The Issue The issues are whether Respondent, an assisted living facility, failed to timely correct eight class III deficiencies, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the duty to license and regulate assisted living facilities (ALFs). Respondent is licensed to operate as an ALF in Orange Park, Florida. At the time of the hearing, five residents lived in Respondent's facility. On September 6, 2000, Petitioner conducted a biennial licensure survey at Respondent's place of business. During the survey, Petitioner cited Respondent for five class IV deficiencies and 18 class III deficiencies. The class III deficiencies included the following: A-308, the residents' files did not contain a written informed consent, concerning unlicensed staff who would be assisting residents with the self-administration of medication; A-513, staff had not received a minimum of one hour in- service training, relative to the reporting of major incidents and facility emergency procedures, within 30 days of employment; A-514, staff members had not received a minimum of one hour in-service training, relative to resident rights in an ALF and recognizing and reporting resident abuse, neglect, and exploitation, within 30 days of employment; (d) A-515, staff members had not received three hours of in-service training, relative to resident behavior and needs and providing assistance with activities of daily living, within 30 days of employment; (e) A-1002, the carpet in room No. 3 was stained; (f) A-1101, not all staff members had documentation from a health care provider stating they were free from the signs and symptoms of communicable disease; (g) A-1103, facility staff did not have documentation on file that they were free from tuberculosis on an annual basis; (h) A-1106, unlicensed staff who were providing assistance with self-administered medications had not received the minimum four hours of training. By letter dated September 15, 2000, Petitioner advised Respondent that it was required to correct the above-referenced deficiencies on or before October 6, 2000. On October 5, 2000, a volunteer registered nurse provided Respondent's staff with four hours of in-service training relative to medication administration. The nurse was not approved by Petitioner to provide the training. She did not provide instruction from an approved curriculum. Respondent did not document the training session as to date, names of employees attending, or curriculum content. On October 18, 2000, Petitioner conducted a follow-up survey to determine whether Respondent had corrected the previously cited deficiencies. The eight class III deficiencies listed above in paragraph four had not been corrected. By letter dated October 25, 2000, Petitioner advised Respondent that it might be subject to administrative fine for failure to correct the deficiencies. The letter also requested Respondent to file a correction plan. Respondent could not remove the bleach stain in room No. 3's carpet. Respondent attempted unsuccessfully to dye the stained carpet an even color. Respondent bought tiles to replace the carpet on or about November 25, 2000. By the time that Petitioner conducted its second follow-up survey, Respondent had corrected the eight remaining class III deficiencies. During the hearing, Respondent did not contest the factual basis of the cited deficiencies. Instead, Respondent attempted to present evidence in mitigation. According to Respondent, it was experiencing a transition in management in the fall of 2000; therefore, it could not meet the correction deadline. Respondent's new manager/caregiver testified that she did not have sufficient funds to timely secure the required documentation relative to the status of her health. Finally, Respondent presented testimony that it could not afford to pay an administrative fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $1,900 for seven class III violations of Chapter 58A-5, Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes. DONE AND ENTERED this 29th day of March, 2001, 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 29th day of March, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Marcela Perry, Administrator Queen of Angels Post Office Box 1430 Orange Park, Florida 32073 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact Respondent, Anna McLean, has owned and operated Anka's Kiddie Farm in a rural section of Bradenton for approximately four years. She describes her background as being in "charity work" for the Franciscan Order for ten years in New York City. She is 59 years old. Anka's Kiddie Farm has been licensed as a day care center since September 1, 1983. Its original capacity was for forty children but the licensed maximum has been reduced to twenty. During the period in question Ms. McLean kept some children all night to accommodate their parent's work schedule. She also kept infants. Starting around the beginning of the school year in 1985, the two child care workers at the center noticed a deterioration in Ms. McLean's health and she began mistreating the children. As a form of discipline the children were made to kneel on the floor, with their knees on kernels of rice and their noses touching the wall. When they rested back on their heels, Ms. McLean poked them in the back and told them to straighten up. A two-year-old would not eat and spit the food out. Ms. McLean slapped her face and stuffed the food back in her mouth. A one-year-old wet her diaper and pulled it off. Ms. McLean taped it to the child's head and would not allow the worker to remove it. R. M. was a five-year-old at Anka's Kiddie Farm. On one occasion when the children had spaghetti for lunch, the children were made to take their shirts off. R. M. said he did not want the other children to see his "titties." Ms. McLean slapped his face and called him "tittie man" and "tittie king." Then the other children started calling him "tittie man." R. M. was made to lie down on a cot and went without lunch that day. On another