The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2017.
The Issue The issue is whether Petitioner's application for a license to operate a child care facility should be approved.
Findings Of Fact The Department is the state agency responsible for licensing child care facilities. On June 17, 2016, Ms. Gaines filed an application for a license to operate a child care facility in Babson Park, Polk County (County). She previously worked as a caregiver for two child care facilities in the County and desires to operate a new facility known as Brighter Beginnings Learning Center. To qualify for licensure, an applicant must meet the licensing standards in section 402.305(1), Florida Statutes. Also, section 402.305(2) requires that child care personnel meet minimum requirements as to good moral character based upon a level 2 screening as provided for in chapter 435. That screening includes a check to determine if the applicant has a report on the Central Abuse Hotline. The background screening revealed that Ms. Gaines has three reports on the Central Abuse Hotline. The incidents occurred in 2010, 2014, and 2015. Based on this information, and the underlying facts surrounding those reports, the Department informed Petitioner by letter dated June 30, 2016, that her application was denied. Petitioner timely requested a hearing. On July 12, 2010, the Department received a report that Ms. Gaines (then known as Ms. Hamilton) had grabbed and pinched several children at Hope Child Development Center in Frostproof, where she was working as a caregiver. The incident was investigated by Deanna McCain, then a child protective investigator (CPI), who testified at hearing. However, the report was not verified because there were no visible injuries on the children. The facility terminated Petitioner as an employee after the incident. Ms. Gaines began working as a caregiver at Our Children's Academy in Lake Wales around October 2013. On October 12, 2014, the Department received a report that a 13- year-old child under Ms. Gaines' supervision was left unattended in a sandbox in the playground while Ms. Gaines was on a personal cell phone call in a classroom. The child suffers from autism and epilepsy and is prone to having seizures. The child suffered a seizure during Petitioner's absence. Brandy Queen, a CPI who testified at hearing, was assigned the task of investigating the incident. Her investigation revealed the child suffered a severe seizure that lasted four minutes and caused her to vomit and defecate on herself. Based on interviews with Petitioner, a teacher who witnessed the incident, and the school principal, Ms. Queen classified the incident as verified. The child was found face down in the sandbox by a teacher, Mr. Swindell, who immediately contacted the school nurse to check the child. Mr. Swindell, who testified at hearing, established that the child was alone outside for around ten to 15 minutes and that Petitioner did not go back outside to check on the child until after she had awoken from the seizure. Throughout the episode, Ms. Gaines was making a personal call on her cell phone. The facility has a policy of no cell phone usage during student contact time. Prior to the incident, the principal had spoken to Petitioner around nine or ten times about inappropriate cell phone usage. After the incident, a Letter of Concern regarding cell phone usage was placed in Petitioner's file. The mother of the student testified at hearing and stated she had no concerns about the incident and described it as "overblown." She said her daughter suffers seizures two or three times a week without warning, but they are not life- threatening. She does not blame Petitioner for the incident. The mother was under the impression, however, that her child was left alone for only a very short period of time and Petitioner immediately went back to the playground to retrieve her. The mother admitted she would be concerned had she known that her daughter had been allowed to remain alone for ten to 15 minutes and that asphyxiation could be a potential result if the child was face down in the sand. On February 25, 2015, the Department received another report of possible abuse by Petitioner, who was still employed as a caregiver at Our Children's Academy. The report indicated that Petitioner had inappropriately dragged a non-verbal child with Down Syndrome from the classroom to the playground. Two school therapists were present during the incident and testified at hearing. They confirmed that Petitioner was working with the child in an effort to get him from the classroom to the playground swings. The child was frightened by the swings and resisted her efforts. Petitioner first grabbed the child by one arm, and when he dropped to the floor, she grabbed both arms and dragged the child on his stomach out of the classroom and into the hallway. She then dragged him down a set of wooden stairs and to the playground where she forced him to sit in the swings against his will. One of the therapists observed that the child was very upset and urged Petitioner to let him calm down, but Petitioner continued dragging the child to the playground. The frightened child urinated on himself. The incident was investigated by CPI Queen, who interviewed the Petitioner, principal, and two therapists. She observed minor bruising on the child's arms but could not say definitively that the bruising was caused during the incident. She also could not establish that the child would suffer long- term emotional trauma due to the incident. Because of this, she classified the report as unsubstantiated. This meant that something happened to the child, but she could not verify that the bruising was caused by Petitioner's actions. The facility terminated Petitioner as an employee after the incident. Petitioner downplayed her conduct and generally contended that she never harmed or failed to supervise the children assigned to her care. Petitioner has five children of her own, she has a passion for children, and she wants to put that passion to good use by operating a child care center. The Department based its decision to deny the application on the facts that underlie the reports, and not the reports themselves. This includes consideration of who was interviewed by the CPI, what the statements were, whether there were any inconsistencies, how the cases were closed, the applicant's employment history, and whether there appears to be a pattern of concerning behavior. Based on this information, a Department licensing official observed a pattern of concerning behavior on the part of Petitioner as well as inconsistencies between Petitioner's statements and those of persons who witnessed the incidents. The Department considers Petitioner to be a potential risk to children unless she is supervised.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner's application for a license to operate a child care facility. DONE AND ENTERED this 17th day of October, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2016. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Trina Gaines Post Office Box 4024 Lake Wales, Florida 33859-4024 Cheryl D. Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830-7646 (eServed) Rebecca F. Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue is whether Respondent should revoke Petitioner's license to operate a child care facility for failure to comply with the Director Credential requirements in Subsection 402.305(2)(f), Florida Statutes (2003), and Florida Administrative Code Rule 65C-22.003(7).
Findings Of Fact Respondent is the state agency responsible for registering family day care homes in Florida. Petitioner is licensed as a child care facility and has operated as a child care facility since October 4, 1990. It is undisputed that Petitioner has satisfied all of the Director Credential requirements, except one. Respondent alleges that Petitioner has not provided Respondent with written verification that Petitioner successfully completed 20 hours of courses required to be certified as a Child Development Associate (CDA). Petitioner completed the courses required to be a CDA in September 1988, but the record of completion is no longer available from the former state agency responsible for administering the program and maintaining those records. Respondent admits that routine licensing inspection reports by Respondent document that Petitioner completed the courses necessary for the CDA certificate in September 1988, and subsequent inspections never cited Petitioner for failure to comply with the CDA requirement. The testimony of Ms. Terry DeLong, Petitioner's director, was credible and persuasive. Petitioner has satisfied all of the Director Credential requirements. Respondent should not revoke Petitioner's license because another state agency failed to maintain its records. It would be unreasonable to require Ms. Delong to repeat the courses she has already completed in order to keep operating the child care facility. The statutory requirement for a CDA certificate is intended to ensure minimal standards of competence. The legislature did not intend to put competent child care facilities out of business because state agencies are unable to maintain records of completion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner has satisfied the statutory Director Credential requirements. DONE AND ENTERED this 2nd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2004. COPIES FURNISHED: Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Terry DeLong Tuskawilla Montessori School 1625 Montessori Point Oviedo, Florida 32765 Paul F. 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
