The Issue The issue is whether the Beatrice Guardian Angel Daycare violated provisions of chapters 402 and 435, Florida Statutes (2012), and/or Florida Administrative Code Chapter 65C-22, such that its license should not be renewed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by the Daycare. It is the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center three times a year: two unannounced routine inspections (to ensure compliance with the applicable laws and rules), and one renewal application inspection. In the event of a complaint, additional inspections and/or investigations are conducted. Ms. Giles owned, operated and directed the Daycare. The Daycare located on West Lancaster Road opened in November 2011, and was in continuous operation at all times material.6/ Ms. Giles opened the Daycare at this particular location after operating it at a different location. Luz Torres is a family service counselor for the Department. Ms. Torres is trained to inspect day care centers for initial applications, renewal applications and routine inspections. Ms. Torres is familiar with the Daycare, having inspected it several times while it was operational. Inspections of the Daycare revealed operational deficiencies during four inspections, dated February 15; June 20,; July 2,; and November 7, 2012. The specific deficiencies were set forth on inspection reports provided to Ms. Giles at the time of each inspection. Ms. Torres conducted a routine inspection of the Daycare on February 15, 2012 (inspection one). A number of areas of noncompliance areas included physical environmental issues, such as insufficient lighting, gaps in fencing, ground cover for outdoor equipment, and training. Other areas included: a lack of documentation of employee educational courses showing literacy and developmental course training, a 40-hour child care course, and 10 hours of in-service training; items in the first aid kit were missing; deficiencies in food and nutrition, such as unlabeled bottles and sippy cups; and deficiencies in children's health and immunization records, personnel records, and background screening. The Department issued an "Administrative Warning Notification" (notification) to Petitioner based upon the following violations: "[T]he facility's fencing, walls or gate area had gaps that could allow children to exit the outdoor play area. The gate was observed broke [sic] with gaps on both sides." This notification advised Petitioner that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." On June 20, 2012, Ms. Torres conducted a routine inspection (inspection two) of the Daycare. The noncompliant areas included: missing documentation for some children's immunization records; missing documentation of ten hours of in-service training for the Daycare's director; and missing documentation of background screening documents, including an affidavit of good moral character for employees. A second notification7/ (dated June 20, 2012) was issued to the Daycare following inspection two. This notification involved issues regarding a child's health and immunization records, and missing documentation for employees. One child's immunization records had expired. Four staff members were deficient regarding in-service training logs, and an additional staff member had not received the level two screening clearance. In response to a complaint (complaint one), Ms. Torres conducted an investigation of the Daycare on July 2, 2012. The Daycare was found to be out-of-ratio regarding the number of children to staff, and background screening documentation for level two screening for staff members was missing. In a mixed group of children ages one and two years old, the ratio of one staff for six children is required. At the time of the complaint one investigation, there was one staff per eight children. Although this ratio issue was rectified during the complaint one investigation, it was and is considered a violation. The documentation for the level two screening violation for the staff was not corrected during this investigation. A third notification was issued to the Daycare following the complaint one investigation. This notification involved the staff-to-child ratio, and the lack of background screening documentation. The Daycare was notified that the appropriate staff-to-child ratio must be maintained at all times, and the missing Level two screening documentation had to be resolved. This notification advised the Daycare that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." 8/ On August 1, 2012, the Daycare was notified that its license would expire on November 29, 2012. The Daycare's renewal application was due 45 days before the expiration date, or before October 15, 2012. The denial letter set forth that the Daycare's renewal application was filed on October 30, 2012.9/ In June 2012, Ms. Giles became aware that her daughter, Alexis Anderson, had a drug addiction problem when Ms. Anderson's baby was born addicted to drugs. Ms. Anderson and her two children were required to live with Ms. Giles while Ms. Anderson addressed her addiction problem. Ms. Anderson's two children attended the Daycare. Ms. Anderson would visit the Daycare to see her children. On November 7, 2012, as a result of another complaint (complaint two) being filed, DCF conducted an investigation of the Daycare. Ms. Giles reported that on two different occasions, two small bags were found at the Daycare. One small empty bag was found in the Daycare's common hallway. A second bag was found on a desk in the Daycare's office and contained a white residue. After the second bag was found and Ms. Giles was told by an employee what the bags might be used for ("people transport drugs in"), she suspected that Ms. Anderson might have left the bags at the Daycare. Also, after finding the second bag, Ms. Giles banned Ms. Anderson from the Daycare. There was speculation that the two bags contained an illegal substance; however, the two bags were discarded before any scientific testing could be done or any photographs could be taken. There is simply no proof as to what was in either bag.10/ There was no clear and convincing evidence that Ms. Anderson supervised or tended to children other than her own while she was at the Daycare. There was clear and convincing evidence that Ms. Anderson was at the Daycare on multiple occasions and had access to every room and child/children there. Ms. Anderson did not have the appropriate level two screening. In addition to investigating complaint two, child care regulations counselor Christina Bryant also observed inadequate ratios between staff and children, and a lack of qualified or unscreened individuals supervising children. Ms. Bryant