Findings Of Fact Justification for Agency Action On August 14, 1992, the Manatee County Sheriff's office reported to HRS that a 911 emergency telephone call had been made reporting that an infant died apparently as a result of an accidental choking while at the day care facility owned and operated by the Petitioner, Alice P. White, d/b/a Miss Patty's Day Care Center. On or about August 17, 1992, an autopsy report on the infant found that the cause of death was sudden infant death syndrome (SIDS), which was inconsistent with an accidental choking, and an HRS child day care facility licensing inspector placed a followup call to the Petitioner. Among other things, staffing at the facility on August 14, 1992, was discussed, and the Petitioner assured the inspector that staffing was adequate. They then discussed the incident itself. The Petitioner reported that the infant choked while the Petitioner was sitting in a rocking chair, holding the infant in her arms and feeding the infant. On August 19, 1992, the HRS inspector was instructed to return to the Petitioner's facility for documentation of proper staffing on August 14, 1992. When the HRS inspector arrived, the Petitioner was being interviewed by Manatee County Sheriff's office personnel. While the law enforcement interview was going on, the HRS inspector was able to observe that 18 preschool children were unattended in the bedroom of the Petitioner's son, an unlocked room that officially was not part of the facility. She also was unable to obtain any documentation that the facility was properly staffed on August 14, 1992. The HRS inspector prepared a Child Day Care Inspection Checklist for August 19, 1992, reporting that 18 children were not under direct supervision and that there were 36 children at the facility, six more than the maximum capacity for which the Petitioner's facility was licensed. On August 20, 1992, the HRS inspector returned to the facility because the Sheriff's office had referred the matter to HRS and HRS investigators were at the facility conducting interviews of the facility's staff. One member of the staff informed the HRS personnel that, on the day the infant died, the infant had been left in one of the rooms at the facility without direct supervision at least one time for approximately 30 minutes. When the Petitioner was confronted with the staff member's statement, the Petitioner confessed that she had made, and had been repeating, a false report as to what had occurred on August 14, 1992. In fact, the infant did not die of an accidental choking while the Petitioner was holding the infant in her arms. Rather, the infant was in one of the rooms at the facility without direct supervision; when the Petitioner entered the room and discovered that the infant was not breathing, she called 911 and tried to rescusitate the infant. She stated that she had made, and had been repeating, the false report on the incident in order to personally assume responsibility and to protect her staff from being made responsible. During a prior routine inspection on July 29, 1992, HRS cited the Petitioner for several violations, including insufficient staff ratio, in violation of F.A.C. Rule 10M-12.002(5)(a)(1), and failure to directly supervise, in violation of F.A.C. Rule 10M-12.002(5)(a)(2). On a reinspection on August 12, 1992, the deficiencies cited on July 29, 1992, were corrected; but, in light of the facts HRS learned on August 20, 1992, it appeared that two days later, on the day the infant died, the Petitioner was out of compliance again. In addition, similar violations were observed during inspections on January 13, 1992, and on April 12, 1989. Like all of the other minor violations observed during inspections of the Petitioner's facility over the years, the staff ratio and direct supervision violations were corrected by the time of the following inspection. In response to the inspection report for August 19, 1992, the Petitioner prepared a list of the facility's weak points and steps initiated to correct them. The Petitioner also voluntarily closed her day care center pending the completion of the HRS investigations. Underlying Administrative Proceedings On September 15, 1992, HRS filed an Emergency Final Order suspending the Petitioner's license. On September 21, 1992, HRS filed an Administrative Complaint. The Petitioner requested formal administrative proceedings on the Administrative Complaint, and it was referred to the Division of Administrative Hearings (DOAH), where it was given DOAH Case No. 92-7148. Both the Emergency Final Order and the Administrative Complaint alleged the death of the infant and the false initial report and alleged that the infant actually was left alone without supervision for 30 minutes. Both also alleged that, during HRS' investigation of the incident on August 19, 1992, the following "items of noncompliance" were discovered: The center had 18 school aged children in part of the facility with no staff or direct supervision. This is a violation of Rule 10M-12.002(5)(a)2, F. A. C. The total number of children in the facility was 36, which exceeded the maximum licensed capacity of 30 for the facility. This is a violation of Rule 10M-12.001(2)(j), F. A. C. The staff-to-child ratio was not correct. This is a violation of Rule 10M-12.002(5)(a)1, F. A. C. Both also alleged all of the prior violations found during the inspection history for the facility. On or about October 24, 1992, based on the same information on which the Administrative Complaint was based, HRS gave notice of intent to deny the application which the Petitioner had filed for renewal of her child day care facility license. The Petitioner requested formal administrative proceedings on the intended denial, and it was referred to DOAH, where it was given DOAH Case No. 92-7447, assigned to the same hearing officer as Case No. 92-7148, and consolidated for further proceedings and for final hearing. Final hearing was held on May 12, 1993. The Recommended Order entered in Case Nos. 92-7148 and 92-7447 on May 28, 1993, found the Petitioner not guilty on all charges in the Administrative Complaint and recommended that her license be renewed "forthwith." Among other things, the Recommended Order found: The only charges in the Administrative Complaint regarding this incident [i.e., the death of the infant] is [sic] contained in paragraphs 5 and 8 of the Administrative Complaint. Paragraph 5 alleges the baby died and paragraph 8 alleges that Respondent had provided the sheriff's department with misinformation regarding the infant choking while she was feeding him and that this infant had been left alone for 30 minutes without supervision before being noticed by Respondent. No credible evidence to support the lack of adequate supervision of this infant before its death was presented. The discrepancies found during the quarterly inspections of the facility for the past 3 1/2 years were predominantly minor offenses such as inadequate record keeping, failure to document all staff had received prescribed training or innoculations, lack of current vehicle driver certificate, unsafe outdoor equipment, or minor food service violations, failure to provide employee background screening, inadequate staff to child ratio, inadequate bathroom supplies, and lack of immunization records. These are all classified as Class III violations as defined in Rule 10M-12.011(7)(c), Florida Administrative Code. * * * During the investigation at this day care center following the infant's death, and while the sheriff's deputies were on the scene questioning Respondent and her employees, three additional violations are noted in paragraph 7 of the Administrative Complaint. The first of these allege the center had 18 children in part of the facility with no staff present in the room. At the time this infraction occurred Respondent was out on the patio being interrogated by a deputy and another deputy had called the aide supervising the 18 children out of the room to question her. When Respondent returned inside the center and observed the aide being questioned by the deputy she sent another aide into the room with the 18 school age children. The second allegation was that there were 36 children in the facility although the center was licensed for only 30. Without attempting to justify the violation Respondent testified that this occurred a day or two before school started when the teachers had to be at school but the pupils did not. These excess children were children of teachers who requested Respondent to take them during the time these teachers had to be at school. As a favor to these mothers who had previously used her day care center Respondent temporarily exceeded her authorized number of children. The third violation resulted when Respondent left the children she was supervising to open the door to admit the HRS inspector who supervised the facility. While Respondent was opening the door to let the inspector into the facility the proper ratio of staff to child was not maintained. In response to the inspection reporting the lack of supervision of the 18 school age and excess children in the facility (Exhibit 20) Respondent prepared a list of the facility's weak points and steps initiated to correct them (Exhibit 23). law: On August 28, 1992 Respondent voluntarily closed her day care center pending the completion of all investigations (Exhibit 24). Among other things, the Recommended Order concluded, as a matter of Neither paragraph 5 nor 8 of the Administrative Complaint alleges a violation of either Section 402.310, Florida Statutes or Rule 10M-12.011, Florida Administrative Code which list the grounds for disciplinary action. Since all of the violations charged in the Administrative Complaint were corrected within