The Issue The issues are whether Respondent, a child care facility, violated the minimum staffing ratio in one of its classes and, if so, what penalty should be imposed.
Findings Of Fact Respondent owns and operates the Children's Christian School House, which is a licensed child care facility. Ileana Echevarria is the director of Respondent. Each year, Petitioner's inspectors conduct three routine and one annual-renewal inspection of each licensed child care facility. On one such inspection, conducted on June 5, 2006, the inspector observed that the facility's two-year-old room had 12 children and only one adult. Pursuant to Petitioner's policy not to fine a facility for the first violation, the inspector directed Ms. Echevarria to telephone one of the parents and have her come and pick up her child. Ms. Echevarria did so, and the violation was corrected before the inspector left the facility. The same inspector returned to the facility on June 20, 2006, to perform a re-inspection. On this occasion, the facility was out of compliance in a different room. The room occupied by children five years old and older contained 39 children and one adult. On June 20, two of the teachers were on vacation and another teacher had called in sick. A new teacher had reported to work for her first day, but she was sitting in the cafeteria and was not supervising any children. Ms. Echevarria herself had been sick, had come to school earlier, and had returned home to retrieve her medicine, so she was not at the facility at the time of the re-inspection of the out-of-compliance classroom.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order imposing a civil penalty of $100 against Respondent for a violation of the staff-to-children ratio during the June 20, 2006, inspection. DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2007. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1 Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Kimberly D. Coward, Esquire Department of Children and Family Services 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 Ileana Echevarria Qualified Representative Children's Christian School House, Inc. 380 West 21st Street Hialeah, Florida 33010
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.)
The Issue The issues in this case are whether Respondent, a child care facility operating under a probation-status license, violated the terms of probation by committing three Class II Violations, as Petitioner alleges, and if so, whether the license should be suspended or revoked; and, alternatively, whether, if Respondent committed the alleged Class II Violations (or any of them), Petitioner should deny Respondent's application for renewal of license.
Findings Of Fact Respondent Wiz Kidz Learning 2, Inc. ("Wiz Kidz"), holds a probation-status Certificate of License, numbered C11MD1914, which authorizes the company to operate a child care facility in Palmetto Bay, Florida, for six months, from September 2, 2017, through March 1, 2018. The licensee does business under the name Wiz Kidz Learning 2. As the operator of a licensed child care facility, Wiz Kidz falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). At the time of the final hearing, Wiz Kidz had been a probation-status licensee for more than six months. DCF had converted Wiz Kidz' license to probation status effective June 29, 2017, after finding Wiz Kidz guilty of violating the staff-to-child ratio rules four times in a two-year period, as charged in an Amended Administrative Complaint dated May 25, 2017, which Wiz Kidz had not contested. The conditions of probation were that Wiz Kidz would pay all outstanding fines, not violate the staff-to-child ratio rules again, not commit any other Class I or Class II Violations while on probation, and submit to biweekly inspections. Wiz Kidz' initial probation-status license had been due to expire on September 1, 2017. Shortly before that date, however, Wiz Kidz had submitted a renewal application, which meant that, by operation of law, the probation-status license would not expire until DCF had finally acted upon Wiz Kidz' application for renewal.2/ Instead of simply allowing Wiz Kidz to operate on the "unexpired" license, however, DCF issued a new probationary license to Wiz Kidz effective from September 2, 2017, to March 1, 2018, which essentially renewed the initial probation-status license for another six-month period of probation.3/ On August 17, 2017, DCF employees Claudia Alvarado Campagnola and Quendra Gomez conducted an inspection of the Wiz Kidz facility between the hours of 9:00 a.m. and 2:00 p.m., during which they observed three alleged incidents of noncompliance with "Class II" (mid-level) licensing standards, namely: (1) storing a toxic substance in a place accessible to children; (2) failing to provide adequate direct supervision; and (3) failing to possess a current attendance record during a fire drill. On September 26, 2017, DCF issued to Wiz Kidz a Notice of Intent to Deny Child Care Facility Licensure, which gave notice that DCF planned to deny Wiz Kidz' pending application for renewal of license because, on August 17, 2017, Wiz Kidz had been "cited for 3 class II violations and 7 class III violations in direct violation of [its] probationary license terms." The "toxic substance" seen on August 17, 2017, was an alcoholic beverage. Upon entering the facility, Ms. Gomez noticed two unopened bottles of champagne at