The Issue The issue is whether Respondent should grant Petitioner’s application for an annual license to operate a child day care center in Naples, Florida.
Findings Of Fact With headquarters in Boca Raton, Petitioner is a corporation owning, operating, and franchising child day care centers in 25 states, including Florida, and Canada and Indonesia. Petitioner owns and operates 70 centers and franchises 145 centers. In the eastern United States, Petitioner owns 40 centers and franchises 55 centers from Florida to Massachusetts. This case involves Petitioner’s child care center at 1275 Airport Road South in Naples, Florida (Center). Petitioner has owned and operated the Center since its inception in 1997. The Center occupies 10,000 air-conditioned square feet in a building that was constructed to Petitioner’s specifications. With a licensed capacity of 187 children, the Center has typically operated with an enrollment of 117-119 children. Respondent has licensed the Center as a child day care facility from August 18, 1997, through July 31, 2000. As is customary, Respondent initially issued Petitioner a provisional license, which ran from August 18, 1997, through January 31, 1998. Dissatisfied with aspects of the Center’s operation, Respondent granted Petitioner a second provisional license from February 1, 1998, through July 31, 1998. Prohibited by statute from granting a third consecutive provisional license, Respondent issued Petitioner an annual license from August 1, 1998, through July 31, 1999. At the expiration of that license, still dissatisfied with the Center’s operation, Respondent issued Petitioner provisional licenses for two additional six-month periods, which ended July 31, 2000. When the second provisional license expired on July 31, 2000, Respondent denied Petitioner’s application for an annual license. In its Notice of Denial dated August 16, 2000, Respondent based the denial on repeated violations by the Center in five major areas: staff-to-child ratios, direct supervision, background screening and personnel records, health-related requirements, and incident reporting. The Notice of Denial reports that Respondent’s inspectors have made 49 official visits to the Center during its three-year history and have repeatedly identified numerous deficiencies. In this case, Petitioner challenges Respondent’s denial of Petitioner’s application for an annual license starting August 1, 2000. Petitioner candidly admits to a “rocky” past in operating the Center. However, Petitioner claims that it has progressed significantly toward satisfactory operations from October 1999 through July 31, 2000, which is, by stipulation, the closing date for analysis in this case. Respondent counters this claim by noting repeated violations at the Center, even after Petitioner assigned a corporate general manager to oversee daily operations at the Center. Respondent contends that Petitioner has demonstrated its unsuitability to continue to operate the Center. For two reasons, the most relevant facts in this case arise after January 31, 2000. First, Respondent last issued a license for the Center starting February 1, 2000, which means that the deficiencies before February 1 did not preclude licensing. Prior operations of the Center remain relevant, as they assist in assessing Petitioner’s willingness or ability to operate the day care facility in compliance with the law. However, the deficiencies arising after February 1 are of greater relevance because Respondent has not issued a license in reliance upon, or despite of, these facts. Second, aware that the Center’s recurring problems were jeopardizing its ability to retain a license, in December 1999, Petitioner hired a former consultant as its vice- president of operations for the eastern region. The new vice- president replaced the individual who, previously responsible for Florida operations, had been unable to correct all of the problems at the Center. The new vice-president hired Jamilet Melendez in January 2000 as the new general manager for the Florida region. Ms. Melendez holds an Associate of Arts degree and is working on a bachelor’s degree at Florida International University. Prior to becoming a general manager, Ms. Melendez had been employed by Petitioner for six months as the director of a center in Plantation, Florida. Previously, Ms. Melendez had been employed by Toddler Tech, starting as a teacher’s aide and working her way to a center director. As a general manager, Ms. Melendez is responsible for overseeing finances, quality, and operations of the seven Tutor Time schools in central and south Florida. On the instructions of the vice-president, Ms. Melendez devoted nearly all of her time to the Center from mid-January to mid- March, after which time she spent about half of her time at the Center. From mid-January to mid-March, Ms. Melendez visited the Center daily; after mid-March, she visited the Center three times weekly. Thus, the deficiencies arising after February 1, by which time Petitioner had assigned these additional corporate resources to assist the operation of the Center, are especially relevant in determining whether Petitioner is able to correct the Center’s problems. By letter to Respondent dated February 25, 1998, a parent complained about excessive staff turnover; the failure to conform to posted schedules; unsupervised children going to the restroom or playing on the playground, one staff person shouting at several children; several bites, lacerations, and a swollen lump on the head sustained by her two children at the Center; and the absence of ensuing incident reports. Responding to the complaint, on February 27, 1998, Respondent conducted an inspection. The inspector found that Petitioner lacked documentation that Gloria Badillo, Lisa Colgan, Alma del Rio, Tamara Griffin, Tina Ortegon, and Mirella Roman had completed 30 hours of the required training; Yermi Torres and Brianne Torres had obtained a tuberculosis test; Yermi Torres had completed her local law enforcement screening and affidavit of good moral character; Brianne Torres had completed her local law enforcement screening and her employment history; and Fran Starr had completed her local law enforcement screening. Ms. Starr became the director of the Center by March 2, 1998. Ms. Starr prepared a Plan of Correction dated March 2, 1998. As for personnel files, Ms. Starr sent all employees a memorandum warning that they risked termination if their files were not current by March 7. In response to a note on the inspection form, Ms. Starr also sent a second memorandum requesting all employees to submit copies of their certificates documenting training in First Aid and cardiopulmonary resuscitation. However, in a separate note, Ms. Starr stated that some of the citations for staff training were inaccurate because some employees were recent hires who could still timely obtain the required training, one employee had left the employment of the Center, and the local vocational center that had trained some employees had not yet provided them with certificates. In the Plan of Correction, Ms. Starr also stated that she had advised all staff persons by memorandum that they must be able to see all the children whom they were supervising. She added that the general manager and director would continue to conduct 15-minute counts to monitor staffing ratios and supervision. As stated in the Conclusions of Law, an employee has five days after her date of hire to submit her fingerprints to the employer, which has five days to submit the data for background screening; a new employee has 90 days after her date of hire to commence 40 hours of required training (consisting of variably stated components of 30, 20, or 10 hours) and one year after the date of commencement to complete the training; a new employee has 10 days after her date of hire to submit the results of a tuberculosis test; and a child has 30 days after enrollment to submit documentation of a physical examination and immunizations. No statutes or rules provide any grace periods for the other background screening, personnel, enrollment, and health requirements. The record does not establish the dates of hire of the six employees who had not completed 30 hours of the required training or the two employees who had not obtained their tuberculosis tests, so Respondent has not proved these deficiencies. The record does not establish the dates of hire of the three employees missing additional information, so Respondent has not proved the deficiencies concerning background screening. There are no grace periods for the affidavits of good moral character and employment histories, so Respondent has proved these two deficiencies. On March 6, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios, but found deficiencies in supervision, apparently because three teachers reported to the inspector a different number of children under their supervision than were in their respective classrooms. The inspector also found a deficiency in recording classroom attendance. Respondent has proved these deficiencies in supervision and attendance recordkeeping. It is impossible for a staff person to discharge her supervision duties without knowing the number of children for whom she is responsible. Careful recordkeeping of arrival and departure times for each child is essential to determine from the records whether a facility was on-ratio at various points in time. A note on the March 6 inspection report states that, during nap time, the required minimum staffing ratios may be relaxed, if sufficient staff are onsite to maintain the required ratio. Reportedly, the Center director had allowed staff to leave the site during nap time. The inspector suggested that the Center employ a floater, who would help supervise the children during nap time and outside play. On April 14, 1998, Respondent received an anonymous complaint that the complainant and several other parents of children attending the Center had complained vainly to management of deficiencies in staffing ratios and supervision. The anonymous complainant also cited insufficiently supervised older children hurting younger children in the same classrooms, excessive staff turnover, and an injury to the complainant’s child that required four stitches in his chin. Responding to the complaint, on April 14, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies for failing to follow planned activities in the transitional toddler room, label supplies, clean up “a few cups (plastic) and plastic bag” littering the outdoor play area, and clean up a previously cleaned pink house on the playground that had become muddy and dirty. Respondent has proved the deficiencies for failing to follow planned activities and label supplies. The former deficiency can, and in this room probably did, contribute to a lack of structure and misbehavior among the children. The latter deficiency poses a danger to the safety of the children. Respondent has not proved the deficiencies concerning litter and a muddied playhouse. No statute or rule supports the finding of a deficiency on these facts. On April 29, 1998, Respondent received a complaint from a parent who had spoken to a Center employee on the telephone about enrolling her child at the Center. Reportedly, the Center employee had told her that the staffing ratio for one- to two-year-olds was one staff person for eleven children. Responding to the complaint, Respondent conducted an inspection on May 1, 1998, and found no deficiencies in staffing ratios or supervision. On June 4, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies in failing to follow one of two schedules posted in a classroom, clean up tissue and a plastic wrap on the playground, maintain food trays at a safe distance from the diapering area, replace bean bags with holes, maintain a medical card for several medicine containers kept onsite, and maintain daily attendance records. The inspector found that Petitioner lacked documentation that “Alma”--presumably, Alma del Rio--had completed 20 hours of the required training, “Anne” had completed 30 hours of the required training, and “Brianne”-- presumably, Brianne Torres--had enrolled in 30 hours of the required training. The inspector found that Petitioner lacked documentation that “Emily” and “Christine” had obtained tuberculosis tests. The inspector found that Petitioner lacked documentation that “Brianne”--again, presumably Brianne Torres--had completed her local law enforcement screening and that Respondent needed to resubmit her fingerprints, “if necessary.” The inspector found that Petitioner lacked documentation that more than two of its employees had obtained Child Development Associate (CDA) certificates, despite the fact that 98 children attended the Center. Respondent has proved the deficiencies in following posted schedules, maintaining the required numbers of staff persons with CDA certificates, and maintaining food trays, medical cards, and attendance records, but not in maintaining the playground or equipment. Absent proof of hire dates, Respondent has not proved the deficiencies in tuberculosis testing of “Emily” and “Christine,” who were not named previously in prior inspection reports as employees. Absent proof of hire dates, Respondent has not proved the deficiencies in the 30 hours of required training for Ms. del Rio or “Anne.” However, the deficiency noted for Ms. Brianne Torres was that she had not enrolled-- i.e., begun--her required training. Although the record does not establish her hire date, Ms. Brianne Torres was employed at the Center on February 27, 1998, and it is a reasonable inference that she remained continuously employed through the date of this inspection on June 4, 1998, which is over 90 days from her date of hire. Thus, Respondent proved a deficiency in the training of Ms. Brianne Torres. Respondent also proved a deficiency in the local law enforcement screening for Ms. Brianne Torres, who had been cited in the February 27 report for the same deficiency. On June 22, 1998, Respondent received another complaint from a parent about staffing ratios, staff turnover, and maintenance and supervision in the toddler room. The complaint was that unremoved garbage bags with fecal material had remained all weekend in the room and children were unsupervised while staff cleaned up the room. Responding to the complaint, Respondent conducted an inspection on June 23, 1998, and found no deficiencies in staffing ratios, supervision, or sanitation. The inspector found deficiencies in failing to post a plan of activities in one classroom, repair or replace a couch with tears, and record daily attendance in four classrooms. Respondent has proved all of these deficiencies, except the failure to repair or replace a couch with tears in it. On July 7, 1998, Respondent conducted an inspection and found no deficiency in staffing ratios, but found a deficiency in supervision in the toddler room. Due to the unusual configuration of the room, a single teacher could not see children throughout the room. Taking advantage of the situation, several children were misbehaving, and the classroom had become disorderly. Respondent has proved this deficiency in supervision. The inspector found deficiencies in failing to follow a posted schedule (a substitute teacher was showing a movie when the schedule called for academic work), repair two holes in walls from doors hitting them in one room (they were under repair at the time of the inspection), clear an exit area that was blocked by a sleeping mat that had been left adjacent to a hallway door, maintain napkins at a safe distance from the diapering area, repair or remove bean bags and “a yellow triangle” that had tears, remove food from the counter, label bottles, and record attendance accurately in two classrooms. Respondent has proved the deficiencies that Petitioner failed to follow a posted schedule, maintain napkins safely, remove food from the counter, label bottles, and record classroom attendance, but failed to prove the deficiencies for repairing the door that was under repair, clearing an exit blocked by a sleeping map, and repairing or removing equipment with tears. The inspector also found that Petitioner lacked documentation of physicians’ information and enrollment forms for W. B. and A. E., current immunizations for V. B. and R. B., and a completed immunization card for W. B. Absent evidence of enrollment dates or, as to the last cited deficiency, the omitted information, Respondent has not proved these deficiencies concerning immunizations. However, the physician’s information is required of each child prior to enrollment, so Respondent has proved the deficiency as to physicians’ information and enrollment forms for two children. Nine days prior to the expiration of the second provisional license on July 31, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found a deficiency in failing to repair a new hole caused by another door banging into a wall (again, under repair at the time of the inspection). Respondent has failed to prove this deficiency. The inspector found that Petitioner lacked documentation that Hannah Hogan (who was not present at the time of the inspection and worked only as a substitute), Alixia Mia, Danielle Mains, and Beverly Hall had obtained tuberculosis tests; Tracy Tingley, Lera Sammons, and Paula Jones had filed affidavits of good moral character and statements acknowledging their duty to report child abuse; “Hannah”--presumably, Hannah Hogan--had had her fingerprints submitted; V. B. [same as V. B. mentioned in the July 7 inspection report] and M. V. had current immunizations; and W. B. [same as W. B. mentioned in the July 7 inspection report] and