operational and documentation provisions of the applicable statutes and rules are complied with upon an ongoing basis. DONE AND ENTERED this 14th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 14th day of March, 2006. COPIES FURNISHED: John J. Copeland, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Edward L. Scott, Esquire Edward L. Scott, P.A. 409 Southeast Fort King Street Ocala, Florida 34471 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
The Issue Whether Respondent should continue to allow the Bambi Day Care I child care facility to remain open for business.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Bambi Day Care I (Facility) is a child care facility located in Miami-Dade County. At all times material to the instant case, Mercedes Arabi has been the director of the Facility. Ms. Arabi does not now have, nor has she ever possessed, a director credential issued by Respondent. Although she has attempted to obtain such a credential, she has not been able to meet the credentialing requirements. On or about August 13, 2003, Respondent sent to the Facility (by certified mail, return receipt requested) a form letter advising of the following: The deadline for the Director's Credential is January 1, 2004. This is mandated by Chapter 65C-22, Florida Administrative Code. Each child care facility must have a director that meets this requirement by January 1, 2004. Failure to comply will affect your licensure status seriously. If you have already completed the Director Credential requirement, please disregard this letter and mail or fax immediately a copy of your certificate for your licensing record. (Include the name of your facility.) The same letter was sent to all other licensed child care facilities having an uncredentialed director. The letter was delivered to the Facility on August 21, 2003. Not having received any indication that Ms. Arabi had obtained the required director credential, Respondent, on or about January 16, 2004, changed the Facility's licensure status by issuing a provisional license, effective from January 2, 2004, through July 2, 2004, authorizing the Facility's operation. As of July 2, 2004, Ms. Arabi still had not become credentialed. Accordingly, on that date, Respondent advised her that it "intended to revoke [her] license to operate [the Facility]." Ms. Arabi requested an administrative hearing on the matter. Notwithstanding that the expiration date on the Facility's provisional license was July 2, 2004, Respondent has affirmatively allowed the Facility to continue to operate pending the outcome of Ms. Arabi's challenge to the revocation action announced in Respondent's July 2, 2004, letter. In doing so, it has effectively extended the life of the Facility's provisional license (which, for all intents and purposes, remains in existence).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a Final Order revoking its permission allowing the Facility to operate as a child care facility. DONE AND ENTERED this 27th day of December, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 27th day of December, 2005.
The Issue The issue in this proceeding is whether Petitioner's request for an exemption from disqualification pursuant to Section 435.07, Florida Statutes, should be granted.
Findings Of Fact At all times material to this proceeding, Petitioner was employed by the City of Jacksonville, Division of Parks and Recreation (the City). She has been employed there for over 25 years. When first employed by the City, she was a recreation leader. While in this position, Petitioner organized and planned after-school programs for children. When promoted to senior recreation leader, her contact with children was diminished somewhat, as her duties became more supervisory. She was a recreation leader and senior recreation leader for the first 24 years of her employment with the City. Petitioner currently serves in the capacity of recreation supervisor. In this position, Petitioner is responsible for supervising and managing recreation leaders and other employees. Her direct contact with children is considerably less then in her previous positions. Her actual appearance at recreation sites where children are present is approximately eight hours per work week. Her listed duties in her job description include, "visits assigned areas to observe activities and monitor safety and adequacy of facilities; evaluate effectiveness of activities in assigned program area." One such program is called "Club Rec" which is an after-school program located at 13 sites around the City of Jacksonville. In November 2000, Petitioner occasionally spent the night at Brenda Rollins' home but did not reside there. On November 5, 2000, Petitioner entered into an altercation with Ms. Rollins at Ms. Rollins' home. During the altercation, Petitioner and Ms. Rollins were pulling and pushing each other. Petitioner grabbed Ms. Rollins' hair and pulled some hair from Ms. Rollins' head. On November 5, 2000, Petitioner was arrested and charged with domestic battery as defined in Section 784.03, Florida Statutes (1999). At the time of the arrest, Ms. Rollins informed the arresting police officer that she and Petitioner were sisters. Although they were close friends and occasionally referred to each other as sisters, Petitioner and Ms. Rollins are not related. On November 6, 2000, she entered a plea of no contest and was adjudicated guilty of domestic battery, a misdemeanor. She was ordered to serve two days with two days' credit and was placed on 12 months' probation, with the following conditions: attend a family violence intervention program, pay court costs, and discontinue contact with the victim. Petitioner's probation was terminated early on May 3, 2001.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order rescinding its Notice of Disqualification from Continuing Employment as Child Care Personnel or in the alternative, granting Petitioner an exemption from disqualification. DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 7th day of June, 2002.