occasion Ms. McLean spanked R. M. with his pants down in front of the other children. The rice discipline, the wet diaper incident, the slapping and the derision and spanking of R. M. were observed by child-care worker, Donna Catalano. Ms. Catalano left her employment at Anka's Kiddie Farms in early November 1985 and reported the incidents to HRS. She and another worker, Diane Smith, who had left around a month earlier, went to the Sheriff's Office and filed affidavits regarding the abuse of children at Anka's Kiddie Farm. Jacqueline Ernest has been a District Intake Counselor with HRS since December 1984. She investigates abuse and neglect reports. She has received in-service training with the department, has a bachelor's degree in psychology and a master's degree in psychology and family relations. In her investigation of the Anka's Kiddie Farm complaints, she interviewed Ms. McLean and her current employee, a woman who had been at the center less than two weeks. These individuals denied any wrongdoing or observation of wrongdoing. Ms. Ernest also interviewed parents and children and the two former employees, Donna Catalano and Diane Smith. She interviewed R. M. on November 8, 1985. R. M. and some of the children confirmed the complaints by Donna Catalano. Some parents felt there were problems with the care at the center, others said they saw no evidence of problems. While reports from former employees are sometimes the result of grudges, in the experience of the HRS workers such cases lack the specificity of the complaints here. In grudge reports the employees often refuse to give their names and will not likely file an affidavit or agree to testify. The HRS investigation corroborated the complaints and the investigation was closed on January 29, 1986, with a finding: "indicated and substantiated," as to the allegations of physical and emotional abuse and neglect. It was recommended that the facility be closed. On February 18, 1986, two HRS workers, Laurel Cook and Laura Winfrey delivered the notice of intended license revocation to Anna McLean at Anka's Kiddie Farm. While the workers were there Ms. McLean called one of the children over and brought out dunce caps labeled "liar," "cry-baby" and "stupid." She asked the child if she recognized the caps. The child nodded and pointed to Ms. McLean. Ms. McLean said, "No, it was Donna who made you wear the dunce caps." Laurel Cook described the child's response as a halfway nod of approval. At the hearing, Ms. McLean firmly denied that she abused the children or utilized harsh discipline. She claimed, rather, that her former employee, Diane Smith, did the things that she, Anna, was accused of doing. She said Diane Smith called R. M. a "tittie king" and that Diane had pet names for all the children, for example, "Snake," "Jungle Bunny" and "Jewish Mama." She said that Diane beat her own child and thought R. M. was horrible as he fought with her child. Ms. McLean said that because of her medical problems she could not lift more than 10 pounds. Yet she claims that she changes all the diapers because the staff doesn't like to do that. She claims that infants' diapers are changed every 20-30 minutes, whether they need it or not, and the others are changed every forty-five minutes. She denies that she ever withheld food from the children and said that she gave them "as many snacks as they want." She admits that she has had turnover in her staff, but attributes it to transportation problems as she is out in the country. Her testimony vacillated between commending Diane Smith and Donna Catalano for being good, hard workers and excoriating them. She said she is hearing a lot of complaints about Diane and Donna now, but could not get better help. She admitted that she had trouble paying her help sometimes because the parents would not pay her. She did not have an idea of a conspiracy against her. The testimony of R. M. and Donna Catalano was presented through depositions by stipulation of the parties. Their testimony as to the incidents described in paragraphs 2 and 3 above is credible, non-hearsay testimony. In contrast, Ms. McLean's testimony is rambling, contradictory, and peculiarly self-serving. Even if true, her shift of blame to her staff is a misguided defense of her day care center license. As operator of the facility, she is ultimately responsible.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that the day care license of Anna McLean, doing business as Anka's Kiddie Farm, be revoked. DONE and RECOMMENDED this 21st day of November 1986, in Tallahassee, Florida. MARY CLARK 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 21st day of November 1986. APPENDIX The following reflects my specific rulings on the proposed findings of fact in this proceeding. PETITIONER'S FINDINGS OF FACT Adopted in Paragraph #1. Adopted in substance in Paragraphs #2 and #3. Adopted in Paragraph #7. Rejected as unnecessary. RESPONDENT'S FINDINGS OF FACT Adopted in Paragraph #1. Rejected as contrary to the weight of the evidence. Although no report was made to HRS until November 1985, the workers observed the mistreatment starting a few months earlier. Donna Catalano's employment was longer than two months. Rejected as contrary to the weight of the evidence and comprised of argument and comments on the testimony, rather than findings of fact. Adopted in general in Paragraph 7. COPIES FURNISHED: Carol M. Dittmar, Esquire Office of Legal Counsel Department of Health and Rehabilitative Services 4000 West Buffalo Avenue, 520 Tampa, Florida 33614 Philip S. Prosch, Esquire Lee and Surfus, P.A. 150 East Avenue, South Sarasota, Florida 33577 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues for consideration here are those associated with an Administrative Complaint brought by the Petitioner against Respondent for certain alleged deficiencies related to the operation of the Respondent nursing home facility. Authority for this prosecution is set out in Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.