A. E. [same as A. E. mentioned in the July 7 inspection report] had physicians’ information. Absent hire dates, Respondent has not proved deficiencies concerning tuberculosis tests or submittal of fingerprints. However, Respondent has proved the deficiencies that three employees lacked affidavits and abuse-reporting acknowledgements. Respondent has not proved either of the deficiencies concerning immunizations because of the absence of an enrollment date for M. V. and the absence of an intervening 30 days since V. B. had been first mentioned in an inspection report. Respondent has proved the deficiencies concerning the physicians’ information for the two children. On July 29, 1998, Respondent received a complaint from a parent that the one-year-old class was off-ratio. Responding to the complaint, Respondent conducted an inspection the next day and found that the two-year-old class had one staff person for 12 children, which is one over the minimum allowable ratio. The notes state that the second teacher, who was 15 minutes late to work, arrived 15 minutes after the twelfth child. Because the two-year-old classroom is in the room with the unusual configuration, the inspector found a separate supervision deficiency for this 15-minute lapse. The inspector found that the one-year-old class was in-ratio on the day of the inspection, but had been off-ratio the prior day when one of the two teachers had had to leave the one-year classroom “momentarily” to retrieve snacks because the cook had been absent due to illness. The Center director reported that several teachers and children had had the flu. Staffing ratios are more flexible than supervision, as is evidenced by the nap time rule that allows off-ratio staffing during nap time, as long as supervision is maintained and the staff persons required to meet ratio are on the same floor of the building and readily available if summoned. For this reason and the absence of evidence that the tardy employee was chronically late or of managerial status, Respondent has not proved that a 15-minute lapse in staffing, which left a teacher with one two-year-old too many, constitutes a deficiency. Supervision is less flexible. Respondent has proved the requirement that two staff persons must be present in the oddly configured room, when any part of the entire room is accessible to children. Respondent had already cited Petitioner in the July 7 inspection for not keeping at least two staff persons in this room. Although normally even small departures from supervision constitute a deficiency, however, this deficiency would be based on the fact that one staff person could not see every corner of a single room for 15 minutes. Petitioner could not rely on a single staff person supervising this room for a significant period of time, but Respondent has failed to prove that the 15-minute lapse, with a teacher still in the same room, constitutes a deficiency in supervision. Likewise, Respondent has failed to prove that the “momentary” departure of one staff person, required to maintain staffing ratios, to go get snacks constitutes a staffing ratio deficiency, at least where, as here, flu had short-staffed the Center, which was missing its cook, who normally delivered the snacks. On August 13, 1998, Respondent received a complaint from a parent that her one-year-old child had been pushed by another child into a door hinge and had chipped off half of his tooth. The parent also complained that the Center had not completed an incident report. The parent reported that three staff had been in the one-year-old room with 17 children, which met ratio requirements, but that supervision was nonetheless lacking. Responding to the complaint, Respondent conducted an investigation on August 19, 1998, and found no deficiencies. By letter dated August 25, 1998, Respondent informed Petitioner that it intended to impose an administrative fine for the staffing ratio deficiency occurring on July 29, 1998, in the one-year-old room and for the staffing ratio deficiency occurring the next day in the two-year-old room. The letter warns that future deficiencies in staffing ratios may result in fines or the denial or revocation of Petitioner’s license. The letter adds that the configuration of the toddler room precludes direct supervision by one teacher of an entire class. In response to a complaint either unrecorded or recorded illegibly, Respondent conducted an inspection on September 28, 1998. The inspector found staffing ratio deficiencies in the one-year-old classroom where one staff person was supervising eight, rather than the permitted six, children, and the two-year-old classroom where one staff person was supervising 12, rather than the permitted 11, children. However, the inspector reported these deficiencies during nap time, during which, as noted above and discussed in the Conclusions of Law, the staffing ratios are relaxed. The inspector opined that if any children were awake, the nap time exception did not apply; however, the rule refers only to “nap time” and not whether, as happens during nap time, one or more children were awake. The notes are largely illegible, but, absent evidence that the staff persons required to maintain ratio were not in the building, Respondent has not proved this staffing ratio deficiency. On November 12, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found deficiencies in failing to label supplies, maintain the playground free of “a few plastic cups,” repair or replace a torn sleeping mat, maintain at least 18 inches between two sleeping mats in the older two- year-old room, and maintain accurate daily attendance records in one classroom. Respondent has proved the deficiencies in failing to label supplies, maintain at least 18 inches between sleeping mats, and keep accurate attendance records, but not the remaining cited deficiencies. On November 25, 1998, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Maria Theresa Tvarbe, Danielle Mains, Kelly Walling, Amber Litreal, and Christine Quigg had enrolled in 30 hours of the required training; only one staff person had a CDA certificate, although several staff persons might possess an equivalent; Marsha Studie and Maria Robenalt (whose hire date was January 17, 1998) had obtained tuberculosis tests; and Tracy Constantini, Gladys Perez, Elba Valdes, and Marsha Studie had completed employment histories. Absent evidence of hire dates, Respondent has not proved any deficiencies in the 30 hours of required training. The suggestion that several staff persons might have a CDA equivalent (expressed in the inspection report as an exemption from the CDA requirement) precludes a finding of a deficiency on this issue. The absence of a hire date for Marsha Studie and the hire date within 10 days of the inspection for Maria Robenalt preclude a finding of any deficiencies in their tuberculosis testing. However, Respondent has proved the deficiencies in employment histories for four employees. On December 15, 1998, Respondent filed an administrative complaint against Petitioner for, on February 27, 1998, a supervision deficiency in the two-year-old room; on July 7, 1998, a supervision deficiency in the toddler room when an inspector saw children misbehaving because the teacher could not see all of the children due to the configuration of the room; on July 30, 1998, a staffing deficiency (by one child) in the two-year-old room and inadequate supervision due to the room’s configuration; and on September 28, 1998, a staffing deficiency (by two children per teacher) in the one- year-old room. The administrative complaint proposes an administrative fine of $50, which Petitioner paid. Respondent received a complaint on December 17, 1998, from a parent that her child had contracted a bad diaper rash while attending the Center and that a teacher had “sternly command[ed]" a child at nap time, “You close your eyes right now.” Responding to the complaint, on December 17, 1998, Respondent conducted an inspection and found no deficiencies of staffing ratios or supervision. The inspector found deficiencies involving the availability of the disciplinary policy, labeling of bottles, and sanitary handling of diapers and diapering. A note states that Petitioner would terminate the staff person who had spoken sternly to a child and that this employee had not normally worked in the classroom. Respondent has proved the deficiencies, except concerning discipline. The evidence insufficiently details this deficiency. On January 5, 1999, Respondent received a complaint from an unidentified source that many children did not wear their socks and shoes while at the Center, a child had stood alone at the front entrance to the Center, one staff person had supervised 21 three-year-olds, and the Center director had posted a sign asking parents to “help out” during their lunch time so the teachers could take a break. Responding to the complaint, Respondent conducted an inspection the next day and found no children without socks and shoes on their feet, no children unsupervised, and a sign requesting help from parents during their lunchtime. The inspector found a staffing ratio deficiency ”due to weather conditions and illness[, which] was quickly corrected.” The inspector also found a deficiency in the presence of a mud, rust, or food carpet stain. Respondent has not proved these deficiencies. The inspector also found that Petitioner lacked documentation that “Danielle,” “Kelly,” “Amber,” and “Marsha” had completed the 30 or 40 hours of required training; “Tracy,” “Gladys,” “Amber,” and “Marsha” had completed employment histories; “Maria,” “Marsha,” and “Donna” had obtained tuberculosis tests; and more than one staff person had obtained a CDA certificate. Absent evidence of hire dates, Respondent has not proved deficiencies in the completion of the 30 or 40 hours of required training or, as to “Donna,” the tuberculosis test. However, Respondent has proved deficiencies in the lack of tuberculosis tests for “Maria” and “Marsha”--presumably, Maria Robenalt and Marsha Studie, who were first named in inspection reports dated January 17, 1998, and November 25, 1998, respectively. Respondent has also proved deficiencies in the employment histories of the three staff persons and an insufficient number of staff persons holding CDA certificates. The next day, January 7, Respondent received another complaint from a parent who reported that the Center director was refusing to accept the children of 20 parents because the Center lacked sufficient staff to meet the staffing ratios. Reportedly, 8-10 children with head lice were also in the lobby without supervision. Responding to the complaint, at 10:00 a.m. on January 7, Respondent conducted an inspection. The inspector found no staffing ratio deficiencies, but saw four children with head lice in the hallway awaiting their parents to come pick them up. At the inspector’s request, a staff person found an empty classroom for the lice-infested children to wait in isolation until their parents arrived. The inspector cited this as a deficiency in the isolation and supervision of ill children. The inspector found a supervision deficiency when the teacher on the playground accompanied two children to the bathroom, leaving 12 children unsupervised on the playground. The inspector also found deficiencies because of dusty vents and a bathroom light that had burned out in the bathroom in one classroom, the storage of supplies, diapering and sanitation, and two classrooms with uncompleted attendance records as of 11:00 a.m. The inspector did not find as a deficiency the action of the Center director in declining to accept enrolled children, who would have placed the Center off-ratio. Respondent has proved all of the deficiencies cited by the inspector in the January 7 inspection. However, with the exception of the supervision deficiencies, the other deficiencies were overshadowed by a larger problem, which, although not a deficiency in itself, had been the source of repeated complaints. This larger problem was staff’s inability to control the children. Trained staff and structured classroom settings were in short supply; out-of- control children, frustrated staff, and angry parents were abundant. Although the Center director properly declined to accept more children, knowing that more children would throw the Center off-ratio, the disorderly drama that unfolded in the lobby, as confused parents found themselves unable to drop off their children--accompanied by unsupervised, lice-infested children wandering the hallway--graphically revealed the poor organization afflicting the Center at its inauspicious start to 1999. Seeking to relieve the January 7 situation, the Center director prepared a Plan of Action, which she faxed to Respondent on January 7. Marsha Studie had become the Center director in mid-December 1999, after several persons had served in this position since Ms. Starr. Noting that staff illnesses had contributed to the staff shortage, the Plan of Action describes scheduling changes to bring more teachers into the school at the start of the day. Immediately, Petitioner would pay overtime for this coverage, eventually hiring additional staff for this purpose. The Plan of Action reports that one new teacher would start on the same day as the plan, and one would start on January 25. The Plan of Action also promises that attendance sheets will be promptly and correctly filled out everyday. On January 8, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that the attendance records for several classrooms were incomplete, as of 8:25 a.m. The inspector also found that Petitioner lacked any documentation, besides an application, for one staff person, Susan Cox, whose hire date was December 17, 1998. Respondent has proved all of the cited deficiencies. By letter dated January 12, 1999, Respondent advised Petitioner of its intent to take administrative action for the deficiencies in staffing ratios and supervision observed on December 15, 1998, and January 6 and 7, 1999, as well as other deficiencies cited on the latter two dates. Acknowledging the receipt of the Plan of Action, the letter requires a corrective action plan to ensure that enrollments do not exceed minimum required staffing levels, to provide a plan for specialized training and support for the director, and to provide inservice training of staff to cover child care, documentation, health care, sanitation, and certifications. The letter recommends that Petitioner assign a corporate representative to the Center until the director obtains child care training. On January 15, 1999, Respondent conducted an inspection and found deficiencies in staffing ratios and supervision, but inspections on January 19 and 22 found no such deficiencies. Respondent has proved the deficiencies found in the January 15 inspection. By letter dated January 20, Petitioner’s Director of Training informed Respondent that it was changing staff schedules to accommodate better the arrival and departure times of children. The letter transmits a 30-day training calendar for the Center director and staff. By administrative complaint dated February 4, 1999, Respondent alleged numerous deficiencies in staffing ratios and supervision during the past six months and proposed a fine of $400, which Petitioner paid. Respondent conducted inspections on February 18 and March 16 and found no deficiencies in staffing ratios or supervision. However, both inspections revealed numerous documentation deficiencies. On February 18, 1999, the inspector found a deficiency in attendance records in one classroom. The inspector also found that Petitioner lacked documentation that Danielle Mains, Gladys Perez, Kelly Walling, Amber Litreal, Marsha Studie, Tracy Constantini, and Darlene Vasquez had enrolled in 30 hours of the required training; more than one staff person had obtained a CDA certificate; Maria Robenalt, Donna Solovey, Pauline Squires, and Allison Arnold had obtained tuberculosis tests; Traci Constantini, Gladys Perez, Elba Valdes, Susan Cox, Pauline Squires, Allison Arnold, and Jennifer Ealy had completed employment histories; Pauline Squires and Allison Arnold had obtained local law enforcement screenings; Allison Arnold had submitted her fingerprints; Florence Steven had filed an affidavit of good moral character; and Pauline Squires, Allison Arnold, and Florence Steven had filed abuse-reporting acknowledgements. The inspector found that the employment records lacked hire dates for Donna Solovey, Susan Cox, Allison Arnold, Lisa Clary, Jennifer Ealy, and Florence Steven. Respondent has proved the deficiencies in failing to keep accurate classroom attendance records; to employ the required number of staff persons with CDA certificates; to complete employment histories for seven staff persons; to obtain an affidavit of good moral character for one staff person and abuse-reporting acknowledgements for three staff persons; to enroll in 30 hours of the required training for Danielle Mains (who was first mentioned in the July 22, 1998, inspection report), but not Gladys Perez, Kelly Walling, Amber Litreal, and Marsha Studie (who were all first mentioned in the November 25, 1998, inspection report, so that 90 days may not have expired since their hire dates); and to obtain a tuberculosis test for Maria Robenalt (who was first mentioned in the January 17, 1998, inspection report). Respondent has failed to prove the remaining deficiencies due to the lack of hire dates. On March 16, 1998, the inspector found deficiencies in children’s health records because Petitioner lacked documentation of a physical examination for A. R. and current immunizations for M. M., B. M., and A. P. However, Respondent