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Sylvan L. Stahl, Jr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner's wife would be allowed to operate a child day care center in her home, a position she is now barred from holding because her husband has a disqualifying offense and lives in the same household. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on February 13, 1998, a DCFS committee denied the request. Petitioner is now barred from employment in which he would have contact with children because of a disqualifying offense which occurred in September 1989. At that time, Petitioner was arrested in Citrus County, Florida, for the offense of armed robbery, a felony under Chapter 812, Florida Statutes (1989). Although the documents pertaining to the offense were not made a part of this record, Petitioner established that in September 1989, he attempted to rob a bank with a firearm. Under a plea bargain arrangement with the prosecutor, he pled guilty to the charge and was sentenced to four and one-half years in prison, to be followed by ten years of supervised probation. Petitioner served only the three-year mandatory minimum sentence, and he then successfully completed his probation after only three years. No person was injured during the incident. After being released from prison, Petitioner worked for three years with a pallet firm owned by his father, rising to the position of supervisor. During his three-year tenure with the firm, Petitioner increased the size of the company from five to twenty employees. For the last six months or so, Petitioner has been employed by Emergency One, an Ocala firm which manufactures fire trucks. He also has a second job with his brother-in-law's landscaping firm. The two jobs require that Petitioner begin his work day at 7:00 a.m. and that he continue working until 1:30 a.m. Petitioner's wife intends to operate a small day care center out of the family home. It is fair to infer that due to Petitioner's lengthy working hours, he will spend little, if any, time at his home while the children are entrusted to his wife's care. Since his arrest and plea of guilty almost nine years ago, Petitioner has had no other blemishes on his record. He has been steadily employed since 1994 in positions of responsibility. Petitioner is married to a minister's daughter, has a young child, and has recently purchased a new home. Letters received in evidence corroborate the testimony of him and his wife that he will pose no threat to children if the exemption is granted. Petitioner expressed remorse for his actions in 1989, calling his conduct "stupid," and indicating he was "confused" at that time. Given his continuous employment history, good conduct during his shortened probation period, stable family life, and the time elapsed since the disqualifying offense, it is found that Petitioner is sufficiently rehabilitated to justify granting the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification from employment in a position of special trust. DONE AND ENTERED this 14th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sylvan L. Stahl, Jr. 11848 Southeast 71st Avenue Road Belleview, Florida 34420 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
Findings Of Fact Respondent corporation operates a licensed day care center in Duval County, Florida. Marie Flood owns Respondent and personally operates the day care center. She holds 51 per cent of the corporate stock for the Respondent corporation. Her husband is a 49 per cent stock holder. In the day care center is located a large room. The room is divided into smaller spaces by shelves which are called "cubbies". Those shelves are three feet high. The areas divided by the shelves constitute separate rooms for purposes of defining the proper ratio for day care staff members to children cared for in the facility. In May, 1995, an inspection was made at the day care center facility by an inspector working for Petitioner. That inspector was Joyce E. Bates. During the visit Ms. Bates observed a day care worker leave one of the small areas in the large room that was divided from other spaces in the room by the presence of the shelves. The worker went to put plates out for toddlers who were cared for at the facility. When the worker left the first area to go and put the plates in place, Ms. Bates considered that the appropriate staff ratio to children had been compromised in the area where the worker had been located. Ms. Bates indicated in her inspection report that this departure by the worker from one area where children were kept to another area where the plates were being placed constituted a deficiency in delivering the care to the children by not maintaining the proper ratio for staff and children. Ms. Flood did not believe that the departure by the worker for a brief period of time necessary to set out plates for the toddlers constituted non- compliance with the proper arrangement for staff in the requirement to monitor the children's activities. Ms. Flood believed that the worker while in another area placing the plates was still able to directly supervise the children in the area that had been left by watching and directing their activities within close proximity to the children. Given the difference of opinions Ms. Flood asked Ms. Bates to arrange for Ms. Flood to meet with Ms. Bates' supervisor to discuss the