The Issue The issue to be resolved in this proceeding concerns whether the Department should deny the Petitioner's pending application for a new one-year license effective June 8, 2005, because of an alleged violation that occurred on June 7, 2005, where a three-year-old child was left in a van, suffering purportedly life-threatening injuries (heat stroke). See § 402.305(10), Fla. Stat. and Fla. Admin. Code R. 65C-22.001(5). If the violation occurred, it must also be determined whether denial of license renewal or some other authorized penalty should be imposed.
Findings Of Fact The Petitioner is a large daycare center owned and operated by Joann Jones. It is located in Ocala, Florida and has been licensed since 1992. The Petitioner normally operates its daycare center caring for as many as 250 to 275 children with a staff of 45 to 50 people. The Petitioner and its owner Ms. Jones, has provided child care in Marion County for many years, operating as many as five daycare centers. Ms. Jones has an extensive history in training, education and experience in operating daycare centers and her experience includes working with the former Department of Health and Rehabilitative Services and the Department of Children and Family Services on various committees and licensing groups for the State of Florida. Prior to the incident on June 7, 2005, the Petitioner had had relatively minor infractions of the Agency's administered statutes and rules involving operation of a daycare center. These infractions primarily included compliance documentation errors and an instance in which a first aid kit did not have all of required the type of supplies, and an instance where a van driver failed to have in his possession and make proper use of a head count check-list on a field trip. In these instances when the Petitioner was found not to be in compliance, compliance was corrected normally by the close of the inspection day when the infraction was discovered. The van driver who failed to have his checklist with him was terminated for violating the Petitioner's policy that a roster including all childrens' names would go on the van at any time the van was being used to transport children. In addition to the above instances, the Petitioner was documented on an inspection checklist on May 13, 2003, for failure to properly maintain a transportation log; for enrollment form violations; for failing to document law enforcement background checks for staff; and for failing to maintain appropriate documentation of Level II screening for staff members. These were violations of Florida Administrative Code Rules 65C-22.006(4)(5) and 65C-22.001(6)(f). The Petitioner's exhibit thirty-five references a re- inspection from October 9, 2003, and is a checklist. At this time the facility was in violation of Florida Administrative Rule 65C-22.003(2)(a), for failure to have staff appropriately trained and the training certificates documented; for violating Florida Administrative Code Rule 65C-22.004(2)(a), and for failure to maintain first aid kit in the facility's vans and buses (the violation referenced above involving not having all required items in one first aid kit on this occasion). The Petitioner was also in violation of Florida Administrative Code Rule 65C-22.006(2), for failure to properly maintain immunization records and Rule 65C-22.003(2)(a) for failure to properly maintain relevant documentation. An inspection was conducted April 22, 2004. At this time, the facility was in violation of Florida Administrative Code Rule 65C-22.003(2)(a), for failing to document that all staff had completed a 40-hour training course and for failure to properly document the training course. An inspection made April 26, 2005, revealed that the facility was in violation of the proper staff to child ratio established in Section 402.805, Florida Statutes. The proper staff to child ratio on that occasion was 17 to 5 and the Petitioner, when observed, had a 17 to 4 staff to child ratio. The problem was corrected on the spot that same day. On April 27, 2005, an inspection was conducted and the facility was found to be out of compliance with Florida Administrative Code Rules 65C-22.004(2) and 65C-22.006(5)(d), and Section 435.04, Florida Statutes, for, respectively, failing to properly maintain first aid kits; and failing to properly provide finger prints to the Florida Department of Law Enforcement for the purpose of obtaining required background screening for staff. These prior infractions mostly involved documentation errors rather than actual deficiencies in the operation of the Petitioner's facility and daycare services. The Petitioner has not had a proceeding actually filed against her facility and license by the Department prior to this one, with the possible exception of an occurrence some seven years ago when the Petitioner received a $100.00 fine related to a documentation error. These prior infractions were not shown to have been serious ones involving an immediate threat to the health or safety of the children in Petitioner's care. Most of these infractions were shown to have been corrected on the same day they were noted on the relevant inspection reports. A three-year-old child was inadvertently left in a van when it was returned and parked at Petitioner's daycare center, on June 7, 2005. this incident caused the instant proceeding to deny the Petitioner's re-licensure. On that day two vans from the Petitioner's facility left to take a group of three-year- olds on an outing for lunch for pizza party. On that date the Petitioner had in operation, policies