observed one staff for five children in the zero to twelve month age group (ratio should be one to four), and she observed one staff to nine children, in the one-year-old classroom (ratio should be one staff to six children). Upon completing a review of the Daycare's record keeping, Ms. Bryant also found that background screening documents were missing for staff members. On November 14, 2012, Child Protective Investigator (CPI), Beauford White was directed to go to the Daycare and remove Ms. Anderson's two children from the Daycare.11/ When CPI White advised Ms. Giles he was removing the children from the Daycare, Ms. Giles became very emotional, and initially told CPI White he could not take the children. CPI White contacted his supervisor who directed CPI White to contact the Orange County Sheriff's Office (OCSO) for assistance in removing the children. Between the time the OCSO was called and when the deputy arrived, approximately 45 to 60 minutes, CPI White had obtained compliance, and Ms. Giles released the two children to his custody.12/ On Thursday afternoon, November 29, 2012, Ms. Giles was asked to attend a meeting on Friday, November 30, 2012, in the Department's legal office regarding the Daycare's license. Because of the short notice, Ms. Giles was unable to obtain an attorney to accompany her to the meeting on November 30, 2012. Ms. Giles attended the meeting by herself with a number of Department staff. Ms. Giles was given the following option: execute a relinquishment of the Daycare's license, or the Department would seek to revoke the license. Ms. Giles did not know the law. Ms. Giles executed the relinquishment13/ of the Daycare's license because she was thinking that "revoke sound[ed] horrible to" her. She did not want to relinquish her license, nor close her business, but she did not feel she had any choice in the matter. The totality of the circumstances under which Ms. Giles found herself renders the "relinquishment" less than voluntary. After this meeting, Ms. Giles returned to the Daycare and was present when Ms. Torres removed the Daycare's license from the wall. Mytenniza Boston, a Daycare employee, was also present when Ms. Torres removed the license. Ms. Giles did not tell Ms. Boston or any of the other Daycare employees that the Daycare's license had been relinquished, nor did she start notifying parents of the Daycare's closing. On Monday, December 3, 2012, around noon, Department investigators arrived at the Daycare and found children in the opened facility. Ms. Giles was at the Daycare making telephone calls to parents asking them to come pick up their child or children. The Daycare was open for business despite the fact that Ms. Giles had relinquished her license on Friday, November 30, 2012. On occasion Pervis Giles, Ms. Giles' then husband would walk to the Daycare to talk with Ms. Giles. Mr. Giles would also cut the Daycare's grass, unlock the Daycare's door for daily operations, and participate with Ms. Giles in making business decisions about the Daycare. Ms. Giles did not consider these activities to be working for the Daycare; however, common sense dictates otherwise. Ms. Giles has several children. At various times during the Daycare's operation, Ms. Giles' children were at the Daycare volunteering, cleaning up or helping with the Daycare children in some fashion. Ms. Giles' children did not have the required level two background screening as Ms. Giles did not know that her children needed to be screened. Ms. Giles' lack of understanding regarding who is required to be screened is troublesome. Ms. Giles has been in the daycare business for many years, yet she failed to comply with basic safety measures.
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 DENYING the renewal application. DONE AND ENTERED this 22nd day of July, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2013.
The Issue The issue in this proceeding is whether Respondent properly revoked Petitioner's license to operate a family day care home.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the owner and operator of a family day care home and, until the revocation which is the subject of this action, held license number 07C696L. In response to a parent's complaint that she had arrived at the family day care home to find her child crying in a room in which an unidentified man was sleeping, the Department's investigator, Brandi Blanchard, made an unscheduled visit to Petitioner's family day care home immediately following receipt of the complaint. The only evidence that this event occurred as portrayed by the complaining parent is contained in the Department reports and testimony by Department employees who were not present when the event occurred. When questioned regarding the parent's complaint, Petitioner advised that she had left the children for about 15 to 20 minutes in the care of Sibyl Dexter, an authorized substitute caregiver. In addition, there was some discussion about the identity of an adult male sleeping in the family day care home who had been reported by the complaining parent. Other than the hearsay report of the complaining parent, no corroborative evidence was received regarding the identify of this adult male, nor did any witness testify as to having seen this adult male. It was suggested that the "adult male" was Petitioner's husband; this was denied by Petitioner. In her investigative report, Ms. Blanchard indicates that the substitute caregiver stated that she had not been at the family day care home on the particular day in question; however, Mrs. Dexter, the substitute caregiver, did not testify, and, therefore, this hearsay statement by Ms. Blanchard is not being considered. In her testimony, as in her letter contesting the license revocation and requesting this hearing, Petitioner maintained that the substitute caregiver, Mrs. Dexter, was present. In the absence of testimony by the complaining parent or the substitute caregiver, Petitioner's testimony is credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered reinstating Petitioner's license to operate a family day care home. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 1st day of April, 2005. COPIES FURNISHED: Kozette King 3914 Travati Street Orlando, Florida 32839 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, S-1106 Orlando, Florida 32801 Gregory D. Venz, 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 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent, Agency for Persons with Disabilities (“APD” or the “Agency”), should have approved the application submitted by Petitioner, Our House Too (“Our House”), seeking licensure as a residential facility (specifically, a group home facility).