has failed to prove these deficiencies because of the lack of enrollment dates. The inspector also found that Petitioner lacked documentation of enrollment in 30 hours of the required training for Danielle Mains, Gladys Perez, Kelly Walling, Mariana Baitrage, Lisa Clary, Marsha Studie, and Tracy Constantini; employment of more than one staff person with a CDA certificate; employment histories for Tracy Constantini, Marla Squinos, and Staci Pernell; an abuse-reporting acknowledgement for Madelyne Guillaume; and an incident report for repeated incidents of sexually inappropriate activity by one child. Respondent proved the deficiencies in enrollment in training for Danielle Mains, Gladys Perez, Kelly Walling, Marsha Studie, and Tracy Constantini; employment of the required number of staff persons with CDA certificates; employment histories for three staff persons; an abuse- reporting acknowledgement for one staff person; and preparing an incident report. Sometime between March 8 and June 2, Amy Harmon replaced Marsha Studie as the Center director. On June 7, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. The inspector found deficiencies in failing to post planned activities, maintain the outdoor play area (due to the presence of an empty plastic soda bottle), maintain a bathroom (which had run out of paper towels), and clean certain toys. Respondent has proved the deficiencies in failing to post planned activities and maintain the bathroom, but not the remainder of the deficiencies described in this paragraph. The inspector also found that Petitioner lacked documentation that Gladys Perez, Mariana Baitrage, Jennifer Ealy, Lillie Guillaume, Staci Pernell, Kelly Walling, and Tracy Constantini had enrolled in 30 hours of the required training; any staff person had obtained a CDA certificate; Amy Harmon and Jill Burke had obtained tuberculosis tests; Amy Harmon and Staci Pernell had completed employment histories; Amy Harmon and Jill Harmon had filed affidavits of good moral character; Amy Harmon had filed an abuse-reporting acknowledgement; and Amy Harmon had completed a local law enforcement screening. Respondent has proved the deficiencies in enrollment in the required training for Gladys Perez, Jennifer Ealy, Kelly Walling, and Tracy Constantini; the required number of staff persons with CDA certificates; the employment histories and affidavits of good moral character for two staff persons; and the abuse-reporting acknowledgement for one staff person. Respondent has failed to prove the remaining deficiencies due to the lack of hire dates. The inspector also found that Petitioner lacked documentation of current immunizations for J. B. and J. H and physicians’ information for J. C., C. C. and C. C. Respondent has proved the deficiencies concerning physicians’ information, but has failed to prove the deficiencies concerning immunizations due to the lack of enrollment dates. On June 25, 1999, Respondent received a complaint from an anonymous source that after 5:00 p.m. on that day one staff person was supervising ten children, including one child estimated to be four years old. Responding to the complaint, Respondent conducted an inspection on July 6, 1999, and found no deficiencies in staffing ratios or supervision. However, the inspector found deficiencies in failing to post activities and storing bleach within the reach of children. Respondent has proved both of these deficiencies. The inspector also found that Petitioner lacked documentation that Gladys Perez, Lillie Guillaume, and Jennifer Ealy had enrolled in 30 hours of the required training; and Amy Harmon and Jill Burke had obtained tuberculosis tests and affidavits of good moral character. Respondent has proved all of these deficiencies. The inspector also found that Petitioner lacked documentation of current immunizations for J. C., H. C., T. P., J. S., R. V., A. W., J. B. and J. H.; a current physical examination for A. S.; and completed enrollment forms for J. C., C. C., C. C., C. N., J. O., N. P., A. R., C. S., F. S., S. S., and A. S. Only 29 days had passed since the previous inspection, which is the only evidence of enrollment dates for any of these children. Respondent has thus failed to prove the deficiencies for current immunizations and the physical examination. Respondent has proved the deficiencies for the failure to maintain completed enrollment forms for 11 children. On July 29, 1999, Respondent received a complaint from an anonymous source reporting that, three days earlier at 10:30 a.m., one staff person had supervised 14 two year olds. Responding to the complaint, Respondent conducted an inspection on July 30, 1999, and found no deficiencies in staffing ratios or supervision. On July 30, 1999, Respondent declined to renew Petitioner’s annual license, but issued a third provisional license. The July 30 letter explains that the issuance of a provisional license is “pending resolution of recent complaints involving staff-to-child ratios.” The letter adds that the Center lacks a sufficient number of credentialed staff. On August 24, 1999, Respondent conducted an inspection and found a deficiency in the staffing ratio in the 0-12 month classroom, where the ratio was one staff person to seven infants, rather than one staff person to four infants. The inspector found no supervision deficiencies, although there were deficiencies in posting or following planned activities, labeling bottles, and maintaining equipment. The inspector also found that Petitioner lacked documentation that Jennifer Pohlmann had completed local law enforcement screening. Respondent has proved these deficiencies, except for the screening deficiency in the absence of a hire date. At some point between August and October 1999, Raquel Revuelta replaced Amy Harmon as the Center Director. On October 4, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, Respondent found deficiencies in failing to post and follow planned activities, maintain a garbage pail lid, and repair or replace two pedals on a bicycle. Respondent has proved all of these deficiencies. The inspector also found that Petitioner lacked documentation that more than one staff person had a CDA certificate; Sherry Williams had obtained an updated tuberculosis test; Jamie van de Mortel, Barbara Hernandez, and Jennifer Pohlmann had filed affidavits of good moral character; Barbara Hernandez had filed an abuse-reporting acknowledgement; Jennifer Pohlmann had had her fingerprints submitted; Elba Valdez had completed her 30 hours of required training; and Amanda Banboom and Jamie van de Mortel had started their 30 hours of required training. Respondent has proved the deficiencies concerning the required numbers of staff persons with CDA certificates, three staff persons without affidavits of good moral character, one staff person whose fingerprints had not been submitted, and one staff person without an abuse-reporting acknowledgement. Respondent has not proved the remaining deficiencies due to the lack of hire dates. By letter dated October 13, 1999, Respondent provided Petitioner an administrative warning for various deficiencies in personnel requirements at the Center. The letter states that inspectors had found on eight occasions in the past year deficiencies in training, background screening, and tuberculosis testing. The letter also expresses concern over the lack of a sufficient number of credentialed staff persons at the Center. On October 19, 1999, Respondent received a complaint from an anonymous source that, at the morning drop-off that day, one staff person was supervising 30 children, including some less than two years old. Responding to the complaint, on October 20, 1999, Respondent conducted an inspection and found a deficiency in the staffing ratio, based on the records for the preceding day, when only one staff person supervised 28 children, ages 1 to 4 years, in the toddler room from 7:30 a.m. to 7:50 a.m. The Center director, Raquel Revuelta, explained that two infants had arrived earlier than scheduled, and she had been 20 minutes late that morning. Ms. Revuelta agreed to schedule another employee to arrive at work at 7:30 a.m., starting the next day. The unexplained tardiness of a director is attributable to Petitioner, so Respondent has proved a staffing ratio deficiency. The inspector found no supervision deficiencies, but found deficiencies in failing to post planned activities for the toddler classroom, to ensure the presence of a staff person certified in cardiopulmonary resuscitation until 7:50 a.m. on October 19 (only two staff persons had such certification), and to repair or replace the damaged garbage can lid and bicycle pedals, which had both been cited in the October 4 inspection report. Respondent has proved these deficiencies. The inspector found that Petitioner lacked documentation for the completion of tuberculosis tests by Sherry Williams, Barbara Hernandez, and Rebecca Esquivel; local law enforcement screenings for Rebecca Esquivel and Jennifer Pohlmann; employment histories for Rebecca Esquivel and Barbara Hernandez; fingerprinting for Rebecca Esquivel; an affidavit of good moral character and abuse-reporting acknowledgement for Rebecca Esquivel; and 30 hours of the required training for Rebecca Esquivel. Additionally, the inspector found that Petitioner had not completed, until October 19, 1999, a local law enforcement screening or submitted to Respondent the fingerprints of Jennifer Pohlmann, who had been hired on August 16, 1999. Respondent has proved the deficiencies concerning tuberculosis tests for Sherry Williams and Barbara Hernandez, local law enforcement screening for Jennifer Pohlmann, employment histories for Rebecca Esquivel and Barbara Hernandez, and the affidavit and acknowledgement for Rebecca Esquivel. Respondent has not proved the remaining deficiencies due to a lack of hire dates. By letter dated November 16, 1999, Respondent informed Petitioner that it was considering administrative action for the staffing deficiency of October 19, as well as Petitioner’s use of one employee to supervise 28 children in the room whose configuration precludes effective supervision and whose size permits only 22 children. The letter also notes Petitioner’s ongoing failure to correct deficiencies in personnel files. On November 23, 1999, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision, equipment, isolation practices, planning and posting activities, classroom attendance records, sanitation, or documentation of the completion of tuberculosis tests or required training. However, the inspector found that Petitioner lacked documentation of immunizations for T. B., J. B., A. B., and A. C.; a physical examination for A. B.; and physician’s information for C. C. The only one of these children previously mentioned is C. C., who had also lacked physician’s information in the June 7, 1999, inspection report. Absent enrollment dates or previous citations in inspection reports not made in the past 30 days, Respondent has not proved any of these deficiencies, except the failure to maintain physician’s information for C. C. On January 4, 2000, Respondent conducted an inspection and found no staffing ratio deficiency, but found a supervision deficiency. While the inspector was observing the poorly configured two-year-old toddler classroom, she saw primarily English-speaking children who were misbehaving and a teacher who, primarily a Spanish speaker, had trouble redirecting them. One child had a finger accidentally caught in a door that was closing. Although the quality of the supervision was questionable, the record does not support a determination that the teacher was not physically within sight and sound of the children at all times. Respondent has thus failed to prove this supervision deficiency. The inspector also found deficiencies in posting and following planned activities, discipline (because a staff person yelled at a child), an unrepaired hole in a classroom wall, broken plastic blinds in a classroom, bleach stored within reach of children, unsanitary diapering practices, and the consumption of cookies outside without napkins or plates. Respondent has not proved the deficiencies for posting and following planned activities, as the record does not explain the inadequacy of the block scheduling after the normal school day; discipline, as the record does not establish the contents or context of the yelling or that the yelling violated Respondent’s disciplinary policy or was in violation of Respondent’s rules as “severe, humiliating, or frightening”; or the consumption of cookies outside without napkins or plates, as the record does not reveal, among other things, whether each child had more cookies than he or she had hands. Respondent has proved the remaining deficiencies. The inspector also found a deficiency in isolation. The inspector found a child in the four-year-old classroom with a fever. When asked why she did not isolate the child, the teacher responded that she had nowhere to send the child. When the inspector brought this situation to the attention of the Center director, who was Ms. Revuelta, Ms. Revuelta isolated the child in her office, at one time leaving the child alone in the office with only the inspector to watch her. These facts constitute a deficiency in maintaining and using isolation areas and raise doubts as to Ms. Revuelta’s judgment. The next day, Respondent conducted another inspection and found no supervision deficiency, but found a staffing ratio deficiency. During nap time, the inspector found one one-year-old child awoke screaming, and the screaming awoke half of the 19 napping children in this one- to two-year-old classroom. Five children got up and took seats at a table where, during nap time, they were eating crackers. The inspection report notes that two staff persons had “just returned from an hour break,” but neither the report, nor the testimony of the inspector, describes how long the two staff persons had been gone after the children had awoken or where they had been during nap time. Respondent does not contend that the staffing ratio was insufficient while the children napped, but only after one of them waked up the others. As noted in the Conclusions of Law, the relaxation of the staffing ratio rule applies during “nap time” and does not necessarily end with the first child waking or the waking of several children, as long as nap time remains in effect for a significant number of children. Thus, absent evidence that nap time ended before the return of the additional staff persons and that the classroom was off-ratio even at the end of nap time, Respondent has not proved this staffing ratio deficiency. The inspector also found deficiencies in failing to maintain 18 inches between mats and an unobstructed exit, as one mat blocked a door. Respondent has proved the former deficiency, but not the latter. The inspector found that Petitioner lacked documentation that “Barbara” and “Maria” had started 30 hours of the required training, “Jamie” had completed the 20-hour component, more than one staff person had obtained a CDA certificate, and “Crystal” and unnamed volunteers had obtained tuberculosis tests. Absent evidence of hire dates, Respondent has not proved these deficiencies, except for the failure to maintain the required number of staff persons with CDA certificates. The inspector found that Petitioner lacked documentation that A. B. had current immunizations and a current physical examination. The inspector had cited A. B.’s files on November 16, 1999, so Respondent has proved these deficiencies. By letter dated January 11, 2000, to Ms. Revuelta, the inspector, who had conducted nearly all of the inspections of the Center, informed Ms. Revuelta that the next CDA course would start January 24 and another course would not begin locally until August. Although not required to have done so, the inspector not only obtained this information, but asked a person affiliated with the group sponsoring the course to send application and scholarship materials to the Center. The inspector noted that Ms. Revuelta, who had finished half of the CDA course, could still enroll in the January session and obtain her certificate. By administrative complaint dated January 24, 2000, Respondent alleged the October 19 staffing ratio deficiency, the January 4 supervision deficiency, and the October 4 deficiencies in employment history and tuberculosis testing. Respondent sought to impose a $250 administrative fine, which Petitioner paid. By letter dated January 31, 2000, Respondent issued a second consecutive (fourth overall) provisional license. The letter explains that the license is provisional due to the deficiencies in staffing ratios, supervision, credentials, training, and personnel documentation. The letter warns that Respondent could not legally issue a third consecutive (fifth overall) provisional license and requires that Respondent submit by February 15, 2000, a written plan of action to bring the Center into compliance. On February 4, 2000, Respondent received a complaint from an identified source that a staff person had left 15 children locked in a van, unattended, the previous November while she went into a store to buy them treats. Responding to the complaint, Respondent conducted an inspection on February 8. The inspector interviewed the Center director and staff person, who had driven the van on the day in question three months earlier. The driver stated that she had left the children in the van momentarily while she picked up a previously paid-for bag of ice from the outside of a convenience store and that she had watched the children at all times while out of the van. If the employee’s hearsay testimony is true, and nothing in the record discredits it, she never was out of sight of the children for the few seconds that it took to obtain the bag of ice. Respondent has thus failed to prove this supervision deficiency. The inspector found no deficiencies in staffing ratios in what appears to have been a brief investigation of a somewhat stale incident. By letter dated February 10, 2000, from Ms. Melendez to the inspector, Ms. Melendez stated that she was looking forward to working with Respondent in making the necessary changes at the Center to improve the quality of care. Ms. Melendez identified six steps that the Center would take to achieve this improvement, including three inservice sessions at which attendance would be mandatory, the use of a consultant to recommend how to improve the child care and classroom management, financial assistance from Petitioner so three employees could attend the consultant’s CDA class starting in February, and already-completed updating of all staff persons’ files to ensure that they contained all required documentation. On February 15, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios, supervision, tuberculosis tests, the required number of staff persons certified in cardiopulmonary resuscitation, and the required background screenings. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, “Maria,” “Heather,” and “Crystal” had begun 30 hours of the required training, Jamie van de Mortel had completed or exempted 30 hours of the required training, and more than one staff person had obtained a CDA certificate. Respondent has proved the deficiency in failing to maintain the required number of staff persons with CDA certificates. Because the October 4, 1999, inspection report mentions Barbara Hernandez and the February 15 citation is for failing to start, not finish, the required training, Respondent has proved the training deficiency as to Ms. Hernandez. Absent evidence of hire dates, Respondent has failed to prove the remaining deficiencies. Although Jamie van de Morel was first mentioned in the October 4, 1999, inspection report, the citation concerning her file is that she failed to complete 30 hours of the required training. Using October 4, 1999, as evidence of her earliest date of employment, Petitioner would have until January 4, 2001, to obtain documentation of the completion of this training. On February 28, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, Heather Stallmer, Crystal Rumpot, Jamie van de Mortel, and Jennifer Pohlmann had enrolled in 30 hours of the required training. Respondent has proved this deficiency in the files of Barbara Hernandez, Jamie van de Mortel, and Jennifer Pohlmann. Absent evidence of hire dates more than 90 days prior to the inspection date, Respondent has failed to prove this deficiency as to the remaining staff persons. The inspector also found that Petitioner lacked documentation that M. S. and C. W. had current physical examinations. Absent evidence of enrollment dates, Respondent has failed to prove these deficiencies. By a note added to the inspection report at the time of the recheck on March 3, 2000, the inspector mentioned that the Center was advertising for a new director to replace Ms. Revuelta. On March 13, 2000, Respondent received a complaint from a parent that her one-year-old child had been bitten five times this week, including three times the preceding day. The parent reported that one bite had broken the skin and that the Center had prepared incident reports for only two of the bites. The parent added that five children had been identified as the children biting her child. Responding to the complaint, on March 14, 2000, Respondent conducted an inspection and observed the child with healing bite wounds on her stomach and arms, as well as “many incident reports” from this classroom for biting. The teachers explained that they had separated the biters and used time out to punish them. The inspector discussed the biting problem with Ms. Melendez and the new director, Jane Wissocki. They agreed to divide the children into small groups, train staff in classroom safety, and distribute literature to the parents. The inspector noted that, although the staffing ratio in the one-year-old classroom met the minimum requirement, and thus warranted no citations for deficiencies in staffing ratio or supervision, the quality of supervision was inadequate to protect the children from harm. On March 29, 2000, Respondent received a complaint from a different parent that her child had been bitten weekly for the past six weeks by the one child and all the bites had broken the skin. Responding to the complaint, Respondent conducted an inspection on March 31, 2000. The inspector spoke with the director, who was again Ms. Revuelta. Ms. Wissocki had quit after a short time, and Ms. Revuelta had agreed to return until Petitioner could find a replacement. Ms. Revuelta told the inspector that she had spoken with the parents of the child about his biting of the complainant’s child and aggressiveness with other children and staff persons, even to the point of hitting staff persons. Ms. Revuelta reported that the parents thought their child’s hearing difficulties, due to be corrected by surgery in mid- April, were the source of his aggressiveness. However, even though he had only attended the Center for a couple of months, the troubled child had generated at least 12 incident reports for pinching, choking, biting, and poking other children. Staff persons had repeatedly placed the child in timeout and even sent him home on occasions. When needed, a staff person remained near the child. Ms. Revuelta therefore promised the inspector to require the parents to remove the child from the Center if another incident occurred. Not citing any deficiencies in staffing ratios or supervision, the inspector concluded that the Center was supervising the children, but this aggressive child was unsuitable for the Center. On April 3, 2000, Respondent received a complaint from a parent who had visited the Center to decide whether to enroll her child there. The parent reported that she had waited outside for 15 minutes before a child opened the door to admit her. During that time, she had seen two school-aged children playing in the lobby without supervision. Responding to the complaint, Respondent conducted an inspection on April 6, 2000, and found that the two children were the children of Ms. Revuelta, who claimed that she never left them alone. She explained that, after she had resigned from the Center, she had begun homeschooling the children. She brought the children with her to the Center while she was serving as director until Petitioner could find her replacement. Not citing the Center for the complained-of incident, the inspector found no staffing ratio deficiencies, but found a supervision deficiency because five children were receiving dance lessons from a dance instructor who had not been screened. Respondent has proved this supervision deficiency. On April 20, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found that Petitioner lacked documentation that Heather Stallmer, Barbara Hernandez, Maria Cardentey, Crystal Rumpot, and Tammy Alfonso had enrolled in 30 hours of the required training; Jamie van de Mortel and Jennifer Pohlmann had completed 10 hours of the required training; Tammy Alfonso and Rebecca Esquivel had obtained tuberculosis tests; and Rebecca Esquivel had completed an employment history. Respondent has proved the deficiencies of failing to enroll in the required training within 90 days of employment for Maria Cardentey and Crystal Rumpot, who were mentioned in the January 5, 2000, inspection report, and Barbara Hernandez, who was mentioned in the October 4, 1999, inspection report. Respondent has proved the deficiencies of failing to document the tuberculosis tests and employment history of Rebecca Esquivel, whose records were first cited in the October 20, 1999, inspection report. Absent evidence of hire dates, Respondent has failed to prove the remaining deficiencies. On May 5, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision. However, the inspector found a discipline deficiency because a teacher was sternly and loudly telling a student, “now, now.” Absent evidence of the context, Respondent has failed to prove this deficiency. The inspector found that Petitioner lacked documentation that Heather Stallmer, Barbara Hernandez, Maria Cardentey, Crystal Rumpot, Michelle Valentine, and Tammy Alfonso had enrolled in 30 hours of the required training; Jamie van de Mortel and Jennifer Pohlmann had completed 10 hours of the required training; Patti Eggnatz had completed background screening and filed an affidavit of good moral character; and Rebecca Esquivel had completed an employment history. Respondent proved the deficiencies for failing to enroll in the required training within 90 days of employment for Barbara Hernandez, Maria Cardentey, and Crystal Rumpot, but not Heather Stallmer, who is first mentioned in the February 15, 2000, inspection report; Michelle Valentine, who is first mentioned in this inspection report; and Tammy Alfonso, who is first mentioned in the April 20, 2000, inspection report. Respondent also proved the deficiencies of Patti Eggnatz lacking an affidavit of good moral character and Rebecca Esquivel lacking documentation of an employment history. Respondent failed to prove the remaining deficiencies due to the lack of hire dates. The inspector added a note to the inspection report that Ms. Revuelta and Ms. Eggnatz would meet with her to discuss the Center and its operating history. Respondent had designated Ms. Eggnatz as the new Center director starting June 1, 2000. Ms. Eggnatz, who has a CDA certificate, had worked for several years at other centers operated by Respondent--most recently, as the director of the center in Miramar, Florida. On May 24, 2000, Respondent conducted an inspection and found no deficiencies in staffing ratios or supervision, equipment, planning and following posted activities, sanitation, eight-hour inservice training, tuberculosis test results, the number of staff persons trained in cardiopulmonary resuscitation, and classroom attendance records. However, the inspector found deficiencies in failing to discard all medication not currently being dispensed and failing to obtain parental signatures to incident reports, as several forms from February and March lacked such signatures. Respondent has proved these deficiencies. The inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, and Tammy Alfonso had enrolled in 30 hours of the required training. Respondent has proved these deficiencies as to Barbara Hernandez and Maria Cardentey, but not Tammy Alfonso, who was first mentioned in an inspection report dated April 20, 2000. On June 12, 2000, Respondent received a complaint from an anonymous source that the Center had sent children on long field trips without water and sunscreen and there had been 19 children in one teacher’s three-year-old classroom between 8:00 a.m. and 9:00 a.m. that morning. Responding to the complaint, Respondent conducted an inspection on the next day at 1:00 p.m. and found no deficiencies in staffing ratios or supervision. The inspector found that staff persons had taken the children on a field trip without ensuring that they had received sunscreen, so that some children became sunburned. However, water had been available from fountains. The Center agreed to shorten the field trips, ask parents to be sure to apply sunscreen in the morning and send sunscreen to school with their children, and use a water cooler on trips. The inspector concluded that the situation did not constitute a deficiency. However, the inspector found that Petitioner lacked documentation that Barbara Hernandez, Maria Cardentey, and Tammy Alfonso had enrolled in 30 hours of the required training; “Willis” had a current physical examination; and A. S. had current immunizations. Respondent has proved these training deficiencies for Barbara Hernandez and Maria Cardentey, but not Tammy Alfonso. Respondent has proved the deficiency in immunizations, as A. S. was mentioned in the July 6, 1999, inspection report, but not in the physical examination of “Willis,” who does not appear to have been identified in any previous inspection report. On June 13, 2000, Respondent received a complaint from a parent, who was also an employee at the Center. The parent complained that her two-year-old child had been assigned to a teacher’s two-year-old classroom, over the objection of the teacher, who had said that the child was not yet ready for her class. Concerned that the teacher was using intimidating toilet-training tactics on her child, the parent noted that the child had complained of pain in his genitalia. A physician had examined the child, but found no evidence of abuse. Responding to the complaint, Respondent conducted an inspection on the same day, at 5:00 p.m. Obviously, the sexual content of the complaint necessitated an immediate investigation, but, nonetheless, this inspection was the second inspection of the Center on June 13, 2000. The inspector found no basis to the implied allegation of some form of abuse in what seems to have amounted to one employee seeking an ally in Respondent in a dispute with another employee. Finding no deficiencies in staffing ratios or supervision for a second time on the same day, the inspector unsurprisingly found that the deficiencies cited earlier in the day had not yet been corrected in the intervening four hours. On June 23, 2000, Respondent received complaints from several parents concerning child safety, supervision, incident reporting, discipline, communication, and communicable diseases. The parent of the child who had previously been bitten on her stomach and arms by several other children complained that, on June 16, her one-year-old child had been bitten over 40 times by red ants, and Ms. Eggnatz, the director, had failed to communicate the seriousness of the situation to the mother when Ms. Eggnatz had called her to report the incident. Responding to the complaint, Respondent conducted an inspection on June 27. The inspector was unable to see Ms. Eggnatz, who was attending an out-of-town conference, or the supervising teacher, who was on leave on the day of the visit. The assistant director told the inspector that the bites were considerably fewer than 40, but the inspector had seen the child and counted at least 40 bites. The assistant director also stated that an incident report had not been prepared. Returning to the Center the next day, the inspector spoke with Ms. Eggnatz and Ms. Melendez. They told her that they had had the playground treated for ants on June 21. The teacher responsible for supervising the children on the playground was present when the child was bitten by the ants. The teacher saw and heard the child as she was crying, but misinterpreted the crying. Thinking the child was merely crying as an extension of earlier behavior, the teacher merely called the child to come to her. When the child did not respond, but continued to cry, the teacher returned to the other children on the swing, erroneously thinking that the child would come to her or stop crying when she was ready. A short time later, the teacher approached the child when the employee realized that the crying had been too hard, and the teacher had found the child’s legs covered in red ants. The teacher immediately sprayed water on the child to remove the ants. Ms. Eggnatz promptly called the child’s mother, told her of the ant bites, and asked her if she wanted to pick up her child. The mother, who testified, felt that Ms. Eggnatz minimized the severity of the incident. When the mother arrived at the school and saw the severity of the bites, she asked Ms. Eggnatz why she had not taken precautions for a possible allergic reaction. Ms. Eggnatz admitted that she had not known what to look for in determining if someone was having an allergic reaction. By chance, the child already had a physician’s appointment for later in the day, but the mother brought her to the physician without waiting for the appointment. Fortunately, the child did not suffer an allergic reaction, or other lasting injury or scarring from the bites. After examining the child, the physician prescribed an over-the- counter cortisone ointment. The mother returned to the Center after visiting the physician. Missing Ms. Eggnatz, the mother asked the assistant director for a copy of the incident report, but the assistant director told her that she did not have one. The mother spoke with the teacher who had been supervising the child on the playground. The teacher candidly described the incident, as it has been described in this recommended order. After an intervening weekend, the mother returned to the Center the next Monday and met with Ms. Eggnatz. Again, the mother asked for an incident report, but Ms. Eggnatz did not give her one. The mother gave Ms. Eggnatz the two weeks’ notice required before removing a child from the Center. Notwithstanding the incident, the mother testified that she remained quite fond of the teacher, whom the child loved and the mother did not blame for the incident. However, the mother felt that her child was no longer safe at the Center, largely due to excessive staff turnover. Respondent produced an incident report concerning the ant bites. The incident report provides a brief description of the incident and notes that the mother was upset and refused to sign it. There are two separate issues concerning the incident report: whether the mother refused to sign it and whether Center staff prepared the incident report at the time of the