disagreement between those individuals concerning maintenance of the proper ratio for staff and children. Shortly after the May, 1995 inspection was conducted Ms. Flood met with Andrea J. Trzcinski, a supervisor for Petitioner for whom Ms. Bates worked in the child care licensure field. At this meeting Ms. Flood told Ms. Trzcinski about the concern that workers would be temporarily away from the areas in which children were located in the small spaces within the large room where care was provided. Ms. Flood explained that those short intervals where the workers were unavailable in the immediate areas where children were being attended were associated with various types of staff emergencies, staff preparing bottles for infants, or staff going to the restroom. Ms. Flood believed that to meet the exact terms for the staff to children ratio would require extra staff to meet the various contingencies where workers were absent from the discrete space where care was delivered to the children. Ms. Flood believed at the time and continues to believe that she cannot afford to have extra staff available to meet the contingency where the principal care giver has left the discrete space. Ms. Trzcinski explained to Ms. Flood that the choices which Ms. Flood had concerning the staff to children ratio were to divide the large room into discrete areas to deliver care or to leave the room as one area where care was given, thus requiring more staff than would be needed to maintain smaller areas within the large room. In the conversation between Ms. Flood and Ms. Trzcinski, Ms. Flood expressed the belief that the ability to look over the tops of the dividers which were only three feet tall would meet the requirements for maintaining the proper ratios when the staff was away from the immediate area where the children were located. Ms. Trzcinski explained to Ms. Flood that Ms. Flood's perception concerning the ability to maintain direct supervision by looking over the divider walls was not providing the direct supervision that was necessary. Ms. Trzcinski made Ms. Flood aware that Ms. Trzcinski's interpretation was that direct care meant having staff in the immediate area of the infants not monitoring from some other part of the overall large room by looking over the divider walls back into the area where the infants had been left. In summary, Ms. Trzcinski told Ms. Flood that a caregiver could not leave the discrete space where the children were located and move to another area and still maintain the called for ratio for staff to children. On October 11, 1995, Ms. Bates made another visit to the facility. The visit was as a follow up to an inspection that was conducted on September 29, 1995, unrelated to proper ratios for staff to children and upon a complaint that had been made concerning care provided to a child in the facility, again, unassociated with the proper ratio of staff to children. While Ms. Bates was inspecting the facility on October 11, 1995, she observed that in the room referred to as an infant room there were five children and one staff member. One child in that room was younger than one year old. Consequently, the ratio which Ms. Bates believed was appropriate for staff to children was 1 to 4, there being a child in the group who was not a year old. During the October 11, 1995 inspection Ms. Bates spoke to Marjorie James who was in charge of the facility on that occasion and explained the problem concerning the ratio in the infant room, in that the Florida Administrative Code required a ratio of 1 staff member to 4 children, not 1 staff member to 5 children as discovered in the inspection. Ms. Bates expressed to Ms. James the importance of maintaining those ratios in an instance where infants are involved in the receipt of care. A check-list for the inspection was prepared and provided to Ms. James who signed for the document. The document pointed out the problem of the ratios for staff to children wherein an infant not 1 year old was in the group of children. Ms. Bates made Ms. Trzcinski aware that the inspection of October 11, 1995, was being conducted and the results pertaining to that inspection wherein the ratio problem for staff to children had been identified. On November 8, 1995, Ms. Flood intended to work at the facility as a caregiver. By that arrangement it would allow Ms. James to leave the facility and go to a different location to pick up children from a kindergarten and return those children to the facility for care. Before arriving at the facility on November 8, 1995, Ms. Flood called the personnel at the facility and stated that Ms. Flood was going to be late. Ms. Flood recognized that the consequence would be that the ratios for staff to children would not be met for a short period of time. The reason Ms. Flood was tardy for her assignment was based upon an automobile accident on the road between her location and the facility. Ms. Flood explained to the other caregiver at the facility that she wanted to place a 22-month old child in the front room of the facility creating a problem for the staff to children ratio in that room, while maintaining the proper ratio in another room where infants less than one year old were found. As described before, the ratio for staff to children in the infant room should be 1 staff member for 4 children. The staff member who received Ms. Flood's call abided by the