Findings Of Fact Our House applied for a license to operate a residential facility/group home with a capacity of five residents in February 2014. A group home is a place where persons with certain medical, psychological, or other limiting conditions, may reside and have companion care and specified personal care assistance services. The facility proposed by Our House would provide respite care, supported living coaching, and transportation services. Milsap signed the application form on behalf of Our House. Contained within the application was the following question: “Have you or anyone identified as a board member or party to ownership ever been identified as responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult?” Our House truthfully and accurately answered “No” to the question and submitted the application. The application was signed by Milsap and notarized on February 9, 2014. Milsap also owns and operates a registered family day care home. By letter dated April 14, 2015, Milsap was notified that an investigation which had been conducted by the Department of Children and Families (“DCF”) on March 5, 2014, at Ms. Milsap’s family day care home was now complete.1/ Milsap had been at her home when the investigation occurred, so she was already aware of the nature of the investigation and that it had occurred. By the time she received notice about the investigation being concluded, Ms. Milsap had already submitted her residential facility application to APD. No evidence was presented to indicate that Milsap was ever notified by DCF concerning sanctions or penalties resulting from the investigation of her family day care home. Nor is there any evidence she received notification that would allow her to contest the findings set forth in the investigative report. She was simply notified that the investigation had been completed. APD is the state agency responsible for, inter alia, licensing and monitoring residential facilities. By letter dated May 19, 2014, APD notified Ms. Milsap that the application for licensure as a group home facility was being denied because she was “responsible for the abuse, neglect, or abandonment of a child.” The decision stemmed from the aforementioned investigation conducted by DCF in March 2014 at Milsap’s registered family day care home. What DCF had concluded in its investigation (and ultimately reported to APD) was that on or about March 5, 2014, Ms. Milsap was serving as the owner and operator of Milsap Family Day Care Home. On that date, there were three children being cared for at the home. A child (identified herein as B.H.) sustained approximately 13 bites on his head, arms, and back while in Milsap’s care. Milsap was in the kitchen preparing food for the children when the biting occurred. There was a half door separating the kitchen from the room where B.H. and two other children were playing. The entire playroom was not directly visible from the kitchen area. There were no adults physically inside the playroom when the biting occurred. Milsap does not dispute that B.H. was bitten several times by one of the other children in the playroom. She maintains that her presence in the kitchen area was not improper as she did not know one of the children may have a propensity to bite and, therefore, she had no reason to be physically present in the playroom at all times. She maintains that she was appropriately caring for the children at all times and that the biting incident was unforeseen and was not preventable. The biting incident was the first offense cited against Milsap’s Family Day Care Home. Milsap has a reputation for providing good, quality care to the children in her charge. After completing its investigation, DCF made a verified finding of “inadequate supervision,” an offense under the general umbrella of abuse or neglect. DCF recommended remediation as the sanction for the incident, but there is no evidence as to whether remediation ever occurred. It is clear, however, that no action was taken against the Family Day Care Home license. In fact, the home’s license was renewed by DCF at its next renewal date in August 2014. Also, the DCF investigation concluded that the risk to the child (B.H.) was “low” following the incident. Nonetheless, APD considered the incident serious enough to warrant denial of Our House’s application for licensure to operate a group home facility. The person who purportedly made the decision to deny the application, Tom Rice (licensing supervisor), did not testify at final hearing as to his reasoning or basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Agency for Persons with Disabilities, upholding its denial of the licensure application filed by Petitioner, Our House Too. DONE AND ENTERED this 23rd day of April, 2015 in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 23rd day of April, 2015.
The Issue Whether Petitioner's application for licensure as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Linda Richmond, formerly Linda Cook, applied for a license to operate a family day care at her residence. In connection with Petitioner's licensure application, dated December 17, 2001, the Department conducted a background screening of Petitioner, which included a review of the following: local and state criminal records; Florida Department of Law Enforcement reports; FBI records; records of the Florida Hot Line Information System; employment history; and affidavits of good moral character. Based on information obtained from the Florida Hot Line Information System, the Department denied Petitioner's application to operate a family day care home. According to the Notice of Denial dated June 12, 2002: [Y]our registration to operate a Family Day Care Home is being denied at this time due to the following: (1) Background screening revealed a prior incident of neglect of your children and inadequate supervision. The facts underlying the report demonstrates [sic] an inability to ensure the safety of children in your care to the level necessary to be registered as a Family Day Care Home. The Notice of Denial does not specify which background screening records the Department relied on in reaching its decision to deny Petitioner's application. However, in light of the evidence presented by the Department, the denial was apparently based on information included in a 1990 Abuse Report and/or a 1995 Abuse Report. The 1990 Abuse Report noted that Petitioner admitted using crack cocaine and having people come to her home for the purpose of using crack, but denied that she used drugs in her children's presence. Also, the 1990 Abuse Report indicated that one of Petitioner's minor children had been fondled by a man who was at the home for several days and that Petitioner "reported being in the home at the time of the alleged incident." Furthermore, according to the 1990 Abuse Report, the house in which Petitioner, her then husband, and her children lived was not clean and did not have electricity. The 1990 Abuse Report concluded that Petitioner had