The Issue Whether Respondent’s1 religious exemption from licensure as a child care facility, pursuant to section 402.316, Florida Statutes, should be revoked as alleged in the Administrative Complaint dated March 18, 2019.
Findings Of Fact The Department is the state agency responsible for licensing and disciplining “child care facilities,” as that term is defined in section 402.302, Florida Statutes (2020). Respondent is an entity which operates both a Pre-K through 12th grade private school (“the school”) and a child care facility, Dr. D.D. Brown Christian Academy of Hope Early Learning Center (“the daycare”), in Ocala, Florida. The daycare is a “child care facility” as defined by section 402.302. The daycare is exempt from licensure by the Department as a facility “which is an integral part of a church,” pursuant to section 402.316. The Department has issued to the Academy child care license exemption number X05MA0214 for the daycare. All child care facilities with a religious exemption are subject to the background screening requirements, set forth in sections 402.305 and 402.3055, for all child care personnel. “Failure by a facility to comply with such screening requirements shall result in the loss of the facility’s exemption from licensure.” § 402.316, Fla. Stat. Exempt facilities are also subject to “school readiness inspections” performed by the Department for child care facilities which receive public school readiness funding. On March 18, 2019, the Department issued the Complaint against the Academy for failure to comply with the background screening requirements for Erroll Washington and Jeanette Crowell. In the Complaint, the Department alleged that Mr. Washington was screened on March 8, 2019, and was determined to be ineligible to work in the facility. The Complaint alleged that Ms. Crowell “has not yet been screened.” The Campus The Academy is owned and operated by the Greater Apostolic Outreach Holy Church of God, Inc. (“the Church”), a non-profit corporation organized under Florida law in September 1991. Dr. Deborah Brown-Washington is the Church President and Registered Agent. The daycare and the school are located on the same grounds as the physical church building. The property will be hereinafter referred to as “the campus.” The daycare and school are connected by a sidewalk. Entry to the daycare and the school can be obtained from the sidewalk, independent of the other buildings. A cafeteria is located on the campus between, and connected to both, the daycare and the school. From the daycare, one can access the cafeteria via a covered breezeway connecting the two buildings. Access to the school from the cafeteria can be obtained either through double doors at the back of the cafeteria (which open into the administrative offices of the school) or via the sidewalk. The cafeteria is integral to both the daycare and the school because it is the location in which the students are served meals on a daily basis. The church is freestanding and located across the parking lot from the daycare and school. In addition to the Academy, the Church also operates other churches, at least one of which is located in Texas, and another in Atlanta, as well as some small businesses. These operations are not located on the campus and are not the subject of the Complaint. Ms. Crowell Jeanette Crowell is a cook employed by the Academy to prepare meals served to the children enrolled at both the daycare and the school. Barbara Brinkley is employed by the Department as a family services counselor in the child-regulation unit in Marion County. Ms. Brinkley conducts annual inspections, school readiness inspections, and complaint inspections of exempt child care facilities. On or about March 1, 2019, Ms. Brinkley conducted a school readiness inspection of the daycare, including the cafeteria. Ms. Brinkley observed Ms. Crowell in the kitchen along with several children from the daycare. One of the children was Ms. Crowell’s granddaughter, who is enrolled at the daycare. On the date of Ms. Brinkley’s inspection, Ms. Crowell did not have background screening documentation in her employee file. Ms. Brinkley again visited the facility on April 3, 2019, and observed Ms. Crowell interacting with children from the daycare. On that date, Ms. Crowell’s employee file again contained no documentation of a required background screening.3 Ms. Crowell is an employee of the Academy who prepares and serves meals to children enrolled at the daycare. Because the cafeteria is integral to the daycare, Ms. Crowell “works in the daycare.” Mr. Washington During Ms. Brinkley’s March 1, 2019 school readiness inspection of the daycare, she noted that there was no employee file for Mr. Washington, and she inquired whether he had been screened for employment in child care. Despite the fact that Mr. Washington does not agree that he is required to undergo background screening, on March 8, 2019, 3 The record was insufficient to establish whether Ms. Crowell has subsequently undergone the background screening process and, if so, whether she has been found eligible to work in child care. Mr. Washington completed the background screening process and was determined to be ineligible to work in child care. Mr. Washington is the Vice President and a member of the Board of Directors of the Church. He testified that he is an employee of the Church, rather than the Academy.4 Mr. Washington maintains