The Issue Whether respondent committed the violations alleged in paragraphs 3(b), (c), (d) and (e) of the Administrative Complaint.
Findings Of Fact Respondent, Kinder Kastle Day Care Center (Kinder Kastle), located in Bradenton, Florida, is licensed to operate as a child day care facility under Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code. On June 17, 1987, and on July 17, 1987, Kinder Kastle was inspected by Laura D. Winfrey to determine whether Kinder Kastle was in compliance with the provisions of Chapter 402, Florida Statutes, and Chapter 10M-12, Florida Administrative Code. When Ms. Winfrey inspected Kinder Kastle on June 17, 1987, there was one staff person in the room with 10 babies between one year and 18 months old. On July 17, 1987, when Ms. Winfrey reinspected the facility, there was one staff person responsible for nine babies between the ages of one year and 18 months. The staff person present in the room advised Ms. Winfrey of the children's ages. During the inspection of June 17, 1987, Ms. Winfrey noted that the exit lights were not turned on. At the time of reinspection on July 17, 1987, the exit lights still were not lit. However, the rooms where the exit lights were located had windows. Therefore, because the facility was only used during the daytime, the exit lights were visible even when they were not turned on and the regular lighting was off. Ms. Pillsbury, the respondent, testified that she had attempted to have the exit lights fixed in early July, so they would be continuously lit, but due to equipment that had to be ordered and other difficulties, the lights were not permanently turned on until October of 1987. During both inspections, Ms. Winfrey noted that respondent was using two different types of baby gates to block interior doorways. Ms. Winfrey considered that one of the gates was unsafe because it was not approved by the Consumer Product Safety Board. 1/ The gate had a bar and clip type mechanism and had to be moved to the side to allow exit from the room. Ms. Winfrey remembered seeing a bulletin from the Consumer Product Safety Board regarding that particular type of gate; however, she could not remember what was in the bulletin concerning the gate. Ms. Winfrey felt that the gate might be a hazard because it is not permanently attached to the wall. If it were removed from the doorway and set aside, Ms. Winfrey felt that the gate could fall and injure a child. The "approved" gate is of latticed design, consisting of hinged wood slats. The gate is permanently attached to one side of the door and opens and shuts in accordion fashion. Because of the manner of opening and closing, it is very easy for children to get their fingers pinched in the gate. The slats in the accordion gate are not as sturdy as those in the other gate and are more easily broken. There was no competent evidence presented to establish that the accordion gate was safer or more effective than the other gate respondent was using. When Ms. Winfrey inspected the facility on both occasions, she requested random samples of children's files to determine whether they contain the information required. On June 17, 1987, none of the files contained statements outlining respondent's disciplinary policies signed by the children's parents. On July 17, 1987, Ms. Winfrey inspected four files from each age group, and only four of the files had disciplinary policy statements signed by the children's parents. Ms. Pillsbury stated that of the files checked on the second visit, many of the children had not been back to the day care center since the first inspection. However, Ms. Pillsbury picked the files to be inspected by Ms. Winfrey. Ms. Pillsbury stated that all parents did get a copy of a disciplinary statement; however, there was nothing in the files documenting that this had been done. Respondent did not dispute the allegation that she failed to submit a fingerprint card, affidavit of good moral character and Abuse Registry Form within the required time frames in violation of Section 402.3055(3), Florida Statutes, and Rule 10M-12.002(1)(b)2. and (1)(e), Florida Administrative Code. On June 17, 1987, Ms. Winfrey advised Ms. Pillsbury of the violations she observed and informed Ms. Pillsbury that the violations needed to be corrected by July 17, 1987, when the facility would be reinspected. Kinder Kastle has been cited for violations on previous occasions and has paid an administrative fine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent violated Rule 10M-12.002(1)(b)2. and (1)(e), Florida Administrative Code, Rule 10M- 12.002(5)(a)1., Florida Administrative Code, and Rule 10M-12.008(2)(f)2., Florida Administrative Code, as alleged in paragraphs 3(a), (b), and (e) of the Administrative Complaint; dismissing the charges set forth in paragraphs 3(c) and (d) of the Administrative Complaint; and imposing a total administrative fine of $135 to be assessed as follows: $30 for the Class III violation, $30 for the Other violation, and $75 for the Class II violation. DONE AND ENTERED this 19th day of January, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1988.