Findings Of Fact Related to this case, Respondent was licensed by the Petitioner to operate an adult congregate living facility (ACLF) known as Elder Care Retirement Home, located in Ocala, Marion County, Florida. Lon W. Walters is president of that corporation and owns the corporation with his wife. Petitioner, in accordance with Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code, has regulatory authority over the ACLF. On November 8, 1988, Robert A. Cunningham, Human Services Program Analyst for Petitioner, performed the annual inspection of the subject facility as a prelude to relicensure. He found a number of deficiencies in the facility's operations. Four of those have relevance to this case. Through the course of an exit interview conducted with Nancy Carter, who was the administrator at the ACLF and its agent, Respondent was made aware of the deficiencies. In her capacity Carter hired staff, reviewed and screened residents for admission and admitted those residents, supervised the staff, and was responsible for record keeping. The deficiencies were that: Respondent had failed to provide or make available for review documentation that the facility administrator or his/her designee had completed a Core training program. Respondent failed to assure that a sufficient number of staff members were certified in an approved first aid course. Respondent failed to provide documentation that staff members were free from apparent signs and symptoms of communicable disease. Respondent failed to assure that all residents' files contained complete health assessment forms. The items that were discussed with the administrator were not confirmed by any written submission to the administrator on that occasion. The record does rot reflect to what extent Carter recorded information about the subject deficiencies and others in an attempt to prepare responses to those problems. She did tell Cunningham that Mr. Walters was going to take the Core training and there was a negotiation or discussion about the deadlines for that training and other items that needed to be corrected. Typically, as many as sixty days may be allowed for a facility to establish necessary corrections. On November 8, 1988, Cunningham spoke to Walters about the Core training and the due date for completion of that training, and it was agreed that the due date would be February 28, 1989. Pursuant to the discussion in the exit conference, arrangements were made for a January 18, 1989, deadline to complete corrections in the three other deficiency areas. There was some delay in preparing the written summary of findings made by Mr. Cunningham. Nonetheless, those findings were committed to writing by a report of January 23, 1989, associated with the relicensure survey. A transmittal letter which was sent out to the Respondent included a document entitled "Classification of Deficiencies for ACLF Licensure Requirements" which set out the four deficiencies in question and others. It also set forth the correction deadlines and included a citation to the appropriate administrative rules that had allegedly been violated by the deficiencies. Based upon the observations by Mr. Cunningham at the time of the November 8, 1988, inspection and as confirmed by the classification report of January 23, 1989, at the time the inspection was conducted neither the administrator nor a designee had taken the necessary Core training. This point is conceded in remarks by Mr. Walters in his testimony at hearing. Likewise, the records of the facility on the date of inspection did not demonstrate that one staff member at the facility on all shifts had necessary first aid training in an approved course. The records available on November 8, 1988, did not reveal that all staff persons were free from communicable disease as documented by a physician or ARNP. This pertained to nine staff persons. Finally, on the inspection date the facility did not have records on file for two residents indicating that a medical examination of those residents had been completed within sixty days prior to the admission of those residents to the facility or that a health assessment form had been completed within thirty days after admission of those two residents. Cunningham returned to the facility on January 25, 1989. At that time he discovered that none of the four items had been corrected. It should be mentioned that the item pertaining to Core training was not due for correction by that date. In a conversation with Mr. Walters on January 25, 1989, Walters reported that he had not received a copy of the statement of deficiencies that had been issued on January 23, 1989. Under those circumstances, Cunningham told Walters that he would be back at a later date to make a further inspection to ascertain whether the corrections had been effected. Nonetheless, he reminded Walters that the due date for correcting some items had expired. Petitioner's Exhibit 1 admitted into evidence is a copy of a statement of acknowledgment of receipt of the report that was issued on January 23, 1989. It is signed by Mr. Walters and dated January 31, 1989. On February 15, 1989, Cunningham returned to the facility and through his inspection discovered that none of the four items in question had been corrected. In effect, between November 8, 1988, and February 15, 1989, Respondent had failed to correct the problems. More significantly, it had failed to correct the problems by the deadlines to which it had agreed, excepting the Core training. By way of history, on December 9, 1987, a relicensure inspection was performed at the facility, and it was discovered that a resident within the facility had been placed there without the benefit of an examination to ascertain whether that person was free from signs of infectious disease. This led to an administrative complaint, a formal hearing, a recommended order, and final order, fining this facility in the amount of $150, in the aforementioned DOAH Case NO. 89-2058. Based upon the four deficiencies that were uncorrected on February 15, 1989, the Administrative Complaint which is PDRL No. I 89-1120 ACLF was drawn.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is recommended that a Final Order be entered which imposes an administrative fine against the Respondent in the amount of $750, for the three violations that have been proven, and which dismisses any action against the Respondent for alleged failure to complete the Core training program. DONE and ENTERED this 9th day of May, 1990, at 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 9th day of May, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed facts are commented on as follows: Paragraphs 1-3 are subordinate to facts found with the exception of the last sentence within paragraph 3 which is not necessary to the resolution of the dispute. Paragraphs 4-7 are subordinate to facts found. Paragraph 8 is contrary to facts found in that the obligation to take the Core training between November 8, 1988, and February 15, 1989, was not incumbent upon the Respondent. Paragraphs 9 through 14 are subordinate to facts found. COPIES FURNISHED: Frances S. Childers, Esq. Department of Health and Rehabilitative Services District III Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609 Lon W. Walters 3223 West Forest Lake Circle Sarasota, Florida 33429 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent unlawfully determined that the proper way to return Petitioner to suitable gainful employment is through direct job placement, rather than job retraining.
