The Issue Should Petitioner levy an administrative fine in the amount of $500.00 against Respondent, pursuant to an administrative complaint drawn in accordance with Sections 402.305(12) and 402.310(1)(a), Florida Statutes?
Findings Of Fact Bobbie Potter owns and operates Ms. Bobbie's Flutterby Child Care Center (the Center), in Lake City, Florida. The Center is a child care facility licensed by Petitioner in accordance with Chapter 402, Florida Statutes. During late January and early February 2001, S.S. left her child, J.S., to be cared for by Respondent and others in her employ at the Center. At the time J.S. was approximately two years and two months old and weighed approximately 40 lbs. or 15.2 kilograms. He was born on December 21, 1998. J.S. attended day care at the Center on January 29 through 31 and February 5 through 7, 2001. On his first day at the Center J.S. cried and was resistant to the placement but became more acclimated. During that week J.S. did not try to escape the premises. By contrast, during the second week J.S. threw tantrums and tried to leave the Center. To thwart his attempts, a bench was placed to bolster the interior gate designed to control the movement of children within the facility. When confronted with the gate standing alone J.S. had tried to get through the gate. When he was told "No" to stop his progress, J.S. would throw himself on the floor. During tantrums J.S. would bang his head on the floor and the wall. Respondent had to put her hand up to stop him from banging his head. In the second week when J.S. was more vigorously reacting to his placement, he would be carried around by the Center staff to try to calm him down when he had tantrums. The other staff members who were involved with care provided J.S. at times relevant were Sue Misinec and Lilly Beckelheimer. Caregivers at the Center had to constantly remove J.S. away from the door to the outside, as well as away from the gates on the inside to keep him from fleeing the building. They were especially concerned when other parents came into the facility that J.S. might take advantage of that situation and leave. When J.S. would attempt his flight, he had to be picked up bodily and brought back. If J.S. had gotten outside he would have had access to a roadway. One other attempt to control J.S.'s movement within the Center was to use the lower half of a two-piece door to prohibit his movement within the Center but he climbed over the lower half of the door separating rooms. At times J.S. hit or kicked other children at the Center and kicked and hit caregivers. Eventually staff at the Center determined to place J.S. in a highchair when he threw tantrums as a means to try and calm him. This involved one teacher picking him up and placing him in the chair. Once in the chair, one person would hold him secure in the chair while another person snapped the safety strap and placed and locked the tray on the chair. This effectively restricted J.S.'s movement. J.S. did not like being placed in the chair. He would scream, kick, and claw when put in the chair. Ordinarily, J.S. would be left in the chair from two to five minutes until he calmed down, although on one occasion he was left in the chair for 15 minutes. While in the chair J.S. would be upset about his predicament. The use of the highchair as a means to confine J.S. took place on February 6 and 7, 2001. On Wednesday, February 7, 2001, the staff placed J.S. in the highchair against his will more than once but no more than three times. On one occasion on that date when J.S. attempted to follow Respondent out the door and the other employees were busy with other duties, Respondent said, "If he gets out the door you are not going to catch him," in comments offered to the staff members. As a consequence J.S. was placed in the highchair. J.S.'s placement in the highchair as a means to control him did not interfere with his toileting. He was not being "potty" trained at the time. His placement in the highchair did not interfere with his breakfast and lunch. His placement in the highchair for meals was with his cooperation. Sometime on Wednesday, February 7, 2001, when J.S. was being forcibly placed and detained in the highchair, he received bruises on his left side, right side, hip and back as evidenced in photos taken by S.S. on February 7, 2001. See Petitioner's Exhibit numbered 2A through 2G. When seen on February 13, 2001, by the University of Florida Child Protection Team, the bruises were still in evidence. On that date the bruise on the left side of J.S.'s abdomen, about two inches from his umbilicus, was one centimeter to one and one-half centimeters in length. The bruise on the right side of his abdomen just above the hip area was small and faint. It was about one and one-half centimeters in length. The bruises appeared yellow in color indicating that they were at least a couple of days old, according to Linda Cox Ebbeling, A.R.N.P., who examined J.S. on that date. Her opinion on the age of the bruises is credited. Photos taken at the time Ms. Ebbeling examined J.S. are attached as part of Petitioner's Exhibit numbered 1. Notwithstanding the presence of the bruises at the time Ms. Ebbeling examined J.S., the abdomen appeared non-tender, with no hepatosplenomegaly. Ms. Ebbeling did not observe any bruising on J.S.'s back as had been detected by S.S. on February 7, 2001. The confinement of J.S. to the highchair against his will is discipline that was frightening to the child. The discipline was severe and humiliating. It was a form of physical punishment.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered imposing a $500.00 administrative fine against Bobbie Potter, owner/operator of Ms. Bobbie's Flutterby Child Care Center. DONE AND ENTERED this 20th day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2001. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390 Stephen M. Witt, Esquire Post Office Box 2064 Lake City, Florida 32056 Virginia A. Daire, 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
The Issue The Department of Health and Rehabilitative Services (HRS) seeks an administrative fine of $100 from the Wesley Child Development Center (Wesley) for violation of rules related to child supervision. The issues are whether the violation occurred and whether the fine is appropriate.
