Findings Of Fact On November 13, 1995, Respondent preliminarily established that Petitioner was disqualified to hold a caretaker position providing care or training to children or developmentally disabled individuals. The denial was based upon Petitioner's failure to meet minimum screening requirements specified by Section 435.04(2)(b), Florida Statutes, which seeks to prevent the employment in positions of trust and responsibility of those individuals found guilty of violation of Section 782.04, Florida Statutes, relating to murder. By indictment on March 29, 1973, Petitioner was charged with second degree murder in the Supreme Court, Bronx County, New York. Petitioner subsequently pled guilty to the offense of manslaughter, and, on October 26, 1973, she was sentenced to an indeterminate sentence not to exceed four years. A model prisoner, Petitioner served 14 months of her sentence and was paroled. She reported regularly thereafter to her parole officer until the conclusion of her four year sentence. Facts of the incident leading to the charge against Petitioner and her subsequent sentence were established at the final hearing by the candid and direct testimony of Petitioner. A female in a relationship with Petitioner's brother attacked the Petitioner who resorted to use of a handgun, killing her attacker. Petitioner had earlier sought and received a restraining order against the individual which "worked for a year" before the individual sought again to confront Petitioner. Petitioner, now a grandmother, testified tearfully to her errant behavior at the age of 21, over 24 years ago in New York. Petitioner has never been charged with any legal violation since that time, with the exception of traffic tickets. Petitioner, a high school graduate, was also schooled and certified as a nurse technician in New York in 1980. She moved to Florida in the late 1980's and was certified in Florida in 1989 as a nursing assistant. She was certified as a home health aide in 1990 in the State of Florida. Petitioner is a devout member of her church, attending services several times each week. Her adult children regularly employ her services to care for their children. She has six grandchildren, as well as an eight year old of her own. She also cares for two retired individuals. Prior to Respondent's determination of her disqualification, Petitioner provided child care services out of her home. Arlene Marcellus is the mother of one of those children. Marcellus testified at the final hearing that she has known the Petitioner for more than a year. Petitioner provided care for Marcellus' three year old daughter on a regular basis, eight hours per day, for approximately three months prior to Respondent's determination. Marcellus was well pleased with Petitioner's services and had planned that Petitioner would care for Marcellus' unborn twins. Unfortunately the twins were stillborn. Petitioner desires to continue her work in the area of child care. Since the licensure process required that Petitioner undergo background screening, Respondent made its initial determination to deny exemption. Respondent's representative at the final hearing in this cause testified that facts concerning Petitioner, as presented at this hearing, could have resulted in a different initial determination by Respondent if presented to Respondent prior to that determination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Petitioner an exemption from disqualification. DONE and ENTERED this 10th day of September, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 10th day of September, 1996. COPIES FURNISHED: Marc Taps, Esquire Legal Services of North Florida 2119 Delta Boulevard Tallahassee, Florida 32303 John Perry, Esquire District 2 Legal Office Department of Health and Rehabilitative Services 2639 North Monroe Street Tallahassee, Florida 32399-2949 Veronica Lee Harris 1229 Elberta Drive Tallahassee, Florida 32304 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services Building 7, Suite 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue addressed in this proceeding is whether Respondent's child care facility license should be disciplined for alleged violation of chapter 402, and if so the appropriate penalties. Neither party timely submitted Proposed Recommended Orders.