an office in the administrative offices of the school. Prior to 2012, the daycare director had unfettered discretion in all decisions regarding daycare operations. In 2012, following an incident in which a prior daycare director contracted for services to be provided to the daycare, without the knowledge of the Church, and which resulted in a lawsuit against the Church, the Church authorized Mr. Washington, rather than the daycare director, to sign all legal documents obligating the Church in any capacity. To that end, Mr. Washington has taken it upon himself to be present, when possible, for inspections of the daycare by government officials (i.e., the Early Learning Coalition, the Fire Marshal, and the Department). The stated purpose of his presence is to keep the Church’s Board of Directors informed of issues associated with the daycare. In that capacity, Mr. Washington is familiar with the employees of the daycare and the children enrolled therein. Mr. Washington has knowledge of the location of employee files at the daycare. Mr. Washington is the signatory on the documents attesting that child care personnel employed by the daycare have been background screened and found eligible to work in child care. Ms. Brinkley conducted inspections of the daycare in February, March, April, May, and June 2019. Each time she arrived at the daycare, she met first with then-director, Joyce Johnson. After her arrival at the daycare, 4 The record is insufficient to establish the business relationship between the Church and the Academy. Presumably, the Academy is a wholly-owned subsidiary of the Church. Ms. Johnson contacted Mr. Washington and requested him to come to the daycare to meet with Ms. Brinkley. Mr. Washington provided some of the information sought by Ms. Brinkley during her inspections, accompanied her on at least one walk through of the daycare, and showed her the location of employee and student files at the daycare. During one of her inspections, Ms. Brinkley met with Mr. Washington to review security camera footage. That technical equipment is housed in the administrative offices of the school, which is located in the building next to the cafeteria. Ms. Brinkley testified, several times, that a determination whether an individual is child care personnel at a child care facility depends on their interaction with children in the child care facility. Ms. Brinkley explained that “[t]hose persons who were in contact with children who are in care at a facility” are required to be background screened.5 She was emphatic that employees “have to be interacting with the children to be considered child care personnel.[6]” She confirmed that “[i]f they were not with the children, they are not required to be background screened.[7]” Further, Ms. Brinkley relies upon her personal observations of persons in the child care facility to make the determination that someone is child care personnel. Ms. Brinkley testified that she observed Mr. Washington in contact with the children the day she requested to look at employee files at the daycare. Those files are kept in a small office just off the infant room; thus, both Ms. Brinkley and Mr. Washington had to enter the infant room of the daycare. To the extent this constitutes “contact with the children,” it is incidental. 5 T.50:22-25. 6 T.106:5-7. 7 T.101:23-24. Ms. Brinkley did not testify to any other observation of Mr. Washington interacting with children at the daycare. Instead, Ms. Brinkley testified that her conclusion that Mr. Washington needed to be background screened was based on her observations of his role at the daycare, which she characterized as operational. For example, she noted that he signed the paperwork attesting to the required background screening of child care personnel employed at the daycare, that daycare staff frequently referred her to Mr. Washington to answer her questions, and that he reviewed employee files with her and accompanied her on inspection tours. In her paperwork concerning the daycare, Ms. Brinkley listed Mr. Washington as the director. However, on all of her visits to the facility, she met with Ms. Johnson, the now-former director, as well as Mr. Washington. Following the discovery that Mr. Washington had not passed the background screening process, the Department prepared a safety plan for consideration by Respondent. The safety plan would allow Respondent to continue operating the daycare as a religious exempt facility under certain conditions. Ms. Brinkley visited the campus on either the 29th or 30th of May 2019, to present the safety plan. At that time, she met with Ms. Johnson, as well as Dr. Brown and Mr. Washington. Ms. Brinkley again met with Dr. Brown, Ms. Johnson, and Mr. Washington on the campus regarding the safety plan in June 2019. It is Ms. Brinkley’s understanding that Ms. Johnson left the facility as director in June 2019, presumably after the last meeting relating to the safety plan. Mr. Washington is not, nor has he ever been, a director of the facility. Nor does he instruct, supervise, or otherwise care for, children enrolled at the facility. No evidence was introduced to suggest that Mr. Washington managed the day-to-day operations of the daycare, such as processing enrollment applications, meeting with parents (prospective or otherwise), billing, supervising student drop-off and pickup, hiring or disciplining daycare workers, or scheduling staff days.
