The Issue At issue in this proceeding is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact In or about December 1998, the Department of Children and Family Services (Department) initiated an employment screening pursuant to Chapter 435, Florida Statutes, incident to Petitioner's application for employment at a child day care center in Delray Beach, Florida. That screening revealed that on September 28, 1998, Petitioner was arrested for exposure of sexual organs, a violation of Section 800.03, Florida Statutes, and unnatural and lascivious acts, a violation of Section 800.02, Florida Statutes. The screening further revealed that on October 20, 1998, Respondent entered a plea of guilty to the charges; adjudication was withheld; and Respondent was placed on probation for a term of 6 months. Given the screening results, the Department notified Respondent by letter of December 14, 1998, that he was ineligible for continued employment in a position of special trust (working with children or the developmentally disabled), and accorded him an opportunity to request an exemption under the provisions of Section 435.07, Florida Statutes. Petitioner requested such an exemption, and the Department duly-convened a hearing to consider Petitioner's request. Subsequently, the Department advised Petitioner by letter of January 29, 1999, that his request for exemption was denied, and these proceedings ensued at Petitioner's request to challenge the Department's decision. As observed in the preliminary statement, neither Petitioner nor anyone on his behalf appeared at hearing, and no proof was offered to support his claim for exemption. Such failing is dispositive of the case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 30th day of July, 1999. COPIES FURNISHED: Henry C. Cornelius 2315 Southwest 22nd Avenue Boynton Beach, Florida 33445 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether CAP Head Start – Gibson Center (“Respondent”) committed the violations alleged in the Administrative Complaint issued by the Department of Children and Families (“the Department”) on February 12, 2018.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties and Relevant Provisions of Law The Department is the state agency responsible for licensing child care facilities in Florida and ensuring that those facilities comply with requirements imposed through the Florida Statutes and the Florida Administrative Code. In order to fulfill that duty, the Department conducts routine and complaint inspections. Every facility receives three routine inspections a year. If the Department learns that a facility may have committed a violation, then the Department conducts a complaint inspection within 48 hours of receiving the information. The Department classifies violations as Class I, Class II, or Class III. Rule 65C-22.010(1)(d)1., defines Class I violations as those that “are the most serious in nature, pose an imminent threat to a child including abuse or neglect and which could or [do] result in death or serious harm to the health, safety or well-being of a child.” Rule 65C-22.010(1)(d)2., states that 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.” Rule 65C-22.010(1)(d)3. provides that 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.” If a facility commits three or more Class I violations within a two-year period, Rule 65C-22.010(2)(e)1.b., mandates that the Department shall suspend, deny or revoke the facility’s license. Section 39.201(1)(a), Florida Statutes, requires that [a]ny person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to [the Department] in the manner provided in subsection (2). Section 39.201(2)(a), requires that [e]ach report of known or suspected child abuse, abandonment, or neglect by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare as defined in this chapter, except those solely under s. 827.04(3), and each report that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall be made immediately to [the Department]’s central abuse hotline. Rule 65C-22.001(11)(b) specifies that “[f]ailure to perform the duties of a mandatory reporter pursuant to Section 39.201, F.S., constitutes a violation of the standards in Sections 402.301-.319, F.S.” Respondent is a federally funded, nonprofit agency with its corporate headquarters in Pensacola, Florida. Respondent has 190 employees and four core programs, the largest of which is a Head Start program serving 935 children in Escambia County. The Gibson Center in Pensacola is a Florida-licensed childcare facility and part of Respondent’s Head Start program. The Gibson Center cares for 190 children every school day and transports 160 children to and from its facility on buses. The September 20, 2017 Incident On September 20, 2017, a bus dropped off children at the Gibson Center, but the bus driver and her aide failed to conduct a complete visual sweep3/ to ensure that all the children had left the bus. As a result, no one realized that a five- year-old child, J.H., was still on the bus until the children arrived at their classroom. The bus driver briefly left the bus to retrieve a stapler from her car, drove to the “bus pen,” and began completing paperwork. After the aide called the driver to inquire if J.H. was still on the bus, the driver found J.H. asleep on a seat and unbuckled. J.H. was