neglected her children. Based on the investigation, on or about October 25, 1990, the report was closed as "confirmed for conditions hazardous to health and all other maltreatments are indicated." The 1990 Abuse Report noted that "due to the condition of the home and the crack usage in the home by the parents," the children were placed in the home of their maternal grandmother. Finally, as to the disposition of the case and the services to be provided, the report stated that the risk and severity of harm to the children was low "in the grandparental home," that protective service supervision was needed, and that the case was referred to protective services for ongoing supervision. Petitioner admits that at the time of the 1990 Abuse Report and investigation related thereto, she was addicted to crack cocaine. However, Petitioner's credible testimony was that she never used crack or any illegal drug in her children's presence. Moreover, at the time one of her minor children was fondled by a man temporarily staying at the house in which the children lived with their father, Petitioner was estranged from her then husband, was not staying with him and the children, and was not aware of that incident until some time after the incident occurred. Notwithstanding the findings and conclusions in the 1990 Abuse Report, there is no evidence that Petitioner neglected or failed to supervise her children, as alleged by the Department. In late 1995 or early 1996, a second abuse report, the 1995 Abuse Report, was generated following an investigation into allegations that the maternal grandfather of Petitioner's children was physically abusing them. As a result of an investigation, the 1995 Abuse Report found that the maternal grandfather, with whom the Petitioner's children were living, had used excessive corporal punishment on them. The report was closed with a finding of verified maltreatment of the children by their maternal grandfather. During the time period covered by the 1995 Abuse Report and the maltreatment of Petitioner's children by their maternal grandfather, the children were not living with Petitioner. They were living with and in the custody of their maternal grandparents, having been placed with them by the State as a result of the findings and conclusions in the 1990 Abuse Report. As accurately noted in the 1995 Abuse Report, Petitioner's role at the time covered by the report was that of "parent not in home." Nothing in the 1995 Abuse Report indicates that Petitioner neglected or failed to supervise her children. Rather, it was Petitioner who called the Abuse Hot Line on December 19, 1995, after she observed her father hit one of her children so hard that the child fell to the ground. This incident occurred December 19, 1995, while Petitioner was at her parents' house to visit her children and give them Christmas gifts. The reason Petitioner called the Abuse Hot Line to report the December 19, 1995, incident described in paragraph 12 was that she cared about her children and perceived her father's action to be physical abuse of one of her children. Although Petitioner reported the December 19, 1995, incident the day it occurred, no one came out to investigate the matter. The following day, Petitioner reported the incident to her counselor at the Center for Drug Free Living, who then telephoned the Abuse Hot Line. The Notice of Denial fails to state any facts from either the 1990 Abuse Report or the 1995 Abuse Report which establish that Petitioner neglected or failed to adequately supervise her children. Moreover, neither the 1990 Abuse Report nor the 1995 Abuse Report supports the Department's allegations that Petitioner neglected or failed to supervise her children. Finally, the Department presented no evidence to support its allegations or to demonstrate Petitioner's "inability to ensure the safety of children in [her] care to the level necessary to be registered as a Family Day Care Home." Petitioner successfully refuted the Department's allegations that she neglected and failed to adequately supervise her children, even though she admitted that in 1990, she was addicted to crack cocaine. However, this admission by Petitioner, standing alone, does not establish the Department's allegations. After the 1990 Abuse Report was issued and prior to issuance of the 1995 Abuse Report, Petitioner faced her addiction and took action to turn her life around so that she could regain custody of her children. As part of Petitioner's rehabilitative process, she successfully completed a drug treatment program as evidenced by the fact that she has been "drug free" since September 15, 1995, or for more than seven years. In addition to the drug treatment program, Petitioner also participated in and completed a parenting class. After completing the drug treatment program and the parenting class, Petitioner regained custody of and was reunited with her children. In March 1996, Petitioner was awarded "supervised" custody of her children. Six months later, Petitioner was awarded permanent custody of her children. There is no indication that Petitioner neglected, abused, mistreated, or failed to supervise her children either prior to or after March 1996, when she regained custody of the children. Since successfully completing the drug treatment program and parenting class and regaining custody of her children, Petitioner has had a stable work history, has remarried, and has become an active member of a church in her community. From 1996 through 1999, Petitioner was employed as a housekeeper by Disney World. After leaving Disney World, Petitioner was employed at Sophie's Kids Learning Center, as a child care provider or "teacher" of toddlers. Petitioner is currently employed at Sophie's Kids Learning Center and has been employed there since 1999, except for a six-month period when she took leave to care for her daughter and grandchild. In letters of support, Petitioner is described as a good employee, one of the center's best instructors who is doing "excellent work with children of all ages." Petitioner is an active member of Salem Gospel Baptist Church and has been for the past two years. Petitioner attends church services regularly, is a member of the church choir, and teaches a children's Sunday School Class. Letters of support from the pastor of the church and a church member indicate that Petitioner is a committed member of the church who works with the children in the church. These letters also state that Petitioner has gained and enjoys the respect of the parents in the church as well as those not in the church.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for licensure to operate a family day care home. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 13th day of December, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Linda Richmond 25 West 14th Street Apopka, Florida 32703 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent failed to meet the criteria for renewal of her license to operate her day care center.