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 religious exemption for the daycare operated by the Academy, and not recognize the Academy’s Notice of Child Care Facility Operation as Religious Exemption. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2020. 8 However, if Ms. Crowell has subsequently undergone the required background screening and has been found eligible to work in child care, the Department may consider that fact when determining how to act on this Recommended Order. COPIES FURNISHED: Stefanie Beach Camfield, Esquire Department of Children and Families Building 2, Suite 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Errol Washington Dr. D.D. Brown Christian Academy of Hope 907 Southwest 3rd Street Ocala, Florida 34471 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Ivory Avant, Esquire Department of Children and Families Building 2, Room 204Q 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether sufficient grounds exist to justify denial of Petitioner's license renewal application to operate a child care facility.
Findings Of Fact Based on the persuasive and credible evidence presented, the undersigned concludes that: The Department proved that the violations outlined in the September 25, 2015, "Checklist" (Department's Exhibit 3) existed on September 25, 2015. Further, that on October 1, 2015, it was clear under section 402.308 that all standards required by sections 402.301 through 402.319 and chapter 65C-22 had not been met. Petitioner had not corrected any of the Checklist violations as of October 1, 2015, and several material violations, which justify disciplinary action, existed and were still not corrected by October 9, 2015. Based on the credible and persuasive evidence, the undersigned finds that the Class I violation under section 14-04 of the "Checklist" was not brought into compliance by October 9, 2015. Nonetheless, the undersigned is constrained by the explicit and clear provisions of rule 65C-22.010, which sets forth a mandatory progressive disciplinary scheme that the Department was obligated to follow. This rule was created by and must be read in pari materia with the enabling statute, section 402.310(1)(c), which provides: The department shall adopt rules to: 1. Establish the grounds under which the department may deny, suspend, or revoke a license or registration or place a licensee or registrant on probation status for violations of ss. 402.301-402.319. (Emphasis added). The rule adopted to implement this provision, 65C-22, expressly provides that a license may only be revoked or denied for a Class I violation for the third or fourth violation in a two-year period.19/ Since this was the first Class I violation for Petitioner in a two-year period, the mandatory progressive disciplinary sanctions of rule 65C-22.010(2)(e)1.a. applied and had to be followed. The Department was entitled to impose a fine of not less than $100, nor more than $500 per day, for each violation and had the discretion to impose other disciplinary sanctions in addition to the fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned is constrained by the progressive disciplinary standards mandated by rule 65C-22.010(2)(e)1.a. to recommend the following: Children's Academy Preschool Inc., d/b/a Children's Academy Preschool I, be issued its renewal license converted to probation status as permitted by section 402.310(1)(a)2. See Dep't of Child. & Fams. v. Davis Fam. Day Care, Case No. 11-0916 (Fla. DOAH Oct. 25, 2011; Fla. DCF Feb. 8, 2012). As conditions of the probation status, unannounced periodic inspections by the Department should be made, requiring strict compliance with licensing standards. Furthermore, as a condition of probation, adequate monthly pest control and cleaning services must be provided to the extent reasonably necessary to control the problem and eliminate the exposure of children and staff to health or safety concerns. Conversion to probation status should be imposed for a minimum of six (6) months from the date of the Department's final order. Children's Academy Preschool Inc., d/b/a Children's Academy Preschool I, should be assessed a daily administrative fine of $100 for the period from September 25 through October 9, 2015, for a total amount of $1,400, to be paid as a condition of probation within 60 days. In closing, this recommendation comports with the progressive discipline required by rule 65C-22.010. It also strikes the best balance of respecting the legislative intent to provide child care services to the economically disadvantaged, while at the same time protecting the safety and welfare of the children using a child care facility which had been used by the local community for over 15 years. DONE AND ENTERED this 8th day of March, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 8th day of March, 2016.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's child care license should be renewed based upon a purported violation of rules contained in Florida Administrative Code Chapter 65C-20, concerning adequate supervision of children left in the Petitioner's care and custody.