the prescribed time frame, none of these violations constitute grounds for levying an administrative fine. (Class II violations, if timely corrected, are also not subject to the assessment of a fine) A fortiori, they do not constitute grounds for revocation or refusal to renew a license. Obviously the death of an infant at Respondent's facility on August 14, 1992 led to the decision to deny renewal of the license and the filing of the Administrative Complaint to revoke the license. However, there is no evidence linking any act of Respondent with the death of this infant. There is no dispute that the infant died of SIDS. The infant stopped breathing and had the aide been in the room at the time the infant stopped breathing it is unlikely this would have been noticed had the aide not been looking closely at the child. * * * 24. Even if the minor violations charged in the Administrative Complaint could now be considered to be grounds for revocation, Section 402.310(1)(b), Florida Statutes 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 this part have been violated. Actions taken by the licensee to correct the violations or to remedy complaints. Any previous violations of the licensee. All of the violations charged in the Administrative Complaint are minor and were corrected forthwith. Respondent submitted a proposed plan to inhibit further violations by increasing staff and preparing written orders for staff guidance. As noted above this is the first Administrative Complaint ever filed against Respondent. From the foregoing it is concluded that there are no violations listed in the Administrative Complaint which were not timely corrected; that once timely corrected these alleged violations do not constitute grounds for further disciplinary actions; and Petitioner has failed to prove, by clear and convincing evidence, or even by a preponderance of the evidence, that Respondent committed any act which constituted grounds for revocation of her license. Over objection, the HRS Secretary allowed its personnel involved in the administrative litigation to file exceptions after the procedural deadline for filing exceptions. HRS' Final Order was rendered on November 1, 1993. It granted an exception to the finding in paragraph 8 of the Recommended Order on the ground that paragraph 4(o) of the Administrative Complaint also was a charge "regarding this incident" in that it charged the Petitioner "with filing a false police report." It also granted an exception to the finding in paragraph 9 of the Recommended Order on the ground that "there was insufficient evidence adduced upon which to base a finding of fact that inadequate staff to child ratios or lack of direct supervision constitute minor discrepancies." (It also was held that "it is the department's duty, not the Hearing Officer's, to interpret what is and is not a minor discrepancy.") The Final Order also observed: The AC also does not charge lack of direct supervision of the dead child. Therefore, the decision in this case does not turn on that issue. The Final Order also granted an HRS exception to part of paragraph 22 of the Recommended Order to the extent that it implied that HRS took action only because of the death of the child. The Final Order noted: "Although the child died from SIDS, counsel for the department is correct in pointing out that if the child had been under direct supervision at all times, the child might still be alive." In a footnote, the Final Order added: "If the department had alleged in the AC a specific lack of direct supervision as to the deceased child, and proved it at the hearing, this case might have turned out differently." Finally, the Final Order granted an exception disagreeing "with any general rule that once timely corrected, previous violations no longer constitute grounds for further disciplinary action." The Final Order observed: The violations cited and corrected over the 3.5 year period preceding the AC in this case are not sufficient to support denial or revocation of a license. That is not to say that in a proper case, previously corrected violations cannot support later disciplinary action. Having granted the foregoing exceptions, the Final Order's disposition of the case was: Based upon the foregoing, it is ADJUDGED, that Alice P. White, d/b/a Miss Patty's Day Care Center is not guilty of the charges legally alleged in the Administrative Complaint. The charge of giving false information to the police is not a violation, under these facts, of the child care licensure statute or rule. It is further ADJUDGED that the license to resume operations be issued forthwith . . .. The Final Order was not appealed. On December 16, 1993, the HRS personnel involved in the prosecution of the administrative proceedings moved for clarification of the Final Order and for remand to DOAH. This action was not appropriate, and on December 29, 