Findings Of Fact Petitioner was born on October 3, 1958. She has been a licensed practical nurse in Florida since 1983. On April 7, 1998, while working as a licensed practical nurse, Petitioner slipped on a wet floor at work and sustained injuries to her right elbow, leg, and back. On August 27, 1998, while in transit to a workers' compensation clinic, Petitioner was involved in an automobile accident in which she sustained a cervical strain and sprain. On October 28, 1998, Petitioner was sitting at work, where she had been assigned light duty, when her chair rolled out from under her, causing her to fall and sustain injuries to her back and neck. Petitioner has not worked since sustaining these last injuries. A physician determined that Petitioner reached maximum medical improvement on April 10, 2000, at which time she had a 23 percent permanent impairment to the body as a whole. Among the physician's diagnoses were concussion with memory disturbances and cognitive difficulties. The physician determined that nearly 60 percent of Petitioner's permanent disability was attributable to "cerebral dysfunction." Among the physician's restrictions were avoiding lifting more than 20 pounds and pushing or pulling and limiting walking, standing, bending, and kneeling. Petitioner first contacted Respondent for job retraining services on January 10, 2001. At the conclusion of an orientation sponsored by Respondent on January 24, 2001, Petitioner signed a request for screening. After examining the file, the Respondent's Vocational Rehabilitation Consultant determined that Petitioner could find suitable gainful employment through direct job placement, rather than job retraining. In particular, the consultant relied on Petitioner's transferable skills and work history. After factoring in her restrictions, the consultant determined that Petitioner could still earn over half of what she had been earning as a licensed practical nurse prior to her first accident. Petitioner complains of delays in Respondent's processing of her request for job retraining services. However, no such delays existed in this case. Nor can Petitioner legitimately seek reimbursement for accounting courses that she began a mere five days after signing the request for screening. Obviously, she did not pursue this alternative after exhausting her options with Respondent and the services that it offers. A transferable skills analysis reveals that Petitioner could obtain suitable gainful employment by direct job placement in various nursing fields, and possibly also certain accounting fields. Clearly, the better approach to the vocational rehabilitation of Petitioner is direct job placement. If Petitioner is able to find and keep suitable gainful employment, she will have obviated the necessity of considering the extent to which her cognitive difficulties may restrict effective job retraining.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing Petitioner's request for job retraining services. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 11th day of February, 2002. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Silvia Valdes 4336 Southwest 48th Court Fort Lauderdale, Florida 33314 Elana J. Jones, Senior Attorney Department of Labor and Employment Security 2012 Capital Circle Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
The Issue Whether Respondent violated Subsection 490.009(2)(v), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Blank is a psychologist, licensed by the Department. In 1998, Susan Whittaker (Whittaker) and James Fischer (Fischer) were parties to a dissolution proceeding. The divorce was very acrimonious. Anne Alper (Alper) was appointed as a guardian ad litem to protect the interests of the couple's children during the divorce. Because of the animosity between Whittaker and Fischer and the difficulty they were having with their children, the presiding judge, Judge Ziedwig, requested that Alper determine what was in the best interests of the children. Alper effectuated an agreement between the couple, which included the following provision: The mother agrees to participate independently in counseling using the same counselor as James for the purpose of maximizing the parents' effectiveness in communication and parenting under the shared parental responsibility agreement. The agreement was signed by Whittaker, Fischer, and their attorneys. The agreement was presented to Judge Ziedwig, who indicated that he did not want to see the couple again until they had participated in the parent effectiveness training. Blank had experience in conducting parent effectiveness training. For a couple of years, she held classes in which more than one couple attended. She used a manual and tapes which had been developed by two psychologists. The attendees in the classes had no expectation that the classes would be confidential. As the number of class participants dwindled, Blank found it more cost effective to present the parent effectiveness training to individual couples. Alper called Blank to see if she would be willing to provide parent effectiveness training for Whittaker and Fischer. Alper agreed to do so. Whitakker understood that her attendance for the sessions with Blank was not voluntary and that she had been ordered by the judge in her dissolution proceeding to attend. The initial session was held on August 20, 1998, at Blank's office. Whittaker and Fischer attended. The purpose of the session was to teach Whittaker and Fischer how to parent their children effectively, not to provide psychotherapy for either Whittaker or Fischer. At the beginning of the session, Blank informed the couple that it was her understanding that the couple were involved in the parent effectiveness training by order of the court. Additionally, Blank advised them that the sessions were not confidential and that she would be reporting to the guardian ad litem, the court, and the attorneys for the parties. After being informed that the sessions were not confidential, Whittaker and Fischer continued with the training session. At the end of the session, Whittaker informed Blank that she would not be returning to another session. Whittaker was not satisfied with the training and felt that Blank should be dealing more with Fischer's past history of domestic violence. Blank advised Whittaker that because the divorce case was on hold until the