The Issue Whether Petitioner's license to operate a day care center should be suspended or revoked. Whether Petitioner's license to operate a day care center should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities. Respondent routinely conducts inspections of licensed child care facilities to determine whether facilities are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the facility's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on child care facilities which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect child care facilities at any time with or without notice. Petitioner is the owner and operator of a licensed child care facility located at 2625 North Hiawasee Road, Orlando, Florida, which is operated under the business name: Today's Kids Daycare Center (hereinafter "Petitioner's facility" or "the facility"). Petitioner has operated the child care facility at the above address for approximately five years and previously worked as director of another child care facility for five years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating child care facilities. The Incident Following a complaint, Susan Wujastyk, former child protective investigator for Respondent, interviewed the mother of the child, W.P., at the child's school on March 5, 2004, in relation to an alleged incident which occurred at Petitioner's facility on March 3, 2004. She then prepared a preliminary report and went to Petitioner's facility to investigate further. Respondent's child care licensing division was also notified and an inspector came to the facility, as well. On or about March 3, 2004, the child, W.P., a pre- kindergarten student at Petitioner's facility, swallowed an unknown solid substance while in Tangela Muskin's classroom. Muskin believed the substance to be rat pellets and lead W.P. to Petitioner, who was in another room, and told her of her suspicions. Petitioner, who had taken some nursing courses at the local community college, put on a rubber glove and swabbed the child's mouth to dislodge any other substances that might still be in the child's mouth. She also gave him some milk, with the intent to make him throw up. Petitioner then inspected the vomit but found no foreign substances in it. Petitioner did not call "9-1-1" for emergency assistance, nor did she call the poison control center. Instead, she observed W.P. for a period of time and sent him back to his classroom. Muskin also testified that she found the child, W.P., with a bag labeled rat pellets and claimed that Petitioner, in the presence of another employee at the facility, threw the rat pellets in the trash and told Muskin and the other employee not to report this to anyone. This statement is not credible. Petitioner testified that she attempted to call the child's mother, but could not reach her by telephone. Thereafter, she waited for the child's father to come and pick him up and she told him that W.P. had swallowed something but that Petitioner believed that she got all of the material out of his mouth. She advised him to take the child to the emergency room, but the father declined to do so. This statement appears to be credible. Susan Wujastyk inspected the facility on March 5, 2004, as part of her investigation of this matter and found two pellets under a toy chest in Muskin's classroom. Wujastyk thought they were rat pellets; however, that fact was never verified. An examination of the child, W.P., on March 5, 2004, found no evidence of ingestion of a toxic substance, and his condition was found to be stable. Petitioner retains a pest control company that performs regular services at the facility, but does not use rat pellets or any form of rodent control devices. Three of Petitioner's employees testified that they perform regular inspections of the facility and none of them ever found rat pellets or other toxic substances on the premises. Following the joint investigation, a joint report was prepared and approved by Respondent's staff, and it was recommended that Petitioner's license be revoked. Thereafter, on March 23, 2004, the acting district director sent a letter to Petitioner informing her that her license was being revoked and advised Petitioner of her right to "appeal" that decision through the administrative process. Subsequently, on June 10, 2004, Petitioner was sent a letter informing her that her license would not be renewed. The basis for the denial was the same as the revocation letter. At the hearing, Patricia Richard testified that she was particularly concerned that Petitioner was aware the W.P. may have swallowed a toxic and other dangerous substance and did not take immediate action to report it to "9-1-1" or the poison control center; and did not take it upon herself to take the child to a health care professional for examination but waited for the parents to arrive to inform them of the incident. Richard also testified that it was improper for Petitioner to put her fingers down the child's throat in order to induce vomiting. She characterized these as serious child safety violations and failure to follow proper emergency procedures. These were the primary reasons she recommended that Petitioner's child care license be revoked and not renewed. Petitioner, in her testimony, did not deny giving the child milk and swabbing his mouth with her finger, but did deny that she stuck her fingers in his mouth in order to induce vomiting. The evidence is not clear and convincing that the child, W.P., swallowed a toxic or hazardous material; and it is not at all clear from the evidence what it was that the child swallowed. However, it is clear that the child swallowed something that was suspected to be toxic; and when this fact was reported to Petitioner, she did not follow proper emergency procedures and did not properly notify the child's parents promptly. Petitioner has demonstrated that her license for a child care facility should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rule 65C-22.004(2)(d)1. and 2. (one count each). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rule 65C-20.010(1)(b) or similar provisions. Imposing a fine of $200, and a one-month suspension of Petitioner's license, followed by the issuance of a provisional license. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 5th day of October, 2004.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family day care home should be denied based upon the reasons asserted in the denial letter.
