The Issue The issue in this case is whether Petitioner should have her application to renew her childcare facility license denied by Respondent, Department of Children and Families (“Department”), for the reasons set forth in the Amended Denial of Application to Renew Child Care Facility License.
Findings Of Fact Petitioner, Roslyn Smith, holds license No. C07V00140, by which she is licensed to operate the Rising Stars childcare facility pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Chapter 65C-22. Petitioner has operated the Rising Stars childcare facility for 12 years. She serves very low-income children in the Daytona Beach area. There is no question but that Petitioner offers superior service to the children under her care. Petitioner maintains a clothing bank to ensure that the children in her care are adequately clothed. Petitioner prepares wholesome, homemade, nutritious meals for the children, eschewing the more common chicken nuggets and corn dogs offered up at other facilities. The children are encouraged in their classrooms, with appropriate and well-kept educational materials. The facility is clean and well maintained. Petitioner’s husband frequents the facility to perform maintenance and upkeep. The children in her care love Petitioner, a feeling that she returns in kind. On September 20, 2010, Petitioner and the Department entered into a Settlement Agreement to resolve several background screening and training violations. The agreement resulted in Petitioner’s license being placed on probationary status for a period of six months. The Department’s denial of Petitioner’s license renewal was based solely on alleged violations discovered during an inspection conducted on November 3, 2010, and on an alleged violation discovered on February 2, 2011. The November 3, 2011 inspection was conducted by Patricia Medico. Ms. Medico began working for the Department on May 18, 2010. The November 3, 2010 inspection was her first at Rising Stars. Despite having been trained since her hire, and having had a small caseload in DeLand, Ms. Medico considered herself to be “a very new counselor starting at [Petitioner’s] place in November.” Ms. Medico made it a practice to inspect facilities without first reviewing any information or previous Department inspection reports, a common practice with other inspectors. She believed that by going out “cold,” it allowed her to be more objective, and to have no preconceived notions or prejudices. On November 18, 2010, a re-inspection of the facility was performed by Ms. Medico. All deficiencies identified during the November 3, 2010 inspection had been resolved, and no further violations were discovered. Since the November 3, 2010 inspection, Rising Stars has been in substantial -- if not almost perfect -- compliance with all childcare facility standards. From November 3, 2010 through the August 26, 2011 inspection, the only violations discovered were Quinetta Edwards’ missing affidavit of good moral character discussed below, one classroom without a posted lesson plan in March 2011, a minor attendance roster discrepancy in March 2011 that was corrected during the inspection, and one time when the posted lunch menu was not dated. The evidence demonstrates that Petitioner made substantial, effective, and sufficient progress toward compliance since the entry of the settlement agreement on September 20, 2010, and it is so found. The specific violations that form the basis for the denial of Petitioner’s license renewal are as follows: Training Violations Veronica Dickson The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner did not have documentation in the employment file of Veronica Dickson showing that she had started her 40-clock-hour training within 90 days of commencement of her employment at Rising Stars. The evidence suggests that the documentation of Ms. Dickson’s training was in her file since at least October 8, 2010, and another copy was printed from the Daytona State College website and provided to Ms. Medico during the inspection. Ms. Medico stated that she had no recollection of having seen Ms. Dickson’s training records during the inspection. At various times, Ms. Medico admitted that due to her large caseload, she was unclear as to the specifics of any given inspection. However, she indicated that the inspection report is her contemporaneous statement of the facts. She further indicated that it was her practice to print out a copy of the report and go over it with the licensee before having the licensee sign it. When Ms. Medico left a facility, the inspection report provided to the licensee “isn’t necessarily the written in stone inspection.” Rather, it is subject to review, occasionally with items that were found to be non-compliant changed to being compliant, and items that were found to be compliant changed to being non-compliant. If items were changed, Ms. Medico would call the licensee to advise them of the change. Contrary to Ms. Medico’s description of the process, Petitioner testified that, as the normal practice, Ms. Medico did not go over the inspection reports point-by-point. Rather, she indicated that she would receive an unsigned report from Ms. Medico after having accompanied her during the inspection and having discussed -- and oftentimes resolved -- problems at the time. She would sign the computerized signature block without reviewing the report, relying on the earlier discussions. If necessary, she would review the report after the inspection. Having personally provided Ms. Dickson’s training records to Ms. Medico, Petitioner did not realize that the training records were identified as a violation on November 3, 2010. Petitioner would have disputed the violation had she known at the time that she was being cited. The evidence as to whether the training documentation was in Ms. Dickson’s file is contradictory. However, the more persuasive evidence supports a finding of fact that the documentation was provided at the time of the inspection, but was either overlooked or forgotten by Ms. Medico. Therefore, there was no violation of any childcare standard associated with Ms. Dickson’s training records. Alicia Thomas The Department listed, as a basis for the denial of Petitioner’s license renewal, that Alicia Thomas had not started her 40-hour training within 90 days of having started employment in the childcare industry. According to the Department’s personnel records, Ms. Thomas was first employed in the childcare industry on April 5, 2010. There is no evidence to indicate by whom she was employed on that date. The Department provided no information as to how a licensee is to know when a person is employed “in the industry.” However, it is clear that a candidate for employment at a child care facility is to commence training within 90 days of employment at any licensed childcare facility, and that the employing childcare facility is responsible for obtaining documentation from childcare personnel. The evidence is undisputed that Ms. Thomas’s background screening was complete and clear. Furthermore, Ms. Thomas had completed her required in-service training by June 30, 2010. The Department personnel summary sheet indicates that Ms. Thomas started her employment at Rising Stars on May 5, 2010. However, the greater weight of the evidence indicates that Ms. Thomas was hired by Petitioner in July, 2010. From July through November, 2010, which was the period of Ms. Thomas’s employment at Rising Stars, she worked fewer than 30 days due to various medical issues. The evidence indicates that Ms. Thomas’s failure to commence her 40-hour training was not cited by the Department as a violation on November 3, 2010. The unsigned inspection report provided by Ms. Medico for Petitioner’s review did not list a violation related to Ms. Thomas’s training. Ms. Medico testified that she did not cite Petitioner for a violation related to Ms. Thomas on November 3, 2010. Rather, she