Findings Of Fact The Petitioner, Clara Fail, is the operator of a licensed child care home or facility. The Respondent is an agency of the State of Florida charged with licensure and regulation of the operation of child care facilities in accordance with Florida Administrative Code Rule Chapter 65C-20. By its letter of July 7, 2004, the Respondent Agency advised the Petitioner that her application to renew her license to operate a child care facility was denied based upon failure to adequately supervise a child left in her care. In essence, it is charged that the Petitioner failed to supervise a minor child left in her care by failing to safely maintain the child at the Petitioner's home, the licensed facility. On or about April 9, 2004, Heidi Stalice who lives in the neighborhood of the Petitioner's daycare facility located a nine year-old child wondering on her street. The nine-year-old identified himself and was unsure where he lived, upon inquiry from Ms. Stalice. Ms. Stalice took the child to her nearby residence and kept him safe with her own son, who is approximately the same age. Mr. Stalice attempted to locate the child's address by driving him around the neighborhood without success. She then contacted the Marion County Sheriff's Office and Deputy Shively. Deputy Shively went to Ms. Stalice's residence and also contacted the foster care personnel of the Department. He was advised by them that the child's foster mother was Patti Green. The employees at the foster care office made contact with Ms. Green who advised them that the child was supposed to be at the Petitioner's house at 5501 Southeast 29th Court, his "babysitter." Deputy Shively made contact with the Petitioner Clara Fail, by phone who advised him that this was the first day she had kept the child who was a foster child of Ms. Green and had been placed in foster care with her the day before. Ms. Fail advised Deputy Shively that the child had walked away from her residence earlier that morning at approximately 11:00 a.m., and had returned a short time later and ate lunch. Ms. Fail advised Deputy Shively that the child again left the residence on foot at approximately 2:00 p.m., at which time she stated that she called the foster mother Ms. Green, at work, but did not get a response. Investigator Blystone spoke with Deputy Shively by phone and advised the deputy that the foster mother, Patti Green, was going to Ms. Stalice's residence and that he was to relinquish custody of the child to Ms. Green, his foster mother with the understanding that the child was not to be taken back to Ms. Fail's residence until an investigation by DCF could be completed. Ms. Michaeline Cone is a family services counselor. She and her supervisor Diana McKenzie, who is a family services counselor supervisor both went to Ms. Fail's home to investigate this matter. Ms. Fail acknowledged the incident and told Ms. Cone that the child had wandered away twice and she had been unable to keep him in the fenced area that day. Ms. McKenzie established that children playing in the fenced yard area at Ms. Fail's home could not be in Ms. Fail's view at all times if Ms. Fail was inside the house, and that therefore to that extent they were sometimes unsupervised. Upon Ms. Cone's June 2, 2004, visit she had asked Ms. Fail if the three dogs she saw present in her yard had been vaccinated. Ms. Fail replied that she did not own any of the animals and that they belonged to neighbors. Ms. Cone requested that the dogs be removed from the property and that the gates be secured so that the animals could not return to the property. On June 15, 2004, when Ms. McKenzie and Ms. Cone again made an inspection of the Fail home, Ms. McKenzie observed Ms. Fail taking the three dogs from the front of the yard to the rear yard. When asked about the dogs during that visit Ms. Fail once again stated that the dogs did not belong to her. Ms. McKenzie again reminded her to remove the dogs from the premises.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services imposing an administrative fine in the amount of $500.00 and imposing the requirement of a provisional licensure not to exceed six months duration after which licensure shall be again reviewed by the Department, and during which six month period at least monthly inspections for the safety and proper operation of the facility shall be conducted. DONE AND ENTERED this 6th day of April, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 6th day of April, 2005. COPIES FURNISHED: Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Clara Fail 5501 Southeast 29th Court Ocala, Florida 34480 T. Shane Deboard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
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.)