1993, the Petitioner initiated action to enforce the Final Order by notifying HRS and the Attorney General of the Petitioner's intent to file an enforcement action under Section 120.69, Fla. Stat. (1993), as required by the statute. On January 14, 1994, an Order Clarifying Final Order was rendered, but in substance the order explained why no clarification was necessary and why the Final Order should be implemented. On or about January 24, 1994, HRS issued the Petitioner a "provisional license." Reasonable Attorney Fees The reasonable amount of time and labor required on this case was approximately 93 hours. (This does not include time spent after entry of the HRS Final Order.) HRS' expert questioned the 93 hours as being perhaps excessive, but she also conceded that she would not question the veracity of representations made by counsel for the Petitioner and that she only had a short period of time in which to study and consider the matter. The legal questions involved in the Petitioner's case were not particularly novel. The most novel question occurred after entry of the Final Order, when HRS inappropriately sought clarification of its own Final Order, and this should be taken into consideration in determining the appropriate fee. In addition, representation of the Petitioner was made difficult by her false reports as to the cause of death of the infant and her subsequent admission to the false reports. A fairly high level of skill was required to perform the legal service properly. The extensive general trial practice experience of counsel for the Petitioner enabled him to perform the service well even though he did not have exceptional experience specifically in the area of administrative law. He also was required to advise the Petitioner on related criminal, tort and bankruptcy matters, and his skills enabled him to do so. Not every specialist in administrative law would have been able to do as good a job in those areas. However, his lack of experience in the area of administrative law required him to expend considerable time devoted to researching pertinent law. There was no evidence that counsel's acceptance of the Petitioner's case precluded other employment. To the contrary, the evidence was that counsel is known for accepting notorious cases and that his practice is not adversely affected by this. The customary fee in Manatee County for handling a case like the Petitioner's ranges anywhere from $135 to $200 an hour. Counsel's fee for handling the Petitioner's case was totally contingent on any sums recoverable from HRS under any applicable statute for the award of attorney fees. If no award is recoverable, he would not expect the Petitioner to pay him any fee. The Petitioner was emotionally distraught during counsel's representation. This presented special problems in the representation and required counsel to expend more time than might otherwise be required for a case like the Petitioner's. Otherwise, the Petitioner's case did not impose any unusual time limitations on counsel. There was no amount of money at issue in the Petitioner's case. But at issue was the Petitioner's licensure, which was her means of earning a living. As for the results obtained, counsel's representation was, in the words of his expert, "devastatingly successful." In fact, it is not clear how counsel was able to achieve such a "devastatingly successful" result on the facts and law of the case. The key seems to have been in persuading the hearing officer and, ultimately, HRS that the Administrative Complaint did not allege lack of direct supervision or improper staff ratio on August 14, 1992, and in persuading the hearing officer that the Petitioner's false reports were of no consequence in the licensure proceeding. See Conclusions of Law 35-36, infra. To the extent not already addressed, the evidence was clear that the experience, reputation, and ability of the Petitioner's attorney is very good. The Petitioner's case would have to be classified as "undesirable." The case was notorious in the community. It involved the Petitioner's false reports as to the cause of death of an infant, to which the Petitioner later admitted. In addition, the Petitioner had no money to pay legal fees. If counsel had not taken the case on the generous terms he did, the Petitioner probably have had serious difficulty obtaining legal representation. Before agreeing to represent the Petitioner in her case, counsel had no prior professional relationship with her, and no future financially rewarding professional relationship with the Petitioner can be anticipated. There was no evidence of any awards in previous cases. Based on the foregoing factors, it is found that a reasonable attorney's fee for counsel representation of the Petitioner in her licensure proceedings is $18,600 (93 hours at $200 per hour.)