Findings Of Fact Respondent Donna J. Downing owns and operates a child care facility known as the Downing House, located at 8508 Lorento Street, Panama City, Florida. The child care facility is also her family's residence. She lives with her husband, son, and daughter who help operate the facility and who have been successfully screened by HRS. Ms. Downing was licensed in 1985 and holds a currently valid license. Her license is endorsed to allow her to operate her facility during nighttime hours. In April 1988, HRS became concerned that the operation of the Downing House into the night was proving too much for the husband and wife team, since HRS regulations require an adult to be present and awake during the night. HRS, therefore, inquired of the Downings concerning their proposed arrangements to ensure the presence of an awake adult. In order to continue to operate into the night, Respondent assured HRS that either she or her husband would be awake during the night while children were present on the premises. However, the evidence established that Respondent and her husband did not always live up to Respondent's representation to HRS. A standard mode of operation by Respondent was for both she and her husband to retire in the evening, leaving the front door unlocked so that the children's parents could pick up their children without disturbing the Downings. However, occasionally one of the Downings would stay up with the children. On May 5, 1988 a two year old male child was left at the Downing House by his mother for nighttime caretaking. At approximately 11:00 - 11:15 pm., Mr. and Ms. Downing had gone to bed. There were three children present at the Downing House when the Downings retired, including the two year old male child. The three children were asleep when Ms. Downing left them in the living room. No other adults were present. Ms. Downing had made arrangements for her adult son to look after the children when he got home from work. He was expected home at about 11:30 p.m. The son arrived home at approximately 11:40 p.m. When he arrived there were two children present. No method had been established by Respondent to advise her son of the number of children who should be present when he arrived home. He therefore did not realize that one child was missing. The son laid down on the couch in the living room and went to sleep. Sometime between the Downings going to bed and the arrival of their son, the two year old male child awakened, opened the front door and left the house. The child then unlatched the front yard gate and headed down Lorento Street towards its intersection with Laurie Lane. He then proceeded down Laurie Lane. At approximately 11:15 p.m., Denise Albert was driving down Laurie Lane. About two tenths of a mile from the Downing House, at 2414 Laurie Lane, Ms. Albert saw the missing child walking down the unlit and unpaved road. He was barefoot and in his pajamas. Ms. Albert stopped and questioned the child for 15 or 20 minutes. She could not obtain any information. She therefore called the Sheriff's office. Officer Troy Johns was dispatched at 11:30 p.m. The officer picked the child up from Ms. Albert and drove him around the neighborhood, including Lorento Avenue. The child could not or would not identify where he had come from and would not give his name. The child was more interested in the officer's gun and vehicle than in his surroundings. The officer took the child to the Sheriff's station and called HRS. Debra Young an HRS protective services investigator took the call and picked the child up from the Sheriff's office. She also could not establish the child's identity or address. She placed the child in a foster home. At 4:11 a.m. the Sheriff's office received a phone call in reference to a missing male child from the Downing House. The missing child was the child the Sheriff's office had turned over to Ms. Young. The Sheriff's office contacted Ms. Young. Mother and child were reunited the next morning. The call to the Sheriff's office from the Downing House had been prompted when the child could not be found after a search. The search ensued when, at approximately 3:00 a.m., the mother arrived to pick up her son. She discovered his absence and woke Respondent's son who in turn woke Mr. and Ms. Downing. One child remained. A second child had been picked up at approximately 2:30 a.m. by that child's mother. The son did not awaken and was not aware that the second child had been taken from the room in which he was asleep. The Downings searched the neighborhood for the missing child, including checking the Lagoon which is within a few blocks of the Downing House. The call to the Sheriff's office located the child. From 1985 until May 1988, Respondent was cited for the following violations of chapter 402, F.S. and the rules related thereto: September 3, 1985 Two gates in the play yard were left unlocked making it possible for children to have access to the road, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code, in that this was an obvious hazard. Medicine was left on the kitchen cabinet within the children's reach, in violation of Rule 10M-12.003(1) and (d), Florida Administrative Code. April 22, 1986 Cleaners were on the washer and dryer within the children's reach and Lysol and Windex were on the kitchen cabinet with food within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. No fire drills, in violation of Rule 10M-12.003(8)(a), Florida Administrative Code. October 