unattended on the bus for approximately five minutes. The bus driver and aide disclosed the incident to their supervisors. The September 28, 2017 Incident On September 28, 2017, Shenevia Jones, a bus driver’s aide, conducted a visual sweep to ensure that all of the children were off a bus but failed to notice that a four-year- old child, M.J., was hiding under a seat. M.J. remained on the bus while it took 20 minutes to complete an additional route. Upon the bus’s return to the Gibson Center, Ms. Jones discovered the child after he sprang from under a seat and said “ta dah.” Respondent’s Actions Following the Incidents Respondent’s upper management met on September 21, 2017, to discuss the September 20th incident and decided that a review of the loading and unloading procedures would be conducted with drivers and aides on September 22, 2017. In addition, the Executive Director would discuss the incident with all employees on September 23, 2017. After the September 28th incident, Respondent’s management decided that a more robust response was necessary. As a result, Ms. Jones was suspended for three days without pay, and Respondent rewrote its procedures for loading and unloading buses.4/ According to Respondent, these new procedures were “site specific” in that larger facilities such as the Gibson Center had different procedures than smaller ones.5/ Deborah Nagle, Respondent’s Director of Compliance, Governance, and Head Start, reported both incidents to the regional Health and Human Services (“HHS”) Office in Atlanta, Georgia via an October 6, 2017, e-mail. As a federally-funded, non-profit agency, Respondent receives funding from HHS. HHS issued a report on February 15, 2018, finding that Respondent violated a federal regulation prohibiting a child care program from leaving a child behind in a classroom or on a vehicle. Ms. Nagle and Doug Brown, Respondent’s Executive Director, discussed whether the incidents amounted to “neglect” within the meaning of Chapter 39 and determined they were not reportable events. In October of 2017, the Department issued a new handbook to child care facilities, and this handbook contained a section about reporting neglect. After reviewing the aforementioned section, Ms. Nagle sent an e-mail to Roger Thompson, the Department’s Supervisor of Child Care Regulation in Escambia, Santa Rosa, Okaloosa and Walton Counties, on Friday, December 8, 2017,6/ describing the incidents: I have attached 2 incidents we had with children on the bus along with the revised procedure. We had reported this to our Regional office and have worked with our Training and Technical Assistance to complete a corrective action plan and put enhanced monitoring in place. All staff will be trained on Jan. 2 when we return from the Christmas break on the revised procedures. I felt it necessary to send this information to you after reading the new Field manual which lists items we must have in policy on reporting on page 27. I will be out of the office until Dec 15th, but will be able to retrieve e-mail while traveling. Mr. Thompson responded on Monday, December 11, 2017, with the following message: Was the Hotline called on the incident? Also, that needs to be addressed in the [corrective action plan]. Anything like this needs to be reported immediately to the Hotline. Not reporting can resort in an additional Class I violation. Ms. Nagle responded 13 minutes later by stating the incidents were not reported. Just over an hour later, Ms. Nagle transmitted the following inquiry: I have a question. Is what happened considered an abuse report? To my knowledge there has not been any specifics on what is reported other [than] injury to a child or a report from a parent or other staff member that there was abuse []. We did not consider these as reportable, but due to the new field guide thought it necessary to inform you. So far every call we have made to the hotline when it was deemed an abuse situation was only taken as information. Mr. Thompson responded five minutes later with the following: Remember . . . it isn’t always ABUSE. It is anything that possibly fits Abuse and/or Neglect. This was NEGLECT. If you contact Paula Doty at the Gulf Coast Kids House, she will do a great training for free at your location. She goes into the details. It would be great for your staff, in-service training credit, and it may head some of this stuff off at the pass. The Department’s Investigation Mr. Thompson initiated a complaint investigation, and two Department employees, Casey Gully and Shacondra Primm, inspected the Gibson Center on December 13, 2017. During that inspection, one of Respondent’s teachers showed Ms. Primm a hole in the floor of a modular classroom unit. Approximately one week prior to the inspection, the teacher’s foot had fallen through the floor, resulting in a 6 inch by 12 inch hole about 3 to 4 feet from the classroom’s entrance. At the time of the inspection, a trashcan and caution tape covered the hole. Respondent was in the process of collecting bids to have the hole fixed over the Christmas break.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families issue a Final Order imposing a $1,000.00 fine on Respondent. DONE AND ENTERED this 10th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 10th day of September, 2018.