The Issue Whether Respondent committed a Class II violation by failing to properly supervise children in its care, and, if so, what is the appropriate penalty.
Findings Of Fact The Department has the authority to license and regulate day care facilities pursuant to sections 402.301 through 402.319, Florida Statutes.1/ Respondent is licensed by the Department to operate a child care facility named Marroquin's Learning Center, which is located at 1220 Highway 29 South, LaBelle, Florida 33935. MaryAnn Marroquin is the owner/director of the facility. Ms. Marroquin has been providing child care services for approximately 30 years. Chemenda Sawyer is employed as a child care regulation worker for the Department, and has worked in this capacity for the previous four years. In 2015, Ms. Sawyer was assigned to monitor Respondent's facility for compliance with applicable child care regulations. On January 7, 2016, and again on April 5, 2016, Respondent was cited for violating child care supervision standards, which require that children be supervised at all times. Each deviation from the standard constituted a Class II violation. In order to assist Respondent with compliance, Ms. Sawyer provided the facility with technical support regarding the violations and explained to Respondent strategies for ensuring future compliance. Following the April 5, 2016, violation, an administrative fine was imposed against Respondent. On February 23, 2017, Ms. Sawyer, while performing a re-inspection of Respondent’s facility, again noticed that Respondent was not providing proper supervision for some of the children in its care. Specifically, soon after Ms. Sawyer arrived at Respondent’s facility on February 23, 2017, she was seated alone in the “yellow classroom” when the backdoor of the classroom opened and at least two boys, who were both enrolled at the child care facility, entered the room. The door closed behind the boys and Ms. Sawyer observed that the children were not being supervised. According to Ms. Sawyer, the boys were “horsing around” as they entered the room, and they stopped in a corner of the room to play for one to two minutes. A staff member then called the children into the “multicolor classroom” where proper supervision of the boys was provided. Ms. Sawyer then exited the “yellow classroom” to report the violation to Ms. Marroquin, who was at her desk in another room eating lunch.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Marroquin’s Learning Center committed its third violation of the same Class II standard and imposing a fine of $60. DONE AND ENTERED this 19th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2018.
The Issue The issue in this proceeding is whether Respondent committed the violations as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact The Department of Children and Families is the agency charged with the responsibility of licensing child care facilities in the State of Florida. § 402.305, Fla. Stat. Respondent was licensed by the Department to operate a child care facility located in Callahan, Florida. Tausha Howard is the co-owner/director of Agape, and has been since it opened approximately 10 years ago. Tracey Flanders is a family services counselor. As a family services counselor, Ms. Flanders is responsible for inspecting child care facilities and family child care homes. Agape was one of the child care facilities that she inspected. She has been a family services counselor for three years and prior to that was a child protective investigator for DCF. Prior to her employment with DCF, she was a preschool teacher for eight years, which included some supervisory responsibilities and knowledge of compliance with DCF rules. Out of Ratio/Improper Supervision The Administrative Complaint charged Respondent with being out-of-ratio regarding the number of children per staff member in violation of Florida Administrative Code Rule 65C- 22.001(4)(b)2. Specifically, the Administrative Complaint alleges as follows: During a routine inspection conducted on March 6, 2013, DCF licensing counselor Tracey Flanders observed that: There was one (1) staff member supervising seven (7) children between the ages of one (1) and two (2) years old. A ratio of one staff for (6) children is required. This violation is based on Ms. Flanders’ observations during a March 6, 2013 routine inspection of Agape. She did a walk-through of the facility and examined the children’s records. As part of her walkthrough, she went to all of the classrooms. In each classroom, she counted the children and inspected for cleanliness. While in the toddler room, Ms. Flanders observed the children playing on the floor around the teacher. She counted seven children between the ages of one to two years old being supervised by one teacher. There was one two-year-old and six one-year-old children. Ms. Flanders explained at hearing that in mixed age groups, the required ratio of the youngest child applies. For mixed aged groups of children between one and two years of age, the minimum staff to child ratio is one staff member to six children. Agape has a classroom for preschool children, as well as one for the toddler children. Ms. Howard, however, disagrees that there were seven children in the toddler room and insisted that there were only six. She believes there was some kind of “miscommunication or oversight” because the seventh child (W.) had recently “aged out” of the toddler room and had been moved to the preschool class. The toddler class was where W. was assigned prior to his second birthday and reassignment to the preschool class. At the time of the inspection, the preschool children were out on the playground and came in while Ms. Flanders was present. Ms. Howard recalls she was standing in the baby room window. According to Ms. Howard, W. was being redirected from “bothering the blocks” to go rejoin the preschool group who was having story time. Therefore, she contends that the child was not in the toddler room, but was being redirected into the preschool classroom. Ms. Flanders insists that Ms. Howard was not with her when this incident happened, that the children were playing on the floor, and that the two-year-old in question (W.) was not moved from the toddler room to the preschool room when she was there. Accordingly, she cited Respondent for an out-of-ratio violation. Prior to the March 6, 2013 routine inspection, Agape had previous instances of being in violation of the ratio requirements. As a result of prior Administrative Complaints which included ratio violations, DCF and Respondent entered into a settlement agreement in March 2013, in which Respondent acknowledged that there have been five Class II ratio violations within a two-year period. Additionally, Respondent agreed that if future ratio violations occurred, the license “will again be subject to suspension or revocation.” The settlement agreement also stated that Respondent would finish out its then current probationary status through March 11, 2013, at which time Agape would be returned to an annual license. It is assumed that since the instant Administrative Complaint was dated April 11, 2013, that the license is currently on regular license status. Immunization Form Violation The Administrative Complaint charged Respondent with not having required immunization forms for children in its care, in violation of Florida Administrative Code Rule 65C- 22.006(2)(c). Specifically, the Administrative Complaint alleged that during the routine inspection by Ms. Flanders on March 6, 2013, she observed that a current form 680, Florida Certification of Immunization, was missing for two children. This allegation was based upon a file review made by Ms. Flanders which revealed that immunization records for two of the children, H.A. and M.C., had expired. The same violation was cited three previous times within a two-year period. On a reinspection, the center’s immunization records were current. According to Ms. Howard, the child, H.A., was out of the center for a medical reason and was not enrolled in the center at that time. However, his file was still there. Further, she discussed this with Ms. Flanders and afterwards wrote a statement that H.A. was not currently enrolled in the school and placed it in his file. As for child M.C., the child was enrolled but was no longer attending the center until M.C. obtained a current immunization record. Ms. Flanders explained that the child care facility must inform her if a child is enrolled but not attending. In that event, she skips that child’s record during her review. Level 2 Screening Documentation The Administrative Complaint charged Respondent with a violation of Florida Administrative Code Rule 65C-22.006(4)(d) and alleged the following: Documentation of Level 2 screening was missing for one (1) staff member. The Preschool Teacher’s adult son, D.W., was observed in the classroom with children on more than one occasion. Director stated D.W. is at the facility one (1) to two (2) hours a day, every other day. Licensing Counselor previously advised provider D.W. could not be present without passing a Level 2 screening. These charges were based on Ms. Flanders observing the adult son (D.W.) of one of the preschool teachers sitting at the desk in the preschool room with the children present, and the content of a conversation she had with Ms. Howard regarding this issue. There is an exception to the background screening requirement for volunteers who work there less than 10 hours a month. Accordingly, Ms. Flanders spoke to Ms. Howard to determine how often D.W. was at the school. According to Ms. Flanders, Ms. Howard told her that he would come to the daycare and wait before work every other day for an hour or two before walking to Winn-Dixie. Ms. Flanders calculated that every other day would be 15 days a month, for one or two hours each time. Therefore, she determined that he was there more than 10 hours a month. D.W. does not have background screening on file. The Administrative Complaint states that the same violation was previously cited on May 14, 2011, resulting in Technical Assistance, making this the second Class II violation within two years about persons caring for children without background screening. Ms. Howard, however, denies that D.W. was ever in her child care center that frequently. According to Ms. Howard, D.W.’s family temporarily (for about a month to a month and a half) had only one car. During that time, D.W. would come to the center, but was only there a total of 2 hours in a month. “Again, D.W. is not in my center. He’s not ever been in my center every other day. He’s not ever been in my center more than 30 minutes to an hour.” Moreover, Ms. Howard asserts that when D.W. was in her center, he was not with the children but was in a classroom where there were no children. Both Ms. Flanders and Ms. Howard were credible witnesses.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order placing Respondent’s license on probation until the related cases involving Respondent have been heard and final orders entered; and imposing a fine of $100 per day for one day, and $30 per day for eight days, for a total of $340. DONE AND ENTERED this 8th day of May, 2014, in Tallahassee, Leon County, Florida. S 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 8th day of May, 2014
The Issue The issue in this case is whether Petitioner, Department of Children and Families (Department), should impose a $75 fine on Respondent, Jumpstart Enrichment Program, Inc. (Jumpstart), and place it on probation for up to six months for not complying with child care facility staff-to-children ratio requirements for the fourth time.