indicated that “all I did was tell her in notes that Alisca needed to get this,” and that “the next time I went out, she would be cited if she did not correct that.” (emphasis added). Ms. Adams testified that “technically, [Petitioner] should have been cited additionally for Alisca Thomas not starting her training on time,” but that “I overlooked it, and I don’t know what [Ms. Medico’s] rationale was [for not citing], but I overlooked it.” Petitioner testified that Alisca Thomas never appeared on any inspection report that she received. The greater weight of the evidence demonstrates that Petitioner was not cited for a violation related to Ms. Thomas’s training status, and that the deficiency would be considered to be a violation only if it was not corrected by the November 18, 2010 re-inspection. By the time of the November 18, 2010 re-inspection, Ms. Thomas had commenced her training, documentation of which was in her file. Thus, Petitioner made sufficient progress toward compliance, and in fact completely resolved the issue, by the time Ms. Medico went back to the facility. Despite having come into compliance with her training requirements, Ms. Thomas was let go shortly after November 18, 2010 due to her ongoing health issues. Based on the foregoing, Ms. Thomas’s training status, having been completely resolved prior to it being cited as a violation, and its having had no proven effect on the health, safety, or child development needs of the children in Petitioner’s care, is not a sufficient basis for denial of the renewal license. Record-Keeping Course Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner did not complete the Guide to Record Keeping online course or the CEU assessment as required by the September 20, 2010 settlement agreement. As part of the settlement agreement, Petitioner was required by the Department to take and pass the course, and get credit for the Continuing Education Units (CEUs). Petitioner had taken the course in 2009, and had received a certificate of completion. The certificate had not expired. Petitioner attempted to take the Guide to Record Keeping online course as required by the settlement agreement. When Petitioner tried to enroll for the course, the course provider refused to allow her to pay the fee or enroll. Such refusal is consistent with the warning on the course registration home page, which states that “[y]ou can only earn one certificate for each course, and you may not earn CEUs for a course you have previously taken.” Petitioner testified that she advised Ms. Medico and Ms. Adams of the problem with taking the online course. Ms. Adams had a recollection of meeting Petitioner in the lobby of the DCF building, and discussing Ms. Dickson’s and Ms. Thomas’s training issues with her, but did not mention discussing Petitioner’s difficulty in taking the record keeping class. Whether Ms. Adams was told of the problem or not is immaterial. The evidence is sufficient to demonstrate, at the very least, that Petitioner advised Ms. Medico, a representative of the Department, of the problem in taking the course. The Department should have known of the restriction on retaking the course at the time it imposed that requirement on Petitioner. Petitioner had no reason to expect that the Department’s required settlement condition could not be performed, and did not know of the restriction until she attempted to comply. Petitioner made a good faith effort to comply with the condition but, since the course provider prohibited Petitioner from retaking the course and receiving CEU credit, performance of that element of the settlement agreement was impossible. Based on the foregoing, Petitioner’s failure to take, complete, and receive CEU credit for the Guide to Record Keeping course, in light of the impossibility of doing so, is not a sufficient basis for denial of the renewal license. Untimely Meeting Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner failed to meet with Susan Liebee, a coordinator at the Daytona State College, within 10 days of the date of the settlement agreement to discuss staff training requirements. The meeting was to have been held by September 30, 2010, but did not take place until October 8, 2010. Petitioner testified that she went to Ms. Liebee’s office to meet with her, but that she was not there. She subsequently called and made an appointment with Ms. Liebee to meet on October 8, 2010, and met as scheduled. Petitioner made every reasonable effort to meet the time frame for the meeting established in the settlement agreement, but due to reasons outside of her control was not able to meet until Ms. Liebee was available on October 8, 2010. Petitioner’s testimony on that point was credible, and there was no evidence to the contrary. Based on the foregoing, Petitioner’s failure to meet with Ms. Liebee due to circumstances involving Ms. Liebee’s schedule that were out of Petitioner’s control, is not a sufficient basis for denial of the renewal license. Affidavit of Good Moral Character Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that an Affidavit of Good Moral Character was not in the file of new hire Quinetta Edwards. Ms. Edwards was hired effective February 1, 2010. The inspection during which Ms. Edward’s employment file was reviewed was conducted on February 2, 2010. As stated by Ms. Medico, a new employee’s background investigation consists of the level 2 background screening required in Chapter 435, the Affidavit of Good Moral Character signed by the employee, the signed and notarized Child Abuse Reporting Form, the employee’s employment history, checked references for two years, and a supplemental statement that the employee has not had a child care license denied or revoked in the past. All of the screening requirements listed by Ms. Medico, and established in rule 65C-22.006(4), had been met but for the affidavit. Due to a simple oversight, Ms. Edwards failed to execute the Affidavit of Good Moral Character prior to her employment with Petitioner. Upon learning of the oversight, Ms. Edwards executed the Affidavit on February 8, 2010. Petitioner thereupon submitted the affidavit to the Department by facsimile on that date. There was no attempt to backdate the form, or to do anything other than honestly correct the oversight. Ms. Edwards has cleared all screening, meets all employee standards, and remains on the staff of Rising Stars without any problems to this day. The simple and unintentional oversight in having Ms. Edwards execute her affidavit one week after commencement of employment, given that all other background screening was completed without incident, had no effect on the health or safety of the children attending Rising Stars. That oversight was not a material violation of the Department’s licensing standards or of the settlement agreement, and is not a sufficient factual basis for the denial of Petitioner’s license renewal. Other Violations Not Pled In addition to the issues pled as reasons for denial in the Department’s Amended Denial of Application to Renew Child Care Facility License, the parties introduced testimony and documentary evidence regarding a number of alleged minor deficiencies at the Rising Stars facility discovered during the November 3, 2010 inspection. Both Ms. Medico and Ms. Adams admitted that the deficiencies did not form the basis for the Department’s proposed action. As to the facility violations -- which included among other minor deficiencies, a missing lesson plan; exposed “S” hooks on the swing set; worn electrical outlet covers; an exposed, but generally inaccessible screw point underneath a bench; uneven boards on a deck; and two forks in a drawer accessible but off-limits to children -- the evidence demonstrates conclusively that those deficiencies are “common problems” and that “those things, they happen everywhere.” The evidence further demonstrates that Petitioner’s husband keeps the facility well kept and maintained, and