Findings Of Fact After respondent Debra T. Acosta and her husband Joe, a noncommissioned Air Force officer, the parents of Joseph M., 16 at the time of hearing, Jason M. (13), Shawn W. (9), and Tisouli (6), applied to HRS for a day care center license, they were required to have their fingerprints taken and to undergo a background check or "screening." The background check turned up a report of an investigation Air Force personnel had conducted on account of information Carla Burrell, formerly known as Carla Knight, had supplied. The first two numbered paragraphs of the report read: On 2 Mar 88, SSgt CARLA K. BURRELL, USAF Clinic, RAF Bentwaters (RAF), UK provided the following information: She arrived at RAFB from Eglin AFB (EAFB), FL on 21 Apr 85. She was stationed at EAFB from Jan 83 until Apr 85. While stationed at EAFB, her daughter, Angela Kristen Knight, female born: 21 Jan 80, VA, Civ, SSAN: 066-70-1577 (hereafter referred to as VICTIM) stayed with a babysitter during the day. The babysitter was identified as DEBRA ACOSTA, dependent wife of SUBJECT who resides at 318 Blackjack Court, EAFB, FL. DEBRA ACOSTA babysat for several families. After arrival at RAFB, VICTIM entered school and seemed to be worried about something but BURRELL wasn't sure of what it was. According to BURRELL, VICTIM received briefings in school about sexual abuse and was told it wasn't nice for adults to touch children in certain places. This led VICTIM to confide in BURRELL that while they had been stationed at EAFB, SUBJECT would make VICTIM and other young females being babysat by SUBJECT's wife take off their clothes and lie on the bed. On numerous occasions, SUBJECT had placed his hands on VICTIM's bottom and had placed his hands between VICTIM's legs. SUBJECT had touched VICTIM's vagina but had never actually penetrated her vagina. SUBJECT has done the same thing to other female children, but VICTIM stated SUBJECT didn't do anything to boys. In addition, VICTIM told BURRELL SUBJECT would drop his pants and underwear and would place his penis between the legs of the females but did not insert his penis into their vaginas. On 6 Mar 88, VICTIM was interviewed by SA STANLEY B. CRISP and SA BETTY J. WILKINS in the presence of her mother. VICTIM provided essentially the same information as was provided by her mother on 2 Mar 88. VICTIM provided the following additional information not previously reported by her mother. SUBJECT had made her and other young females go into the bedroom at the same time, sometimes even with DEBRA ACOSTA being at home. VICTIM stated however that DEBRA didn't know what SUBJECT was doing. At other times DEBRA wouldn't be at home when the incidents took place. VICTIM couldn't recall the names of the other children who were involved, but stated there were others in the bedroom at the same time. VICTIM stated SUBJECT had never hurt her and had never threatened her with harm. SUBJECT had told the children that they shouldn't tell anyone about what he was doing to them. VICTIM said she wasn't afraid of SUBJECT. The bedroom used was described by VICTIM as an upstairs, spare bedroom. SUBJECT had never made the children go into his bedroom. VICTIM had never told anyone about the incidents until she was told in school of the actions of SUBJECT were wrong. Petitioner's Exhibit No. 7. In February of 1988, Mary Vinyard had given respondent and her husband a letter she and her husband had received from Ms. Burrell. Respondent's Exhibit No. 6. This letter reads: Tom and Mary, Remember me? . . . I'm sorry to say the reason I'm writing is because of a concern I have. I've had nothing but problems with Krissy ever since we got to England. She's doing very well in school, however her behavior has gotten to the obnoxious state. Recently she was referred to a child psychiatrist at Lakenheath (Bentwaters doesn't have one). The Dr. there seems to think part of Krissys problem is that there has been some sort of sexual abuse in the past. She makes up stories, so I have no way of being certain of what she says. Last week after talking to the Dr, on the way home, Krissy suddenly said there had been someone in Florida that had done things he shouldn't have done. She said it was Joe, Debra's husband. I at first couldn't believe it, but she went on to talk about things an 8 year old child really should have no knowledge of. I really don't know what to think however I really don't want to screw up anyone's life. We don't see the psychologist again until next week. I called him and told him of this new development, and he said after two years nothing could be done anyway. I don't believe that. The Air Force seems to be taking a rather relaxed view on this. The reason I'm writing you is to inquire if your children are still in Debra's care. Are you having any trouble with either of them, ightmares, bedwetting, whining? Please do write me back. An answer of any sort will help put my mind at ease. If