The Issue Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida. Respondent is a day-care center in Miami, Florida, and currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran’s notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. Petitioner offered insufficient evidence to refute that testimony. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 January, 2015. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 (eServed) Karen A. Milia, Esquire Department of Children and Families 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
Findings Of Fact Respondent's facility is a duly licensed child care facility. Rule Section 10M-12.002(5), Florida Administrative Code, requires direct supervision of groups of children by specified numbers of a child care facility's staff personnel. The number of staff personnel required for supervision is generated by the age and number of children to be supervised. Children three years of age must be supervised by at least one staff member for each group of 15 or less children. On June 12, 1990, two of Respondent's staff members were assigned to oversee 16 three-year-old children. The children were taken by the two staff members to the facility's outdoor play ground. While on the playground, one staff member left for a period of time not exceeding two minutes to retrieve snacks for the children. The 16 children were left to the supervision of another staff member while the one staff member walked alone approximately seventy-six (76) feet from the playground to an area inside a building where the snacks are kept. During the brief time she was inside the building, she could not see or observe children on the playground. During the staff member's absence, one of the children became entangled in playground equipment. Upon her return with the snacks, the staff member spotted the child. The child appeared to be unconscious. Mouth-to-mouth resuscitation was administered by the staff member and another Respondent employee telephoned emergency medical personnel. Immediately after the incident, Respondent's facility manager reported the matter by telephone to an investigator employed by Petitioner's licensing division. One week later, the investigator visited Respondent's facility, conducted a review of the premises and found no violations at that time. However, based upon the momentary absence of the one staff worker at the time of the incident the previous week, Petitioner's investigator determined that Respondent had violated provisions of Chapter 10M-12.002(5), Florida Administrative Code, relating to the number of staff members required to provide direct supervision of the children in Respondent's facility at that time. Petitioner's investigator interpreted the "ratio" provision of Rule Section 10M-12.002(5), Florida Administrative Code, to require issuance of a citation for a violation at any time an assigned worker left the exact area in which children were at the time such children were playing. Petitioner has cited other child care providers for staffing ratio violations, even when the absence of a facility's supervising staff member was temporary. Petitioner's interpretation of the requirements of Rule Section 10M- 12.002(5), Florida Administrative Code, does not exclude a facility from the exercise of reasonable alternatives which would prevent a citation for staffing ratio violations. Such an alternative would include having another facility employee temporarily provide supervision when one of the staff supervisors is required to leave the children.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing an administrative fine of $75 against Respondent. DONE AND ENTERED this 16th day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1500 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1991. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-12. Adopted in substance, but not verbatim. 13.-18. Rejected as unnecessary to result. PETITIONER'S PROPOSED FINDINGS 1.-15. Adopted in substance, though not verbatim. COPIES FURNISHED: Scott D. Leemis, Esq. Department of Health and Rehabilitative Services P.O. Box 2417 Jacksonville, FL 32231-0083 Mary S. Kearsey, Esq. 13000 Sawgrass Village Circle Suite 16 Ponte Vedra Beach, FL 32082 General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
The Issue Whether the Department of Health and Rehabilitative Services properly assessed an administrative fine in the amount of $150.00 on Lourdes Guanlao d/b/a Children's Paradise for violations of Sections 402.305(4) and 402.305(12), Florida Statutes, and Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.