Findings Of Fact Wesley Child Development Center II is a child care facility licensed by the Department of Health and Rehabilitative Services (HRS) for operation at 42 East Jackson Street, Orlando, Florida. It is a pre-school facility associated with First United Methodist Church. On January 31, 1995, some time between 3:50 and 4:50 p.m., there were approximately seventeen (17) children and four (4) staff on the playground. The playground is confined with a sturdy, four-foot chain link fence. A.N. was a two-year old toddler on the playground; his teacher was Pat Vetter. A.N. had been playing with buckets and cars by himself near the fence and Ms. Vetter could see him through a play tunnel where two other children were playing. After he played alone for about 10-15 minutes, Ms. Vetter needed to start picking up toys. A.N. gave her his bucket. She turned from him and had taken about five steps when she heard him cry out with an angry cry. She turned back and saw him sitting on the ground with his legs out in front; he had been standing at the fence looking out at the parking lot. Ms. Vetter picked up A.N. and he stopped the angry cry, but continued whimpering. She consoled and held him until his mother arrived. There were no visible signs of any injury: no bruises, blood, scratches or swelling. When his mother picked him up, A.N. did not want to walk. She took him to a restaurant for supper, but later took him to the doctor for an examination. X-rays detected a spiral fracture of the child's femur bone. The cause of the injury remains a mystery to the child care facility staff, who were appropriately dismayed, and to the HRS staff who thoroughly investigated the incident. Dr. Seibel, the child protection team physician, conjectured that A.N. must have attempted to climb the fence, hooked his foot and fell, twisting his leg. No one observed the fall. Ms. Vetter was responsible for A.N.'s supervision and that of three other children on the playground. She was near him and aware of what he was doing. The accident occurred in the brief instant that she turned away to put up some toys; she did not leave the playground. The direct supervision staff to child ratio at the facility and on the playground was better than the 1:6 or 1:11 required by HRS' rules. There is no evidence that the staff were gossiping or engaged in any non-supervisory activity. There has never been a problem with supervision at this facility before, according to the HRS inspectors. No one contests that the child was injured at the facility. Ms. Vetter believes that he could not have had the fracture when he came to school that morning. Although other children have climbed on the fence, she has never observed A.N. trying to climb it. Still, the fence is the only plausible explanation for the injury.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the administrative complaint. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of October, 1995. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1995. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Suite S-827 400 West Robinson Street Orlando, Florida 32801 Elizabeth Jenkins Director Wesley Child Development Center II 142 East Jackson Street Orlando, Florida 32801
The Issue The issue is whether Respondent should revoke Petitioner's license to operate a child care facility for failure to comply with the Director Credential requirements in Subsection 402.305(2)(f), Florida Statutes (2003), and Florida Administrative Code Rule 65C-22.003(7).
Findings Of Fact Respondent is the state agency responsible for registering family day care homes in Florida. Petitioner is licensed as a child care facility and has operated as a child care facility since October 4, 1990. It is undisputed that Petitioner has satisfied all of the Director Credential requirements, except one. Respondent alleges that Petitioner has not provided Respondent with written verification that Petitioner successfully completed 20 hours of courses required to be certified as a Child Development Associate (CDA). Petitioner completed the courses required to be a CDA in September 1988, but the record of completion is no longer available from the former state agency responsible for administering the program and maintaining those records. Respondent admits that routine licensing inspection reports by Respondent document that Petitioner completed the courses necessary for the CDA certificate in September 1988, and subsequent inspections never cited Petitioner for failure to comply with the CDA requirement. The testimony of Ms. Terry DeLong, Petitioner's director, was credible and persuasive. Petitioner has satisfied all of the Director Credential requirements. Respondent should not revoke Petitioner's license because another state agency failed to maintain its records. It would be unreasonable to require Ms. Delong to repeat the courses she has already completed in order to keep operating the child care facility. The statutory requirement for a CDA certificate is intended to ensure minimal standards of competence. The legislature did not intend to put competent child care facilities out of business because state agencies are unable to maintain records of completion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner has satisfied the statutory Director Credential requirements. DONE AND ENTERED this 2nd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2004. COPIES FURNISHED: Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Terry DeLong Tuskawilla Montessori School 1625 Montessori Point Oviedo, Florida 32765 Paul F. Flounlacker, 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
The Issue The issue is whether Respondent violated Florida Statutes and Rules concerning the delivery of childcare services and should receive fines and other penalties in accordance with Florida law. For the reasons set forth more fully below, Petitioner violated certain provisions of the Florida Statutes and Florida Administrative Code and should be subjected to fines and probation.