1, 1987 Clorox, detergent, charcoal, briquettes, pliers, plastic bags, cigarette and cough drops were out at several locations throughout the facility and within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. An iron was left with the cord hanging over the table within the children's reach making it possible for the iron to be reached and pulled down on top of a child, in violation of Rule 10M- 12.003(1)(a), Florida Administrative Code. March 23, 1988 A medicine bottle containing medicine and tanning accelerator within the children's reach were located inside the facility and rose dust, Progreen, Spectracide ant killer and touch up paint were at several locations on the porch at the main entrance within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. Suntan lotion and tanning accelerator and three sand filled milk cartons, all located on the patio at the back of the house leading to the play yard and all within the children's reach, in violation of Rule 10M-12.003 (1)(b) and (d), Florida Administrative Code. The gate to the play yard was unlocked allowing children access outside the play area, in violation of Rule 10M- 12.003(4)(b), Florida Administrative Code. The store room containing a lawn mower and other tools and hazardous materials was left unlocked, in violation of Rule 10M-12.003(4)(b) , Florida Administrative Code in that it was an obvious hazard, with the children having access to said store room. A throw rug was on the steps leading to the patio and was not secure making an obvious hazard, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code. To Respondent's credit, all of the above violations were corrected within the time frames established by HRS. No fines were ever levied on the Respondent for the above violations. Also, to Respondents credit, the evidence disclosed that Respondent is generally a good caretaker of children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services revoke the nighttime operation endorsement on Respondent's license and impose an administrative fine of $1000. DONE and ENTERED this 14th day of March 1989, in Tallahassee, Lean County, Florida. DIANE CLEAVINGER 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 14th day of March, 1989. COPIES FURNISHED: John L. Pearce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32302 Donna J. Downing 8508 Lorento Street Panama City, Florida 32407 R. S. Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the provisional license issued to Kiddie Kampus Day Care (Respondent), should be renewed.
Findings Of Fact Reatha Simmons is the owner of the Respondent facility and is licensed by Petitioner to operate a Child Care Facility under License No. DC-1320-E. As a consequence of a pattern of problems and violations at the Kiddie Kampus Day Care, Respondent was placed on provisional license status from January 20, 2000 through April 1, 2000. An inspection of the Respondent facility on January 7, 2000, revealed that the facility was "out-of-ratio" with too many children and not enough supervising employees, as well as insufficient square footage. Additional citations were made for Respondent's employee screening violations and lack of tuberculosis (TB) testing of the employees. A supervisory conference was held with Reatha Simmons and Petitioner employees on January 13, 2000, to discuss the pattern of repeat violations and non-compliance by the Respondent facility. Consequently, the facility was placed on a three-month provisional license status and Reatha Simmons was warned that it was her last chance to correct repeated violations. Another inspection on February 16, 2000, by Petitioner's representative revealed continued personnel screening violations and various facility violations. Included within the violations were two children who did not have required physicals on January 27, 2000, and were still out of compliance. An attempted review of documents at the Respondent facility by Petitioner's representative on March 6, 2000, was not possible as the documents were locked in an office in the facility at that time. Problems occurred at the Respondent facility on March 4, 2000. An underage employee was alone for approximately nine hours with children at the facility. There was a ratio violation as to the number and ages of the children at the facility. A family member was called to come and pick up a child early and the facility closed earlier than its posted hours. These matters were reported to Petitioner's personnel on March 7, 2000. At an inspection by Petitioner personnel on March 9, 2000, Respondent acknowledged the veracity of the March 4, 2000 incident. On March 16, 2000, an inspection of the facility showed additional fill dirt or ground cover was needed under the monkey bars, a piece of recreational machinery. While employee fingerprint and background verification were eventually accomplished, along with required TB tests, these actions were tardy and not expediently accomplished. Likewise, physical examinations of two children were not timely accomplished.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered by Petitioner confirming the decision not to renew Respondent's license. DONE AND ENTERED this 19th day of December, 2000, 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 19th day of December, 2000. COPIES FURNISHED: Reatha Simmons, Qualified Representative Kiddie Kampus Day Care 1216 Portland Street Pensacola, Florida 32534 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