the back of a shelf, behind (and partially obscured by) a large plastic toy and other items. There is no photograph of the shelf in evidence, and the descriptive testimony lacked precision; as near as the undersigned can tell, this shelf was several feet long, about one foot deep, and mounted about five feet high on one of the classroom walls. One detail is not disputed: the shelf was above the heads of even the oldest children in care (between the ages of six and seven years). Thus, even if a child could have seen the bottles, he would not have been able to take possession of them without deliberate effort; because the bottles were well out of reach, the child would have needed to stand on a stepladder or its equivalent (e.g., a suitable chair) to get his hands on them. There is no evidence that a stepladder was available. Ms. Gomez testified that a child could have pulled over a chair and climbed on it to reach the champagne bottles. Perhaps so. On the other hand, while the undersigned can reasonably infer that there were chairs in the classroom, he cannot reasonably infer that any of them would have been fit to enable a child to access the bottles. To establish the element of "accessibility" based on the theory that a chair could be used as a stepladder, DCF needed to prove that a suitable chair was actually there for a child present in the classroom to use. This it failed to do. There is no evidence regarding the dimensions of the available chairs, nor any evidence concerning the heights of the children. The witnesses provided only a rough idea of the height of the shelf; their reasonably consistent accounts constitute clear and convincing evidence of the general fact that the shelf was higher than the kids' heads, but not of the actual measurement. Absent proof of these material facts, Ms. Gomez's testimony regarding the way a child could have gotten hold of the champagne bottles is too speculative to support a finding that these items were, in fact, physically accessible to the children. In addition, there is no evidence suggesting that a child could have dragged a chair over to the shelf and clambered up without attracting the attention of an adult. Given that the shelf was located in the classroom, the undersigned infers that no child reasonably could have pulled this off, unless the adult in the room were asleep at the switch. Finally, it is worth mentioning that if a child were able to stand on a chair and grab a champagne bottle without being caught, he still would not have access to the "toxic substance" in the bottle unless he could somehow pour it out. There is no evidence in the record concerning how one opens a champagne bottle, but common experience teaches the undersigned that a young child (the children in care were less than eight years old) likely would have difficulty twisting out the cork. In any event, DCF failed to prove that any of the children at Wiz Kidz reasonably could have popped the cork on the champagne, and therefore it failed to prove that the champagne was accessible to a child. The other two alleged violations occurred during a fire drill, which the inspectors required Wiz Kidz to conduct, in their presence, during the children's nap time. Three children exited the facility in their bare feet. The area where the children were assembled after evacuating the "burning building" was near a dumpster; some litter and tree branches were on the ground. From these facts, which were not seriously disputed, DCF infers that the children were not adequately supervised. The undersigned rejects this inference, which does not reasonably and logically follow from the basic facts. To begin, there is no rule that requires children always to wear shoes. Thus, that some of the children had removed their footwear before taking a nap is of no concern. When the alarm went off, staff evidently did not make these children pause to put their shoes back on, which would have protected their feet——but delayed their exit. To be sure, it is probably a good practice, generally speaking, to prevent young children from going outside barefoot. Clearly, however, it is best not to let them perish in a fire; in an emergency, getting to safety is the highest priority. Because the purpose of a fire drill is to simulate an actual emergency, the fact of the barefoot children prompts undersigned to infer, not that staff failed to provide adequate supervision, but that staff facilitated the speediest escape under the circumstances. During the fire drill, one of the teachers failed to take along a current attendance record when leaving the building, which (unlike the wearing of shoes) is mandated by rule. Ultimate Factual Determinations Wiz Kidz is not guilty of storing a toxic substance in a place accessible to children because the evidence failed to establish an incident of noncompliance with Florida Administrative Code Rule 65C-22.002(1)(f). Wiz Kidz is not guilty of failing to provide adequate direct supervision because the evidence failed to establish an incident of noncompliance with rule 65C-22.001(5)(a). The undersigned determines, based upon clear and convincing evidence, that a staff member failed to possess a current attendance record during a fire drill, which constitutes an incident of noncompliance with licensing standard No. 33-12, which implements rule 65C-22.002(7)(e). This was Wiz Kidz' first occasion of noncompliance with licensing standard No. 33-12.