Findings Of Fact Respondent 3 in 1 Learning Center (the Center) is a child care facility licensed by the Department. A licensed child care facility has the responsibility for providing care to those children who have been placed in its care. Families in Duval County rely upon the Department to monitor child care facilities and ensure compliance with the Florida Statutes and Department's administrative rules. On March 15, 2010, Family Services Counselor Meike Rice received a complaint regarding the Center. The complaint alleged that the Center was transporting children in its 15-passenger van from Head Start to the Center without meeting the proper requirements. Transporting children in a van without the appropriate seat belts or child safety restraints is a dangerous activity that could result in death or serious injury. Ms. Rice visited the Center on March 15, 2010, and saw the van with the engine running and two staff members, Latrice Evans and Lisa Perkins, sitting in the front seat. Ms. Rice asked the staff to turn off the van. She then looked inside the van and observed young children without proper seat belt restraints or car seats. There were eight children in the van. The first row had one child; the second row had two children sharing a seat belt; the third row had two children; and the last row had three children, one of whom was crawling around, one of whom was in a car seat, and one of whom was on the bench seat. Ms. Rice spoke to the van driver, Latrice Evans, and the passenger, Lisa Perkins, whom she knew better as Arial Perkins, and told them of her concerns regarding the complaint and their transportation of the children. Ms. Rice documented on her complaint review that the driver lacked a driver's license, and that her personnel record did not have a copy of the certification to grant them approval to transport children. Moreover, the van had not been certified by the Department as appropriate for transporting children in a day care facility setting. Ms. Rice had been previously informed by Ms. Perkins that she was employed by the facility since December of 2009, but the staff was unable to provide any documentation of her employment history on the date of Ms. Rice's visit. Ms. Rice found that Ms. Perkins was missing Form 5131, the background screening and personnel file requirement form; verification of her employment for the past two years; documentation of an attestation of good moral character; and a fingerprint card for purposes of conducting the state and federal criminal checks. Ms. Perkins was employed by the Center from November 16, 2009, until January 2010, and was only visiting the Center on the date of Ms. Rice's visit. After observing the van, Ms. Rice entered the Center to conduct a count of the children and to review the Center's records. In the Center, Ms. Rice counted 19 children, putting the Center at its licensed capacity. However, when the eight children in the van were counted, the Center far exceeded its licensed capacity. Ms. Rice informed the Center's director, Ms. Wallace, that she needed to call parents to pick up their children in order for the Center to get back into compliance with its licensed capacity. Ms. Rice spent about two hours at the Center on her March 15, 2010, visit. Ms. Rice issued an Administrative Warning letter to the facility regarding its overall licensed capacity, room capacity, transportation logs, and lack of background screening documents. Ms. Rice returned to her office to address the matters she discovered while investigating the complaint. Ms. Rice and her supervisors determined the violation based upon the lack of proper child restraints for the young children in the van was a Class I violation from which a fine could ensue in the amount of a minimum of $100 to a maximum of $500. The Department decided to impose the maximum fine of $500 based on the number of children who were lacking the required safety restraints and the lack of seat belts. Violation 2 was based upon the employment history check of Ms. Perkins. Since this was the third Class II violation against the Center, having had previous violations on June 23, 2009, and November 10, 2009, the fine would be $60 per each day of violation. Ms. Rice found no documentation at the time of her inspection concerning Ms. Perkins' employment history, and therefore, made the beginning point for calculating the fine December 31, 2009, and culminating on her March 15, 2010, visit, for a total of 49 days. At $60 per day, the fine amounted to $2,940. Violation 3 was based on the lack of a fingerprint card for Ms. Perkins. This was the first occurrence of violating the standard, the Center having been previously cited on November 10, 2009, with a warning, so a flat $50 fine was imposed. Violation 4 concerned having the attestation of good moral character on hand for an employee. The Center was previously cited three times for this offense. This Class III violation was documented on June 23, 2009, November 10, 2009, and December 1, 2009. Using the same time period as she used for the other major fine, Ms. Rice issued a fine of $30 per day for 49 days, totaling $1,470. Ms. Rice received by fax a copy of the local background check, a copy of the fingerprint card, a