Findings Of Fact At all times pertinent to this proceeding prior to February 11, 1998, Respondent, Eleanor Pennell, was duly licensed by Petitioner (or its predecessor agencies) and was the owner and operator of Miss Ellie's Child Care Center in Vero Beach, Florida. Respondent's license for the year 1996-97 was scheduled to expire November 10, 1997. Respondent applied to Petitioner for a renewal of her license. The effective date of the annual renewal, had it been granted, would have been November 11, 1997. Respondent timely applied for the renewal of her license. As part of the renewal process, the subject premises were inspected on October 29, 1997, by Sue Banek, a day care licensing counselor employed by Petitioner.1 Ms. Banek completed a form entitled "Child Care Facility Inspection Checklist" (Checklist) wherein she noted several deficiencies. Ms. Banek discussed those deficiencies with Ms. Pennell. Named as deficiencies were the following items: the children's applications were not properly filled out; the planned activities were not properly posted; the personnel applications were not complete; personnel had not been properly screened or trained; the yard needed to be cleaned; and locks needed to put on cabinets. Ms. Banek inspected the subject premises again on November 4, 1997, and completed another checklist. Again, Ms. Banek discussed her findings with Ms. Pennell. The deficiencies noted by Ms. Banek were the subject of a Corrective Action Plan attached to a letter to Ms. Pennell dated November 11, 1997. By this letter, Petitioner granted Respondent a provisional license for a period of two-months, but instructed her to correct the deficiencies during the two-month period as provided by the Corrective Action Plan. The provisional license was scheduled to expire January 11, 1998. The Corrective Action Plan for Respondent provided as follows: Corrective action to be completed no later than dates given for each item. Personnel files are to be set up reflecting staff physicians, including TB tests, copies of driver's licenses, application, reference checked, form 5131 (blue card) and training card for training completed (yellow card) by November 13, 1997. Standing water drained daily an horse [sic] shampoo bottles removed immediately. Crawl space securely covered by November 13, 1997. Broken or cracked toys removed from playground by November 13, 1997. Kitchen cabinets cleaned and secured by November 13, 1997. Staff will be enrolled in training by January 9, 1998. Affidavit of compliance available by November 13, 1997. Radon testing initiated or copy supplied to Licensing Counselor by November 13, 1997. Ms. Banek inspected the premises again on November 11, 1997, and December 12, 1997. On December 18, 1997, Petitioner wrote Ms. Pennell a follow-up letter, which discussed Ms. Banek's findings, in pertinent part, as follows: The recent issue [sic] of a PROVISIONAL license #091278 to provide day care services for children at Miss Ellie's Child Care Center is conditional on a number of very important concerns that have been addressed with you by the below named counselor (Ms. Banek) and in a Corrective Action Plan dated 11/7/97. In addition, a cover letter dated November 11, 1997, with the provisional license indicated the importance of getting these deficiencies corrected immediately. Our inspection status at this point has found little improvement in the conditions of your child care facility. Consequently, we are placed in a position of having to notify you that the closing of your facility is imminent unless you can satisfy all requirements within two weeks of the date of this letter. These requirements include: Posting this letter and the provisional license issued in a conspicuous place inside of and near the entrance to your facility where it is clearly visible to visitors. A complete cleaning and refurbishing of the furniture, equipment, playthings, and other equipment used or contacted by the children. Cabinets, kitchen, and food equipment need also to be cleaned thoroughly. All tools and implements and toxic and hazardous material must be secured in locked storage or placed in areas totally inaccessible by the children. Child-proof safety locks must be installed on all doors that children can reach that contain any substance or materials potentially harmful to them. All bottles, glass jars, opened food, and other containers must be stored completely away from child care areas or where children can access them. Preparation and completion of all child and staff files so that our counselor can satisfactorily review these files. Planned child care activities are required for all children over one year of age. The activity scheduled needs to be posted an followed by your staff. All items recorded on the Environmental Health form 12/16/97 must be satisfied and the follow-up inspection planned by that office on 12/30/97 must be satisfactory with a recommendation for licensing so stated.2 You have been found to be absent when children are in care at your facility. Our understanding is that this leaves no one responsible for children that is certified to administer first aid or CPR. A person trained in this [sic] must be on premises at all times the children are present. We understand that you are transporting children in your personal auto that may not be covered by proper insurance nor has it had the required annual inspection. Children must not continue to be transported in this manner. We understand you acknowledge you have not had the required TB test. This must be corrected. We are mandated to inform you that continued non-compliance will result in fines and/or suspension or revocation of your license. Within the next week we will contact you for information on actions you have taken to improve the conditions. We will review the provisional status of your license no later than January 5, 1998. We ask for you to see that all conditions needing correction are fully satisfied before that date. Ms. Banek inspected the facility again on January 5, 1998. Her inspection checklist noted several deficiencies that she discussed with Respondent. Those deficiencies were discussed in more detail in a letter dated January 9, 1998. By this letter, Petitioner issued a second provisional license to Respondent, which was valid until February 11, 1998. Attached to the letter of January 9, 1998, was a statement of the deficiencies that required correction. That statement provided, in pertinent part, as follows: Provisional status has resulted due to non- compliance of the requirements of sections 402.301-319, Florida Statutes, and 65C-22, Florida Administrative Code. Specific items needing attention and discussed with you during an inspection visit of January 6, 1998, include: Standards for supervision of children