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 Wiz Kidz not in violation of the terms of probation. It is further RECOMMENDED that Wiz Kidz' application for renewal of license not be denied based on the commission of a Technical Support Violation. DONE AND ENTERED this 20th day of March, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 March, 2018.
Findings Of Fact The Fun and Learning Center is a child care facility operated by Altagracia Munoz (Respondent) and licensed by the Department of Health and Rehabilitative Services (Petitioner.) On November 13, 1994, an employee of the Petitioner conducted a routine inspection of the Fun and Learning Center. At the time of the inspection, the staff members present were insufficient to comply with regulations established by the Petitioner. According to the regulations, one staff member must be present for every four infants in the facility. Seven children were located in the "infants" room with one staff person present. According to the regulations, one staff member must be present for every six one-year old children in the facility. Six children were located in the "one-year" room with no staff person present. According to the regulations, one staff member must be present for every eleven two-year old children in the facility. Eleven children were located in the "two-year" room with no staff person present.
Recommendation It is hereby RECOMMENDED that the Petitioner enter a Final Order imposing a fine of $50.00 on the Respondent. DONE and RECOMMENDED this 30th day of August, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of August, 1995. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 James A. Sawyer, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 827 Orlando, Florida 32801 Altagracia Munoz Fun and Learning Center 2630 Martina Avenue Kissimmee, Florida 34744
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 Respondent should be assessed a $150.00 civil penalty for violating Rule 65C-22.001, Florida Administrative Code, in three respects.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Department of Children and Family Services (DCFS), has filed an Administrative Complaint against Respondent, Cool School, Inc., a licensed child care facility, seeking to impose a $150.00 civil penalty on Respondent for allegedly violating an agency rule in three respects. Respondent, which operates a facility at 57 College Drive, Orange Park, Florida, disputes the allegations and contends that the charges are either not true, or there are extenuating circumstances present which require dismissal of the charges or a reduction in the penalty. Rule 65C-22.001(5)(a), Florida Administrative Code, underpins this action and requires in relevant part that "[c]hild care personnel at the facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times." The Administrative Complaint alleges that in September 2000 Respondent violated this rule by (a) allowing a two-year-old child to exit the facility to the playground, without supervision, clad only in a shirt and shoes; (b) allowing two children under the age of thirteen to change the diaper of a seven-month-old infant in the bathroom, without supervision by the staff; and (c) allowing at least five school-aged children to leave the premises and get items from their book bags on the front porch, without supervision. The DCFS proposes to impose a $50.00 civil penalty for each violation, or a total of $150.00. DCFS has the responsibility of periodically inspecting licensed child care facilities to ensure that they are complying with agency rules and state law. To carry out this duty, DCFS typically assigns its licensing counselors a number of facilities to monitor. In this case, Susan Kipen, a licensing counselor stationed in Jacksonville, was assigned the task of monitoring more than 90 such facilities in the Jacksonville area, including Respondent. In response to a complaint filed by an unnamed parent on September 18, 2000, Kipen inspected Respondent's facility on the afternoon of September 20, 2000. The parent had reported that her two-year old child had wandered into the playground area without supervision, and that the diapers on her seven-month-old child had been changed by two school age children without appropriate supervision. During her visit, Kipen prepared a document entitled Complaint Investigation in which she recited the alleged violations for which Respondent was being charged. They included, among other things, the two complaints previously lodged by the parent, namely, that a "two year old did get outside by himself, he only had shirt and shoes," and that a "7 month [old] was changed by two schoolers." Although the licensing counselor did not actually observe the two incidents reported by the parent, she included them in her report because she says Respondent's owner, Antoinette Garrity, "confirmed" that they were true by reading and signing the report. However, Garrity understood that her signature merely confirmed that she had read the reported charges, not that she agreed with them. The