that Petitioner does a “wonderful job” with the Rising Stars facility. The evidence is undisputed that each of the alleged violations identified in the November 3, 2010 inspection report were either corrected on the spot during the inspection, or were corrected by the November 18, 2010 re-inspection. They have not recurred. To the extent that those alleged deficiencies are considered in the final decision regarding renewal of Petitioner’s license, despite having not been pled by the Department, it is found that the alleged deficiencies, have had no adverse effect on the health, sanitation, safety, and adequate physical surroundings for the children in Petitioner’s care, have had no adverse effect on the health and nutrition of the children in Petitioner’s care, and have had no adverse effect on the child development needs of the children in Petitioner’s care. Therefore, those alleged deficiencies do not form a sufficient basis for denial of Petitioner’s license renewal. Finally, evidence was received regarding the employment of Jennifer Geier by Petitioner during a period that she was disqualified from employment. Petitioner was not aware that Ms. Geier was subject to disqualification, especially since she had received a letter from the Department of Corrections dated September 9, 2009, stating that “there are no stipulations in her order that prevents her from employment in a child care facility.”1/ Upon discovering that the offense was, in fact, disqualifying, Ms. Geier was terminated. It is clear that at the time the Department issued its Amended Denial of Application to Renew Child Care Facility License on August 2, 2011, the Department was well aware of Ms. Geier and her relationship with Petitioner, with all aspects of her employment at Rising Stars having been resolved in the September 20, 2010 Settlement Agreement, and with her having received a Final Order from the Department granting an exemption from disqualification on January 3, 2011. Since all aspects of Ms. Geier’s employment were resolved by the settlement agreement, and since Ms. Geier’s employment by Petitioner was not pled by the Department, her previous employment does not form a sufficient basis for denial of Petitioner’s license renewal.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order granting the renewal of license, No. C07V00140, to Petitioner Roslyn Smith for the operation the Rising Stars childcare facility. DONE AND ENTERED this 4th day of November, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 4th day of November, 2011.
The Issue Whether Respondent failed to meet the criteria for renewal of her license to operate her day care center.
Findings Of Fact At all times pertinent to this proceeding prior to February 11, 1998, Respondent, Eleanor Pennell, was duly licensed by Petitioner (or its predecessor agencies) and was the owner and operator of Miss Ellie's Child Care Center in Vero Beach, Florida. Respondent's license for the year 1996-97 was scheduled to expire November 10, 1997. Respondent applied to Petitioner for a renewal of her license. The effective date of the annual renewal, had it been granted, would have been November 11, 1997. Respondent timely applied for the renewal of her license. As part of the renewal process, the subject premises were inspected on October 29, 1997, by Sue Banek, a day care licensing counselor employed by Petitioner.1 Ms. Banek completed a form entitled "Child Care Facility Inspection Checklist" (Checklist) wherein she noted several deficiencies. Ms. Banek discussed those deficiencies with Ms. Pennell. Named as deficiencies were the following items: the children's applications were not properly filled out; the planned activities were not properly posted; the personnel applications were not complete; personnel had not been properly screened or trained; the yard needed to be cleaned; and locks needed to put on cabinets. Ms. Banek inspected the subject premises again on November 4, 1997, and completed another checklist. Again, Ms. Banek discussed her findings with Ms. Pennell. The deficiencies noted by Ms. Banek were the subject of a Corrective Action Plan attached to a letter to Ms. Pennell dated November 11, 1997. By this letter, Petitioner granted Respondent a provisional license for a period of two-months, but instructed her to correct the deficiencies during the two-month period as provided by the Corrective Action Plan. The provisional license was scheduled to expire January 11, 1998. The Corrective Action Plan for Respondent provided as follows: Corrective action to be completed no later than dates given for each item. Personnel files are to be set up reflecting staff physicians, including TB tests, copies of driver's licenses, application, reference checked, form 5131 (blue card) and training card for training completed (yellow card) by November 13, 1997. Standing water drained daily an horse [sic] shampoo bottles removed immediately. Crawl space securely covered by November 13, 1997. Broken or cracked toys removed from playground by November 13, 1997. Kitchen cabinets cleaned and secured by November 13, 1997. Staff will be enrolled in training by January 9, 1998. Affidavit of compliance available by November 13, 1997. Radon testing initiated or copy supplied to Licensing Counselor by November 13, 1997. Ms. Banek inspected the premises again on November 11, 1997, and December 12, 1997. On December 18, 1997, Petitioner wrote Ms. Pennell a follow-up letter, which discussed Ms. Banek's findings, in pertinent part, as follows: The recent issue [sic] of a PROVISIONAL license #091278 to provide day care services for children at Miss Ellie's Child Care Center is conditional on a number of very important concerns that have been addressed with you by the below named counselor (Ms. Banek) and in a Corrective Action Plan dated 11/7/97. In addition, a cover letter dated November 11, 1997, with the provisional license indicated the importance of getting these deficiencies corrected immediately. Our inspection status at this point has found little improvement in the conditions of your child care facility. Consequently, we are placed in a position of having to notify you that the closing of your facility is imminent unless you can satisfy all requirements within two weeks of the date of this letter. These requirements include: Posting this letter and the provisional license issued in a conspicuous place inside of and near the entrance to your facility where it is clearly visible to visitors. A complete cleaning and refurbishing of the furniture, equipment, playthings, and other equipment used or contacted by the children. Cabinets, kitchen, and food equipment need also to be cleaned thoroughly. All tools and implements and toxic and hazardous material must be secured in locked storage or placed in areas totally inaccessible by the children. Child-proof safety locks must be installed on all doors that children can reach that contain any substance or materials potentially harmful to them. All bottles, glass jars, opened food, and other containers must be stored completely away from child care areas or where children can access them. Preparation and completion of all child and staff files so that our counselor can satisfactorily review these files. Planned child care activities are required for all children over one year of age. The activity scheduled needs to be posted an followed by your staff. All items recorded on the Environmental Health form 12/16/97 must be satisfied and the follow-up inspection planned by that office on 12/30/97 must be satisfactory with a recommendation for licensing so stated.2 You have been found to be absent when children are in care at your facility. Our understanding is that this leaves no one responsible for children that is certified to administer first aid or CPR. A person trained in this [sic] must be on premises at all times the children are present. We understand that you are