Findings Of Fact The Petitioner, until denial of licensure, owned and operated a licensed day care facility, licensed under Chapter 402, Florida Statutes. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering and regulating the statutory and regulatory provisions governing entry into and licensure of the business of operating day care facilities and with regulating the practice of day care facilities and operators such as the Petitioner. Witness Tamika McConner is the mother of a child who was placed by Ms. McConner in the Petitioner's day care facility under Petitioner's care at the time pertinent hereto. Ms. McConner maintains that the Petitioner struck her child with a sandal while they were in the Petitioner's car or van on one occasion and that the Petitioner did not see to it that the child ate properly or at the proper times while in her facility. The Petitioner denies these occurrences or indications of improper child care. The evidence show that there is a hostile relationship between Ms. McConner and the Petitioner, apparently stemming from a check written by Ms. McConner for services to the Petitioner which was returned for insufficient funds and concerning which they apparently had a dispute. Under these circumstances, it is not found that Ms. McConner's testimony is preponderant evidence to establish that the occurrences she related actually happened. Moreover, as near as can be gleaned from the paucity of concise pleadings of the agency's allegations, this incident or incidents was not the subject of the report which led to license denial. On or shortly before October 3, 1996, an abuse report was received by the above-named agency concerning a child T.S. T.S. was enrolled in the care of the Petitioner in her day care center. An incident occurred that day when the Petitioner was taking the children in her charge to the Regency Mall for shopping. While at the mall, when the Petitioner was in a store shopping with the children, the child T.S. got to close to her and almost knocked something over on a shelf in the store. The Petitioner maintained that the child was so close to her that she contacted him when she turned around and it caused her to lose her balance and start to fall with the result that she reached out, accidentally knocking the child to the floor. Instead, however, witness Quinones testified and at least one witness in the store verified to the Department's investigator (see Respondent's exhibit 5 in evidence and the testimony of Mr. Gore) that the Petitioner struck the child in anger and knocked him to the floor. Ms. Quinones testified that the child didn't cry but was visibly shaken and Ms. Quinones was concerned that the Petitioner appeared to lose control of her temper on that occasion. Witness David Gore of the Department of Children and Family Services is in the business of inspecting and licensing child care facilities and has owned and operated a child care facility himself. He inspected the Petitioner's facility and found deficiency problems involving immunization records, some sanitary conditions, inoperative smoke detectors and hazardous household products left in reach of children, an incomplete first aid kit and paint and lumber left in the play area. The paint and lumber was there temporarily for the purpose of building a swing set for the children. The deficiencies were promptly corrected by the Petitioner. These deficiencies, however, were not the basis for the notice of licensure denial to the Petitioner however. Witness Roxanne Jordan testified on behalf of the Petitioner. The Petitioner cares for her child or did before the licensure problem arose and said she never had a problem with the Petitioner's care for her child nor did she observe any deficiencies or improprieties in the care of other children she observed at the Petitioner's facility. Ms. Jordan's describes the Petitioner as an excellent caregiver for children. This testimony is corroborated by substantial number of "testimonial letters" from people who have experience with her child care activities, in evidence as "corroborative hearsay." These served to establish that indeed the Petitioner is a caring, compassionate keeper of children in the operation of her day care facility and in the course of her duties baby-sitting for friends' children before she was licensed as a day care facility operator. The Petitioner is in earnest about pursuing the profession of child care and becoming re-licensed to do that. The Petitioner has demonstrated a long-standing interest and aptitude for caring for children. Indeed, in the last two years, she has earned approximately 55 hours of educational training at Florida Community College in Jacksonville in courses generally applicable to the profession of child care. The direct, competent evidence of record and the corroborative hearsay evidence in the form of testimonial letters, from people who have experience with her child care skills and her personality, establish that she has been, in most ways, a competent child care facility operator and caregiver for children and has the capability of becoming more so. In order to justify her re- licensure, however, she must demonstrate a willingness to and a capability of controlling her anger and enhancing her positive child discipline skills.
