The Issue The issues to be determined are whether Respondent committed the violations as alleged in the Administrative Complaint (AC), and, if so, the appropriate penalty.
Findings Of Fact DCF is the state agency responsible for licensing child care facilities and enforcing regulations to maintain the health, safety, and sanitary conditions at those facilities operating in the State of Florida. See §§ 402.305-.311, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. In order to fulfill its regulatory duty, DCF conducts complaint and routine inspections. The factual allegations, as stated in the AC, provide the following: a. On December 20, 2018, the Department received an allegation that the owner/ director of the facility hit a child on the face with a ruler and slapped him. The teacher also hit another child on the chest with a ruler and that a child had slight bruising and a round scratch under his left eye. The Department conducted an investigation into these allegations starting on December 28, 2018. At the conclusion of the investigation, the Department determined the facility committed Class I violations of child care facility standards for child abuse and unscreened individuals. Licensing Counselor, Tiffani Brown, along with a Child Protective Investigator (CPI) Barbara Smith commenced their investigation on December 28, 2018, after the facility reopened from the holidays. They met with the owners [sic] daughter, Danita Gaines and spoke to the owner via the phone. While at the facility, Counselor Brown questioned Anthony Council, who stated he does help take care of children. Mr. Council was located in a room with children present. Mr. Council is not background screened and was ordered to leave. The owner, Cloe Gaines was on vacation and would not return until 1/2/19. Counselor Brown and CPI Smith returned to the facility on 1/2/19 to speak to the owner. Ms. Cloe Gaines was interviewed, and she stated she is a foster parent. Due to the allegations, Ms. Cloe Gaines was handed a restriction letter, which she signed and left the facility. Counselor Brown and CPI Smith interviewed Ms. Cloe Gaines [sic] foster children. The first foster child, G.M. said for punishment Ms. Cloe Gaines makes him go to sleep. The second foster child, M.M. continued to nod her head indicating yes when asked if he gets spanked for punishment. Counselor Brown and CPI Smith interviewed four other children at the facility. The first child, A.J. stated that Mrs. Cloe whips them with a belt or ruler on the arms and hands. The second child, A.J. stated that Mrs. Cloe hits people if they be bad. The third child, O.E. said that Mrs. Cloe hits them if they are bad with a blue ruler that she keeps in her desk. The last child, T.J. stated that they get hit with a pink and purple ruler that is kept in the classroom. The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified. Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations: a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C. b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC. Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month. Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy. On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018. Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018. CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview. During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines. B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer. Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview. CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019. When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview. A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also. In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck. During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads. On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later. During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present. Mr. Council admitted that Ms. Gaines had told him (Mr. Council) to get the required background screening completed, but he had not done so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order revoking the license of CG Academy. DONE AND ENTERED this 4th day of June, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2019.
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 should impose a fine against Respondent for committing both a Class I and a Class II violation of child care licensing standards.
Findings Of Fact Respondent currently holds license number C10PO0538, issued by the Department, to operate a child care facility in Bartow, Florida, pursuant to sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. On July 29, 2014, Child Care Regulations Counselor Cheryl Dishong completed a routine inspection at Respondent child care facility. In the course of the inspection, Ms. Dishong advised Natasha Richardson, the director of Respondent, that her driver’s certification had expired on June 11, 2014, and that she would have until August 29, 2014, to provide a current certification form. Respondent was cited for a Class III violation for not having a current driver’s certification form in Ms. Richardson’s employee file. When Ms. Dishong advised Ms. Richardson that her driver’s certification had expired, she appeared genuinely surprised to learn it had expired. At no time during the July 29, 2014, inspection did Ms. Richardson tell Ms. Dishong she had received a health exam in May 2014. Also, Ms. Richardson did not provide Ms. Dishong with any health records concerning a health exam conducted in May during the July 29 inspection. Due to a heavy workload, Ms. Dishong was not able to revisit Respondent on August 29, 2014, to ensure Ms. Richardson had received a new driver’s certification, and she did not follow up with Respondent concerning the expired certification. On or about November 14, 2014, the Department received a license renewal application packet from Respondent. Ms. Dishong noted that some documents, which related to Respondent’s driver and vehicle, were missing from the application packet. Specifically, Ms. Dishong noted that the packet was missing the driver’s certification form, the driver’s CPR and first aid information, the vehicle inspection report, and the proof of insurance for the vehicle. On November 20, 2014, Ms. Dishong visited Respondent to complete the renewal inspection. On that date, Ms. Richardson provided Ms. Dishong with her employee file. Ms. Dishong obtained copies of the CPR and first aid information, Ms. Richardson’s driver’s license, and the driver’s certification form, which were contained within the employee file. Ms. Dishong also noticed some medical records in the employee file, but these appeared to be addressing medical conditions of a then current illness and of a personal nature, and not related to a certification of Ms. Richardson’s fitness to transport children in Respondent’s vehicle. Ms. Dishong told Ms. Richardson that all she needed from her was the driver’s certification form, not the medical records from her May 2014 