transporting children in your personal auto that may not be covered by proper insurance nor has it had the required annual inspection. Children must not continue to be transported in this manner. We understand you acknowledge you have not had the required TB test. This must be corrected. We are mandated to inform you that continued non-compliance will result in fines and/or suspension or revocation of your license. Within the next week we will contact you for information on actions you have taken to improve the conditions. We will review the provisional status of your license no later than January 5, 1998. We ask for you to see that all conditions needing correction are fully satisfied before that date. Ms. Banek inspected the facility again on January 5, 1998. Her inspection checklist noted several deficiencies that she discussed with Respondent. Those deficiencies were discussed in more detail in a letter dated January 9, 1998. By this letter, Petitioner issued a second provisional license to Respondent, which was valid until February 11, 1998. Attached to the letter of January 9, 1998, was a statement of the deficiencies that required correction. That statement provided, in pertinent part, as follows: Provisional status has resulted due to non- compliance of the requirements of sections 402.301-319, Florida Statutes, and 65C-22, Florida Administrative Code. Specific items needing attention and discussed with you during an inspection visit of January 6, 1998, include: Standards for supervision of children imposes staff/child rations per S. 402.305(4) and (5)(a) and (b), Florida Statutes. You have been found to be absent from the facility which violated the staff/child ratio requirements. You must provide information as to how you will correct this no later than January 12, 1998. * * * You must provide a written discipline policy for our inspection per S. 402.305(12), Florida Statutes, that is made available to parents and staff. Signed statements need to be available in staff and children's records indicating that the policy has been explained and understood. You have not completed this. A written discipline policy must be made available for inspection no later than January 12, 1998. The signed statement must be in all staff and children's records no later than January 16, 1998.3 * * * Kitchen cabinets are full of materials and items that are hazardous and/or threaten the health and safety of young children. This must be corrected satisfactorily by January 12, 1998, to meet the provisions of S. 402.305(5), Florida Statutes. * * * Monthly fire drills are required by S.402.305(5), Florida Statutes. A record of these must be kept and posted. You must indicate compliance with this by having a fire drill in our presence on January 12, 1997 [sic] and by maintaining these requirements.4 * * * Training standards are described in S.402.305(2)(b). Our inspection found no documentation of training for you for the preceding year and one half nor any evidence of payment for enrollment in training for Jessica Green within her first 90 days of employment. You need to provide written documentation of enrollment in training for both of you by January 16, 1998. * * * Emergency telephone numbers must be posted per S.402.305(2)(e). This must be completed satisfactorily by January 12 1998. * * * Personnel files must include specific documents defined by S.402.302(8), Florida Statutes. Inspection of these files shows no employment application for Jessica Green. This must be completed and provided for the file by January 12, 1998. * * * The documents required in children's files are defined in S.402.305(9). All missing or incomplete documents must be corrected and in respective files by January 16, 1998. No child may attend your facility without a complete enrollment application on file beginning January 12, 1998. * * * Deficiencies cited in the county environmental inspection have not been corrected. Those deficiencies are listed on the documentation dated 12/30/97 and must be found to be corrected by January 16, 1998. Ms. Banek inspected the facility on January 12 and on January 16, 1998. Petitioner prepared a letter dated February 5, 1998, that purported to revoke Respondent's day care license effective at the close of business on February 11, 1998. That letter provided, in pertinent part, as follows: This office informs you that your license #091278 to operate Miss Ellie's Child Care and Preschool Center is hereby REVOKED FOR UNCORRECTED VIOLATIONS found by the Department. You must not continue to provide day care for children unrelated to you or for a fee, and you must immediately surrender your certificate to this office. We must ask your cooperation so that further legal action does not become necessary. Our inspection activities find that the requests for corrective action plans provided to you with our letters of November 11 and December 18, 1997, and the list of specific compliance requirements per our letter of January 9, 1998, with the issue of a provisional license have not been satisfied. You have not made the required efforts to improve the conditions for the safe protection and care of children. Licensed day care facilities must fully meet the provisions of Chapter 402.301-319, Florida Statutes, and Rule 65C-22, Florida Administrative Code, copies of which have been provided. The facts known to this office include: On November 11, 1997, you were issued a provisional license valid for two-months to allow you time to satisfy a corrective action plan prepared with you. Numerous violations of licensing standards were listed in that plan that needed correction. Some of these standards have not yet been made. After inspection visits during the provisional license period, a letter dated December 17, 1997, was sent to you by certified mail specifying the particular items needing immediate correction for the lifting of the provisional license. You were informed by this letter that revocation of your license could ensue if standards were not met. A letter dated January 9, 1998, was sent to you with an up-dated [sic] corrective action plan enclosed that specified the compliance needed and a date by which to correct each deficiency noted. Your provisional license was extended for ONE month, until February 11, 1998, based on some progress that you had made on your corrective plan. Follow-up by our counselor on January 12 and 16, 1998, found only two of the eight5 deficiencies noted to be corrected with no progress on the remaining six. The corrective action plan developed with you has not produced changes that adequately provide for safe child day care in your facility. . . . On February 6, 1998, Petitioner filed an Administrative Complaint against Respondent that tracked the language of the revocation letter dated February 5, 1998. On February 11, 1998, Respondent closed her day care center. Respondent made substantial progress in correcting the various deficiencies cited by Ms. Banek up to February 11, 1998, but only two had been completely corrected. Of the remaining deficiencies, three stand out. Despite the fact that Ms. Banek worked with Respondent with the records that had to be kept, Respondent's files for the children and personnel were not complete and they were in disarray.6 Second, Respondent continued to store hazardous materials in an unsafe manner, despite having been repeatedly warned about the potential danger. Third, personnel was not appropriately trained7 and staffing ratios were not up to standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that denies Respondent's application for renewal of her day care license without prejudice to her right to apply for licensure in the future. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998
The Issue Whether the application filed by CaSarah Henderson to obtain a license to operate a child care facility through an entity known as Parramore Christian Center should be granted or denied.