incident. On the first issue, it is very unlikely that the mother saw the incident report, so it is very unlikely that she declined to sign it. Respondent has thus proved that Petitioner never attempted to obtain the signature of the mother to the incident report. On the second issue, it is harder to determine whether Petitioner’s employees prepared the incident report at, or even a few days after, the incident. It is possible that the teacher, who spoke primarily Spanish, and the assistant director did not know of the existence of the incident report. The failure of Ms. Eggnatz to provide the mother of the requested report may be explainable, although not justifiable, by the presumably tense and possibly confrontational nature of their meeting the following Monday. But this omission does not establish that Petitioner’s employees failed to prepare the report. Although the Center was sometimes lax about preparing incident reports, on balance, the record does not permit a finding that one of Petitioner’s employees prepared the report substantially after the incident in an attempt to make it appear as though someone had prepared the report in a timely manner. Additionally, although an incident report serves many purpose, the communication by telephone of the incident by Ms. Eggnatz to the mother served the primary purpose, which is to ensure that a parent learns of the incident and, if necessary, can obtain timely medical attention for her child. As to the ant-bite incident and the incident report, Respondent has proved no deficiencies except for the failure of Petitioner to obtain the signature of the parent on the incident report. During the June 27 inspection, the inspector found no deficiencies in staffing ratios, but found deficiencies in discipline because the inspector heard an employee sternly tell children to “sit down” and another employee yelling in a classroom, isolation because the assistant director had remained at work twice with her sick children, and supervision because staff had allowed one- to two-year-old children to cover their heads with blankets during nap time and one teacher had laid down with a child rubbing her back during nap time. Lacking evidence of the context or a violation of the Center’s disciplinary policy, Respondent has not proved either of the two disciplinary deficiencies. Lacking additional detail, Respondent has not proved an isolation deficiency in the assistant director keeping her two sick children with her at the Center. Lacking explicit support in the evidence, statutes, or rules, Respondent has not proved either of the two supervision deficiencies. The record does not reveal, at any given time, how many day care teachers may be lying down with a child soothingly rubbing the child’s back or how many teachers may be allowing toddlers to cover their heads with blankets to induce them to take a nap. The evidence does not support a finding of the potential for harm from these two incidents. By administrative complaint dated July 11, 2000, Respondent alleged a lack of supervision for the June 16 ant- bite incident because of the alleged inability of one teacher to supervise the entire area of the playground involved in the case, and the failure of the Center to complete an incident report. The administrative complaint also alleges two additional failures in supervision in lying down with a child and rubbing her back and allowing the children to nap with their heads under the covers. Lastly, the administrative complaint alleges that the Center was not adequately staffed to isolate ill children. The administrative complaint seeks a fine of $450, which Petitioner paid. On July 20, 2000, Respondent received a complaint from an unidentified source stating that one staff person had taken 14 children on a field trip and one child had become separated from the group for an unreported period of time. The complainant also asserted that the three- and four-year- old classrooms had been off-ratio on two days during the prior week. Lastly, the complainant reported that there were untreated wasp nests and ant mounds on the playground. Responding to the complaint, Respondent conducted the final inspection on July 19, 2000. (There appears to be an error in the date of the inspection or the date of the receipt of the complaint.) The inspector found no staffing ratio deficiencies. The inspector saw no wasp nests, but her ability to check for ant mounds was impeded by rain; however, the inspector saw receipts from an exterminator for treatments on June 21 and July 18. As for the field trip, the inspector learned that, on July 12, one employee had driven 13 children to the movie theater. One child was separated from the group and remained in the lobby after the rest of the group had seated themselves in the theater. A theater employee helped the child find the group, whose supervisor seemed not to have realized that she was missing a child. Upon learning of the incident, Ms. Eggnatz terminated the employee. When the inspector discussed this incident with Ms. Eggnatz, Ms. Eggnatz did not say that she had also been at the theater. Ms. Eggnatz later claimed that she had been at the theater, but this is untrue. The stress of repeated complaints--many of which were unfounded--and repeated inspections--many lasting several hours and two occurring on the same day--affected Ms. Eggnatz to the point that she briefly quit as director. Perhaps these same factors prompted her to misrepresent the facts to the inspector concerning the movie field trip. However, Respondent has proved a supervision deficiency because the rules require an additional staff person on field trips. By letter dated August 16, 2000, Respondent informed Petitioner that it was denying Petitioner’s application for an annual license. The letter cites five major areas as grounds for the denial: staffing ratios, supervision, background screening and personnel records, health-related requirements, and incident reporting. Analysis of the Center’s performance is facilitated by breaking down its three-year licensing history into four periods: August 19, 1997, through July 31, 1998 (the first two provisional licenses); August 1, 1998, through July 31, 1999 (the annual license); August 1, 1999, through January 31, 2000 (the third provisional license); and February 1, 2000, through July 31, 2000 (the fourth provisional license). In the first year, Respondent conducted eight inspections of the Center. (All references to inspections in this recommended order are to inspections for which Respondent produced admissible evidence; there were additional inspections.) Staffing ratios and supervision were in compliance at each of the seven inspections monitoring staffing ratios and supervision, except for one supervision deficiency in the March 6, 1998, inspection. In the second year, Respondent conducted 16 inspections of the Center. Staffing ratios and supervision were in compliance at each of these 16 inspections, except for one supervision deficiency in the January 7, 1999, inspection; and one staffing ratio and one supervision deficiency in the January 15, 1999, inspection. In the first half of the third year, Respondent conducted six inspections of the Center. Staffing ratios and supervision were in compliance at each of these six inspections, except for staffing ratio deficiencies in the inspections of August 24, 1999, and October 20, 1999. In the second half of the third year, Respondent conducted 13 inspections of the Center. Staffing ratios and supervision were in compliance at each of these 13 inspections, except for supervision deficiencies in the inspections of April 6, 2000, when an unscreened dance instructor was supervising children, and July 19, 2000, when an additional staff person failed to accompany the movie field trip. As reflected by the frequency of monitoring staffing ratios and supervision, these two items are crucial to the safety of children at a child day care center. The evidence demonstrates no significant shortcomings in the operation of the Center regarding these two items during the Center’s three years of operation. The Center’s operations have not been as good regarding background screening, personnel records, enrollment records, and health records. For these documentary requirements, the Center was not in compliance 14 times the first year, 70 times the second year, 18 times the first six months of the third year, and 21 times the second six months of the third year. There was some improvement in the last year of operation, but the second year was an easy year to follow. These screening and records requirements enable a child day care center to serve its children by providing quality care in a safe, healthy environment. However, the deficiencies proved in this case, while serious, do not constitute sufficient grounds for denial of a license at this time, although additional evidence of a pattern of ongoing deficiencies in these important documentation requirements would be indicative of unsuitability for licensure. As for incident reporting, which is the last basis for the denial, Petitioner demonstrated substantial, although not invariable, compliance. The Center was not in compliance once in the second year and twice in the second half of the third year, although one of these two deficiencies involved several incident reports and the other involved a failure to obtain the signature of the mother of the child bitten by ants. The remaining deficiencies, on which Respondent has not relied directly in declining to renew Petitioner’s license, range from relatively minor deficiencies involving equipment and sleeping mats to more troubling deficiencies involving classroom attendance records (through which staffing ratios are monitored), isolation practices, sanitation, and posting and following planned activities. The cumulative impact of the demonstrated deficiencies in these requirements does not alter the result in this case. In its three years, Respondent has fined Petitioner a total of $1150. Although Respondent has failed to prove many of the alleged deficiencies that supported the administrative fines, the many deficiencies that Respondent chose not to include in these administrative complaints would have sustained several times the total amount that Respondent fined Petitioner.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order issuing Petitioner an annual child day care license for the Naples center with an effective date of August 1, 2000. DONE AND ENTERED this 5th day of January, 2001, 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 5th day of January, 2001. COPIES FURNISHED: Virginia A. Daire, 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 Ira L. Young General Counsel Tutor Time Learning Systems, Inc. 621 Northwest 53rd Street, Suite 450 Boca Raton, Florida 33487 Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906
The Issue The issue is whether Petitioner should revoke Respondent's license to operate a child care facility for failing to provide documentation of the director's credential or training.
Findings Of Fact Carlin and Susan Towels created Respondent in 1990. Their daughter, Angel R. Towels, began working part-time taking care of children at the facility in 1998. Ms. Towels was sixteen-years old at that time. In 1999, the minimum standards for child care personnel included a requirement for the director of a child care facility to be credentialed by January 1, 2000. See § 402.305(2)(f), Fla. Stat. (1999). Additionally, the statute mandated that the director's credential would become a required minimum standard for licensing of child care facilities by January 1, 2003. Id. Prior to November 2003, the Leon County Health Department was responsible for inspecting child care facilities and issuing licenses to them in Leon County, Florida. Respondent has been licensed by the Leon County Health Department as child care facility for many years. In 2000, Ms. Towels began working full-time as part of Respondent's staff. She became the licensed owner and operator/director in 2002. Ms. Towels has never been credentialed to act as Respondent's director because she has not completed a required course of study that would earn her a Child Development Associate (CDA) degree, certificate, or equivalent recognition. Ms. Towels' father was never credentialed to act as Respondent's director. He completed the CDA class but he never passed the examination for the required class entitled Behavior, Observation, and Screening (BOS). In February 2002, the Leon County Health Department sent Ms. Towels a document entitled "Reminder Notice of Director Credential Requirement." Ms. Towels signed the document indicating that she was aware of the need for Respondent's director to be properly credentialed by January 1, 2003, pursuant to Section 402.305(2)(f), Florida Statutes (2001). In 2002, the Legislature amended the statute requiring credentials for directors of child care facilities as a condition of licensing. Section 402.305(2)(f), Florida Statutes (2002), required directors to be properly credentialed by January 1, 2004, instead of January 1, 2003. The most recent license issued to Respondent by the Leon County Health Department was effective January 9, 2003, through January 9, 2004. The license authorized Respondent to care for a maximum of 23 children based on the square footage in the facility. At some point in time, the Leon County Health Department amended the license, authorizing Respondent to care for a maximum of 19 children. The Leon County Health Department amended the license at Respondent's request. Respondent made the request based on the mistaken belief that documentation establishing its director's credentials would not be required for a facility that cared for no more than 19 children. Around November 2003, Petitioner assumed the duties previously performed by the Leon County Heath Department relative to inspections and licensing of child care facilities in Leon County, Florida. In an on-site visit in November or December 2003, Petitioner's staff discussed the need for Respondent's director to be properly credentialed by January 1, 2004. In a letter dated December 31, 2003, Petitioner reminded Respondent of the minimum standard licensing requirement for credentials beginning January 1, 2004. The letter requested Respondent to provide Petitioner with a copy of its director's credential or the director's training transcript within 10 business days. The letter advised that Petitioner would issue Respondent a provisional license, not to exceed six months, if Respondent failed to provide the required documentation. According to the letter, if Respondent failed to comply with the credential requirement within the provisional- license period, Petitioner intended to initiate administrative action to revoke Respondent's license. In a letter dated January 28, 2004, Petitioner again advised Respondent that it was not in compliance with the statute. Petitioner's letter requested Respondent to provide monthly updates on the director's progress toward earning a credential or the facility's progress in hiring a director with the appropriate credential. The letter clearly stated that if Respondent's director was not credentialed at the end of the provisional-license period, Petitioner would take action to revoke Respondent's license. Petitioner enclosed Respondent's provisional license with the January 28, 2004, letter. The provisional license was effective January 2, 2004, through July 2, 2004. The provisional license authorized Respondent to care for 23 children based on the square footage of the facility as stated in Respondent's most recent application for renewal of license. In a letter dated June 1, 2004, Petitioner once again reminded Respondent the director's credential was a minimum licensing requirement. The letter asserted Petitioner's intent to revoke Respondent's license if Respondent did not comply with the requirement for a credentialed director by July 2, 2004. On or about July 12, 2004, Petitioner issued an Administrative Complaint. The complaint alleged that Respondent's director was not properly credentialed and that Petitioner intended to revoke Respondent's license. After Petitioner issued the Administrative Complaint, Petitioner continued to contact Respondent to see if Respondent was making progress in complying with the credential requirement. There were two telephone contacts in July 2004, on-site visits in August and November 2004, and a re-inspection most recently on January 6, 2005. In July 2004, Ms. Towels registered for a course equivalent to the CDA degree. However, she dropped out of the class before completing it. In January 2005, Ms. Towels enrolled in another CDA class, which she had not completed by the time that the hearing commenced. The class Ms. Towels is attending is approximately a one-semester course that students may complete within six months.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order revoking Respondent's license. DONE AND ENTERED this 1st day March, 2005, in Tallahassee, Leon County, Florida. S 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 1st day of March, 2005. COPIES FURNISHED: Mary Ellen McDonald, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 100A Tallahassee, Florida 32399-0700 Angel Towels Luv-A-Lot Child Care Center 2501 Lake Bradford Road Tallahassee, Florida 32310 Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1371 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Department of Children and Families (DCF or Petitioner) should impose sanctions against Respondent, Raising Angels Child Development Center (Respondent), for alleged violations in the operation of a child care center.