Findings Of Fact The Department issued a Child Day Care Facility license to Lourdes Guanlao to operate a facility known as Children's Paradise on October 9, 1991. From 1991 to 1994 Petitioner conducted routine facility inspections at Children's Paradise. These inspections included a determination whether the facility was operating with appropriate staff-to-child ratios. On April 1, 1992, Sandy Looney, Respondent's Senior Children's and Families' Counselor, conducted an inspection of Children's Paradise. When Ms. Looney arrived at the facility, Jeane Weiss was the only staff member present. There were seven children present in the center. Two children were under the age of one year and two children were between one and two years old. There should have been two staff members at the facility for the grouping of children present. Within ten minutes of Ms. Looney's arrival, Ms. Guanlao, arrived at the facility thereby correcting the staffing violation. Ms. Guanlao signed the inspection checklist. Ms. Looney discussed the staffing violation with Mrs. Guanlao and left a copy of the checklist with her. On July 27, 1993, Ms. Looney conducted an inspection of Children's Paradise. There were two staff members present at the facility, Ms. Weiss and Ms. Tan. There were sixteen children present in the center. Three children were under the age of one year, six children were between one and two years old. Three staff members were required for the grouping of children present. Ms. Weiss signed the inspection checklist. Ms. Looney left the checklist with staff. Before Ms. Looney left the premises, a staff member arrived for work thereby correcting the staffing violation. On August 17, 1994, Ms. Looney conducted a re-licensure inspection of Children's Paradise. There were two staff members present at the center, Ms. Weiss and Ms. Guanlao. There were twenty-one children present in the center. Seven were under the age of two. Three staff members were required if the children were separated in groups and four staff members were required if the children were all together. Ms. Weiss signed the inspection checklist. Mrs. Looney discussed the violation with Mrs. Guanlao who advised there was no substitute or other staff member available to call to work. Correction of the staffing violation was due on August 18, 1994. On August 18, 1994, Ms. Looney returned to Children's Paradise to determine if Ms. Guanlao had corrected the staffing violation. At that time there were eighteen children present. Six children were under the age of two. The same two staff members were present, Ms. Weiss and Ms. Guanlao. Mrs. Guanlao called a ten year old child to assist and again indicated that there was no adult available to call. Each time that Ms. Looney inspected Respondent's facility, she actually counted the number of children present and asked staff to verify their age. Evidence to the contrary is not persuasive. On August 29, 1994, Petitioner issued an Administrative Complaint imposing a fine in the amount of $75.00 for the August 17, 1994, staffing violation which Respondent had not corrected at the time of reinspection on August 18, 1994. This complaint properly advised Respondent of her right to a proceeding pursuant to Section 120.57(1), Florida Statutes. By letter dated September 13, 1994, Ms. Looney advised Ms. Guanlao that if she disputed the imposition of the fine, she could request an administrative hearing. The letter further stated that if Ms. Guanlao did not dispute the fine, she could pay it by mailing a check or money order. Ms. Guanlao tendered check number 1839 dated September 22, 1994, in the amount of $75.00 with "Adm. Fine" noted thereon. Ms. Looney transmitted this check to the fiscal office for deposit on or about October 7, 1995. There is no persuasive evidence that Ms. Looney told Ms. Guanlao she had to pay the administrative fine or risk losing her license. Gerald Stephens, Protective Investigator for Petitioner went to Children's Paradise on November 18, 1994. The purpose of his visit was associated with an investigation unrelated to this proceeding. When Mr. Stephens arrived at the facility, Ms. Guanlao was the only staff member present. He observed ten children in the center. The youngest child present at the center was eighteen months old. This number of children required at least two staff members to be present at the facility. Mr. Stephens interviewed one of Ms. Guanlao's staff members on the morning of November 18, 1994. There is no persuasive evidence that Mr. Stephens prevented the staff member from showing up for work that morning by telling her he was going to shut the facility down. Seven witnesses testified that they were volunteers at the center and had agreed to act as substitute staff on an as needed basis. Only two of these people had been properly screened and trained to work in a day care center or with children. One of these two volunteers did not receive her certification to work in a day care facility until October 3, 1994. Some of the volunteers had other full time jobs. Consequently, the times they were available to help Ms. Guanlao was limited. There is no evidence that Ms. Guanlao called any of these people to substitute on April 1, 1992, July 27, 1993, August 17, 1994, August 18, 1994 or November 18, 1994. Ms. Guanlao attended a training course that Ms. Looney conducted prior to October 9, 1991. One purpose of the course was to familiarize participants with the rules regulating child day care centers. During the training Ms. Looney provided Ms. Guanlao with written material including the Child Care Standards contained in Rule 10M-12, Florida Administrative Code. This rule sets forth staffing requirements and child discipline standards. Ms. Looney and Ms. Guanlao discussed subsequent changes in the rules related to staffing requirements. Ms. Looney also explained to Ms. Guanlao that the staffing requirements applied at all times the children were in the center regardless of the activity that was taking place. In other words, the staff-to- child ratios applied even if the children were napping. On August 19, 1994 Ms. Looney received a complaint involving the day care center on an unrelated licensing issue. As a result of the subsequent investigation, Ms. Looney was at the facility on August 24, 1994. During that visit, Ms. Guanlao admitted that she sometimes slapped the children on the hands as punishment.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Petitioner Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine on Respondent Lourdes Guanlao d/b/a Children's Paradise in the amount of $150 for violating Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code. DONE and ENTERED this 16th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1996. COPIES FURNISHED: Frances S. Childers, Esquire District 3 Legal Office Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Box 3 Gainesville, Florida 32601 Michael M. Naughton, Esquire 3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257 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 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner is entitled to the renewal of her license as the operator of a child care facility.