Findings Of Fact The Department is the state agency charged with regulating licensed child care providers in the State of Florida. CaSarah Henderson owns 80 percent of Parramore Christian Academy, an entity organized for the purpose of operating a child care facility. On October 29, 2019, Ms. Henderson filed an application with the Department to obtain a child care provider license for Parramore Christian Academy to enable her to operate a child care facility at 800 West Central Boulevard in Orlando, Florida.1 On March 9, 2020, the Department denied that application based upon Ms. Henderson’s history of multiple violations operating another child care facility at the same location known as Little Kings and Queens Learning Center (“Little Kings and Queens”). The Department also denied the Parramore Christian Academy license application based upon the assertion that Ms. Henderson had a history of violations in the operation of a second child care facility—also operated at the same location— known as Beautiful Angels Academy. The Department has proven that Ms. Henderson has a history of multiple violations while operating Little Kings and Queens. The Department did not prove, however, that Ms. Henderson owned or operated Beautiful Angels Academy, and the history of violations committed through the operation of Beautiful Angels Academy will not be considered a basis to deny the Parramore Christian Academy license filed by Ms. Henderson. Little Kings and Queens Ms. Henderson was the sole owner and operator of a licensed child care facility known as Little Kings and Queens located at 800 West Central Boulevard in Orlando, Florida. On May 5, 2017, the Department filed an Administrative Complaint against Little Kings and Queens, citing two supervision violations2 that occurred on November 2, 2015, and April 7, 2017, and five ratio violations3 1 Neither party offered the application that Ms. Henderson filed as the owner/operator of Parramore Christian Academy as an exhibit. The Department has not alleged that the application was incomplete or deficient in any way. Rather, the sole basis for the denial of the Parramore Christian Academy license application is Ms. Henderson’s history of multiple violations and fines incurred in the operation of child care centers she previously owned and operated on the same property. As such, the undersigned presumed for the purpose of this Recommended Order that the Parramore Christian Academy application was complete and otherwise comported with the applicable statutory and rule requirements necessary to obtain a child care license. 2 A supervision violation occurs when a child’s activities are not adequately supervised at the child care center. Fla. Admin. Code R. 65C-22.001(5)(a) (2016). 3 A ratio violation occurs when the prescribed ratio of staff to children has not been met. Fla. Admin. Code R. 65C-22.001(4) (2016). that occurred on March 21, 2017, April 4, 2017, April 7, 2017, April 11, 2017, and April 18, 2017. All of the violations charged in the Administrative Complaint were Class II violations, the second most severe violation category.4 The Administrative Complaint sought fines totaling $1,385 and a 30- day suspension of Little Kings and Queens’ child care provider license. That action was settled on August 1, 2017. In the settlement agreement that resolved that case (“Settlement Agreement”), Little Kings and Queens admitted to the violations of the supervision rule and ratio rule as charged in the Administrative Complaint, and agreed to pay a $500 fine. Little Kings and Queens also agreed to be placed on probation for three months in lieu of the 30-day license suspension sought in the Administrative Complaint. The Settlement Agreement also states: If the Department initiates an administrative action against Little Kings and Queens in the future, for any reason, the Department shall not be required to re-prove the [supervision and ratio violations admitted to in the settlement agreement]. On November 1, 2017, Little Kings and Queens filed an application to renew its child care provider license. On December 7, 2017, the Department 4 When the Administrative Complaint was filed, the Department categorized violations into four severity categories: Class I, Class II, Class III and Technical Support violations. See Fla. Admin. Code R. 65C-22.010(d) (2016). Class I violations are the most serious in nature, pose 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(d)1. Class II violations are less serious in nature than Class I violations, and could be anticipated to pose a threat to the health, safety or well-being of a child, although the threat is not imminent. Fla. Admin. Code R. 65C-22.010(d)2. Class III violations are less serious in nature than either Class I or Class II violations, and pose a low potential for harm to children. Fla. Admin. Code R. 65C-22.010(d)3. Technical Support Violations are the first or second occurrence of noncompliance of an individual Class III standard or the first occurrence of noncompliance of an individual Class II standard. Fla. Admin. Code R. 65C- 22.010(d)4. Rule 65C-22.010 was amended on October 25, 2017, to eliminate the Technical Support violation categories. The amendment also redefined Class I violations, but Class I remained the most serious violation category. issued a notice of intent to deny the renewal application (“Notice of Intent”) because