Findings Of Fact The Department has issued Respondent license C09OR0629 to operate a child care facility in Orlando under sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. The statutes and rules have minimum staff-to-children ratio requirements that are clear, but not uncomplicated, and not always easy to implement. It is necessary to have one staff person for every four children from birth to age one, for every six aged one to two, for every ten aged two to three, for every 15 aged three to four, for every 20 aged four to five, and for every 25 aged five or older. Generally, the ratio requirement for a mixed group of children aged two or older is dictated by the age group with the largest number of children in the group. However, if children under the age of two are present, the ratio requirement for a group is dictated by the age of the youngest child. It was undisputed that staff-to-children ratio requirements are Class II standards under the Department's rules. Citation Issued January 6, 2012 The Administrative Complaint alleges that a citation for insufficient staff was issued to Respondent during a Department inspection on January 6, 2012. It alleges that this was the fourth violation of the standard, justifying a $75 fine and probation for up to six months conditioned on being subject to unannounced visits to ensure compliance with all statutes and codes and on ensuring the maintenance of appropriate staff-to- children ratio. On January 4, 2012, Sabrina Hayles and Conswela Green were the staff on duty at Jumpstart. Eight children were present that morning when Ms. Hayles left the facility to go to lunch. She took two of the children with her so that Ms. Green would meet ratio requirements for the remaining six. While Ms. Hayles was gone, a grandmother dropped off another child, which put the facility out-of-compliance with staffing ratio requirements. Ms. Green asked the grandmother to stay until Ms. Hayles returned, but she said she had an appointment and could not stay. Ms. Green accepted the child into the facility and telephoned Ms. Hayles to tell her to return to the facility because they were out-of-compliance. Ms. Hayles, who already was on her way back, arrived several minutes later. The facility's being out- of-compliance was observed by staff from the Early Learning Coalition of Orange County (ELCOC), who happened to drop some paperwork off at the facility at that time. ELCOC reported the ratio violation to the Department, which investigated the allegation on January 6 and issued a citation. The Administrative Complaint alleges that this was Respondent's fourth insufficient staff violation and that the previous violations were on September 9 and April 14, 2011, and on August 20, 2010. Alleged Violation on September 9, 2011 There was no evidence of a staffing ratio violation on September 9, 2011. Actually, there was a staffing violation on September 7, 2011. One staff was caring for an infant and five toddlers; two staff were required. ELCOC reported the violation to the Department. When apprised of the violation, Michael Collins, the owner and director of the facility, took immediate action to increase staffing and bring the violation to an end as soon as possible. The Department investigated on September 9, 2011, verified the violation through interviews with Shawnda Bernard, and cited Respondent for the violation on September 9, 2011. Alleged Violation on April 14, 2011 Another entity involved in child care and school readiness, referred to in the hearing as Devoreaux, reported to the Department on April 12, 2011, that there was one staff caring for 13 children, when two staff were required. The Department investigated on April 14, 2011, determined from interviews with staff that the violation had in fact occurred, and cited Respondent for the violation. There was hearsay evidence of another staffing violation after the Department's inspection on April 14, 2012. The second alleged violation was not proven by any direct evidence or by any hearsay evidence that would be admissible over objection in a civil action. See § 120.57(1)(c), Fla. Stat. Alleged Violation on August 20, 2010 On August 20, 2010, the Department conducted a routine inspection and cited Respondent for having six children at its facility and no staff, just the owner/director, Mr. Collins. Two qualified staff were required for the six children. There was an unscreened volunteer there, who would have counted and made the staffing ratio sufficient prior to August 1, 2010, when the law changed to require staff to be screened. First Affirmative Defense In May 2011, the Department filed an Administrative Complaint against Respondent charging staffing ratio violations on August 20, 2010, and on August 6 and December 28, 2009, plus numerous other kinds of violations, including some on August 20, 2010. In October 2011, the Department and Respondent settled the charges in that Administrative Complaint by payment of a $500 fine (reduced from $2,205) and a reduced period of probation, through August 15, 2011. The alleged facts and charges were not admitted as part of the settlement. The settlement included a provision that the Department would "make no further orders and will take no further action on the Administrative Complaint and underlying violations in connection with this proceeding that is being settled." It also including a provision in the next numbered paragraph