exam. Ms. Dishong examined a driver’s certification form during the November 20, 2014, inspection that was dated July 29, 2014, and appeared to have been signed by both Michael Cogdill, ARNP, at Lakeside Occupational Medical Center (“Lakeside”), and by Ms. Richardson. Ms. Dishong took the documents she obtained on November 20, 2014, added them to Respondent’s renewal application packet, and submitted the packet to her supervisor. Ms. Dishong’s supervisor reviewed the packet and discussed it with her. Ms. Dishong’s supervisor specifically questioned the driver’s certification form and directed her to contact Lakeside to confirm that Ms. Richardson had been seen by Mr. Cogdill on July 29, 2014. Ms. Dishong testified that when she called Lakeside, she was told that Mr. Cogdill could not have seen Ms. Richardson on July 29, 2014, since his employment at Lakeside ended in March or April of 2014. Ms. Dishong was also informed that Ms. Richardson had not been to Lakeside at any time between 2010 and 2014. Ashley Goff, the records custodian for Lakeside, appeared at the hearing. She testified that she is familiar with how records are kept at Lakeside and that she has access to these records. She further testified that the only records kept onsite at Lakeside are from December 2010 to the present. When presented with the July 29, 2014, certification form, she stated that this could not have been signed by Mr. Cogdill since he had retired in April 2014. Ms. Goff also testified that she had reviewed her records from December 2010 to November 20, 2014, and that she could find no evidence that Ms. Richardson had ever been to Lakeside during that time period. When presented with a certification form signed by Mr. Cogdill on July 11, 2012, and by Portia Jones on November 16, 2012, Ms. Goff testified that this one could be authentic since Mr. Cogdill was still employed by Lakeside in July 2012. Finally, when presented with a driver’s certification signed by Darin Lastrapes at Lakeside and by Ms. Richardson on November 25, 2014, Ms. Goff testified that Ms. Richardson was seen at Lakeside on November 25, 2014, for a physical and that the driver’s certification form was a true and correct copy of the form completed by Mr. Lastrapes. Ms. Dishong returned to Respondent on November 25, 2014, and confronted Ms. Richardson about the driver’s certification form. Ms. Richardson became upset and said “this is ridiculous.” Ms. Richardson then grabbed the keys and left the facility. Ms. Dishong finalized the renewal inspection report and had the form signed by the owner, Carolyn Richardson. At that time, Respondent was cited for misrepresentation, a Class I violation of licensing standards, resulting from the altered driver’s certification form. Ms. Richardson’s testimony contradicted that given by Ms. Dishong. She stated that when Ms. Dishong came for the inspection on July 29, 2014, she knew her driver’s certification had expired, but that she told Ms. Dishong she had been to her doctor at the Watson Clinic for her physical in May of that year. She testified that Ms. Dishong told her the “certification” (there was no driver’s certification included in the May 2014 medical records) was on the wrong form and needed to be submitted on the correct form. Ms. Richardson then admitted she took the certification form of another employee, and used whiteout to cover the original date on the form and the signature of the employee. Ms. Richardson joked about how Ms. Dishong always calls her the “Queen of Whiteout” since her printer is never in good working order. She said her intent was to have her physician, Dr. Elena Batardo, either sign over the signature of Mr. Cogdill or complete a new form on July 29, 2014. She testified she had called Dr. Batardo’s office on July 29, 2014, but could not be seen by the doctor that day. She said she then placed the altered form in her file and forgot about it. Ms. Richardson also testified, contrary to Ms. Dishong’s testimony, that she did not become upset during the renewal inspection on November 25, 2014, when confronted with the altered certification form. Ms. Richardson conceded that she had gone to see her doctor at the Watson Clinic on May 7, 2014, not to receive a new driver’s certification, but for personal medical issues that had arisen at the time. She agreed that Ms. Dishong would not be able to divine, from those medical records, that Ms. Richardson was certified to transport children at the child care facility. Ms. Dishong rebutted Ms. Richardson’s testimony that the medical records were in the file on July 29, 2014, by confirming she had never seen the May 7, 2014, medical records at the first of her three inspections of Respondent on July 29, 2014. This conflicted with her earlier testimony that she saw the medical records in the employee file during the November 20, 2014, inspection. Without a transcript, the only finding the undersigned can make is that Ms. Dishong did not see the May 7, 2014, records on July 29, 2014, but may have seen them, yet discounted their relevance since they did not include a driver’s certification, at the time of the November 20, 2014, inspection. She further testified that at no time did Ms. Richardson tell her the driver’s certification form dated July 29, 2014, was not intended to be used as her own certification form. Ms. Dishong conceded that the July 29 altered form could have been put in the file and forgotten about by Ms. Richardson. If Ms. Richardson had told Ms. Dishong the altered form had been placed in the file and forgotten about and that she had not received her new driver’s certification, Respondent would not have been cited for the Class I violation for misrepresentation. Respondent would have been cited a second time for failure to have the required driver’s certification form in the employee’s file, a lesser violation. The issue of whiting out information on official forms had been raised by Ms. Dishong with Ms. Richardson on at least one prior occasion. In December 2013, a child’s enrollment form had been altered by whiting out the name of one child and filling in the name of another child belonging to the same family. Ms. Dishong stated that Respondent was not cited in December 2013 for the altered form, but Ms. Richardson was warned that any further altered forms would result in a citation for misrepresentation.
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 finding that Respondent violated a Class I day care licensing standard and fining Respondent $300 for the violation of the misrepresentation standard, and finding that Respondent violated a Class II day care licensing standard and fining Respondent $50 for the violation of the staff-to- children ratio standard. DONE AND ENTERED this 15th day of April, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of April, 2015. COPIES FURNISHED: Natasha Richardson Richardson's Learning Enrichment Center 1426 West Bryant Street Bartow, Florida 33830 Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Cheryl D. Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