Findings Of Fact Petitioner is charged by law to regulate and inspect all child care facilities in the state of Florida to assure compliance with all licensing standards. Licensing standards are defined by statute and rule. Inspections of licensed facilities are routinely scheduled to verify compliance with all standards. Respondent is licensed by DCF to operate a child care facility at 1720 Rio Grande Avenue, Orlando, Florida 32808. On March 17, 2017, DCF entered a Final Order imposing a fine in the amount of $50.00 against Respondent based upon a Settlement Agreement that acknowledged a violation of the ratio standard for licensed child care facilities. At all times material to the allegations of this case, Respondent was aware of ratio standards applicable to its facility. Moreover, Respondent was aware that DCF performs inspections to assure compliance with the ratio standards. Marquencia Fulton, family service counselor, is employed by Petitioner and routinely performs inspections of licensed child care facilities assigned to her. Ms. Fulton was assigned to inspect Respondent’s facility to verify compliance with licensing standards. On August 17, 2017, Ms. Fulton went to Respondent’s facility to conduct an inspection. Respondent maintains a video system to record all activities within its facility. The video was admitted into evidence by both parties and was reviewed multiple times at hearing. As evidenced by the video and photographs received in evidence, Respondent’s facility is divided into two distinct areas. The front entry area houses infants through toddlers. A door connects the infant room to a rear room housing older preschool children. If left open, the door would allow walking children to enter the rear room where the older children are located. On the date of inspection, Ms. Fulton entered the front area and the door to the rear room was open. As Ms. Fulton moved from the front area to the rear room, she observed a one-year-old child in the lap of a worker in the rear room. Because the one- year-old was in the rear room, DCF considers the licensing standard applicable to one-year-olds to apply to the entire area. Because there were too many children in the rear area (applying the standard applicable to one-year-olds), Petitioner cited Respondent with a ratio violation. Had the one-year-old stayed in his proper area, the facility would have been in compliance with the ratio standard. Had Respondent kept the door between the areas closed and thereby prevented the child from leaving the front area, the facility would have been in compliance with the ratio standard. Respondent had sufficient staff on site to meet the ratio standard had all the children remained in their designated areas, therefore Respondent maintains it was in compliance with the applicable standard. Because Respondent allowed the child to stray to the rear area, thereby requiring more supervision for that area, Petitioner maintains Respondent violated the ratio standard. Respondent failed to comply with the licensing ratio standard on the date of the inspection. Respondent was required to either keep the door closed to prevent children from entering the rear area of the facility or to have more staff to supervise the two areas of the facility. Supervision could not be provided to the rear area by persons standing in the front area of the facility. Similarly, supervision for the front area could not be provided by persons standing in the rear area. In order to meet ratio standards, Respondent was required to keep supervising personnel in the area designated to them and to keep children in their appropriate location. Respondent’s staff met in-service training requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing an administrative fine in the amount of $50.00. DONE AND ENTERED this 25th day of May, 2018, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 25th day of May, 2018. COPIES FURNISHED: Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Carolyn Bagley Dennis Bagley Raising Angels CDC, Inc. 1720 South Rio Grande Avenue Orlando, Florida 32805 Brian Christopher Meola, Esquire Department of Children and Families 400 West Robinson Street, Suite S-1129 Orlando, Florida 32801 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) John Jackson, Acting General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Amended School Board Policy 2262 is an invalid exercise of delegated legislative authority under section 120.52(8), Florida Statutes (2013)1/.
Findings Of Fact The School Board has the constitutional duty to operate, control and supervise the public schools within Collier County, Florida. Art. IX, § 4(b), Fla. Const. (2014); see also § 1001.32, Fla. Stat. Sports Club is a private, non-profit Florida corporation, whose principal business activity is providing before and after school child care. Sports Club is located in Collier County, and offers its child care services at its own private facilities, as well as at certain District elementary schools. Parents Rock is a private, non-profit Florida corporation formed on June 24, 2013, for the purpose of representing parents’ interests in education, and advocating for legislation, regulations, and government programs that improve parents’ rights and choices in local education. Parents Rock’s membership consists of approximately 700 individuals, mostly parents of children attending schools in the District. A substantial number of these parents use the child care programs located at the District facilities. Moreover, a substantial number of Parents Rock’s members routinely attend School Board meetings and advocate for parental involvement in their children’s education and issues of importance, like the District’s child care program. Amended School Board Policy 2262, which is part of the School Board’s Bylaws and Policies, is titled: Before and After School Child Care. The challenged policy contains paragraphs lettered “A through L” which provides for the following issues: Parents and the community being given an opportunity to make recommendations concerning the operation and funding of child care programs prior to the approval by the School District; Child care programs and services being available to students both prior to and after the school day; Child care programs having an emphasis on providing educational opportunities and “variety of activities that promote the social, intellectual, and physical development of children in the program[;]” Adequate attention being given to the child care programs having an environment that meets the needs and well-being of the children, ensuring the children’s safety, security, that the children are clothed, fed, and “hav[ing] an opportunity for a variety of social, intellectual, and physical activities[;]” Vendors or other organization contracted to provide the child care programs having adequate liability insurance, and “maintaining appropriate adult-child ratios, provide quality child care, and in general, complying with the procedures established by the State and the District[;]” Notifying parents and families about the child care programs and procedures for enrollment; Continuing program assessments by staff, participating parents, and other stakeholders during the course of the child care program; Fees for the child care services being applied only to those schools involved in vendor run or school based programs; Recognizing that a parent may notify the child care providers of the parent’s preference that a child receiving either additional physical or academic activities, and “every reasonable effort shall be made to accommodate the request[;]” Parents, whose children participate in the child care programs, giving “feedback concerning the program” and requiring that the District’s manager of after school child care consider the information; A procedure for surveying and collecting information from parents evaluating the child care programs; and Providing that “[a]ny terms, conditions, or issues enumerated in the District’s RFQ 115-4113 [sic], whether express or implied, related to this policy, are hereby adopted and incorporated by reference in the policy during the duration of RFQ 115-4113 including any renewal period provided for in said RFQ.” Amended School Board Policy 2262 then states that to “implement this policy, the Superintendent will develop and/or revise administrative procedures consistent with the RFP/RFQ process relative to child care service.” The School Board wholly adopted School Age Child Care Services, RFQ #115-4/13 (RFQ), into its Policy. Consequently, a short explanation of the RFQ is required here. In the RFQ, the District sought to qualify child care providers to operate child care programs at the District’s elementary schools. The RFQ that was released by the District, on May 2, 2013, provided for: uniform fees for all program services;2/ no credit for fees paid, if a child was unable to use the child care program due to an absence;3/ a $10.00 surcharge on each registered student that a private vendor provided financial assistance to attend the after school program;4/ and standards and criteria for the child care programs that required the programs to be staffed by certified teachers.5/ Finally, and importantly, the RFQ allowed elementary school principals to decide whether or not to offer child care through private providers or for the school to operate its own “in-house” child care program.6/ Sports Club participated in the RFQ process, and was identified as a qualified provider. Based on its approval as a qualified provider, Sports Club was given an opportunity to present its services to the District’s elementary school principals in a webinar. Following the presentation, on May 29, 2013, five elementary school principals chose Sports Club as child care provider for their schools. However, Sports Club was not chosen as a provider for six other elementary schools that it had previously served under a contract with the District. In some instances, like Veterans Memorial Elementary School, the principal had decided to operate an “in-house” program, rather than selecting Sports Club. After the selection process, Sports Club informed parents about the impending changes, and asked the parents to contact the School Board if they wanted to keep Sports Club as a child care provider. The School Board was to ratify the elementary school principals’ decisions at a June 11, 2013, School Board meeting. Many parents, on learning about the RFQ’s terms and that Sports Club would no longer be providing child care at their child’s elementary school, became extremely upset. A particular concern was the District’s decision not to seek any parental involvement in the formulation of the RFQ and provisions setting the uniform fees, which increased the child care costs for the parents. On June 3, 2013, the RFQ became the subject of an unadopted rule challenge brought by a parent. Rather than proceeding to a final hearing, the School Board elected to initiate rulemaking concerning the unadopted rule challenge on September 13, 2013. In the initial Notice of rulemaking, the School Board specifically stated that although a proposed text of the rule was not available, the RFQ’s provisions regarding fees and program content would serve as a reference point. During the rulemaking workshops on October 16, 2013, and November 13, 2013, the District’s rule proposals amended certain provisions within the RFQ. Specifically, the proposals amended the RFQ’s terms concerning the amount of the uniform fees to be charged;7/ the granting of credits in the limited instance when a child has a medical excuse for not attending the after school child care;8/ setting out a parental survey for assessing the child care programs;9/ and reducing the fee paid by private providers for using the District’s facilities during the summer months.10/ The School Board at its December 10, 2013, meeting, enacted Amended School Board Policy 2262, which incorporated the RFQ completely into the policy in paragraph “L.” On its face, the School Board’s language in paragraph “L” is not clear as to which version of the RFQ was incorporated. However, the testimony and attachments to the Amended School Board Policy show that the School Board’s reference is referring to the RFQ, as the School Board had amended it during the rulemaking process. Amended School Board Policy 2262, with the RFQ’s terms setting out the uniform fees and program criteria, only applies to child care programs located at the District’s elementary schools. Amended School Board Policy 2262 has no application for child care services off-site. The facts here show that Sports Club owns its own facility, and provides transportation to the Sports Club’s private facility for students from some of the elementary schools that elected to provide “in-house” services. Parents sign a permission form, and Sports Club’s bus transports the child from the elementary school to Sports Club’s facility. At its private facility, Sports Club is free to offer child care programs at rates that it decides are appropriate, without any regard to the challenged rule. Sports Club’s claimed economic losses are the result of its decision to participate in the RFQ process, not the challenged rule. Sports Club was selected as a child care provider under the RFQ at the June 11, 2013, School Board meeting, and Sports Club subsequently entered into a contract with the District to provide child care services under the RFQ, on August 16, 2013. These events occurred months before the School Board adopted the challenged rule here at its December 10, 2013, meeting. Moreover, the undersigned found that Mr. Brettholtz credibly testified that the financial records provided by Sports Club did not follow accepted accounting practices, and could not be used to support Sports Club’s claimed economic losses.
The Issue The issues in the case are whether the Respondent violated applicable rules of the Florida Administrative Code, and whether a fine of $150 is warranted for the alleged violations.
Findings Of Fact At all times material to this case, the Respondent was a Florida-licensed Child Care Facility located at 650 West Main Street, Bartow, Florida. On June 3, 2003, an employee representing the Petitioner conducted a routine inspection of the Respondent facility. Upon completion of the inspection, the Respondent received a copy of the inspection report. At the time of the June 3 inspection, some children were moving back and forth without supervision between their assigned areas, which resulted in the facility being out of compliance with staff-to-child ratio requirements set forth in the Florida Administrative Code. Applicable rules require that there be one staff member responsible for every four children between the ages of birth and one-year-old. At the time of the inspection, there were four children in the infant area, plus an additional two children beyond the age of one walking without supervision through the area. The older children were not directed to return to their assigned area by the one facility employee in the infant area. Because there was only one staff person in the infant's area, the facility was out of compliance with the required ratio. Applicable rules require that there be one staff member responsible for every six children between the ages of one and two years old. At the time of the inspection there were six children in the one-year-old area, plus two additional children beyond the age of two who were playing in the area. The older children were not directed to return to their assigned area by the staff member present. Because there was only one staff person in the area, the facility was out of compliance with the required ratio. On December 2, 2003, an employee representing the Petitioner conducted a routine inspection of the Respondent facility. Upon completion of the inspection, the Respondent received a copy of the inspection report. At the time of the December 2 inspection, there were a total of six children in the infant area with one staff person present. Because there was only one staff person in the infant's area, the facility was out of compliance with the required ratio of one staff member responsible for every four children present. The Petitioner regards the failure to comply with staffing ratio requirements as a serious child safety issue. Lack of compliance with required staffing ratios poses the potential for injury or other harm to children who are left without sufficient supervision. By letter dated March 15, 2004, the Petitioner notified the Respondent of the proposed fine and set forth the following as the basis for the penalty: The Department proposes to fine your child care facility for violations of the Florida Administrative Code by authority of section 402.310, Florida Statutes. This letter is considered an administrative complaint for the purposes of section 120.60(5), Florida Statutes. . . . Inspections on June 3, 2003 and December 2, 2003 reflected repeat violations. On June 3, 2003, the infant and one year old groups were both over ratio. On December 2, 2003, during a routine child care inspection of your facility a Department licensing inspector found the infant room to be over ratio. This situation violates the Florida Administrative Code, Rule 65C-22.001(4), which requires a staff-to-children ratio as established in section 402.305(4), F.S. For these violations, the Department proposes to fine your facility the sum of $150.00. The Respondent testified at the hearing. The Respondent asserted that at the time of the inspections, adequate staff were present in the facility, but for various reasons were not in the areas being observed by the inspectors, and that ratio requirements were unmet for minimal periods of time. The Respondent also asserted that at the time of the inspections, there was a lack of barriers in the facility that would prevent children from wandering in and out of the age- related areas. Additional walls have now been constructed to prevent the children from wandering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order imposing a fine of $150 against the Respondent. DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Carla Meeks Ruth Johnson Best Academy 650 West Main Street Bartow, Florida 33830 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this matter are whether Respondent, the owner of a child care facility, committed the violations alleged in the Administrative Complaint; and, if so, what is the appropriate sanction for the violation.