instructions and moved the 22-month old child to the front room. That meant that the ratio for staff to Children should be 1 to 6. In reality the ratio of staff to children was 1 to 9. Coincidentally on November 8, 1995, beyond the point and time at which Ms. James left to pick up the kindergarten children and the ratios where modified for staff to children in the front room, Ms. Bates arrived to conduct a follow-up inspection to check the ratios of staff to children. Ms. Bates discovered that the ratio of staff to children in the front room was 1 staff member for 9 children, whereas the ratio anticipated by Ms. Bates for the front room in which the 22-month old child was found should have been 1 staff member for 6 children. When Ms. Bates arrived to conduct the inspection on November 8, 1995, Virginia Sikes was caring for the children in the front room, and another caregiver was taking care of children in the infant room. Shortly after Ms. Bates arrival Ms. Flood came into the facility to provide care, thus the problem with the ratio with staff to children was corrected. Not long after Ms. Flood arrived Ms. James returned to the facility with the kindergarten children. The inspection which Ms. Bates conducted on November 8, 1995, was unannounced. Because the problem with staff ratios for children had been observed on both October 11, 1995 and November 8, 1995, Petitioner determined to impose an administrative fine in the amount of $150.00. The fine was perceived by Ms. Trzcinski to be a fine of $50.00 for each child over the ratio allowed as discovered on November 8, 1995, in which the proper ratio was 1 staff member for 6 children as opposed to the ratio discovered which was 1 staff member for 9 children. From Petitioner's view, expressed through Ms. Trzcinski, the violation was a Class II violation. Ms. Trzcinski characterized the violation as a "middle" violation. Respondent, through Ms. Flood, takes no issue that the ratios discovered for staff to children in the inspections performed on October 11, 1995 and November 8, 1995 were incorrect. Her principle concern is that the Respondent not be required to pay an administrative fine for the events which transpired on November 8, 1995. Her reasoning is that you cannot get substitute personnel quickly when contingencies arise such as were encountered on November 8, 1995. Also, her belief is that the problem was quickly corrected making imposition of a fine uncalled for.
Recommendation Upon the consideration of the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered imposing a $100.00 administrative fine for the failure to comply with the requirements related to maintenance of ratio for staff to children on November 8, 1995. DONE and ENTERED this 24th day of May, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1996. APPENDIX CASE NO. 96-1223 The following discussion is given concerning the findings of fact by the parties: Petitioner's facts are subordinate to facts found with the exception that Paragraph 2 is not necessary to the resolution of the dispute. Respondent's submission constitutes legal argument which was considered in entering the recommended order. COPIES FURNISHED: Roger L.D. Williams, Esquire HRS District 4 Legal Office Post Office Box 2417 Jacksonville, FL 32231-0083 Marie Flood Progressive Learning Center 1855 Hamilton Street Jacksonville, FL 32210 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7 Suite 728 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact At all times relevant to the issue in controversy, Leroy Powell and Jonnie Powell operated a child care facility known as Kinderworld, 721 Cordova Avenue, Orlando, Florida, under DHRS provisional child care license number 883- 19, issued August 1, 1983. On April 26, 1984, the Department of HRS received a report alleging that the children enrolled in Kinderworld Day Care Center were suffering emotional abuse and neglect and that the owners and operators of the center had been hostile and violent. On April 27, 1984, at about 8:45 A.M., Steve Fletcher, Intake Counselor for the Department visited the Kinderworld Day Care Center on 721 Cordova Avenue, Orlando, Florida, in order to investigate allegations of emotional abuse and neglect of the children enrolled in this center and of hostile and violent acts committed by the owners and operators. Mr. Fletcher arrived at the center, was escorted to an office and began to explain the purpose of his visit to Jonnie Powell. Leroy Powell, Sr., entered the office, became very upset upon learning of the investigation, left the room, and returned with his daughter, Margaret Sykes. Margaret Sykes and Leroy Powell were extremely agitated and demanded to see a written complaint. Margaret Sykes was screaming, shaking her finger in Steve Fletcher's face and advised Mr. Fletcher that she would not be harassed by HRS and that Mr. Fletcher had better leave before he was thrown out. Mrs. Sykes advised Mr. Fletcher that HRS was involved in a conspiracy to close the center and harass the owners/operators. Mr. Powell accused Mr. Fletcher of being involved in a racial conspiracy and of advancing white supremacy. Mr. Fletcher repeatedly attempted to advise Mr. Powell and Mrs. Sykes of the intent and purpose of his investigation, and the statutory requirement that HRS investigate any allegation of neglect or abuse, but Mr. Fletcher was denied access to