it is just conjecture, no harm is done. If there is something going on, and Debra is still babysitting, it needs to stop. I just don't want any other parents to go through what I'm going through right now. You may or may not want to consider another babysitter. Please don't tell Debra I wrote, I always thought the world of her and I know the kids loved her. I don't wish to upset their family, especially if this turns out to be nothing; but I'm very suspicious. The day after the Vinyards gave this letter to respondent, Mr. Acosta took it to his commanding officer, Captain Gilmore, and protested his innocence. Captain Gilmore made a copy of the letter and launched the investigation that eventuated in the Office of Special Investigations (OSI) report, set out in part above. Petitioner's Exhibit No. 7. No action was taken against Mr. Acosta as a result of the Air Force's investigation. He has consistently denied Krissy's reported allegations, and did so under oath at the formal hearing in this case. After the OSI report came to HRS' attention, an HRS employee decided "that Debra could get licensed, to continue with the paperwork" (T.370) but as to her only. Eventually HRS did license Debra Acosta to operate Kare Free Day Care (KFDC) at 15 Eglin Street in Fort Walton Beach. KFDC opened in July of 1990. Nobody from HRS asked Mr. Acosta to agree to stay off the day care center premises and neither he nor Ms. Acosta agreed that he would. His presence during various HRS inspections elicited no official, contemporaneous response. T.406-7. Another Allegation Reported Michelle G'Sell dropped her four-year-old daughter Amber and her two- year-old son Adam off at the Acosta family home about seven o'clock in the morning on Mother's Day, May 12, 1991, in keeping with the arrangement she had made with Ms. Acosta the afternoon before, when she picked up her children at KFDC, after their first stay there. At quarter past three Sunday afternoon, Ms. G' Sell again picked Amber and Adam up at KFDC. Ms. Acosta had taken them (and her own two youngest children) to KFDC that morning after feeding Shawn and Tisouli breakfast. As Ms. G'Sell walked to her car with her children "around three steps out of the house" (T.113) Amber said, "Mommy, my twat hurts." Id. Asked when, the child "said when she pees." Id. According to her mother, when they had reached the car, Amber said, "He touched me," id., and, asked who had touched her, pointed to Mr. Acosta, who was standing on the roof of the KFDC building, "and said, 'Him.'" Id. But Jason and Mrs. Acosta (T.512) testified that Mr. Acosta was not at KFDC when Amber left, and Jason testified that his father had not been on the roof that day. T.313. The next morning Ms. G'Sell dropped Adam off at KFDC and signed Amber in, having arranged for her to be brought to KFDC later in the day. But, after somebody at work told her, "You must believe her, and you must report it," (T.115) she called her father and asked him not to take Amber to KFDC. She also reported to HRS that Mr. Acosta had sexually abused Amber the day before, and HRS began an investigation eventuating, according to HRS, in FPSS Report No. 91-050519, "alleging sexual abuse on a female child who was enrolled at KFDC . . . [allegedly perpetrated by] Joe A., the husband of D. A." HRS' Proposed Recommended Order, page 3. On May 17, 1991, Mr. Acosta was arrested on criminal charges of sexually abusing Amber, charges which remain pending. Admitted to bail on condition that he stay away from children under 18 years of age, he was rearrested for being in the presence of his own children. (Neither he nor Mrs. Acosta had realized that their children fell within the reach of the condition.) He has since been readmitted to bail and moved out of the family home. HRS also launched a separate, exhaustive investigation into the operations of KFDC which, while apparently not turning up any other allegation of sexual misconduct, gave rise to the allegations on the basis of which HRS seeks to revoke KFDC's day care center license. Husband Occasionally Helped Out While Anna Maria Root worked at KFDC in the winter and spring of 1991, Joe Acosta brought her eight-year old son to the Center after school, on the same run on which he picked up his own children. T.218. He may have brought another child, too, aside from the Root child and his own children. T.272. On two or three occasions Joe Acosta transported Shawn Holbert to school. T.379. He drove a brown van, "the one we were licensed to transport children in." T.379. After KFDC's initial licensure, Ms. Acosta requested an extension or expansion of the license to authorize KFDC to offer child care in the evening, but HRS denied the request. When KFDC closed for the day, children still there were taken to the Acosta home. A "couple of times," (Hoffman Deposition, p.9) Joe Acosta drove the van to the Acosta home after