that required all teachers to keep rolls of their children, to count their children every hour and to complete a log which was to be turned into the directors of the daycare center at the end of the day. The Petitioner was responsible for providing these logs to the Respondent Agency upon routine inspections. There was also a policy in effect regarding operation of vans and buses for transportation of children. The teachers and bus drivers were required to keep a log of the children riding on the vans. The teachers were required to take a "head count" when the children left the classroom and when they entered and exited the vans or buses. The teachers were required to carry a roll with all the children's names with them at all times. They were required to carry this roll on a clip board and this policy even if the teachers took the children out on the playground, where they were still required to do head counts. The Petitioner held meetings periodically with its employees and informed them regarding the policy concerning head counts and the log for using the vans, which involved head counts. Ladonna Cunningham was a van driver for the Petitioner on the date in question, June 7, 2005. She established that she was aware of the policy of counting children before they got on the van, after they got on the van, and when they got off the van again, as well as the fact that the vans were to be checked ("van sweeps") after all the children were off the van to make sure that no one was still on the van. On June 7, 2005, she and the teacher going on the field trip with her van, Katrice Robinson, counted their children and Katrice did a van sweep when they returned to the daycare center after the trip. Ladonna Cunningham did a second van sweep to make sure that there were no children on her van and was aware that this was in accordance with the Petitioner's policy. On June 7, 2005, a three-year-old child (N.B.) was taken on the field trip to the pizza party. The van returned to the daycare center sometime after 1:40 p.m. There were two vans used on this field trip. One van was driven by Ladonna Cunningham, accompanied by the teacher Katrice Robinson. The second van, with N.B. aboard, was operated and supervised by two other employees, Amina Francious and Regina Brown. Neither Francious nor Brown made a head count of the children or a van sweep after returning to the daycare center. Regina Brown told investigators that she knew they were supposed to make a head count when they returned to the daycare center that day but neither she nor Amina Francios had done so. The evidence also shows that Katrice Robinson, who was N.B.'s teacher, "checked him off" as being in the classroom at 2:00 p.m., that day for a snack when he was in fact outside in the closed van. This erroneous fact was entered by Katrice Robinson on the head count sheet provided by the Petitioner. All teachers are required to make a head count every 30 minutes and to note the time a meal, snack, or lunch is served to a child. Later that afternoon the child N.B. was discovered either asleep or unconscious in the closed van which had been parked in the hot sun. The child was difficult to arouse or unresponsive and had an external Fahrenheit temperature of 104 degrees. At 4:02 p.m., he was taken by EMS personnel to the hospital where he was ultimately diagnosed with hyperthermia or heat stroke. He was unresponsive, having seizures, actively vomiting, and had to be intubated since his left lung had collapsed. The Department received abuse report 2005-396658 as a result of this incident. Fortunately, the child recovered. On June 8, 2005, Ms. Littell, a Department representative interviewed the three employees, Regina Brown, Katrice Robinson, and Amina Francois. Both Ms. Francios and Ms. Brown admitted failing to conduct a van sweep after they returned to the Petitioner's facility on June 7, 2005. All three of these employees were arrested for felony child neglect. These interviews, as well as Petitioner's owner and operator Joann Jones, in her testimony, confirmed that on June 8, 2005, the Petitioner's assistant director Irma Ramjit, had asked Ms. Francois and Ms. Brown to sign for an employee handbook that they had never actually received. Thus Ms. Ramjit had asked these employees to falsify documentation after the child had been left in the van, in an apparent attempt to show that the facility had followed its own procedures when in fact it had not. This action by Ms. Ramjit was not at the behest or condoned of the Petitioner's owner, Ms. Jones, however. The abuse report referenced above was ultimately closed and finalized as "verified for neglect and inadequate supervision" as a result of the child being left in the van. Physical injury had occurred as a result of the physical injury suffered by the child from heat exposure. Obviously the Petitioner's policy of conducting head counts every 30 minutes was not done properly on June 7, 2005. Indeed, the last head count for the class of the child who was left on the van was conducted at 9:30 a.m., on June 7, 2005. Joann Jones the Petitioner's owner was shocked and devastated by the events of June 7, 2005. She had never had such an occurrence previously in the 20 years she had been engaged in the daycare business. After this incident happened and before the issue regarding her license arose she had already acted to ban any further field trips for three-year-old children and had elected to hire a person to perform nothing but head counts each day to make sure that the policy was carried out and such an