parents received parent training, she would have to notify the court, the guardian ad litem, and the attorneys on the case that the sessions were not progressing. Blank told Whittaker that she would give Whittaker some time to think about whether she wanted to return for more training. Fischer continued to see Blank for training sessions, but Whittaker never returned. Whittaker called Blank and asked her what was the procedure to release information, and Blank told her to write a letter stating specifically to whom Whittaker wanted the information released. Whittaker hand delivered a letter to Blank, stating that she wanted Blank to release information to her attorneys, Elise Lucas and Robert Merlin. After Blank received the letter, she spoke with Ms. Lucas by telephone and informed her about the training session. In September 1998, Fischer asked Blank to send a letter to his attorney to update him on the progress of the training sessions. Blank told Fischer that she would need a letter from him to release the information. Blank felt that since she had a letter from Whittaker on the release of information that she should also have one from Fischer. Fischer provided the letter. On October 1, 1998, Blank wrote a letter to Fischer's attorney, John Stedman, advising that Whittaker had refused to attend further sessions after the initial meeting in August. Blank also described Whittaker's behavior during the session and recommended psychological evaluation for Whittaker and her son. Neither the court nor Whittaker's attorneys were copied with the letter. Blank thought that she had provided Alper with a copy of the letter, but she could not remember if she had. On October 19, 1998, Fischer filed a motion to permit Blank to testify by telephone in the divorce proceeding. The court entered an order on the same date, stating: ORDERED AND ADJUDGED that said Motion be, and the same is hereby denied. Based on representation of counsel for the Former-Wife that she met with Diane Blank in her capacity as a psychotherapist and the Former-Wife is invoking her psychotherapist-patient privilege, Diane Blank shall not testify in any way. No sworn testimony was heard by the court in ruling on whether a psychotherapist relationship existed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Diane P. Blank did not violate Subsection 490.009(2)(v), Florida Statutes. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 4th day of December, 2000. COPIES FURNISHED: Mary Denise O'Brien, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 James B. Meyer, Esquire 111 West Bloxham Street Tallahassee, Florida 32301-2308 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Psychology Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon Petitioner's license.
Findings Of Fact On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of notification that Molly Hilbert had not been background screened. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of January, 2003. COPIES FURNISHED: Edward T. Cox, Jr., Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Lillie Shells Shell's Family Day Care Home 9340 County Road 231 Wildwood, Florida 34785 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 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of December, 1988.
The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
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 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 15th day of October, 2013.
Findings Of Fact After respondent Debra T. Acosta and her husband Joe, a noncommissioned Air Force officer, the parents of Joseph M., 16 at the time of hearing, Jason M. (13), Shawn W. (9), and Tisouli (6), applied to HRS for a day care center license, they were required to have their fingerprints taken and to undergo a background check or "screening." The background check turned up a report of an investigation Air Force personnel had conducted on account of information Carla Burrell, formerly known as Carla Knight, had supplied. The first two numbered paragraphs of the report read: On 2 Mar 88, SSgt CARLA K. BURRELL, USAF Clinic, RAF Bentwaters (RAF), UK provided the following information: She arrived at RAFB from Eglin AFB (EAFB), FL on 21 Apr 85. She was stationed at EAFB from Jan 83 until Apr 85. While stationed at EAFB, her daughter, Angela Kristen Knight, female born: 21 Jan 80, VA, Civ, SSAN: 066-70-1577 (hereafter referred to as VICTIM) stayed with a babysitter during the day. The babysitter was identified as DEBRA ACOSTA, dependent wife of SUBJECT who resides at 318 Blackjack Court, EAFB, FL. DEBRA ACOSTA babysat for several families. After arrival at RAFB, VICTIM entered school and seemed to be worried about something but BURRELL wasn't sure of what it was. According to BURRELL, VICTIM received briefings in school about sexual abuse and was told it wasn't nice for adults to touch children in certain places. This led VICTIM to confide in BURRELL that while they had been stationed at EAFB, SUBJECT would make VICTIM and other young females being babysat by SUBJECT's wife take off their clothes and lie on the bed. On numerous occasions, SUBJECT had placed his hands on VICTIM's bottom and had placed his hands between VICTIM's legs. SUBJECT had touched VICTIM's vagina but had never actually penetrated her vagina. SUBJECT has done the same thing to other female children, but VICTIM stated SUBJECT didn't do anything to boys. In addition, VICTIM told BURRELL SUBJECT would drop his pants and underwear and would place his penis between the legs of the females but did not insert his penis into their vaginas. On 6 Mar 88, VICTIM was interviewed by SA STANLEY B. CRISP and SA BETTY J. WILKINS in the presence of her mother. VICTIM provided essentially the same information as was provided by her mother on 2 Mar 88. VICTIM provided the following additional information not previously reported by her mother. SUBJECT had made her and other young females go into the bedroom at the same time, sometimes even with DEBRA ACOSTA being at home. VICTIM stated however that DEBRA didn't know what SUBJECT was doing. At other times DEBRA wouldn't be at home when the incidents took place. VICTIM couldn't recall the names of the other children who were involved, but stated there were others in the bedroom at the same time. VICTIM stated SUBJECT had never hurt her and had never threatened her with