saying: However, if in the future, the Petitioner should have to take administrative action against the Respondent, the Respondent agrees that the Petitioner shall not be estopped from using the facts set forth in the Administrative Complaint in this case as additional basis' [sic] for any future denials, revocations or other administrative actions, taken against the Respondent by the Petitioner resulting from any future non- compliances with applicable statute, code or agreements, by the Respondent. Since one of the "facts set forth" in the settled Administrative Complaint was that Respondent had insufficient staffing on August 20, 2010, the Department was not estopped from using those facts as it does in this case--i.e., as one of the three staffing violations that preceded the one in January of 2012. Second Affirmative Defense Because of the insufficient staffing on January 4, 2012, ELCOC withheld payment for that day under the federal school readiness program it administers, which requires qualified staff to be present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order: finding Respondent guilty as charged; fining Respondent $75; and placing Respondent on probation for six months, with unannounced visits to ensure compliance with all statutes and codes, including the maintenance of appropriate staff-to-children ratio. DONE AND ENTERED this 17th day of September, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Jack P. Caolo, Esquire 131 East Woodland Drive Sanford, Florida 32773 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2017.
The Issue The issues are whether Respondent failed to maintain a record of major incidents on two occasions, and if so, what penalty should be imposed.
Findings Of Fact Petitioner regulates assisted living facilities (ALFs) pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. Respondent is licensed as an ALF pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. On or about October 4, 1999, Petitioner received a telephone call alleging that Respondent was operating contrary to Rule 58A-5, Florida Administrative Code, in several respects. In response to the telephone complaint, Petitioner performed an unannounced inspection/survey at Respondent's facility on October 6, 1999. Petitioner performed record reviews, interviews, and observations during its October 6, 1999, inspection of Respondent's facility. The survey revealed that Respondent's business was deficient in several respects that are not relevant here. These deficiencies resulted in four citations. On November 10, 1999, Petitioner completed a follow-up appraisal/complaint investigation at Respondent's facility. During the survey, Petitioner reviewed randomly selected medical records of eight of Respondent's clients. The November 10, 1999, revisit resulted in Respondent being cited for several Class III deficiencies. The deficiencies included one citation for failing to maintain a record of a major incident involving an injury to a resident who required treatment by a health care provider. Specifically, Resident No. 5 fell on October 22, 1999, and fractured a leg. She was transferred and admitted to the hospital. At the time of the November 10, 1999, inspection, Respondent could not produce documentation indicating that it had completed a major incident report. Petitioner advised Respondent that it had until November 24, 1999, to correct cited deficiencies. On December 20, 1999, Petitioner conducted a revisit survey of Respondent's facility. The purpose of the inspection was to determine whether Respondent had corrected deficiencies cited during the November 10, 1999, inspection. This inspection included a review of medical records for eight randomly chosen residents. The December 20, 1999, survey revealed a repeat deficiency for failing to complete a major incident report of an injury to a resident who required treatment by a health care provider. Petitioner cited Respondent for failing to complete a major incident report for Resident No. 7 who fell on or about August 1, 1999. Resident No. 7 fell in her room but refused initially to go to the hospital. Two days later, Resident No. 7 was admitted to the hospital for observation due to her complaints of pelvic pain. She returned to Respondent's facility with a new health assessment dated August 3, 1999. The new health assessment revealed a decline in the resident's ability to perform daily living activities and changed her status from independent to requiring supervision in dressing, grooming, toileting, and transferring. Respondent did not complete a major incident report at the time of the resident's fall or upon her admission to and return from the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $300 for repeated violations of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Mohamad Mikhchi Owner/President Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32514 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida. Respondent is a day-care center in Miami, Florida, and currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran’s notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. Petitioner offered insufficient evidence to refute that testimony. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2015. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 (eServed) Karen A. Milia, Esquire Department of Children and Families 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