event never again occurred. The evidence shows that the Petitioner's facility has otherwise been operated in a quality manner, as shown by the testimony of Kimberly Webb. Ms. Webb was an employee of the Petitioner for some 15 years and was well aware of the Petitioner's rules concerning conducting head counts of children, doing "van sweeps" and the general policies to ensure child safety in the day-to-day operations of the care center. Marjorie McGee is employed by Child Hood Development Services and testified for the Petitioner. Ms. McGee went to the daycare center on numerous occasions to monitor the Childhood Development Services Program and the Head Start Program. Ms. McGee observed that Ms. Jones and the daycare center staff provided quality child care. Any concerns she ever had were immediately addressed and corrected by Ms. Jones or one of the directors of the center. Ms. McGee, in fact, established that the Petitioner's facility in one of the highest-rated daycare centers in Marion County. This testimony is corroborated by several parents who testified concerning the operation of the daycare center and by Juanita Thompson, who works as a childhood curriculum specialist and over the years had done consulting for the Petitioner in preparing curriculums. She attested to the high quality care provided by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services denying licensure to the Petitioner, Oakcrest Early Education Center, Inc., effective with the application of April 11, 2005, without prejudice to the Petitioner re-applying for licensure in June 2006, in conjunction with an appropriate monitoring program by the Respondent Agency designed to ensure that all operational and documentation provisions of the applicable statutes and rules are complied with upon an ongoing basis. DONE AND ENTERED this 14th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 14th day of March, 2006. COPIES FURNISHED: John J. Copeland, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Edward L. Scott, Esquire Edward L. Scott, P.A. 409 Southeast Fort King Street Ocala, Florida 34471 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
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 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
Findings Of Fact Petitioner is the state agency responsible for regulating child day care facilities in Florida. Respondent, Caring Heart Preschool and Day Care, Inc. ("Caring Heart"), is licensed as a child day care facility for children, ages 1-12, pursuant to certificate number 1190-21. Respondent, Pamela McFarlane, is the owner of Caring Heart within the meaning of Section 402.302(7), Florida Statutes. 2/ Ms. McFarlane operates Caring Heart at 1408 West Michigan Street, Orlando, Florida, 32805. Michigan Street is a busy four lane street. On December 15, 1994, a four year old child left Caring Heart without the knowledge of his teacher or Ms. McFarlane. The child wandered outside the facility, left the premises, and crossed Michigan Street. The child was found by a bus driver. The bus driver returned the child to Caring Heart. Respondents failed to provide quality child care within the meaning of Sections 402.3015(1) and 402.302(3). Respondents failed to maintain direct supervision of the child within the meaning of Section 402.305(1)(d) and Florida Administrative Code Rule 10M-12.002(5)(a)2. 3/ The potential harm to the child was severe within the meaning of Section 402.310(1)(b)1. The period in which Respondents failed to maintain direct supervision of the child was substantial. The child had time to leave the premises, cross a busy four lane street, and converse with an adult who, fortunately for the child, took the time to secure the child's safety. Respondents' failure to maintain direct supervision of the child did not result in any actual harm to the child. Respondents have no history of any prior discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of the charges in the Administrative Complaint and imposing an administrative fine of $500. RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida. DANIEL MANRY 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 6th day of October, 1995.
The Issue Whether Respondent committed the child care licensing violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Reid’s Educational Child Care Centre, LLC, d/b/a Reid’s Educational Child Care Center (“Reid’s” or “the facility”) is a child care facility licensed by the Department. Reid’s is owned and operated by Nickesha Reid and is located at 10658 Biscayne Boulevard in Jacksonville, Florida. License Violation History Reid’s has a dizzying history of violating Department child care licensing standards. At final hearing, Department investigators testified that they had to rely upon the Department’s matrix, which documents a facility’s history of violations by date and class, as well as the penalties imposed, and whether monetary penalties have been paid. The matrix allows Department staff to cross-reference prior cases to identify repeated violations of the same standard. For purposes of this Recommended Order, the undersigned has included only the violations documented within the two-year period preceding the consolidated administrative complaints at issue in this case. On December 14, 2017, Reid’s was cited for lack of a Level II background screening (“background screening”) for Ms. Reid.2/ During a renewal inspection on July 11, 2018, Petitioner cited Reid’s for the following violations of child care licensing standards: (1) the child-to-teacher ratio for mixed