copy of final disposition of a criminal case, and a copy of an FDLE report on March 16, 2010, concerning Ms. Perkins. This reinforced her belief that Ms. Perkins was employed by the Center. Ms. Rice worked closely with the Center's director, Ms. Wallace, on each visit to ensure the staff files were reviewed and contained the required information. Ms. Wallace, the director of the Center since November 29, 2009, provided at the hearing exhibits regarding Ms. Perkins, many of which were not previously provided by fax to Ms. Rice. These exhibits included: Ms. Perkins reference check form; her background screening and transfer request; her employment history; her Background Screening and Personnel File Requirements form; her CPR and first aid cards; her Application for Employment in a Child Care Facility; her Attestation of Good Moral Character; her Child Abuse and Neglect Reporting Requirements Acknowledgement; her Application for Employment; her FDLE records check; her Sheriff's Office record check; her fingerprint card; and her letter of discharge dated January 6, 2010. These documents demonstrate that Ms. Perkins was an employee at the Center until January 6, 2010, but not on the date of Ms. Rice's inspection, March 15, 2010. Charles Smith, the Owner of the Center, did not dispute the violations concerning the eight children in the van.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Department issue a final order imposing a fine of $500 against Respondents and placing 3 in 1 Childcare and Learning Center on probationary status for six months. DONE AND ENTERED this 15th day of November, 2010, 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 November, 2010. COPIES FURNISHED: Charles Smith 3 in 1 Childcare and Learning Center 4025 Emerson Street Jacksonville, Florida 32207 Roger L. D. Williams, Esquire Department of Children and Family Services 5920 Arlington Expressway Jacksonville, Florida 32231 George H. Sheldon, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gerald B. Curington, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the after school child care program operated by the YMCA on the campus of Keeth Elementary School under a contract approved by the Seminole County School District, exclusively for children ages 5 Kindergarten and older, is required to be licensed as a child care facility, pursuant to the provisions of Sections 402.301-402.319, FLORIDA STATUTES(1988 SUPP.).
Findings Of Fact Respondent, Department of Health and Rehabilitative Services, is charged with the responsibility to enforce the statewide minimum standards for the care and protection of children in child care facilities, as set forth in Secticns 402.301-402.319, Florida Statutes (1987). Petitioner, YMCA of Central Florida, Inc. (YMCA), is a not-for-profit corporation licensed in Florida. The YMCA is a local membership organization affiliated with the national YMCA whose primary purpose is to provide activities that contribute to the development of good character and good sportsmanship of children and other family members in Seminole County. For several years, the YMCA has operated an after school child-care program for children five years old and older on the campus of Keeth Elementary School. The program is staffed by a YMCA counselor who participates in the program as the child-care counselor. The program was licensed as a child day care facility under the name YMCA/Keeth School Age Child Care by HRS, License Number 987-1. Their current license to operate this facility expired in 1988. Keeth Elementary School is a public elementary school owned and operated by the Seminole County School District. The YMCA operates the program under an oral year-to-year agreement with the School Board of the Seminole County School District. On August 22, 1988, an inspection of the facility (the buildings and grounds of the Keeth Elementary School) by an HRS inspector revealed that the facility failed to substantially comply with the requirements of Chapter 10M-12, Florida Administrative Code, which would be sufficient to sustain the denial of the license renewal. By letter dated September 12, 1988, Respondent advised the Petitioner that their application for relicensure was denied. Petitioner was directed to cease operation within 15 days of receipt of this letter unless the cited deficiencies were corrected and Petitioner re-applied for a license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's after school child-care program continue to operate without the requirement of a license from HRS, so long as they continue under contract with the School Board with the same terms and conditions as presently exist. DONE AND ENTERED this 18th day of May, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the Petitioner. Petitioner's Proposed Recommended Order does not contain specific findings of fact but consists primarily of legal argument which has been adopted in substance. COPIES FURNISHED: William E. Ruffier, Esquire Sanders, McEwan, Mims and Martinez, P.A. Attorneys at Law 108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753 James A Sawyer, Jr., Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson, Suite 911 Orlando, Florida 32801 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