harm. SUBJECT had told the children that they shouldn't tell anyone about what he was doing to them. VICTIM said she wasn't afraid of SUBJECT. The bedroom used was described by VICTIM as an upstairs, spare bedroom. SUBJECT had never made the children go into his bedroom. VICTIM had never told anyone about the incidents until she was told in school of the actions of SUBJECT were wrong. Petitioner's Exhibit No. 7. In February of 1988, Mary Vinyard had given respondent and her husband a letter she and her husband had received from Ms. Burrell. Respondent's Exhibit No. 6. This letter reads: Tom and Mary, Remember me? . . . I'm sorry to say the reason I'm writing is because of a concern I have. I've had nothing but problems with Krissy ever since we got to England. She's doing very well in school, however her behavior has gotten to the obnoxious state. Recently she was referred to a child psychiatrist at Lakenheath (Bentwaters doesn't have one). The Dr. there seems to think part of Krissys problem is that there has been some sort of sexual abuse in the past. She makes up stories, so I have no way of being certain of what she says. Last week after talking to the Dr, on the way home, Krissy suddenly said there had been someone in Florida that had done things he shouldn't have done. She said it was Joe, Debra's husband. I at first couldn't believe it, but she went on to talk about things an 8 year old child really should have no knowledge of. I really don't know what to think however I really don't want to screw up anyone's life. We don't see the psychologist again until next week. I called him and told him of this new development, and he said after two years nothing could be done anyway. I don't believe that. The Air Force seems to be taking a rather relaxed view on this. The reason I'm writing you is to inquire if your children are still in Debra's care. Are you having any trouble with either of them, ightmares, bedwetting, whining? Please do write me back. An answer of any sort will help put my mind at ease. If it is just conjecture, no harm is done. If there is something going on, and Debra is still babysitting, it needs to stop. I just don't want any other parents to go through what I'm going through right now. You may or may not want to consider another babysitter. Please don't tell Debra I wrote, I always thought the world of her and I know the kids loved her. I don't wish to upset their family, especially if this turns out to be nothing; but I'm very suspicious. The day after the Vinyards gave this letter to respondent, Mr. Acosta took it to his commanding officer, Captain Gilmore, and protested his innocence. Captain Gilmore made a copy of the letter and launched the investigation that eventuated in the Office of Special Investigations (OSI) report, set out in part above. Petitioner's Exhibit No. 7. No action was taken against Mr. Acosta as a result of the Air Force's investigation. He has consistently denied Krissy's reported allegations, and did so under oath at the formal hearing in this case. After the OSI report came to HRS' attention, an HRS employee decided "that Debra could get licensed, to continue with the paperwork" (T.370) but as to her only. Eventually HRS did license Debra Acosta to operate Kare Free Day Care (KFDC) at 15 Eglin Street in Fort Walton Beach. KFDC opened in July of 1990. Nobody from HRS asked Mr. Acosta to agree to stay off the day care center premises and neither he nor Ms. Acosta agreed that he would. His presence during various HRS inspections elicited no official, contemporaneous response. T.406-7. Another Allegation Reported Michelle G'Sell dropped her four-year-old daughter Amber and her two- year-old son Adam off at the Acosta family home about seven o'clock in the morning on Mother's Day, May 12, 1991, in keeping with the arrangement she had made with Ms. Acosta the afternoon before, when she picked up her children at KFDC, after their first stay there. At quarter past three Sunday afternoon, Ms. G' Sell again picked Amber and Adam up at KFDC. Ms. Acosta had taken them (and her own two youngest children) to KFDC that morning after feeding Shawn and Tisouli breakfast. As Ms. G'Sell walked to her car with her children "around three steps out of the house" (T.113) Amber said, "Mommy, my twat hurts." Id. Asked when, the child "said when she pees." Id. According to her mother, when they had reached the car, Amber said, "He touched me," id., and, asked who had touched her, pointed to Mr. Acosta, who was standing on the roof of the KFDC building, "and said, 'Him.'" Id. But Jason and Mrs. Acosta (T.512) testified that Mr. Acosta was not at KFDC when Amber left, and Jason testified that his father had not been on the roof that day. T.313. The next morning Ms. G'Sell dropped Adam off at KFDC and signed Amber in, having arranged for her to be brought to KFDC later in the day. But, after somebody at work told her, "You must believe her, and you must report it," (T.115) she called her father and asked him not to take Amber to KFDC. She also reported to HRS that Mr. Acosta had sexually abused Amber the day before, and HRS began an investigation eventuating, according to HRS, in FPSS Report No. 91-050519, "alleging sexual abuse on a female child who was enrolled at KFDC . . . [allegedly perpetrated by] Joe A., the husband of D. A." HRS' Proposed Recommended Order, page 3. On May 17, 1991, Mr. Acosta was arrested on criminal charges of sexually abusing Amber, charges which remain pending. Admitted to bail on condition that he stay away from children under 18 years of age, he was rearrested for being in the presence of his own children. (Neither he nor Mrs. Acosta had realized that their children fell within the reach of the condition.) He has since been readmitted to bail and moved out of the family home. HRS also launched a separate, exhaustive investigation into the operations of KFDC which, while apparently not turning up any other allegation of sexual misconduct, gave rise to the allegations on the basis of which HRS seeks to revoke KFDC's day care center license. Husband Occasionally Helped Out While Anna Maria Root worked at KFDC in the winter and spring of 1991, Joe Acosta brought her eight-year old son to the Center after school, on the same run on which he picked up his own children. T.218. He may have brought another child, too, aside from the Root child and his own