age ranges including a child under the age of one, direct supervision of children in its care, and background screening for Ms. Reid. Each of these violations is a Class II violation of child care licensing standards. One of the most egregious violations cited during the July 11, 2018 inspection was a 10-year-old child in charge of the infant classroom. Moreover, the infant classroom was out of ratio, with the 10-year-old “teacher” in charge of five infants, rather than the required ratio of 1:4. While Department staff was on-site at the facility, Ms. Reid responded to the Department’s calls, appeared at the facility, and attempted to address the ratio violation by personally covering the infant room. However, Ms. Reid still had no background screening documentation, which led to the citation for violation of the background screening requirement. The Department filed an Administrative Complaint against Reid’s on July 25, 2018, solely on the background screening violation. In the complaint, the Department imposed a fine of $50 for this Class II violation, the second violation of the same child care licensing standard within a two-year period. On July 23, 2018, during a complaint investigation,3/ Petitioner cited Reid’s for the following violations of child care licensing standards: (1) teacher-to-child ratios, (2) inadequate supervision, (3) potentially harmful items accessible to children in care, and (4) background screening for child care personnel, all of which are Class II violations. In addition, the Department cited Reid’s with a Class I violation for serious health hazard conditions. Pursuant to the administrative complaint issued August 20, 2018 (based on the July 23, 2018 complaint inspection), Reid’s was placed on a probationary status for six months. The terms of the probation were as follows: The facility shall incur no Class I violations during the probationary period. The facility shall incur no Ratio, Background Screening or Supervision violations during the probationary period. The facility shall incur no Facility Environment violations during the probationary period. The facility must always maintain a safe and clean environment. Non-active individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. The administrative complaint provided, “Failure to comply with these conditions may result in revocation of Respondent’s license.” The Department’s findings in the administrative complaint became final on October 24, 2018, when Reid’s request for hearing on the administrative complaint was dismissed as untimely. The Department’s final order was not appealed. Reid’s probationary status was effective October 24, 2018, through April 22, 2019, and required monthly Department inspections. In addition, on August 20, 2018, Petitioner issued Reid’s a provisional license, effective August 21, 2018, through February 16, 2019, because Reid’s then-director, Delaria Blake, did not have the director credentials required by section 402.305(2)(f). Failure to maintain a credentialed director is a Class II violation of the Department’s child care licensing standards. The provisional license was resolved shortly after issuance when Reid’s hired Tracee Creighton, a properly credentialed director, who served as Reid’s interim director through September 2018. November 16, 2018 Administrative Complaint The November 16, 2018 Administrative Complaint was initiated pursuant to another complaint investigation,4/ conducted by Child Care Supervisor, Hannah McGlothlin, on September 13, 2018. Background Screening When Ms. McGlothlin arrived at Reid’s, she was greeted by Grady Dixon, the staff member in charge. Mr. Dixon is also Ms. Reid’s husband and Respondent’s registered agent. Ms. McGlothlin observed that Mr. Dixon was supervising two employees on-site. Upon review of the employee files, Ms. McGlothlin determined that Mr. Dixon became employed at Reid’s on August 2, 2018, but that his required background screening was not completed until August 3, 2018. When asked by Ms. McGlothlin, Mr. Dixon verified August 2, 2018, as his date of employment. At final hearing, Mr. Dixon maintained there was an error in his personnel file, and that he did not become employed at Reid’s until August 3, 2018. Mr. Dixon said he made a mistake in writing August 2, 2018, on his personnel form. Mr. Dixon’s testimony was not persuasive. Mr. Dixon became employed by Reid’s as “other personnel” on August 2, 2018. Mr. Dixon’s required background screening was not complete and on file at the facility until August 3, 2018. On July 25, 2018, Ms. Reid completed a Non-Active Member Affidavit for the Department, in which she swore that she had “a non-active role” at Reid’s, meaning she is an “individual who does not interact with the children, does not go on-site of the program operation during operating hours, and whose role does not involve the day-to-day operation of the child care program.” Further, the affidavit provided that Ms. Reid understood she must immediately notify the Department at any time in the future her role changed to an active role and “complete a background screening” as provided by statute. During Ms. McGlothlin’s field visit on September 13, 2018, she determined that Ms. Reid’s role had become that of an active member because she was going on-site during operating hours, had contact with children at Reid’s, and was involved in day-to-day business of Reid’s. As part of her investigation, Ms. McGlothlin spoke with a parent who stated “it is always [Ms. Reid] and [Mr. Dixon] at the facility” when she picks up her child in the