the children in the center as well as records of attendance for children enrolled in the center. When Jonnie Powell advised Mr. Fletcher that Leroy Powell and Margaret Sykes were serious in their threats to remove Mr. Fletcher from Kinderworld, he voluntarily left the Center, telephoned his supervisor for instructions and returned to his office for further instruction. At approximately 10:45 A.M., on April 27, 1984, Mr., Fletcher returned to Kinderworld accompanied by his supervisor, Miriam Jennings, District Intake Supervisor, and Mrs. Mary Alice Bailey, Direct Service Aide. The three were admitted to the Center and escorted to an office by Leroy Powell. Mr. Powell was extremely agitated and after securing chairs for the parties, he slammed them with great force upon the floor. Margaret Sykes and Leroy Powell, Jr., were also present. Mrs. Jennings introduced herself, Mr. Fletcher, and Mrs. Bailey; explained the purpose of the investigation; and requested access to children in the Center as well as attendance records. Margaret Sykes and Leroy Powell, Sr., demanded to know the name of the child abuse reporter; accused the Department of harassment and a racial conspiracy to close Kinderworld; and demanded a written complaint. Margaret Sykes was pacing about, pointing an accusing finger in Steve Fletcher's face, and talking in a loud voice. Ms. Sykes was speaking in a voice loud enough to be heard by the children who were outside in back of the Center. Margaret Sykes left the interview, went to the back of the building and began to scream at and in the presence of the children in the Center in such a hysterical tone that her words could not be discerned. Because of the volatile situation, hostile atmosphere, and concern for the well being of the children in the Center, Mr. Fletcher, Ms. Jennings, and Ms. Bailey left the Center and Mr. Fletcher called for the assistance of law enforcement in bringing the situation under control and securing Kinderworld attendance records. Officer Kevin Lavigne, Orlando Police Department, responded immediately to the call for assistance, before Steve Fletcher had returned to Kinderworld, and was met by Leroy Powell, Sr., who advised Officer Lavigne that there had been no problem at the Center. At this time Steve Fletcher, Miriam Jennings and Mary Bailey returned to the Center and, with the assistance of Officer Lavigne, attempted to review attendance records. The situation worsened, Officer Lavigne was concerned about the safety of himself and others, and called for assistance. Several other Orlando Police Department officers responded, including Sgt. Thomas E. Langford. Mr. Powell announced to those persons present that the Center was closed. Margaret Sykes and child care assistants gathered the children at the Center, placed them in a line and caused them to march out of the Center and around the flag pole in front of the Center singing, "It's A Small World After All." Ms. Sykes was shouting instructions to the children, ages 3-6, who were made to stand in the hot sun. The children observed the altercation between Mr. Powell and Ms. Sykes and law enforcement and HRS personnel. The children were upset and confused, and several children were crying. Sgt. Langford attempted to discuss the matter with Mr. Powell and Ms. Sykes, but Ms. Sykes physically bumped and pushed Sgt. Langford with her chest and advised Sgt. Langford in a very loud voice that he would not close her business. Sgt. Langford pushed Ms. Sykes away from his person and his weapon, but was again physically bumped by Ms. Sykes. At this point Sgt. Langford placed Margaret Sykes under arrest for battery on a law enforcement officer. During her arrest, Ms. Sykes refused to cooperate, requiring two officers to carry her to the police vehicle while she called to the children to observe how the police treated black people. Bystanders had gathered and the children observed the entire incident, cried and were upset. HRS officials suggested that the children be taken out of the sun and away from the front of the Center. Mary Bailey observed the children being roughly shoved and pulled by the arm around to the back of the Center. The children were upset and crying. The provisional license of Leroy and Jonnie Powell, d/b/a Kinderworld was suspended on April 27, 1984, because the actions of Leroy Powell, Jonnie Powell, and Margaret Sykes constituted an immediate danger to the children in the center, subjecting the children in the Center to danger, subjecting them to physical and emotional abuse and placing children in the Center at risk for continued abuse. Subsequent investigation conducted by Stephen Fletcher and Catherine Craney of the Department of Health and Rehabilitative Services revealed several previous incidents of emotional abuse which had occurred at Kinderworld while Leroy Powell, Sr. Jonnie Powell, and Margaret Sykes were responsible for operating the Center.
Recommendation Based upon the foregoing, it is RECOMMENDED that the child care license of Petitioners be revoked. DONE and ENTERED this 22nd day of February, 1985, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1985. COPIES FURNISHED: Leroy and Jonnie Powell 721 Cordova Avenue Orlando, Florida 32804 Melissa Storey, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street Suite 911 Orlando, Florida 32801 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