children. T.272. On two or three occasions Joe Acosta transported Shawn Holbert to school. T.379. He drove a brown van, "the one we were licensed to transport children in." T.379. After KFDC's initial licensure, Ms. Acosta requested an extension or expansion of the license to authorize KFDC to offer child care in the evening, but HRS denied the request. When KFDC closed for the day, children still there were taken to the Acosta home. A "couple of times," (Hoffman Deposition, p.9) Joe Acosta drove the van to the Acosta home after KFDC closed with as many as four or five children who were to be cared for there, id. 9, 56, "and Debra would stay and close up." Waller Deposition, p.14. Twice Mr. Acosta was alone with the children when Stacy Stowell collected her sons, Matthew and Aaron, at KFDC. T.12. But Lynn Hoffman, an employee, was never aware of his being alone with children. Hoffman Deposition, p.11. Nor was Julie Ann Merrill, who worked at KFDC from September to December 1990. Merrill Deposition, p.5, 20-21. It rarely happened. The morning after a fire at the Acosta home, Ms. Acosta sent Mr. Acosta to open up KFDC, and he was present when at least one child arrived, before either Ms. Acosta or Vicki Waller got there. Sole Supervisors Under Age and/or Uncertified When Vicki Waller, then 19 years old, began working for KFDC, neither she nor the Acostas were aware of the HRS rule forbidding leaving the children in the unsupervised care of anybody under 21 years of age. The three of them learned of the requirement in a 20-hour course they took together in the fall of 1990. Before that time, Ms. Waller had been left in charge mornings "from about 7:00 to 7:30," (Waller Deposition, p.6) and all day on one or two Saturdays. She was not left in charge after they learned of the rule against it. Ms. Waller did not have first aid or CPR certification when she took sole responsibility for children at KFDC. Chris Fitzpatrick worked as the only person caring for children at KFDC one Saturday, although she had not yet taken the first aid course she had signed up for. She also lacked CPR certification. Similarly untrained and uncertified, Denise Carla Yates had charge of the children by herself sometimes on Saturdays. Robin Lynn Bedmar was the only person responsible for the children on two or more Saturdays, even though her CPR certification had expired. Sometimes Sandra Lynn Hoffman, who did not have CPR training, was responsible for children at KFDC by herself, or shared responsibility only with Ms. Waller. Chris Fitzpatrick, Denise Caren Yates, Robin Lynn Bedmars and Sandra Lynn Hoffman were 21 or older, as far as the record shows, when they were left alone with the children. Occasionally Substandard Supervision Until a refrigerator was installed in the infant room, the worker supervising infants left them unattended in order to get milk from the kitchen. Similarly, in order to change an older (but disabled) child's diapers, the person responsible for his age group left his peers unattended to take him to a mat in another room. Sometimes only one KFDC employee supervised more than six infants for a full day. On at least four occasions, and possibly on as many as eight occasions (T.71; Waller Deposition p.9) there were more than six babies in the infant room, which had six cribs and two pallets, even after the playpen was removed at HRS's behest. T.71. Towards the end of the day infants along with older children, sometimes aggregating as many as ten or more, were left in the care of a single KFDC employee. Children played outside, sometimes without adult supervision. Twice, Jason Acosta was outside with children at KFDC "sort of keeping an eye on things while," (Waller Deposition, p.10) his mother was inside with other children. Respondent once asked Jason and Joseph to stay in the baby room with the children there. T.44. Hygiene The parents of two children complained to Ms. Acosta that their children's diapers were dirty when they picked the children up; and the grandmother of a third testified that, at least twice a week, he had "poopy pants" (T.30) when she came for him at KFDC, or at least by the time she had driven him some ten minutes away. Generally, children at KFDC with soiled diapers got fresh ones promptly. Ms. Acosta had extra diapers and clothes for the children on hand. Nutrition For every day a child who ate lunch failed to bring his own, KFDC charged his or her parents a dollar. But some or all of the food supplied these children came from the lunch bags sent with other children. Ms. Acosta or an employee opened the bags and divided the food onto plates without regard to the intended recipients' (or their parents') desires. Mornings and afternoons snacks were almost always provided to the children, but food with which to prepare snacks was occasionally unavailable to staff. The menu sometimes posted at KFDC was not always followed. Once, after two or three children drank from the same glass, respondent refilled it and gave it back to a child, perhaps unaware of its history. Before she obtained the KFDC license, Ms. Acosta registered her home as a family day care center, and the home was inspected by the fire department. T. 497. After her licensure, as before, Ms. Acosta cared for Kyle Dunbar, who has cerebral palsy, at her house, while his mother worked evening shifts. BreAnn's mother, Paige Kelso, also worked nights and left her child in respondent's care when she did. Respondent charged for taking care of these children and sometimes had them both in her home at the same time. Friends of her children spent the night sometimes, and she occasionally took care of a friend's two sons as a favor. Other Matters Ms. Acosta conducted several fire drills at KFDC but sometimes "the month would go by . . . [without one] and then she would write it in" (Waller Deposition, p. 58) anyway, as if one had actually occurred. T.113. Infants were not removed, even when fire drills did take place. Id. Whether falsified records of fire drills were ever submitted to HRS is not clear. Ms. Acosta and others on the KFDC staff relied on "time outs" as their principal disciplinary method. But Ms. Acosta once swatted a little girl's behind. The witness who testified to this incident also testified, "I'm not saying that the child did not like Debra [Acosta, the respondent] or was scared of Debra." Waller Deposition, p. 61.