afternoons. Virginia Ritter is the parent of a child formerly enrolled at Reid’s. Ms. Ritter testified that she met Ms. Reid at the facility in June 2018 when she first enrolled her son at Reid’s. Ms. Ritter further testified that, although she paid her monthly tuition online, she met with Ms. Reid at the facility at least twice between June 2018 and December 2018 to address billing issues--once when she changed the number of days her son was attending, and once when she withdrew him. Ms. Reid denied meeting with Ms. Ritter at the facility. The Department alleged that Ms. Reid was further involved in the day-to-day activities of the facility by corresponding with parents and the Department via electronic mail. Respondent introduced an undated email from reidseducationalchildcare@gmail.com to Ms. Ritter and John Kennedy5/ which reads, as follows: Good morning, We are contacted Emmett parents because he has not been at school for the last week and no one has advised us of what is going on. [sic] to his mother and no responded. Can we please have an update. Although the email was not signed by Ms. Reid, or any employee of Reid’s, Ms. Ritter testified, credibly, that she knew the email was from Ms. Reid because it reads consistently with Ms. Reid’s speech patterns. The email reads consistently with Ms. Reid’s speech patterns exhibited at final hearing. On Monday, December 31, 2018, Ms. Ritter replied to reidseducationalchildcare@gmail.com, informing Reid’s that her son would not be returning to the facility and the reasons therefor. Ms. Ritter further testified that Ms. Reid was often on-site when she picked up her son from the center on Fridays prior to her withdrawal of him in December 2018. Ms. Reid prepares meals at home and delivers them to the facility to be served to the children. She testified that she does not enter the facility to deliver the meals, but rather leaves them at the door outside the facility. Ms. Reid’s testimony was contradicted by Carrie Gaouette, a former employee, who testified, credibly, that Ms. Reid delivered meals to the front desk at the facility on a daily basis. In addition to the foregoing evidence of Ms. Reid’s involvement in the day-to-day business of the facility, Ms. Reid has entered the facility during operating hours, at times since executing her Non-Active Member Affidavit, to check mail and collect payments. During field visits by Department staff on September 13 and October 17, 2018, Ms. Reid contacted and spoke to Department staff to address the pending citations. Subsequent to signing the Non-Active Owner Affidavit, Ms. Reid has been on-site at the facility during operating hours, and has been actively involved in the day-to-day operation of the center, including meal preparation, interacting with parents for enrollment and changes thereto, addressing billing issues, and intervening in licensing issues. As an active owner, Ms. Reid is required to undergo background screening. During the complaint investigation on September 13, 2019, Ms. McGlothlin placed Reid’s on notice of the background screening violation and set a due date for compliance by November 7, 2018. At a subsequent inspection on December 27, 2018, Ms. McGlothlin determined that the background screening violation for Ms. Reid had not been corrected. The Department proved the August 20, 2018 Administrative Complaint allegations of background screening violations with regard to both Mr. Dixon and Ms. Reid. Penalties The background screening requirement is a Class II child care licensing standard. Reid’s was previously cited for failure to meet background screening requirement on December 17, 2017, July 11, 2018, and July 23, 2018. The August 20, 2018 Administrative Complaint is Reid’s fourth citation for background screening violations within a two-year period. According to Department rule, the monetary penalty for the fourth violation of the same Class II child care licensing standard is $75 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. The Department seeks to impose a fine of $2,925 against the facility for this violation, calculated at $75 per day for 39 days--from September 13, 2018 (the violation notice date), through November 7, 2018 (the corrective action date). The Department correctly calculated the monetary penalty to be imposed against Reid’s for the background screening violations. The Department also seeks revocation of Reid’s child care license based on the background screening violation. In the Administrative Complaint, the Department alleges, as follows: Provider is currently on Probation for Facility Environment of which the terms were not to incur any Background Screening and Non-Active Individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. Provider has failed to comply with the terms of the Probation therefor their license is being Revoked. The Department’s allegation is unfounded. Reid’s probationary status was effective October 24, 2018, but the violation was cited on October 20, 2018. This violation of the background screening requirement was not a violation of the terms of the probation. January 11, 2019 Administrative Complaint Because Reid’s was placed on probation, it was required to undergo monthly inspections. Ms. McGlothlin conducted a routine inspection of the facility on December 27, 2018. Direct Supervision Upon her arrival at the facility, Ms. McGlothlin was greeted at the door by Carrie Gaouette, the only child care personnel on-site. When Ms. Gaouette opened the entry door, she closed the door leading to the classrooms, effectively blocking her view of