KFDC closed with as many as four or five children who were to be cared for there, id. 9, 56, "and Debra would stay and close up." Waller Deposition, p.14. Twice Mr. Acosta was alone with the children when Stacy Stowell collected her sons, Matthew and Aaron, at KFDC. T.12. But Lynn Hoffman, an employee, was never aware of his being alone with children. Hoffman Deposition, p.11. Nor was Julie Ann Merrill, who worked at KFDC from September to December 1990. Merrill Deposition, p.5, 20-21. It rarely happened. The morning after a fire at the Acosta home, Ms. Acosta sent Mr. Acosta to open up KFDC, and he was present when at least one child arrived, before either Ms. Acosta or Vicki Waller got there. Sole Supervisors Under Age and/or Uncertified When Vicki Waller, then 19 years old, began working for KFDC, neither she nor the Acostas were aware of the HRS rule forbidding leaving the children in the unsupervised care of anybody under 21 years of age. The three of them learned of the requirement in a 20-hour course they took together in the fall of 1990. Before that time, Ms. Waller had been left in charge mornings "from about 7:00 to 7:30," (Waller Deposition, p.6) and all day on one or two Saturdays. She was not left in charge after they learned of the rule against it. Ms. Waller did not have first aid or CPR certification when she took sole responsibility for children at KFDC. Chris Fitzpatrick worked as the only person caring for children at KFDC one Saturday, although she had not yet taken the first aid course she had signed up for. She also lacked CPR certification. Similarly untrained and uncertified, Denise Carla Yates had charge of the children by herself sometimes on Saturdays. Robin Lynn Bedmar was the only person responsible for the children on two or more Saturdays, even though her CPR certification had expired. Sometimes Sandra Lynn Hoffman, who did not have CPR training, was responsible for children at KFDC by herself, or shared responsibility only with Ms. Waller. Chris Fitzpatrick, Denise Caren Yates, Robin Lynn Bedmars and Sandra Lynn Hoffman were 21 or older, as far as the record shows, when they were left alone with the children. Occasionally Substandard Supervision Until a refrigerator was installed in the infant room, the worker supervising infants left them unattended in order to get milk from the kitchen. Similarly, in order to change an older (but disabled) child's diapers, the person responsible for his age group left his peers unattended to take him to a mat in another room. Sometimes only one KFDC employee supervised more than six infants for a full day. On at least four occasions, and possibly on as many as eight occasions (T.71; Waller Deposition p.9) there were more than six babies in the infant room, which had six cribs and two pallets, even after the playpen was removed at HRS's behest. T.71. Towards the end of the day infants along with older children, sometimes aggregating as many as ten or more, were left in the care of a single KFDC employee. Children played outside, sometimes without adult supervision. Twice, Jason Acosta was outside with children at KFDC "sort of keeping an eye on things while," (Waller Deposition, p.10) his mother was inside with other children. Respondent once asked Jason and Joseph to stay in the baby room with the children there. T.44. Hygiene The parents of two children complained to Ms. Acosta that their children's diapers were dirty when they picked the children up; and the grandmother of a third testified that, at least twice a week, he had "poopy pants" (T.30) when she came for him at KFDC, or at least by the time she had driven him some ten minutes away. Generally, children at KFDC with soiled diapers got fresh ones promptly. Ms. Acosta had extra diapers and clothes for the children on hand. Nutrition For every day a child who ate lunch failed to bring his own, KFDC charged his or her parents a dollar. But some or all of the food supplied these children came from the lunch bags sent with other children. Ms. Acosta or an employee opened the bags and divided the food onto plates without regard to the intended recipients' (or their parents') desires. Mornings and afternoons snacks were almost always provided to the children, but food with which to prepare snacks was occasionally unavailable to staff. The menu sometimes posted at KFDC was not always followed. Once, after two or three children drank from the same glass, respondent refilled it and gave it back to a child, perhaps unaware of its history. Before she obtained the KFDC license, Ms. Acosta registered her home as a family day care center, and the home was inspected by the fire department. T. 497. After her licensure, as before, Ms. Acosta cared for Kyle Dunbar, who has cerebral palsy, at her house, while his mother worked evening shifts. BreAnn's mother, Paige Kelso, also worked nights and left her child in