Findings Of Fact Based on the evidence adduced at hearing, and the complete record, the following Findings of Fact are made: DCF is authorized to regulate child care facilities pursuant to sections 402.301 through 402.319, Florida Statutes. Section 402.310 authorizes DCF to take disciplinary action against child care facilities for violations of sections 402.301 through 402.319. A to Z Child Development Center (A to Z) is a child care facility owned and operated by Jill Johnson at 1049 East 8th Street, Jacksonville, Florida. The license number is C04DU1409. It is undisputed that on December 20, 2020, Respondent received a citation for employing a person for which she had not conducted a background screening following a 90-day break in employment. At all times material to this matter, E.L. was a child care provider working at A to Z. She began working with the facility on February 2, 2021. E.L. had been cleared and found “eligible” to work as a child care provider on April 6, 2017, at a different child care facility. On April 22, 2021, Gretrell Marshall, a DCF licensing counselor, conducted a routine inspection of the child care facility. Ms. Marshall has 20 years working with DCF. She has worked as a family services counselor for three years and has been trained to inspect child care facilities. Before working with DCF, Ms. Marshall owned a family day care home for two years and served as a director for a child care facility for seven years. During her inspection of A to Z, Ms. Marshall reviewed the employment records for each employee of the facility. Specifically, she reviewed the file for E.L. and discovered that the background screening for E.L. was completed on April 9, 2021. This was a concern for Ms. Marshall as child care personnel should update their background screening if there is more than a 90-day absence from working as a child care provider. Ms. Marshall reviewed the completed background screening report and employment history form for E.L. The background screening report dated February 3, 2021, reflected that E.L. had successfully passed a background screening on April 6, 2017. The employment history and reference form reflected that E.L. was last employed as an assistant teacher at Nono’s Home Daycare (Nono’s). The employment dates were listed as October 2019 to Present. Although there is a question regarding whether E.L. had a 90-break in employment or worked at Nono’s, she was subsequently she was deemed eligible to work with children. Ms. Marshall then reviewed the DCF Child Care Administration, Regulation and Enforcement System (CARES). CARES maintains employment history information for child care personnel, including new employee information, verifying existing employees, and checking employment history. The information input in the system is reported by employers. However, employees do not have access to review information in the system. Ms. Marshall’s review of CARES reflected that E.L.’s most recent employer was with T and A Learning Center, which terminated in February 2020. CARES did not reflect that E.L. worked at Nono’s. After review of E.L.’s employee records, Ms. Marshall concluded that E.L.’s background screening should have been completed on February 2, 2021, when E.L. began working at A to Z. Ms. Marshall testified that the form reflected that Jill Johnson was identified as the person contacted to verify employment. The evidence of record demonstrated that the person contacted was actually Nono Johnson (owner of Nono’s) instead of Respondent’s owner, Jill Johnson. Ms. Marshall also reviewed the renewal application records for Nono’s. There was no record in the renewal applications that E.L. was an employee. Relying upon her review of E.L.’s records maintained by Jill Johnson, the renewal applications for Nono’s, and the CARES records, Ms. Marshall determined that a background screening was warranted for E.L. because it appeared that she had a 90-day break in employment. Ms. Marshall did not interview Nono Johnson and she did not interview E.L. In addition, neither person testified at the final hearing. Ms. Marshall testified that a factor in making her decision was that the employment history form for E.L. did not clearly indicate the person contacted for employment verification. However, the record reflects that Nono Johnson was listed as the person contacted to verify the background reference check. The threshold issue in this matter is whether E.L. worked for Nono’s. If E.L. worked for Nono’s, the background screening would not be required. On the other hand, if E.L. did not work for Nono’s, E.L. would be required to perform the background screening due to the 90-day break in employment. Ms. Johnson presented the testimony of Crystal McMillion, who assisted Ms. Johnson with the reference checks. She testified that she spoke to Nono Johnson and verified that E.L. worked at Nono’s during the dates provided on the employment history form. Ms. McMillion testified that she then logged into the background screening portal and verified that E.L. had previously successfully completed a background screening in 2017. Ms. McMillion was the only witness with direct knowledge of the employment verification for E.L. Ms. McMillion has experience as a child care facility operator and understands what is required to conduct employment verification. The undersigned found her to be credible and truthful. However, her testimony was uncorroborated hearsay.1 Such evidence may not be considered by the undersigned as a basis for findings of fact. Assuming Ms. McMillion made an error in her employment verification as argued by Petitioner, the question remains whether Nono’s failed to properly disclose all its employees and E.L. was in fact an employee. The undersigned finds it unlikely, but possible, that E.L. presented erroneous employment history information. Another possibility is that the records for Nono’s did not accurately reflect all of its employees and, thus, such information was not put into CARES. Neither Nono Johnson nor E.L. testified at the hearing. Likewise, the record does not include any interview statement made by Nono Johnson or E.L. The only evidence presented by DCF to demonstrate that E.L. had a 90-day break in employment was the absence of records for Nono’s, a facility over which Respondent has no control. This evidence is not sufficient to meet the clear and convincing evidence burden in this matter. Ultimate Finding of Fact Based on the evidence presented at the hearing, the undersigned finds that there was no clear and convincing evidence to establish that E.L. had a 90-day break in employment. As a result, there is no clear and convincing evidence to establish that Respondent was required to obtain background re-screening for E.L. DCF’s burden in this case is to prove the facts alleged in the Administrative Complaint by clear and convincing evidence, and the credible admissible evidence did not meet that burden. 1 Because Nono Johnson did not testify during the final hearing, the portion of Ms. McMillion’s testimony concerning Nono’s verification of employment is uncorroborated hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose
Conclusions For Petitioner: David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32211 For Respondent: Jill Johnson, pro se A to Z Child Development Center 1049 East 8th Street Jacksonville, Florida 32206
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 against Jill Johnson d/b/a A to Z Child Development Center. DONE AND ENTERED this 30th day of August, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2021. COPIES FURNISHED: Shevaun Harris, Secretary Department of Children and Families 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32211 Javier Enriquez, General Counsel Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Jill Johnson A to Z Child Development Center 1049 East 8th Street Jacksonville, Florida 32206 Danielle Thompson, Agency Clerk Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303
The Issue The issue for determination in this case is whether Respondent's license to operate a child day care facility should be revoked for violations of Chapter 402, Florida Statutes, and Rule Chapter 10M-12, Florida Administrative Code.
Findings Of Fact Petitioner, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, HRS, is the agency of the State of Florida vested with the statutory authority to license and inspect child day care facilities. Respondent ELMER ROGER PILLSBURY holds a provisional license issued by HRS to operate WHITFIELD ACADEMY, a child day care facility located in Manatee County, Florida. Respondent KAREN PILLSBURY is the manager of WHITFIELD ACADEMY, and is responsible for the day-to-day operations of the facility. In addition to managing WHITFIELD ACADEMY, Respondent KAREN PILLSBURY also operates Kinder Kare Day Care, another licensed child day care center in Manatee County, Florida. At all material times, Respondents ELMER ROGER PILLSBURY and KAREN PILLSBURY have been married. WHITFIELD ACADEMY was first licensed by HRS on June 27, 1989. At that time KAREN PILLSBURY was the owner of the facility. On June 1, 1990, ownership of the facility was transferred from KAREN PILLSBURY to ROGER ELMER PILLSBURY. After the transfer of ownership, KAREN PILLSBURY continued as the operator of the facility, and was in control of the management of the facility. WHITFIELD ACADEMY has an authorized licensed capacity of one hundred and thirty five children. During the period relevant to this proceeding the facility has had a daily census ranging from thirty to ninety children, with an average between fifty and sixty children per day. Staffing at the facility has ranged from four to nine employees. Pursuant to statutory authority, HRS routinely conducts quarterly inspections of licensed child day care facilities. HRS also routinely investigates complaints filed against licensed child day care facilities. Beginning in 1989 and continuing through 1995, HRS has cited Respondents for numerous statutory and rule violations including the following charges set forth in the Administrative Complaint: child abuse; failure to comply with staff/child ratios; failure to maintain direct supervision; improper storage of dangerous chemicals; roach infestation; fire code violations; failure to repair shattered glass in a window; corporal punishment; unsanitary bathrooms; failure to designate staff left in charge; nonconstructive discipline; and failure to cooperate with health officials in responding to an outbreak of Hepatitis A. Child Abuse On or about April 25, 1989, Respondent KAREN PILLSBURY, while working at Kinder Kastle Day Care, disciplined an eighteen-month old child for biting other children by "popping" the child on his mouth with her finger. Respondent KAREN PILLSBURY considered this form of discipline appropriate to prevent small children from biting other children. It is accepted practice by some child development professionals that nonexcessive physical contact may be used as a deterrence to prevent children from biting others. HRS has promulgated Rule 10M-12.013(1)(c), Florida Administrative Code, which prohibits any form of physical punishment in a child care facility. As a result of this incident, a complaint was filed with HRS against KAREN PILLSBURY. HRS investigated the complaint and on May 30, 1989, filed an Administrative Complaint against KAREN PILLSBURY d/b/a/ Kinder Kastle Day Care for violations of HRS's child care standards which, as set forth above, prohibit any corporal discipline on a child in a child care facility. As a result of this administrative action, KAREN PILLSBURY was assessed a fine of $100, which was paid on January 16, 1990. In addition to the administrative fine imposed on Kinder Kastle, on September 29, 1989, as a result of this incident, HRS also proposed to confirm a report of child abuse against Respondent KAREN PILLSBURY for using excessive corporal punishment. Respondent did not seek administrative review of HRS's decision to classify the report as confirmed child abuse. Instead, Respondent applied for an exemption to continue working in a child day care facility. Respondent's application for exemption was denied by HRS on November 20, 1989, and Respondent then sought administrative review of HRS's decision to deny her request for exemption filed with DOAH as Case No. 90-007C. During the pendency of the administrative review denying Respondent KAREN PILLSBURY's application for exemption, Respondent continued to have contact with children at her child care facilities. HRS thereafter filed an Emergency Complaint seeking injunctive relief against Respondent in circuit court, (Case No. CA90-912, Fla. 12th Cir.), and on March 26, 1990 an injunction was issued by the court prohibiting Respondent from being present at Kinder Kastle or Whitfield Academy. Prior to hearing scheduled in the administrative case, HRS and Respondent KAREN PILLSBURY, on May 22, 1990, entered into a stipulated settlement, under the terms of which HRS agreed to grant Respondent an exemption to work at child day care facilities, and Respondent agreed to dismiss the administrative action, receive counseling with regard to alternative ways to modify a child's behavior without the use of corporal punishment, and obtain instruction in social behavior modification. Respondent KAREN PILLSBURY has complied with the terms of the stipulated settlement in DOAH Case No. 90-007C. On June 4, 1990, the circuit court injunction against Respondent was set aside, and Respondent resumed her duties at Kinder Kastle and Whitfield Academy. Staff/Child Ratio Violations HRS has promulgated Rule 10M-12.002(5)(a)1., Florida Administrative Code, which establishes ratios for personnel to children in child day care facilities. The ratios are dependent upon the ages of the children at the facility. During inspections of child day care facilities HRS staff observe the number of children being supervised by facility personnel and record the ratios. HRS staff does not personally check the ages of the individual children in a supervised group, but relies on personal observation as well as the representations made by the facility personnel to determine the ages of the children and whether the ratios are appropriate. Since 1989, WHITFIELD ACADEMY has been cited by HRS for staff/child ratio deficiencies on at least twelve occasions. On September 14, 1989, during a routine quarterly inspection at WHITFIELD ACADEMY, an HRS inspector observed there was one staff member for fourteen children between the ages of one year and two and one half years. The HRS staff/child ratio at that time required one staff member for eight children aged one to two years old and one staff member for twelve children aged two to three years old. The inspection report cited WHITFIELD ACADEMY for this deficiency. At the reinspection of the facility on October 2, 1989, the ratio for this group of children remained at one staff member to fourteen children, and had not been corrected. At reinspection on October 16, 1989, the deficiency was corrected. On April 11, 1990, during the investigation of a complaint filed against WHITFIELD ACADEMY, HRS cited the facility for a staff/child ratio deficiency because two staff members were supervising a group of thirty-eight children who appeared to be of varying ages ranging from three to five years old. The inspection report cautioned WHITFIELD ACADEMY with respect to mixing children of different ages in supervised groups. Upon reinspection by HRS staff on April 25, 1990, this deficiency was corrected. As a result of a complaint filed against WHITFIELD ACADEMY, an inspection was also conducted on April 25, 1990, regarding the staff/child ratio for younger children. At that time HRS staff observed twelve children who appeared to be from under one year old to two years old in the care of one staff member. The staff/child ratio required for children under one year old was one staff member to six children, and for children of one year of age was one staff member for eight children. WHITFIELD ACADEMY was cited for this deficiency. Upon reinspection by HRS staff on May 2, 1990, this deficiency was corrected. On July 11, 1990, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervising fourteen children, some of whom appeared to be under one year old. Upon reinspection on July 25, 1990, this deficiency was corrected. The staff/child ratio deficiencies at WHITFIELD ACADEMY did not reoccur until March 31, 1992. At that time an HRS inspector cited the facility as deficient when the inspector observed one staff member supervising seven children under the age of one year old in the nursery for a short period of time, approximately twenty to thirty minutes. The required staff/child ratio at that time was one staff member to six infants. Upon reinspection on April 14, 1992, this deficiency was corrected. On August 4, 1992, HRS again cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervise seven infants for a short period of time when another staff member was on leave. Upon reinspection on September 10, 1992, this deficiency was corrected. On January 14, 1993, a complaint was filed with HRS against Respondents WHITFIELD ACADEMY and KAREN PILLSBURY for a staff/child ratio deficiency of one staff member for eight infants under one year old. The deficiency lasted for approximately one hour. In addition, the complaint alleged that on one occasion a staff member left children in the toddler area alone to obtain records for a health nurse, and that two children were sleeping out of the sight of a staff member. As a result of this complaint, on March 10, 1993, administrative action was taken against Respondents, and a fine in the amount of $250 was assessed. Respondents paid the fine on April 8, 1993. On April 21, 1993, Respondents submitted a corrective action plan to HRS to address the problems identified in this complaint. On August 18, 1993, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervise five infants under one year old. At this time the required ratio had changed from one staff member to six infants, to one staff member to four infants. Upon reinspection on September 1, 1993, this deficiency was corrected. On February 9, 1994, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency when an inspector observed two toddlers among a group of older children in the playground. This deficiency was immediately corrected. On March 29, 1994, and on April 20, 1994, HRS received complaints that on two separate occasions the staff/child ratios at WHITFIELD ACADEMY were improper because of the mixing of children of different ages. The allegations of the complaints were verified by HRS, and an administrative fine was assessed against WHITFIELD ACADEMY in the amount of $300 on May 12, 1994. The fine was paid on August 18, 1994. On February 23, 1995, HRS initially cited