Findings Of Fact Petitioner was licensed to operate a child care facility continuously from December 31, 1985, through June 30, 1997. Several licenses issued by Respondent to Petitioner were provisional due to Respondent's concerns about Petitioner's compliance with various statutes and rules governing child care facilities. (References to Respondent include the predecessor agency to the Department of Children and Family Services.) On June 5, 1997, Respondent notified Petitioner that it would not renew her child care facility license when it expired on June 30, 1997. Presumably because Petitioner timely requested a hearing, Respondent allowed her to continue to operate her facility past June 30. However, on July 3, 1997, Respondent issued an order of emergency suspension pending review of the decision not to renew. Petitioner has not since operated her child care facility. The two major issues in this case involve Petitioner's repeated failures to employ sufficient staff to satisfy the staff-to-child ratios and repeated failures to ensure that staff directly supervise all children. Although these standards are related in purpose, the staffing-ratio standard requires that a certain number of staffpersons be responsible for a maximum number of children, with a lower ratio for younger children, and the direct-supervision standard requires in most instances that a staffperson be in the same room as the children. As a result of 31 facility inspections, Respondent identified 40 violations of these two standards. Five of these inspections resulted in Respondent filing administrative complaints, in response to which Petitioner eventually paid relatively small fines. The remaining 26 inspections resulted in nothing more serious than Respondent issuing warning letters. The first Administrative Complaint, which is dated February 8, 1993, alleges that Respondent conducted inspections on August 9 and September 22, 1992, and found each time insufficient staff to satisfy the required ratio of staff to children. The Administrative Complaint alleges that Respondent sent Petitioner a letter on October 2, 1992, warning that further infractions of the staffing ratio could result in a fine, but Respondent's inspectors found on December 16, 1992, another staffing-ratio violation, as well as a direct-supervision violation. The Administrative Complaint seeks a fine of $30. Petitioner did not contest the allegations of the February 8 Administrative Complaint. Instead, she paid the $30 fine on April 19, 1993. Respondent filed another Administrative Complaint dated June 9, 1993. The Administrative Complaint alleges that a 15-year-old staffperson had not undergone the necessary screening. Three months later, Respondent converted the Administrative Complaint to a warning due to Petitioner's confusion concerning the screening requirements applicable to such a young staffperson. Respondent filed a third Administrative Complaint on December 9, 1993. The Administrative Complaint alleges that, on November 17, 1993, three staffpersons were supervising 37 children, in violation of the staffing ratios and Petitioner's licensed capacity. Issuing a warning as to the capacity violation, Respondent sought a $75 fine for the staffing-ratio violation. Petitioner did not contest the December 9 Administrative Complaint. Instead, she paid the $75 fine on February 17, 1994. Respondent filed a fourth Administrative Complaint on February 17, 1995. The Administrative Complaint alleges, among other things, that Petitioner did not have a sink with the required number of compartments to allow the kind of food preparation that she was undertaking at the facility. The parties settled this allegation without the imposition of a fine or other discipline. Respondent filed a fifth Administrative Complaint on May 23, 1996. The Administrative Complaint alleges that Petitioner's employees propped up three feeding bottles for infants. The Administrative Complaint seeks a $50 fine. Petitioner paid the $50 fine on June 27, 1996. Respondent filed the sixth and seventh Administrative Complaints on February 11 and 26, 1997. Petitioner contested these allegations, as well as the allegations contained in an eighth Administrative Complaint dated March 18, 1997. All three complaints were consolidated for a single hearing. The partial final order resulting from the hearing on the three complaints imposed $400 in fines against Petitioner for two violations of the staffing ratios (alleged in the February 11 Administrative Complaint), one violation of the