imposes staff/child rations per S. 402.305(4) and (5)(a) and (b), Florida Statutes. You have been found to be absent from the facility which violated the staff/child ratio requirements. You must provide information as to how you will correct this no later than January 12, 1998. * * * You must provide a written discipline policy for our inspection per S. 402.305(12), Florida Statutes, that is made available to parents and staff. Signed statements need to be available in staff and children's records indicating that the policy has been explained and understood. You have not completed this. A written discipline policy must be made available for inspection no later than January 12, 1998. The signed statement must be in all staff and children's records no later than January 16, 1998.3 * * * Kitchen cabinets are full of materials and items that are hazardous and/or threaten the health and safety of young children. This must be corrected satisfactorily by January 12, 1998, to meet the provisions of S. 402.305(5), Florida Statutes. * * * Monthly fire drills are required by S.402.305(5), Florida Statutes. A record of these must be kept and posted. You must indicate compliance with this by having a fire drill in our presence on January 12, 1997 [sic] and by maintaining these requirements.4 * * * Training standards are described in S.402.305(2)(b). Our inspection found no documentation of training for you for the preceding year and one half nor any evidence of payment for enrollment in training for Jessica Green within her first 90 days of employment. You need to provide written documentation of enrollment in training for both of you by January 16, 1998. * * * Emergency telephone numbers must be posted per S.402.305(2)(e). This must be completed satisfactorily by January 12 1998. * * * Personnel files must include specific documents defined by S.402.302(8), Florida Statutes. Inspection of these files shows no employment application for Jessica Green. This must be completed and provided for the file by January 12, 1998. * * * The documents required in children's files are defined in S.402.305(9). All missing or incomplete documents must be corrected and in respective files by January 16, 1998. No child may attend your facility without a complete enrollment application on file beginning January 12, 1998. * * * Deficiencies cited in the county environmental inspection have not been corrected. Those deficiencies are listed on the documentation dated 12/30/97 and must be found to be corrected by January 16, 1998. Ms. Banek inspected the facility on January 12 and on January 16, 1998. Petitioner prepared a letter dated February 5, 1998, that purported to revoke Respondent's day care license effective at the close of business on February 11, 1998. That letter provided, in pertinent part, as follows: This office informs you that your license #091278 to operate Miss Ellie's Child Care and Preschool Center is hereby REVOKED FOR UNCORRECTED VIOLATIONS found by the Department. You must not continue to provide day care for children unrelated to you or for a fee, and you must immediately surrender your certificate to this office. We must ask your cooperation so that further legal action does not become necessary. Our inspection activities find that the requests for corrective action plans provided to you with our letters of November 11 and December 18, 1997, and the list of specific compliance requirements per our letter of January 9, 1998, with the issue of a provisional license have not been satisfied. You have not made the required efforts to improve the conditions for the safe protection and care of children. Licensed day care facilities must fully meet the provisions of Chapter 402.301-319, Florida Statutes, and Rule 65C-22, Florida Administrative Code, copies of which have been provided. The facts known to this office include: On November 11, 1997, you were issued a provisional license valid for two-months to allow you time to satisfy a corrective action plan prepared with you. Numerous violations of licensing standards were listed in that plan that needed correction. Some of these standards have not yet been made. After inspection visits during the provisional license period, a letter dated December 17, 1997, was sent to you by certified mail specifying the particular items needing immediate correction for the lifting of the provisional license. You were informed by this letter that revocation of your license could ensue if standards were not met. A letter dated January 9, 1998, was sent to you with an up-dated [sic] corrective action plan enclosed that specified the compliance needed and a date by which to correct each deficiency noted. Your provisional license was extended for ONE month, until February 11, 1998, based on some progress that you had made on your corrective plan. Follow-up by our counselor on January 12 and 16, 1998, found only two of the eight5 deficiencies noted to be corrected with no progress on the remaining six. The corrective action plan developed with you has not produced changes that adequately provide for safe child day care in your facility. . . . On February 6, 1998, Petitioner filed an Administrative Complaint against Respondent that tracked the language of the revocation letter dated February 5, 1998. On February 11, 1998, Respondent closed her day care center. Respondent made substantial progress in correcting the various deficiencies cited by Ms. Banek up to February 11, 1998, but only two had been completely corrected. Of the remaining deficiencies, three stand out. Despite the fact that Ms. Banek worked with Respondent with the records that had to be kept, Respondent's files for the children and personnel were not complete and they were in disarray.6 Second, Respondent continued to store hazardous materials in an unsafe manner, despite having been repeatedly warned about the potential danger. Third, personnel was not appropriately trained7 and staffing ratios were not up to standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that denies Respondent's application for renewal of her day care license without prejudice to her right to apply for licensure in the future. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998
The Issue The issue to be resolved in this proceeding concerns whether the Department should deny the Petitioner's pending application for a new one-year license effective June 8, 2005, because of an alleged violation that occurred on June 7, 2005, where a three-year-old child was left in a van, suffering purportedly life-threatening injuries (heat stroke). See § 402.305(10), Fla. Stat. and Fla. Admin. Code R. 65C-22.001(5). If the violation occurred, it must also be determined whether denial of license renewal or some other authorized penalty should be imposed.