it found more violations when the facility was on probation. Specifically, the Department found Class II ratio violations on August 1, 2017, and September 27, 2017. In addition, the Department charged three separate Class I violations because on October 26, 2017, a two-year-old boy left Little Kings and Queens, unsupervised, and was found at a bus station down the street by a good samaritan who reported the incident. Ms. Henderson was also accused of providing false information to law enforcement regarding this incident. Specifically, she was accused of falsely claiming that the two-year-old boy ran out the door when she opened the door to take out the trash, but returned to the center immediately. The Notice of Intent sought total fines of $1,700 for the new Class I and Class II violations in addition to the non-renewal of the license. The Notice of Intent also cites the history of Class II violations admitted to in the Settlement Agreement as a basis to non-renew. The Notice of Intent indicates it was hand-delivered to Ms. Henderson, and provides notice of her right to request a hearing to challenge the denial of the renewal application. Ms. Henderson denies having received the Notice of Intent. The Department did not offer any testimony from the individual who hand-delivered the Notice of Intent to Ms. Henderson, and did not offer any other proof of delivery. Nevertheless, Ms. Henderson admits to surrendering the Little Kings and Queens license in December of 2017 to avoid fighting over the renewal of the license, and admits that she knew there were unresolved violations and pending fines when she surrendered the license. It is reasonable to infer based upon Ms. Henderson’s surrender of the license with this knowledge that she received the Notice of Intent and therefore had actual knowledge of the charges pending as identified in the Notice of Intent when she surrendered the license. Ms. Henderson did not request a hearing to contest the non-renewal of the Little Kings and Queens license, or the fines sought therein, and the Notice of Intent became final. See § 402.310(2), Fla. Stat. (2017)(“If the applicant, registrant, or licensee makes no written request for a hearing to the local licensing agency within 15 days after receipt of the notice, the license shall be deemed denied, suspended, or revoked; the license or registration shall be converted to probation status; or an administrative fine shall be imposed.”). The fines assessed in the Notice of Intent totaling $1,700 have not been paid. As to the grounds for non-renewal identified in the Notice of Intent, Ms. Henderson admitted when she testified at the final hearing that the two- year-old wandered off the property without supervision on October 26, 2017. Although Ms. Henderson did not state that she agreed with the ratio violations cited during the inspections that occurred on August 1, 2017, and September 27, 2017, she acknowledged that she received notice of them and offered no evidence to contest these ratio violations at the final hearing. For all of these reasons, the undersigned finds that Ms. Henderson has a history of multiple violations during the operation of Little Kings and Queens child care center, as stipulated to in the Settlement Agreement, and as charged in the Notice of Intent. Beautiful Angels Academy The Department contends that Ms. Henderson owned and operated a child care facility under the name Beautiful Angels Academy, also located at 800 West Central Boulevard in Orlando, Florida, after she surrendered the child care facility license for Little Kings and Queens. The record owner of Beautiful Angels Academy was Kim Holman, Ms. Henderson’s mother. The Department contends that Ms. Holman was the owner in name only, and that Ms. Henderson was the real owner and operator of Beautiful Angels Academy. Ms. Henderson testified that she volunteered to work part-time at Beautiful Angels Academy and that Ms. Holman also paid her a consultant fee, but denies that she owned or operated Beautiful Angels Academy. The Department’s evidence to the contrary is based largely on hearsay, primarily statements made from unidentified employees of Beautiful Angels Academy to Department child protective investigators. The Department also relies on the fact that Ms. Henderson was found on site at Beautiful Angels Academy during a complaint inspection on February 13, 2019. Ms. Henderson testified that she was on the premises because her children received day care at Beautiful Angels Academy. This evidence falls short of establishing that Ms. Henderson was the real owner and operator of Beautiful Angels Academy, and the history of violations committed in the operation of Beautiful Angels Academy is not a proper additional reason to deny the license application Ms. Henderson submitted for Parramore Christian Academy.
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 for a child care facility license that Ms. Henderson filed for Parramore Christian Academy. DONE AND ENTERED this 16th day of July, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 16th day of July, 2020. COPIES FURNISHED: Brian Christopher Meola, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 (eServed) CaSarah Henderson Little Kings and Queens Learning Center 800 West Central Boulevard Orlando, Florida 32805 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon Petitioner's license.