only first-hand evidence on these two charges was that presented by Respondent. The complaining parent did not testify. In addition to the above two charges, the counselor also charged Respondent with allowing "at least five (5) school-aged children, one at a time, and unsupervised, [to leave] the center by the front door to get items from their book bags located on the front porch." This charge was based on a personal observation by the licensing counselor during her inspection. The first violation concerns a charge that a two- year-old left the facility unattended and was "discovered a few minutes later on the playground by the assistant director." On this issue, the evidence shows that the child was using the potty in the presence of a facility worker, Sharon Dunn, who was also changing a baby's diapers at the same time. The two-year-old suddenly jumped off the potty (without his pants), ran to the door, opened it, and went outside on the porch. Dunn, who had the child in her view at all times from the bathroom window, asked the facility's assistant director, Regina Harewood, who was nearby, "Can you get him?" Harewood acknowledged that she could and proceeded to grab the child and bring him back into into the classroom. The child was never in any danger since he was being observed at all times and was retrieved a few moments after he ran out the door. In addition, Harewood was close enough to be capable of responding to an emergency at all times. Under these circumstances, it is found that no violation of the rule occurred. The second charge concerns an allegation that "two (2) children under the age of 13 years changed the diaper of a 7-month-old infant in the bathroom and no staff was present to supervise [them]." The evidence shows that a new worker had a baby in the bathroom for the purpose of changing his diapers. Garrity acknowledged that when the worker left the room to go outside for a moment, the worker improperly allowed two schoolers who were in the same room to change the diapers. While the diapers were being changed, the baby's mother came into the room. She then complained to staff personnel and later filed a complaint with DCFS. Garrity admonished both the worker and children that this situation should never occur again. Although there was no evidence on how this set of events actually or potentially jeopardized the baby's safety or well-being, a technical violation of the rule has been established since there were no supervisory personnel in the bathroom for a few moments. Finally, during her inspection, the counselor observed at least five children, one at a time, walk outside the front door to retrieve items from their book bags, which were lying on the front porch of the facility, and then return inside. At that time, it was the practice of the children to leave their book bags on the front porch when they arrived at the facility each day. This evidence was not contradicted. Because the front porch was no more than 25 or 30 feet from the sidewalk, which was used by the general public, and there was an apartment complex nearby, the children had the opportunity to gain access to areas frequented by the public. This is true even though the assistant director says that while she was on duty, she was by the front door "the majority of the time." Therefore, the children were potentially at risk when they briefly left the premises to retrieve items from their book bags. Respondent's owner admitted that she "hadn't thought of this situation," and after the incident occurred, she instructed the children that all book bags must be brought into the dayroom. Notwithstanding this corrective action, a violation of the rule has been established. In mitigation, Respondent's owner suggested that the entire matter was caused by a vindictive parent who owed her facility money and filed the charges after a heated confrontation. She also worries that each time the facility receives a civil penalty, it "kills" her business. Finally, she described her facility as a "pretty good" day care facility, and insisted that she puts safety first for the children. Respondent has been the subject of one other disciplinary action in which she was found guilty of failing to submit background screening documents within ten days of employment of seven staff members. In that matter, which was concluded after the Administrative Complaint in this case was issued, she was given a $350.00 civil penalty. See Cool School, Inc. v. Dep't of Children and Family Services, DOAH Case No. 00-1421 (Final Order, Feb. 28, 2001).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Respondent violated Rule 65C-22.001(5)(a), Florida Administrative Code, in two respects, and that it have a $100.00 civil penalty imposed. The remaining charge should be dismissed. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 23rd day of March, 2001. COPIES FURNISHED: 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 Antoinette Garrity Cool School, Inc. 57 College Drive Orange Park, Florida 32065 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