Recommendation HRS proved several significant violations. But HRS did not prove, or even allege, that respondent's husband sexually abused a child or children. Instead, HRS alleged and proved that such allegations are the basis for pending criminal and (other) administrative proceedings. It is, accordingly, RECOMMENDED: That HRS suspend respondent's day care center license for one year, with credit for the time already elapsed in which HRS has prevented respondent from operating a day care center. That HRS place respondent's license on probation thereafter for a period of at least two years, on condition that respondent comply with all applicable statutes and rules for two years; on condition that respondent not charge for children she cares for at her home; and on condition that Mr. Acosta stay off KFDC premises while children other than his own are there, and have no contact with children who are cared for at KFDC (other than his own), until and unless he is exonerated in both the criminal and administrative proceedings now pending. DONE and ENTERED this 22 day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 17, 20 and 26 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, KFDC was licensed earlier than January 1, 1991. With respect to petitioner's proposed finding of fact No. 8, the court order was not in evidence. With respect to petitioner's proposed finding of fact No. 9, the substance is addressed in later proposed findings of fact. With respect to petitioner's proposed findings of fact Nos. 14 and 15, the evidence did not show routine noncompliance. With respect to petitioner's proposed finding of fact No. 16, this occurred only rarely. With respect to petitioner's proposed finding of fact No. 18, it was not clearly and convincingly shown that the screening had not be completed. With respect to petitioner's proposed finding of fact No. 19, it was not clearly and convincingly shown that the children received less than what was nutritionally necessary. Petitioner's proposed findings of fact Nos. 21, 23 and 24 were not proven. With respect to petitioner's proposed finding of fact No. 22, it was not clear that respondent "extended her day care license to her home without authority" as opposed to acting in good faith under supposed authority antedating issuance of KFDC's license. Vicki Waller did not see all those children at the same time, as far as the record shows. With respect to petitioner's proposed finding of fact No. 25, the credible evidence did not clearly and convincingly establish any improper discipline other than the swat. With respect to petitioner's proposed finding of fact No. 27, the violation consisted only of being in the presence of his own children. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 9, 11, 12, 14, 15, 17, 18 and 20 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, an adult was inside when the boys were asked to watch the infants, but no adult was outside three or more times when one of the Acosta sons supervised. With respect to respondent's proposed finding of fact No. 8, noncompliance with ratios was sometimes more than momentary. With respect to respondent's proposed finding of fact No. 10, diapers were changed regularly. With respect to respondent's proposed finding of fact No. 13, morning snacks were not always given. With respect to respondent's proposed finding of fact No. 16, children whose parents did not pick them up at KFDC were also brought to the Acosta home. With respect to respondent's proposed finding of fact No. 19, no improper discipline other than a single swat was proven. With respect to respondent's proposed finding of fact No. 21, this is properly a conclusion of law. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 S. J. DiConcilio, Esquire Rodney M. Johnson, Esquire P.O. Box 8420 Pensacola, FL 32505-0420 Mary Koch Polson, Esquire P.O. Box 96 Fort Walton Beach, FL 32549
The Issue Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.
Findings Of Fact The Parties Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1). Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is, 2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit. Information Submitted in Questionnaire On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts "child care." The Questionnaire was admitted into evidence at the final hearing. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not required, and the same children do not necessarily attend YouthFit's classes on a regular basis. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness. YouthFit is not operated by a public or nonpublic school and is not located on a school site. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities. Facts Stated in YouthFit's Request for Hearing As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services." Other Evidence Presented at the Final Hearing DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of March, 2019.