Findings Of Fact The Petitioner is a large daycare center owned and operated by Joann Jones. It is located in Ocala, Florida and has been licensed since 1992. The Petitioner normally operates its daycare center caring for as many as 250 to 275 children with a staff of 45 to 50 people. The Petitioner and its owner Ms. Jones, has provided child care in Marion County for many years, operating as many as five daycare centers. Ms. Jones has an extensive history in training, education and experience in operating daycare centers and her experience includes working with the former Department of Health and Rehabilitative Services and the Department of Children and Family Services on various committees and licensing groups for the State of Florida. Prior to the incident on June 7, 2005, the Petitioner had had relatively minor infractions of the Agency's administered statutes and rules involving operation of a daycare center. These infractions primarily included compliance documentation errors and an instance in which a first aid kit did not have all of required the type of supplies, and an instance where a van driver failed to have in his possession and make proper use of a head count check-list on a field trip. In these instances when the Petitioner was found not to be in compliance, compliance was corrected normally by the close of the inspection day when the infraction was discovered. The van driver who failed to have his checklist with him was terminated for violating the Petitioner's policy that a roster including all childrens' names would go on the van at any time the van was being used to transport children. In addition to the above instances, the Petitioner was documented on an inspection checklist on May 13, 2003, for failure to properly maintain a transportation log; for enrollment form violations; for failing to document law enforcement background checks for staff; and for failing to maintain appropriate documentation of Level II screening for staff members. These were violations of Florida Administrative Code Rules 65C-22.006(4)(5) and 65C-22.001(6)(f). The Petitioner's exhibit thirty-five references a re- inspection from October 9, 2003, and is a checklist. At this time the facility was in violation of Florida Administrative Rule 65C-22.003(2)(a), for failure to have staff appropriately trained and the training certificates documented; for violating Florida Administrative Code Rule 65C-22.004(2)(a), and for failure to maintain first aid kit in the facility's vans and buses (the violation referenced above involving not having all required items in one first aid kit on this occasion). The Petitioner was also in violation of Florida Administrative Code Rule 65C-22.006(2), for failure to properly maintain immunization records and Rule 65C-22.003(2)(a) for failure to properly maintain relevant documentation. An inspection was conducted April 22, 2004. At this time, the facility was in violation of Florida Administrative Code Rule 65C-22.003(2)(a), for failing to document that all staff had completed a 40-hour training course and for failure to properly document the training course. An inspection made April 26, 2005, revealed that the facility was in violation of the proper staff to child ratio established in Section 402.805, Florida Statutes. The proper staff to child ratio on that occasion was 17 to 5 and the Petitioner, when observed, had a 17 to 4 staff to child ratio. The problem was corrected on the spot that same day. On April 27, 2005, an inspection was conducted and the facility was found to be out of compliance with Florida Administrative Code Rules 65C-22.004(2) and 65C-22.006(5)(d), and Section 435.04, Florida Statutes, for, respectively, failing to properly maintain first aid kits; and failing to properly provide finger prints to the Florida Department of Law Enforcement for the purpose of obtaining required background screening for staff. These prior infractions mostly involved documentation errors rather than actual deficiencies in the operation of the Petitioner's facility and daycare services. The Petitioner has not had a proceeding actually filed against her facility and license by the Department prior to this one, with the possible exception of an occurrence some seven years ago when the Petitioner received a $100.00 fine related to a documentation error. These prior infractions were not shown to have been serious ones involving an immediate threat to the health or safety of the children in Petitioner's care. Most of these infractions were shown to have been corrected on the same day they were noted on the relevant inspection reports. A three-year-old child was inadvertently left in a van when it was returned and parked at Petitioner's daycare center, on June 7, 2005. this incident caused the instant proceeding to deny the Petitioner's re-licensure. On that day two vans from the Petitioner's facility left to take a group of three-year- olds on an outing for lunch for pizza party. On that date the Petitioner had in operation, policies that required all teachers to keep rolls of their children, to count their children every hour and to complete a log which was to be turned into the directors of the daycare center at the end of the day. The Petitioner was responsible for providing these logs to the Respondent Agency upon routine inspections. There was also a policy in effect regarding operation of vans and buses for transportation of children. The teachers and bus drivers were required to keep a log of the children riding on the vans. The teachers were required to take a "head count" when the children left the classroom and when they entered and exited the vans or buses. The teachers were required to carry a roll with all the children's names with them at all times. They were required to carry this roll on a clip board and this policy even if the teachers took the children out on the playground, where they were still required to do head counts. The Petitioner held meetings periodically with its employees and informed them regarding the policy concerning head counts and the log for using the vans, which involved head counts. Ladonna Cunningham was a van driver for the Petitioner on the date in question, June 7, 2005. She established that she was aware of the policy of counting children before they got on the van, after they got on the van, and when they got off the van again, as well as