Findings Of Fact On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of notification that Molly Hilbert had not been background screened. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2003. COPIES FURNISHED: Edward T. Cox, Jr., Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Lillie Shells Shell's Family Day Care Home 9340 County Road 231 Wildwood, Florida 34785 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's license to operate a day care center should be suspended or revoked. Whether Petitioner's license to operate a day care center should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities. Respondent routinely conducts inspections of licensed child care facilities to determine whether facilities are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the facility's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on child care facilities which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect child care facilities at any time with or without notice. Petitioner is the owner and operator of a licensed child care facility located at 2625 North Hiawasee Road, Orlando, Florida, which is operated under the business name: Today's Kids Daycare Center (hereinafter "Petitioner's facility" or "the facility"). Petitioner has operated the child care facility at the above address for approximately five years and previously worked as director of another child care facility for five years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating child care facilities. The Incident Following a complaint, Susan Wujastyk, former child protective investigator for Respondent, interviewed the mother of the child, W.P., at the child's school on March 5, 2004, in relation to an alleged incident which occurred at Petitioner's facility on March 3, 2004. She then prepared a preliminary report and went to Petitioner's facility to investigate further. Respondent's child care licensing division was also notified and an inspector came to the facility, as well. On or about March 3, 2004, the child, W.P., a pre- kindergarten student at Petitioner's facility, swallowed an unknown solid substance while in Tangela Muskin's classroom. Muskin believed the substance to be rat pellets and lead W.P. to Petitioner, who was in another room, and told her of her suspicions. Petitioner, who had taken some nursing courses at the local community college, put on a rubber glove and swabbed the child's mouth to dislodge any other substances that might still be in the child's mouth. She also gave him some milk, with the intent to make him throw up. Petitioner then inspected the vomit but found no foreign substances in it. Petitioner did not call "9-1-1" for emergency assistance, nor did she call the poison control center. Instead, she observed W.P. for a period of time and sent him back to his classroom. Muskin also testified that she found the child, W.P., with a bag labeled rat pellets and claimed that Petitioner, in the presence of another employee at the facility, threw the rat pellets in the trash and told Muskin and the other employee not to report this to anyone. This statement is not credible. Petitioner testified that she attempted to call the child's mother, but could not reach her by telephone. Thereafter, she waited for the child's father to come and pick him up and she told him that W.P. had swallowed something but that Petitioner believed that she got all of the material out of his mouth. She advised him to take the child to the emergency room, but the father declined to do so. This statement appears to be credible. Susan Wujastyk inspected the facility on March 5, 2004, as part of her investigation of this matter and found two pellets under a toy chest in Muskin's classroom. Wujastyk thought they were rat pellets; however, that fact was never verified. An examination of the child, W.P., on March 5, 2004, found no evidence of ingestion of a toxic substance, and his condition was found to be stable. Petitioner retains a pest control company that performs regular services at the facility, but does not use rat pellets or any form of rodent control devices. Three of Petitioner's employees testified that they perform regular inspections of the facility and none of them ever found rat pellets or other toxic substances on the premises. Following the joint investigation, a joint report was prepared and approved by Respondent's staff, and it was recommended that Petitioner's license be revoked. Thereafter, on March 23, 2004, the acting district director sent a letter to Petitioner informing her that her license was being revoked and advised Petitioner of her right to "appeal" that decision through the administrative process. Subsequently, on June 10, 2004, Petitioner was sent a letter informing her that her license would not be renewed. The basis for the denial was the same as the revocation letter. At the hearing, Patricia Richard testified that she was particularly concerned that Petitioner was aware the W.P. may have swallowed a toxic and other dangerous substance and did not take immediate action to report it to "9-1-1" or the poison control center; and did not take it upon herself to take the child to a health care professional for examination but waited for the parents to arrive to inform them of the incident. Richard also testified that it was improper for Petitioner to put her fingers down the child's throat in order to induce vomiting. She characterized these as serious child safety violations and failure to follow proper emergency procedures. These were the primary reasons she recommended that Petitioner's child care license be revoked and not renewed. Petitioner, in her testimony, did not deny giving the child milk and swabbing his mouth with her finger, but did deny that she stuck her fingers in his mouth in order to induce vomiting. The evidence is not clear and convincing that the child, W.P., swallowed a toxic or hazardous material; and it is not at all clear from the evidence what it was that the child swallowed. However, it is clear that the child swallowed something that was suspected to be toxic; and when this fact was reported to Petitioner, she did not follow proper emergency procedures and did not properly notify the child's parents promptly. Petitioner has demonstrated that her license for a child care facility should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rule 65C-22.004(2)(d)1. and 2. (one count each). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rule 65C-20.010(1)(b) or similar provisions. Imposing a fine of $200, and a one-month suspension of Petitioner's license, followed by the issuance of a provisional license. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 October, 2004.
The Issue The issue is whether the Beatrice Guardian Angel Daycare violated provisions of chapters 402 and 435, Florida Statutes (2012), and/or Florida Administrative Code Chapter 65C-22, such that its license should not be renewed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by the Daycare. It is the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center three times a year: two unannounced routine inspections (to ensure compliance with the applicable laws and rules), and one renewal application inspection. In the event of a complaint, additional inspections and/or investigations are conducted. Ms. Giles owned, operated and directed the Daycare. The Daycare located on West Lancaster Road opened in November 2011, and was in continuous operation at all times material.6/ Ms. Giles opened the Daycare at this particular location after operating it at a different location. Luz Torres is a family service counselor for the Department. Ms. Torres is trained to inspect day care centers for initial applications, renewal applications and routine inspections. Ms. Torres is familiar with the Daycare, having inspected it several times while it was operational. Inspections of the Daycare revealed operational deficiencies during four inspections, dated February 15; June 20,; July 2,; and November 7, 2012. The specific deficiencies were set forth on inspection reports provided to Ms. Giles at the time of each inspection. Ms. Torres conducted a routine inspection of the Daycare on February 15, 2012 (inspection one). A number of areas of noncompliance areas included physical environmental issues, such as insufficient lighting, gaps in fencing, ground cover for outdoor equipment, and training. Other areas included: a lack of documentation of employee educational courses showing literacy and developmental course training, a 40-hour child care course, and 10 hours of in-service training; items in the first aid kit were