WHITFIELD ACADEMY for a staff/child ratio deficiency; however, on the same date, when the age of the child in question was verified by reviewing the facility's records, this citation was found to be without basis. On March 23, 1995, HRS cited WHITFIELD ACADEMY for a staff/child deficiency for having one staff member for seventeen children ages two and three when the required ratio was one staff member for eleven two year olds and one staff member for fifteen three year olds. Upon reinspection on April 11, 1995, this deficiency was not corrected. Upon another reinspection on April 21, 1995, this deficiency was corrected. WHITFIELD ACADEMY has experienced difficulty in retaining qualified staff. Some instances of noncompliance with staff/child ratios resulted from staff at the facility being ill, taking breaks, and the failure of staff to report for work. Except for the citations issued on September 14, 1989, and March 23, 1995, all instances of staff/child ratio deficiencies at WHITFIELD ACADEMY were corrected in a timely manner. Failure to Provide Direct Supervision On six occasions WHITFIELD ACADEMY has been cited by HRS for failure to comply with departmental rules governing direct supervision of children at a child day acre facility. HRS has promulgated Rule 10M-12.005(5)(a)2., Florida Administrative Code, which requires personnel at a child day care facility to watch and direct the children's activities with close proximity, within the same room or enclosed outdoor play area, and to be present with the children at all times during the day, including during meals, nap time, and snack time. On September 14, 1989, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because a staff member at the facility was going in and out of her classroom to assist another staff member at snack time. Upon reinspection on October 2, 1989, the HRS inspector observed children left alone at the facility, and determined that this deficiency had not been corrected. Upon a further reinspection on October 6, 1989, the deficiency was corrected. On April 11, 1990, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because children were being allowed to leave the playground to go inside to use the bathroom unattended by a staff member. This deficiency was corrected at reinspection on April 25, 1990. On August 4, 1992, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because volunteers at the facility were being allowed to supervise children out of the presence of a trained staff member. At reinspection on September 10, 1992, this deficiency was corrected. As set forth in Paragraph 23, above, the complaint filed on January 23, 1993, against Respondents WHITFIELD ACADEMY and KAREN PILLSBURY alleged, in addition to a staff/child ratio deficiency, a failure by Respondents to provide direct supervision, in that on one occasion a child was left unattended when a staff member retrieved records for a health nurse, and further alleged that during nap time, some children could not be directly observed by facility staff. This complaint was verified by HRS and resulted in an administrative fine of $250, which Respondents paid on April 21, 1993. Respondents also submitted a corrective action plan which addressed these problems. On August 3, 1994, HRS received a complaint that children at WHITFIELD ACADEMY were not being supervised because one staff member was observed sleeping, and another staff member would, on occasion, leave the room. On August 11, 1994, HRS sent WHITFIELD ACADEMY a warning letter concerning the complaint, and by August 29, 1994, Respondents took corrective action, including dismissal of the staff member found sleeping. On December 19, 1994, HRS received a complaint against WHITFIELD ACADEMY alleging that a five month old child, while strapped in an infant chair, was pushed off a table by a one year old child and received a concussion. The complaint alleged that the two staff members present at the time of the incident were not watching the children. This incident occurred because a child had spilled milk, and one staff member was momentarily involved in cleaning up the spilled milk. The infant was not seriously injured. Improper Storage of Dangerous Chemicals Beginning in 1989, HRS has cited WHITFIELD ACADEMY for improper storage of dangerous chemicals on thirteen occasions. In this respect, HRS has promulgated Rule 10M-12.003(1)(d), Florida Administrative Code, which requires that cleaning supplies, flammables, and other potentially poisonous or dangerous supplies be kept out of the reach of children, and in such a manner as to insure the safety of children. The thirteen citations issued by HRS against WHITFIELD ACADEMY for this deficiency largely result from a failure to lock a supply storage room door at the facility. The supply storage room at the facility is located next to the boys' bathroom and contains cleaning supplies, as well as cans of paint. The supplies and paint are stored on shelves beyond the reach of children. On September 14, 1989, during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed the door to the supply storage room unlocked. This deficiency was corrected at reinspection on October 2, 1989. On November 13, 1989 during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed a can of Lysol spray disinfectant on the toilet tank in the toddler bathroom. This deficiency was corrected at reinspection on November 30, 1989. On February 20, 1990, during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed the door to the supply storage room unlocked. This deficiency was corrected at reinspection on March 6, 1990. During the inspection of WHITFIELD ACADEMY conducted on April 11, 1990, as set forth in Paragraph 18, above, the supply storage door was not locked. This deficiency was corrected at reinspection on April 25, 1990. At a routine quarterly inspection of WHITFIELD ACADEMY on July 11, 1990, items used for crafts, such as paint and hair spray, were observed in an unlocked cabinet in the playroom. This deficiency was corrected at reinspection on July 25, 1990. During a routine quarterly inspection of WHITFIELD ACADEMY on October 16, 1990, the door to the supply storage room was unlocked. This deficiency was corrected at reinspection on October 30, 1990. During a routine quarterly inspection of WHITFIELD ACADEMY on January 9, 1991, the door to the supply storage room was unlocked. This deficiency was not corrected at reinspection on January 24, 1991, but was corrected at reinspection on February 7, 1991. On May 31, 1991, during a food service inspection at WHITFIELD ACADEMY, cleaning chemicals were observed stored over a food preparation counter. At reinspection on June 17, 1991, this deficiency was corrected. Except for the January 9, 1991 citation, all storage deficiencies relating to storage of cleaning supplies and other such materials were corrected in a timely manner. Children at WHITFIELD ACADEMY did not have access to cleaning supplies, flammables, or other potentially poisonous or dangerous chemicals. Pest Control Deficiencies On three occasions since 1989, WHITFIELD ACADEMY has been cited for failure to maintain appropriate sanitation due to problems with pest control. On each occasion evidence of roaches was found at the facility. On January 24, 1991, HRS conducted an inspection of WHITFIELD ACADEMY in response to two complaints filed with the department which alleged that evidence of roaches had been observed at the facility, and that the facility did not conduct appropriate fire drills.. During the inspection, live roaches were observed in the kitchen, behind the soda machine, and in cabinets above and beside the sink. This deficiency was classified as a major infestation. At reinspection on February 8, 1991, the deficiency had been corrected. During a routine food inspection at WHITFIELD ACADEMY on May 31, 1991, live roaches were observed in three different areas. This deficiency was classified as a significant infestation. A routine quarterly inspection conducted on June 6, 1991 also showed evidence of live roaches in the nursery and playroom. At reinspection by the food inspector on June 17, 1991, the deficiency had been corrected, and reinspection again by HRS on July 5, 1991, confirmed that the problem was corrected. All deficiencies cited by HRS against WHITFIELD ACADEMY relating to maintaining proper pest control were corrected in a timely manner. Failure to Designate Staff In Charge On two occasions since 1989, HRS cited WHITFIELD ACADEMY for failure to designate a staff member left in charge of the facility contrary to Rule 10M- 12.002(2)(a), Florida Administrative Code, which requires that when the operator of a facility is absent, a person over 21 years of age must be in charge of, and present at the facility at all times. On October 14, 1992, an HRS food service inspector during a routine inspection of WHITFIELD ACADEMY was unable to locate a specific staff member at the facility willing to accept the food service inspection report. At the time of the inspection KAREN PILLSBURY was absent from the facility. The report was eventually accepted and signed for by Connie Jimenez, an employee of the facility at that time, who was more than 21 years of age. On May 10, 1994, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to designate a person in charge. The HRS inspector did not observe or review a posted list of employees of the facility to determine if any employee had been designated in charge at that time. This deficiency was corrected at reinspection on May 24, 1994. Respondent KAREN PILLSBURY, the operator of WHITFIELD ACADEMY, posts a list of employees in her office which designates the employee in charge in her absence. Because of the chronic problems encountered during inspections by HRS at WHITFIELD ACADEMY, employees of the facility were reluctant to acknowledge responsibility for the facility and accept HRS inspection reports. Fire Code Violations On January 24, 1991, in response to the complaints described in Paragraph 48, above, a deputy fire marshal with the Southern Manatee Fire & Rescue District, verified that WHITFIELD ACADEMY did not comply with appropriate fire code standards in that the employees were not properly trained in fire drill procedures, the fire drill log was not properly completed, and the fire drill log inaccurately reflected that fire drills had been regularly conducted at the facility. These deficiencies were corrected at reinspection on February 8, 1991. Premises Safety Hazards On October 10, 1990, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to maintain outdoor equipment free from hazards. This deficiency was cited because of a shattered window pane glass located on the side of the building next to the playground. At reinspection on October 30, 1990 the deficiency had not been corrected. The deficiency had been corrected by reinspection on November 13, 1990. Respondents replaced the shattered window pane glass with a shatterproof new window which required a special order. The delay in correcting this deficiency was caused by the shipping time for this special order. Unsanitary Conditions On February 23, 1995, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to maintain adequate toilet facilities in violation of Rule 10M-12.003(6)(b), Florida Administrative Code, because of a clogged toilet in the boys' bathroom. The toilet was clogged again at reinspection on March 9, 1995. At reinspection on March 23, 1995, this deficiency was corrected. Children at WHITFIELD ACADEMY occasionally placed items in the toilets. Respondents cleaned and unclogged the toilets on a timely basis. The incident described in Paragraph 59, above, resulted from a child. Corporal Punishment On or about August 17, 1994, an abuse report was filed with HRS alleging that an employee of WHITFIELD ACADEMY used corporal punishment in the discipline of her own child who was attending the facility. The report further alleged that the corporal punishment was inflicted on the child with the permission of Respondent KAREN PILLSBURY in violation of Rule 10M-12.013(1)(c), Florida Administrative Code. This incident resulted in a proposed confirmed report of abuse. Respondent KAREN PILLSBURY did not authorize or otherwise permit the infliction of corporal punishment by an employee of WHITFIELD ACADEMY in the discipline the employee's child on or about August 17, 1994. Nonconstructive Discipline During a routine quarterly inspection on April 7, 1995, HRS cited WHITFIELD ACADEMY for subjecting a child to severe, frightening or humiliating discipline in violation of Rule 10M-12.013(1)(b), Florida Administrative Code. At this time an employee was attempting to restrain a child from biting other children, and was overheard by an HRS investigator to say to the child, "Are you crazy, are you out of your mind?" Respondent KAREN PILLSBURY was not present at the facility when this incident occurred. Respondent KAREN PILLSBURY took remedial measures to address this incident with the employee, and upon reinspection on April 21, 1995, this deficiency was corrected. Hepatitis A Outbreak At the end of July of 1992, twenty-one cases of Hepatitis A, a highly infectious disease, were reported in Manatee County, Florida. At least one reported case was related to a child who had formerly been in attendance at WHITFIELD ACADEMY. The Manatee County Public Health Unit determined that in addition to the former attendee at the facility, thirteen of the other twenty- one reported cases had an association with WHITFIELD ACADEMY. There were no confirmed cases of Hepatitis A found in children in attendance at WHITFIELD ACADEMY, nor in any employees of the facility at that time. As a result of the association of reported cases of Hepatitis A with WHITFIELD ACADEMY, Manatee County Public Health officials recommended that preventative measures be taken at the facility, and that attendees and employees of the facility be tested for immunity to the disease, and if not immune receive Immune Globulin injections. Notifications were also sent to the parents of attending children. Arrangements were made with Manatee County Public Health to provide Immune Globulin injections at WHITFIELD ACADEMY. On the day the injections were given, there was insufficient Immune Globulin available to provide immunizations to all attendees, parents, and employees of the facility, including the Respondents and their family, who had requested the injections. Persons unable to obtain injections at the facility were instructed to contact the Manatee County Public Health Unit; however, there were further problems with obtaining sufficient Immune Globulin which resulted in delays in the inoculation of some of those persons requesting the treatment. Respondents and their family members were inoculated with Immune Globulin. As a result of the initial failure of the Respondents to receive Immune Globulin, and other problems relating to the recommendations for preventative measures at the facility, on August 7, 1992, HRS instituted proceedings in circuit court, Case No. CA-92-003149, Fla. 12th Cir, seeking a temporary restraining order against WHITFIELD ACADEMY from operation for at least sixty days. To resolve this action, WHITFIELD ACADEMY agreed to close from August 12, 1992 through August 23, 1992, to complete a terminal cleaning of the facility by August 24, 1992, to continue immunizations for at least six weeks after any reported case of Hepatitis A was associated with the facility, and to implement certain sanitation measures. The agreement was incorporated into an Order entered by the circuit court on August 24, 1992. Respondents complied with the terms of this agreement. Respondents reasonably cooperated with HRS officials in addressing the problems associated with the outbreak of Hepatitis A in July of 1992. Subsequent to August 24, 1992, there were no confirmed reports of cases of Hepatitis A associated with WHITFIELD ACADEMY. Other Violations On October 30, 1990, an employee of WHITFIELD ACADEMY informed HRS inspectors that a reinspection of the facility could not be conducted until Respondent KAREN PILLSBURY returned. After being shown Section 402.311, Florida Statutes, which authorizes HRS inspections, the employee allowed the inspectors to conduct a partial reinspection. Upon Respondent's return, an inspection was completed. This violation has not reoccurred. During a routine inspection on September 11, 1990, HRS cited WHITFIELD ACADEMY for failure to maintain proper medical examination certificates or immunization records in violation of Rule 10M-12.008, Florida Administrative Code. This deficiency was not corrected at reinspection on September 28, 1990; however these records were subsequently brought into compliance. As a result of the continuing problems at WHITFIELD ACADEMY relating to the record-keeping and other deficiencies, two meetings were conducted on April 16, 1991, with HRS representatives and Respondents and their counsel, at which time agreement on a course of action for resolving these problems was reached. Respondents have made a reasonable effort to comply with this agreement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered finding that the charges against Respondents ELMER ROGER PILLSBURY, KAREN PILLSBURY, and WHITFIELD ACADEMY are insufficient to warrant licensure revocation, and that the Administrative Complaint filed against Respondents be DISMISSED. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995. RICHARD HIXSON 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 29th day of November, 1995. APPENDIX As to Petitioner's Proposed Findings 1 - 2. Accepted and Incorporated. 3 - 5. Accepted and Incorporated except that Respondent also has complied with the terms of the settlement agreement. 6 - 7. Accepted and Incorporated except that the deficiencies were corrected. 8. Accepted, except that Respondents and their counsel agreed to cooperate with HRS to remedy the problems. 9 - 15. Accepted and Incorporated, except that the cited deficiencies were corrected. 16. Accepted, except that the replacement glass was on special order, and the problem was corrected. 17 - 25. Accepted, except that the deficiencies were corrected. 26. Accepted, except that Respondents reasonably cooperated with health officials and were finally inoculated. 27 - 35. Accepted and Incorporated, except that the deficiencies were corrected. Rejected to the extent that Respondent authorized corporal punishment. Rejected as irrelevant. 38 - 42. Accepted and Incorporated, except that the deficiencies were corrected. COPIES FURNISHED: Raymond R. Deckert, Esquire DHRS, District 6 Legal Office 4000 W. Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614 Earl W. Baden, Jr., Esquire 1101 Sixth Avenue West Post Office Box 1907 Bradenton, Florida 34206 Robert L. Powell, Agency Clerk DHRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