respondent's care when she did. Respondent charged for taking care of these children and sometimes had them both in her home at the same time. Friends of her children spent the night sometimes, and she occasionally took care of a friend's two sons as a favor. Other Matters Ms. Acosta conducted several fire drills at KFDC but sometimes "the month would go by . . . [without one] and then she would write it in" (Waller Deposition, p. 58) anyway, as if one had actually occurred. T.113. Infants were not removed, even when fire drills did take place. Id. Whether falsified records of fire drills were ever submitted to HRS is not clear. Ms. Acosta and others on the KFDC staff relied on "time outs" as their principal disciplinary method. But Ms. Acosta once swatted a little girl's behind. The witness who testified to this incident also testified, "I'm not saying that the child did not like Debra [Acosta, the respondent] or was scared of Debra." Waller Deposition, p. 61.
Recommendation HRS proved several significant violations. But HRS did not prove, or even allege, that respondent's husband sexually abused a child or children. Instead, HRS alleged and proved that such allegations are the basis for pending criminal and (other) administrative proceedings. It is, accordingly, RECOMMENDED: That HRS suspend respondent's day care center license for one year, with credit for the time already elapsed in which HRS has prevented respondent from operating a day care center. That HRS place respondent's license on probation thereafter for a period of at least two years, on condition that respondent comply with all applicable statutes and rules for two years; on condition that respondent not charge for children she cares for at her home; and on condition that Mr. Acosta stay off KFDC premises while children other than his own are there, and have no contact with children who are cared for at KFDC (other than his own), until and unless he is exonerated in both the criminal and administrative proceedings now pending. DONE and ENTERED this 22 day of May, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 17, 20 and 26 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, KFDC was licensed earlier than January 1, 1991. With respect to petitioner's proposed finding of fact No. 8, the court order was not in evidence. With respect to petitioner's proposed finding of fact No. 9, the substance is addressed in later proposed findings of fact. With respect to petitioner's proposed findings of fact Nos. 14 and 15, the evidence did not show routine noncompliance. With respect to petitioner's proposed finding of fact No. 16, this occurred only rarely. With respect to petitioner's proposed finding of fact No. 18, it was not clearly and convincingly shown that the screening had not be completed. With respect to petitioner's proposed finding of fact No. 19, it was not clearly and convincingly shown that the children received less than what was nutritionally necessary. Petitioner's proposed findings of fact Nos. 21, 23 and 24 were not proven. With respect to petitioner's proposed finding of fact No. 22, it was not clear that respondent "extended her day care license to her home without authority" as opposed to acting in good faith under supposed authority antedating issuance of KFDC's license. Vicki Waller did not see all those children at the same time, as far as the record shows. With respect to petitioner's proposed finding of fact No. 25, the credible evidence did not clearly and convincingly establish any improper discipline other than the swat. With respect to petitioner's proposed finding of fact No. 27, the violation consisted only of being in the presence of his own children. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 9, 11, 12, 14, 15, 17, 18 and 20 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 7, an adult was inside when the boys were asked to watch the infants, but no adult was outside three or more times when one of the Acosta sons supervised. With respect to respondent's proposed finding of fact No. 8, noncompliance with ratios was sometimes more than momentary. With respect to respondent's proposed finding of fact No. 10, diapers were changed regularly. With respect to respondent's proposed finding of fact No. 13, morning snacks were not always given. With respect to respondent's proposed finding of fact No. 16, children whose parents did not pick them up at KFDC were also brought to the Acosta home. With respect to respondent's proposed finding of fact No. 19, no improper discipline other than a single swat was proven. With respect to respondent's proposed finding of fact No. 21, this is properly a conclusion of law. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 S. J. DiConcilio, Esquire Rodney M. Johnson, Esquire P.O. Box 8420 Pensacola, FL 32505-0420 Mary Koch Polson, Esquire P.O. Box 96 Fort Walton Beach, FL 32549