missing; deficiencies in food and nutrition, such as unlabeled bottles and sippy cups; and deficiencies in children's health and immunization records, personnel records, and background screening. The Department issued an "Administrative Warning Notification" (notification) to Petitioner based upon the following violations: "[T]he facility's fencing, walls or gate area had gaps that could allow children to exit the outdoor play area. The gate was observed broke [sic] with gaps on both sides." This notification advised Petitioner that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." On June 20, 2012, Ms. Torres conducted a routine inspection (inspection two) of the Daycare. The noncompliant areas included: missing documentation for some children's immunization records; missing documentation of ten hours of in-service training for the Daycare's director; and missing documentation of background screening documents, including an affidavit of good moral character for employees. A second notification7/ (dated June 20, 2012) was issued to the Daycare following inspection two. This notification involved issues regarding a child's health and immunization records, and missing documentation for employees. One child's immunization records had expired. Four staff members were deficient regarding in-service training logs, and an additional staff member had not received the level two screening clearance. In response to a complaint (complaint one), Ms. Torres conducted an investigation of the Daycare on July 2, 2012. The Daycare was found to be out-of-ratio regarding the number of children to staff, and background screening documentation for level two screening for staff members was missing. In a mixed group of children ages one and two years old, the ratio of one staff for six children is required. At the time of the complaint one investigation, there was one staff per eight children. Although this ratio issue was rectified during the complaint one investigation, it was and is considered a violation. The documentation for the level two screening violation for the staff was not corrected during this investigation. A third notification was issued to the Daycare following the complaint one investigation. This notification involved the staff-to-child ratio, and the lack of background screening documentation. The Daycare was notified that the appropriate staff-to-child ratio must be maintained at all times, and the missing Level two screening documentation had to be resolved. This notification advised the Daycare that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." 8/ On August 1, 2012, the Daycare was notified that its license would expire on November 29, 2012. The Daycare's renewal application was due 45 days before the expiration date, or before October 15, 2012. The denial letter set forth that the Daycare's renewal application was filed on October 30, 2012.9/ In June 2012, Ms. Giles became aware that her daughter, Alexis Anderson, had a drug addiction problem when Ms. Anderson's baby was born addicted to drugs. Ms. Anderson and her two children were required to live with Ms. Giles while Ms. Anderson addressed her addiction problem. Ms. Anderson's two children attended the Daycare. Ms. Anderson would visit the Daycare to see her children. On November 7, 2012, as a result of another complaint (complaint two) being filed, DCF conducted an investigation of the Daycare. Ms. Giles reported that on two different occasions, two small bags were found at the Daycare. One small empty bag was found in the Daycare's common hallway. A second bag was found on a desk in the Daycare's office and contained a white residue. After the second bag was found and Ms. Giles was told by an employee what the bags might be used for ("people transport drugs in"), she suspected that Ms. Anderson might have left the bags at the Daycare. Also, after finding the second bag, Ms. Giles banned Ms. Anderson from the Daycare. There was speculation that the two bags contained an illegal substance; however, the two bags were discarded before any scientific testing could be done or any photographs could be taken. There is simply no proof as to what was in either bag.10/ There was no clear and convincing evidence that Ms. Anderson supervised or tended to children other than her own while she was at the Daycare. There was clear and convincing evidence that Ms. Anderson was at the Daycare on multiple occasions and had access to every room and child/children there. Ms. Anderson did not have the appropriate level two screening. In addition to investigating complaint two, child care regulations counselor Christina Bryant also observed inadequate ratios between staff and children, and a lack of qualified or unscreened individuals supervising children. Ms. Bryant observed one staff for five children in the zero to twelve month age group (ratio should be one to four), and she observed one staff to nine children, in the one-year-old classroom (ratio should be one staff to six children). Upon completing a review of the Daycare's record keeping, Ms. Bryant also found that background screening documents were missing for staff members. On November 14, 2012, Child Protective Investigator (CPI), Beauford White was directed to go to the Daycare and remove Ms. Anderson's two children from the Daycare.11/ When CPI White advised Ms. Giles he was removing the children from the Daycare, Ms. Giles became very emotional, and initially told CPI White he could not take the children. CPI White contacted his supervisor who directed CPI White to contact the Orange County Sheriff's Office (OCSO) for assistance in removing the children. Between the time the OCSO was called and when the deputy arrived, approximately 45 to 60 minutes, CPI White had obtained compliance, and Ms. Giles released the two children to his custody.12/ On Thursday afternoon, November 29, 2012, Ms. Giles was asked to attend a meeting on Friday, November 30, 2012, in the Department's legal office regarding the Daycare's license. Because of the short notice, Ms. Giles was unable to obtain an attorney to accompany her to the meeting on November 30, 2012. Ms. Giles attended the meeting by herself with a number of Department staff. Ms. Giles was given the following option: execute a relinquishment of the Daycare's license, or the Department would seek to revoke the license. Ms. Giles did not know the law. Ms. Giles executed the relinquishment13/ of the Daycare's license because she was thinking that "revoke sound[ed] horrible to" her. She did not want to relinquish her license, nor close her business, but she did not feel she had any choice in the matter. The totality of the circumstances under which Ms. Giles found herself renders the "relinquishment" less than voluntary. After this meeting, Ms. Giles returned to the Daycare and was present when Ms. Torres removed the Daycare's license from the wall. Mytenniza Boston, a Daycare employee, was also present when Ms. Torres removed the license. Ms. Giles did not tell Ms. Boston or any of the other Daycare employees that the Daycare's license had been relinquished, nor did she start notifying parents of the Daycare's closing. On Monday, December 3, 2012, around noon, Department investigators arrived at the Daycare and found children in the opened facility. Ms. Giles was at the Daycare making telephone calls to parents asking them to come pick up their child or children. The Daycare was open for business despite the fact that Ms. Giles had relinquished her license on Friday, November 30, 2012. On occasion Pervis Giles, Ms. Giles' then husband would walk to the Daycare to talk with Ms. Giles. Mr. Giles would also cut the Daycare's grass, unlock the Daycare's door for daily operations, and participate with Ms. Giles in making business decisions about the Daycare. Ms. Giles did not consider these activities to be working for the Daycare; however, common sense dictates otherwise. Ms. Giles has several children. At various times during the Daycare's operation, Ms. Giles' children were at the Daycare volunteering, cleaning up or helping with the Daycare children in some fashion. Ms. Giles' children did not have the required level two background screening as Ms. Giles did not know that her children needed to be screened. Ms. Giles' lack of understanding regarding who is required to be screened is troublesome. Ms. Giles has been in the daycare business for many years, yet she failed to comply with basic safety measures.
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 renewal application. DONE AND ENTERED this 22nd day of July, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 22nd day of July, 2013.