the children and leaving them with no supervision. Ms. Gaouette explained that she shut the door to the classroom to prevent children from running out the front door while it was open to allow Ms. McGlothlin to enter. Florida Administrative Code Rule 65C-22.001(5)(b) provides, “[d]irect supervision means actively watching and directing children’s activities with the same room or outdoor play area . . . and responding to the needs of each child while in care.” The rule requires child care personnel to “be present with [their assigned] group of children at all times.” For the brief time Ms. Gaouette opened the door to greet and allow Ms. McGlothin entry to the facility, Ms. Gaouette was not in the same room with, and not directly supervising, the children in her care. The direct supervision requirement is a Class II standard. Reid’s was previously cited for violating the direct supervision standard on July 11 and 23, 2018. According to Department rule, the monetary penalty for the third violation of the same Class II child care licensing standard is $60 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, Department seeks to impose a monetary penalty of $60 for one day. The Department correctly calculated the fine to be imposed for this violation of the direct supervision standard. Child Health Examination Forms During her inspection, Ms. McGlothlin reviewed the records of all 11 children enrolled at the facility on that date. Ms. McGlothlin found that Reid’s did not have a current Student Health Examination form DH 3040 (“health examination form”) on file for child M.S. Pursuant to rule 65C-22.001(7)(q), Reid’s is responsible for obtaining a complete and properly executed health examination form for each child in its care. Reid’s violated the child care licensing standard when it failed to maintain a current health examination form for child M.S. The requirement to maintain child health examination forms is a Class III standard. Reid’s was previously cited for violation of this standard on July 11 and November 20, 2018. This violation is the third violation of the same Class III standard within a two- year period. According to Department rule, the monetary penalty for the third violation of the same Class III child care licensing standard is $25 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, the Department seeks to impose a monetary fine of $25 against Reid’s for this violation of child care licensing standards. The Department correctly calculated the fine to be imposed on Respondent for this violation of the child health examination form standard. False Statement/Information Pursuant to Department rule, Reid’s is required to have at least one staff member on-site at all hours of operation with First Aid/CPR training, verified by a current, valid First Aid/CPR card. See Fla. Admin. Code R. 65C-22.001(6). Ms. Gaouette was a new employee, and the only child care provider on-site, during Ms. McGlothlin’s inspection on December 27, 2018. When Ms. McGlothlin returned to the office on December 27, 2018, she reviewed her inspection report and realized that she had not checked the files to ensure that Ms. Gaouette had a valid First Aid/CPR card. Ms. McGlothlin both called and emailed Reid’s on the afternoon of December 27, 2018, to obtain a First Aid/CPR card for Ms. Gaouette; however, she was unable to reach anyone at the facility. No one from the facility either returned her calls or responded to her emails on December 27, 2018. On the morning of December 28, 2018, Mr. Dixon, who was the staff member in charge, read Ms. McGlothlin’s emails and reviewed her telephone messages requesting a First Aid/CPR certificate for Ms. Gaouette. Mr. Dixon reviewed Ms. Gaouette’s personnel file and found no First Aid/CPR certificate. Ms. McGlothlin returned to Reid’s on December 28, 2018, and requested Ms. Gaouette’s First Aid/CPR card from Mr. Dixon. Mr. Dixon provided Ms. McGlothlin with a First Aid/CPR card purporting to certify that Ms. Gaouette completed the required training on November 6, 2018, from instructor Palecia Crawford. The space on the card for the trainee’s name had been “whited out” and Ms. Gaouette’s name written in. The spaces for the date of the training and date of expiration were also “whited out” and the date “Nov/6/2018” written in for the date of training, and “Nov/6/2020” written in for the date of expiration. Ms. Crawford did not train Ms. Gauoette on November 6, 2018, or on any other date prior to December 28, 2018. Ms. Gaouette had not received First Aid/CPR training from any entity prior to December 28, 2018. Mr. Dixon, on behalf of Reid’s, presented Ms. McGlothlin with falsified documentation of Ms. Gauoette’s First Aid/CPR training. At final hearing, Mr. Dixon denied that the First Aid/CPR certificate provided to Ms. McGlothlin was Ms. Gaouette’s certification. Instead, he testified that, on December 28, 2018, he was unable to locate a certificate in Ms. Gaouette’s personnel file, so he provided Ms. McGlothlin with a First Aid/CPR card from the facility’s “demo file,” a file set up as an example of what a complete employee file should contain. Mr. Dixon’s testimony was not credible. Mr. Dixon did not represent to Ms. McGlothlin when he provided the certificate to her that it was just an example from a demo file. If it was just an example, there was no reason to change the name and date of the training on the original card. The original, or for that matter, a copy of, the trainee’s card would be sufficient for an example in a “demo file.” Mr. Dixon had both motive and opportunity to falsify a First Aid/CPR training card for Ms. Gaouette. Mr. Dixon admitted on cross-examination that it would have been easier to just tell Ms. McGlothlin that the facility did not have a valid First Aid/CPR certificate on file for Ms. Gaouette. Child care personnel providing fraudulent information related to the child care facility to a licensing authority, that could result in the death or serious harm to the health, safety, or well-being of a child is a violation of a Class I licensing standard. Penalties Class I violations of Department rules are described as “the most serious in nature, [which] 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(1)(d)1. Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In the Administrative Complaint, the Department seeks to impose a fine of $250 and to revoke Reid’s child care license. This violation is severe. Significant harm could befall a child left under the care of personnel who have not had basic CPR training. This violation is the facility’s second Class I violation within a two-year period. This violation occurred during the facility’s probationary period, which commenced on October 24, 2018. The terms of probation prohibited the facility from incurring any Class I violations during the probationary period. The Department has authority to revoke Reid’s license based on this violation of its probationary terms. Ms. Gaouette received First Aid/CPR training on January 2, 2019. The facility has a lengthy and dizzying history of violations. Many of the monetary penalties imposed for past violations remain unpaid. Throughout the final hearing, Ms. Reid refused to accept responsibility for the violations documented in the subject, as well as previous, administrative complaints. She attacked the credibility of Department witnesses and demonstrated a complete lack of respect for the Department’s authority. Despite Ms. Reid’s unwillingness, or inability, to complete the required background screening, she has failed to comply with the non-active owner requirements and place competent, qualified, employees in charge of the day-to-day operations of the facility.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Reid’s Educational Child Care Centre, LLC, d/b/a Reids, Educational Child Care Center, committed Class I, II, and III violations of child care facility licensing standards, imposing a monetary penalty in the amount of $3,260, and revoking Reid’s child care facility license. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 5th day of June, 2019.
The Issue The issue in this proceeding is whether Respondent committed the violations as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact The Department of Children and Families is the agency charged with the responsibility of licensing child care facilities in the State of Florida. § 402.305, Fla. Stat. Respondent was licensed by the Department to operate a child care facility located in Callahan, Florida. Tausha Howard is the co-owner/director of Agape, and has been since it opened approximately 10 years ago. Tracey Flanders is a family services counselor. As a family services counselor, Ms. Flanders is responsible for inspecting child care facilities and family child care homes. Agape was one of the child care facilities that she inspected. She has been a family services counselor for three years and prior to that was a child protective investigator for DCF. Prior to her employment with DCF, she was a preschool teacher for eight years, which included some supervisory responsibilities and knowledge of compliance with DCF rules. Out of Ratio/Improper Supervision The Administrative Complaint charged Respondent with being out-of-ratio regarding the number of children per staff member in violation of Florida Administrative Code Rule 65C- 22.001(4)(b)2. Specifically, the Administrative Complaint alleges as follows: During a routine inspection conducted on March 6, 2013, DCF licensing counselor Tracey Flanders observed that: There was one (1) staff member supervising seven (7) children between the ages of one (1) and two (2) years old. A ratio of one staff for (6) children is required. This violation is based on Ms. Flanders’ observations during a March 6, 2013 routine inspection of Agape. She did a walk-through of the facility and examined the children’s records. As part of her walkthrough, she went to all of the classrooms. In each classroom, she counted the children and inspected for cleanliness. While in the toddler room, Ms. Flanders observed the children playing on the floor around the teacher. She counted seven children between the ages of one to two years old being supervised by one teacher. There was one two-year-old and six one-year-old children. Ms. Flanders explained at hearing that in mixed age groups, the required ratio of the youngest child applies. For mixed aged groups of children between one and two years of age, the minimum staff to child ratio is one staff member to six children. Agape has a classroom for preschool children, as well as one for the toddler children. Ms. Howard, however, disagrees that there were seven children in the toddler room and insisted that there were only six. She believes there was some kind of “miscommunication or oversight” because the seventh child (W.) had recently “aged out” of the toddler room and had been moved to the preschool class. The toddler class was where W. was assigned prior to his second birthday and reassignment to the preschool class. At the time of the inspection, the preschool children were out on the playground and came in while Ms. Flanders