staffing ratios (alleged in the February 26 Administrative Complaint), and one violation of the direct-supervision requirement (alleged in the February 26 Administrative Complaint). The partial final order dismissed the March 18 Administrative Complaint and remanded allegations of inadequate training of staff. (The administrative law judge declined the remand, and the Respondent has appealed the order declining remand.) In addition to the above instances of violations of staffing ratios or direct supervision, Respondent also proved numerous other instances of violations of these two minimum- care standards. Respondent proved that Petitioner violated the following minimum-care standards: May 7, 1986 (staffing ratio); May 13, 1987 (staffing ratio and capacity limit); June 20, 1987 (staffing ratio); November 18, 1987 (staffing ratio); April 14, 1988 (staffing ratio); May 6, 1988 (staffing ratio); June 7, 1988 (staffing ratio); August 16, 1988 (staffing ratio); May 16, 1989 (staffing ratio and direct supervision); March 2, 1990 (staffing ratio); June 22, 1990 (direct supervision); October 2, 1990 (staffing ratio); October 5, 1990 (staffing ratio and direct supervision); November 5, 1990 (staffing ratio and direct supervision); November 8, 1990 (staffing ratio); November 15, 1990 (staffing ratio); May 14, 1991 (direct supervision); December 16, 1992 (staffing ratio and direct supervision); March 26, 1993 (staffing ratio); April 7, 1994 (staffing ratio and direct supervision); June 29, 1994 (direct supervision); July 28, 1995 (staffing ratio and direct supervision); December 6, 1995 (staffing ratio); January 28, 1997 (staffing ratio and direct supervision); February 17, 1997 (staffing ratio and direct supervision); June 25, 1997 (staffing ratio); and June 30, 1997 (staffing ratio). Respondent issued inspection reports for all of the violations listed in the preceding paragraph and provided Petitioner with copies of this documentation. Respondent periodically wrote letters to Petitioner advising her of the legal requirements as to staff ratios and direct supervision. Respondent repeatedly offered Petitioner technical advice regarding these crucial minimum standards for the provision of child care. There is no possibility that Petitioner did not understand the staffing-ratio and direct-supervision requirements. Petitioner's noncompliance constituted nothing less than defiance of these two minimum-care requirements over a period of 11 years. From 1986 through 1990, Petitioner violated these two standards 16 times. In 1991, she violated them only once. However, she violated them three times in 1992--resulting in the first administrative fine for the violation of these standards. Petitioner violated these standards twice in 1993--the second violation resulting in the second administrative fine for the violation of these standards. Petitioner violated the staffing-ratio and direct- supervision standards twice in 1994 and twice in 1995, but not at all in 1996. However, she violated these standards six times in 1997, including twice after the issuance of a third administrative complaint concerning the violation of these standards. These last two, particularly ill-timed violations, led directly to the decision not to renew her license and the later decision not to allow her to operate pending review of the nonrenewal decision. Although Petitioner has greatly reduced the number of her violations of the staffing-ratio and direct-supervision standards, she has nonetheless refused to comply with these important requirements designed to ensure the safety of the children for whom she is caring. Her violation of these standards while cases were still pending over earlier violations betrays a hardened resolve not to comply with these two standards. Respondent also proved that Petitioner repeatedly violated other requirements, such as for timely screening of employees and recordkeeping. However, Petitioner's repeated failures to comply with the staffing-ratio and direct- supervision requirements are sufficient to warrant the denial of her application for renewal of her license or, in the alternative, the revocation of her license.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for renewal of her child care facility license. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: Bruce A. Tischler Greene & Tischler, P.A. 10175 Six Mile Cypress Parkway Suite 4 Fort Myers, Florida 33912 Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Office of the General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