the fact that the vans were to be checked ("van sweeps") after all the children were off the van to make sure that no one was still on the van. On June 7, 2005, she and the teacher going on the field trip with her van, Katrice Robinson, counted their children and Katrice did a van sweep when they returned to the daycare center after the trip. Ladonna Cunningham did a second van sweep to make sure that there were no children on her van and was aware that this was in accordance with the Petitioner's policy. On June 7, 2005, a three-year-old child (N.B.) was taken on the field trip to the pizza party. The van returned to the daycare center sometime after 1:40 p.m. There were two vans used on this field trip. One van was driven by Ladonna Cunningham, accompanied by the teacher Katrice Robinson. The second van, with N.B. aboard, was operated and supervised by two other employees, Amina Francious and Regina Brown. Neither Francious nor Brown made a head count of the children or a van sweep after returning to the daycare center. Regina Brown told investigators that she knew they were supposed to make a head count when they returned to the daycare center that day but neither she nor Amina Francios had done so. The evidence also shows that Katrice Robinson, who was N.B.'s teacher, "checked him off" as being in the classroom at 2:00 p.m., that day for a snack when he was in fact outside in the closed van. This erroneous fact was entered by Katrice Robinson on the head count sheet provided by the Petitioner. All teachers are required to make a head count every 30 minutes and to note the time a meal, snack, or lunch is served to a child. Later that afternoon the child N.B. was discovered either asleep or unconscious in the closed van which had been parked in the hot sun. The child was difficult to arouse or unresponsive and had an external Fahrenheit temperature of 104 degrees. At 4:02 p.m., he was taken by EMS personnel to the hospital where he was ultimately diagnosed with hyperthermia or heat stroke. He was unresponsive, having seizures, actively vomiting, and had to be intubated since his left lung had collapsed. The Department received abuse report 2005-396658 as a result of this incident. Fortunately, the child recovered. On June 8, 2005, Ms. Littell, a Department representative interviewed the three employees, Regina Brown, Katrice Robinson, and Amina Francois. Both Ms. Francios and Ms. Brown admitted failing to conduct a van sweep after they returned to the Petitioner's facility on June 7, 2005. All three of these employees were arrested for felony child neglect. These interviews, as well as Petitioner's owner and operator Joann Jones, in her testimony, confirmed that on June 8, 2005, the Petitioner's assistant director Irma Ramjit, had asked Ms. Francois and Ms. Brown to sign for an employee handbook that they had never actually received. Thus Ms. Ramjit had asked these employees to falsify documentation after the child had been left in the van, in an apparent attempt to show that the facility had followed its own procedures when in fact it had not. This action by Ms. Ramjit was not at the behest or condoned of the Petitioner's owner, Ms. Jones, however. The abuse report referenced above was ultimately closed and finalized as "verified for neglect and inadequate supervision" as a result of the child being left in the van. Physical injury had occurred as a result of the physical injury suffered by the child from heat exposure. Obviously the Petitioner's policy of conducting head counts every 30 minutes was not done properly on June 7, 2005. Indeed, the last head count for the class of the child who was left on the van was conducted at 9:30 a.m., on June 7, 2005. Joann Jones the Petitioner's owner was shocked and devastated by the events of June 7, 2005. She had never had such an occurrence previously in the 20 years she had been engaged in the daycare business. After this incident happened and before the issue regarding her license arose she had already acted to ban any further field trips for three-year-old children and had elected to hire a person to perform nothing but head counts each day to make sure that the policy was carried out and such an event never again occurred. The evidence shows that the Petitioner's facility has otherwise been operated in a quality manner, as shown by the testimony of Kimberly Webb. Ms. Webb was an employee of the Petitioner for some 15 years and was well aware of the Petitioner's rules concerning conducting head counts of children, doing "van sweeps" and the general policies to ensure child safety in the day-to-day operations of the care center. Marjorie McGee is employed by Child Hood Development Services and testified for the Petitioner. Ms. McGee went to the daycare center on numerous occasions to monitor the Childhood Development Services Program and the Head Start Program. Ms. McGee observed that Ms. Jones and the daycare center staff provided quality child care. Any concerns she ever had were immediately addressed and corrected by Ms. Jones or one of the directors of the center. Ms. McGee, in fact, established that the Petitioner's facility in one of the highest-rated daycare centers in Marion County. This testimony is corroborated by several parents who testified concerning the operation of the daycare center and by Juanita Thompson, who works as a childhood curriculum specialist and over the years had done consulting for the Petitioner in preparing curriculums. She attested to the high quality care provided by the Petitioner.
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 denying licensure to the Petitioner, Oakcrest Early Education Center, Inc., effective with the application of April 11, 2005, without prejudice to the Petitioner re-applying for licensure in June 2006, in conjunction with an appropriate monitoring program by the Respondent Agency designed to ensure that all operational and documentation provisions of the applicable statutes and rules are complied with upon an ongoing basis. DONE AND ENTERED this 14th day of March, 2006, 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 14th day of March, 2006. COPIES FURNISHED: John J. Copeland, 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 Edward L. Scott, Esquire Edward L. Scott, P.A. 409 Southeast Fort King Street Ocala, Florida 34471 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