was present. Ms. Howard recalls she was standing in the baby room window. According to Ms. Howard, W. was being redirected from “bothering the blocks” to go rejoin the preschool group who was having story time. Therefore, she contends that the child was not in the toddler room, but was being redirected into the preschool classroom. Ms. Flanders insists that Ms. Howard was not with her when this incident happened, that the children were playing on the floor, and that the two-year-old in question (W.) was not moved from the toddler room to the preschool room when she was there. Accordingly, she cited Respondent for an out-of-ratio violation. Prior to the March 6, 2013 routine inspection, Agape had previous instances of being in violation of the ratio requirements. As a result of prior Administrative Complaints which included ratio violations, DCF and Respondent entered into a settlement agreement in March 2013, in which Respondent acknowledged that there have been five Class II ratio violations within a two-year period. Additionally, Respondent agreed that if future ratio violations occurred, the license “will again be subject to suspension or revocation.” The settlement agreement also stated that Respondent would finish out its then current probationary status through March 11, 2013, at which time Agape would be returned to an annual license. It is assumed that since the instant Administrative Complaint was dated April 11, 2013, that the license is currently on regular license status. Immunization Form Violation The Administrative Complaint charged Respondent with not having required immunization forms for children in its care, in violation of Florida Administrative Code Rule 65C- 22.006(2)(c). Specifically, the Administrative Complaint alleged that during the routine inspection by Ms. Flanders on March 6, 2013, she observed that a current form 680, Florida Certification of Immunization, was missing for two children. This allegation was based upon a file review made by Ms. Flanders which revealed that immunization records for two of the children, H.A. and M.C., had expired. The same violation was cited three previous times within a two-year period. On a reinspection, the center’s immunization records were current. According to Ms. Howard, the child, H.A., was out of the center for a medical reason and was not enrolled in the center at that time. However, his file was still there. Further, she discussed this with Ms. Flanders and afterwards wrote a statement that H.A. was not currently enrolled in the school and placed it in his file. As for child M.C., the child was enrolled but was no longer attending the center until M.C. obtained a current immunization record. Ms. Flanders explained that the child care facility must inform her if a child is enrolled but not attending. In that event, she skips that child’s record during her review. Level 2 Screening Documentation The Administrative Complaint charged Respondent with a violation of Florida Administrative Code Rule 65C-22.006(4)(d) and alleged the following: Documentation of Level 2 screening was missing for one (1) staff member. The Preschool Teacher’s adult son, D.W., was observed in the classroom with children on more than one occasion. Director stated D.W. is at the facility one (1) to two (2) hours a day, every other day. Licensing Counselor previously advised provider D.W. could not be present without passing a Level 2 screening. These charges were based on Ms. Flanders observing the adult son (D.W.) of one of the preschool teachers sitting at the desk in the preschool room with the children present, and the content of a conversation she had with Ms. Howard regarding this issue. There is an exception to the background screening requirement for volunteers who work there less than 10 hours a month. Accordingly, Ms. Flanders spoke to Ms. Howard to determine how often D.W. was at the school. According to Ms. Flanders, Ms. Howard told her that he would come to the daycare and wait before work every other day for an hour or two before walking to Winn-Dixie. Ms. Flanders calculated that every other day would be 15 days a month, for one or two hours each time. Therefore, she determined that he was there more than 10 hours a month. D.W. does not have background screening on file. The Administrative Complaint states that the same violation was previously cited on May 14, 2011, resulting in Technical Assistance, making this the second Class II violation within two years about persons caring for children without background screening. Ms. Howard, however, denies that D.W. was ever in her child care center that frequently. According to Ms. Howard, D.W.’s family temporarily (for about a month to a month and a half) had only one car. During that time, D.W. would come to the center, but was only there a total of 2 hours in a month. “Again, D.W. is not in my center. He’s not ever been in my center every other day. He’s not ever been in my center more than 30 minutes to an hour.” Moreover, Ms. Howard asserts that when D.W. was in her center, he was not with the children but was in a classroom where there were no children. Both Ms. Flanders and Ms. Howard were credible witnesses.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order placing Respondent’s license on probation until the related cases involving Respondent have been heard and final orders entered; and imposing a fine of $100 per day for one day, and $30 per day for eight days, for a total of $340. DONE AND ENTERED this 8th day of May, 2014, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2014