Recommendation Accordingly, in consideration of the greater weight of the evidence, supportive of the above findings of fact and these conclusions of law, it is
The Issue The issue in this matter is whether the Department of Children and Families should grant Petitioner’s application for a license to operate a childcare facility.
Findings Of Fact The Department is the state agency charged with regulating providers who are licensed or registered to provide childcare in the State in Florida. On May 26, 2016, Petitioner applied to the Department for a license to operate a childcare facility. Petitioner submitted her application using the Department’s prescribed form CF-FSP 5017 (“Form 5017”). See Fla. Admin. Code R. 65C-22.001(1)(a). Petitioner named her desired childcare facility “Little Einstein’s Early Education Center” (“Little Einstein’s”). On May 27, 2016, the Department issued a letter to Petitioner notifying her that her application was incomplete. Of relevance to this matter, the Department informed Petitioner that she needed to complete section 3 of Form 5017 (“Section 3”). She also needed to sign and date her application. Section 3 is entitled ATTESTATION and queries, “Has the owner, applicant, or director ever had a license denied, revoked, or suspended in any state or jurisdiction, been the subject of a disciplinary action, or been fined while employed in a child care facility?” Section 3 includes boxes for the applicant to mark either “Yes” or “No.” Section 3 then states, “If yes, please explain: (attach additional sheet(s) if necessary).” Form 5017 further instructs that “Falsification of application information is grounds for denial or revocation of the license to operate a child care facility. Your signature on this application indicates your understanding and compliance with this law.” In her initial Form 5017 Petitioner submitted to the Department on May 26, 2016, she placed an “X” in the “No” box in Section 3. Following the Department’s letter on May 27, 2016, Petitioner ventured to the Department’s Orlando office to request assistance to complete her Form 5017. There, Petitioner spoke with Ida Lewis, a licensing counselor for the Department. Ms. Lewis reviews applications for childcare facilities as part of her job responsibilities for the Department. At the final hearing, Ms. Lewis confirmed that she reviewed the unsigned Form 5017 with Petitioner. Ms. Lewis testified that she specifically pointed out Section 3 to Petitioner because it is common for applicants to incorrectly mark that section. Together, Petitioner and Ms. Lewis completed Section 3. Ms. Lewis testified that Petitioner had initially marked “No” to the Section 3 question regarding prior disciplinary action. Ms. Lewis advised Petitioner that if she had ever been the subject of disciplinary action involving other childcare facilities, then Petitioner must document that history on the application. Ms. Lewis also counseled Petitioner that if her initial response in Section 3 was not correct, then Petitioner needed to mark the “Yes” box and add the name(s) of the prior childcare facility(ies) where the disciplinary action took place. Following their discussion, Petitioner appears to have followed Ms. Lewis’ instructions. On her Form 5017, Petitioner drew a line through the “No” box and initialed her correction. She then placed an “X” in the “Yes” box. Next to the boxes, Petitioner wrote “Wiggles & Giggles Learning Center I, II, III” (“Wiggles & Giggles”). Ms. Lewis accepted Petitioner’s application, then handed a copy back to Petitioner. On June 6, 2016, Petitioner resubmitted her Form 5017 to the Department. However, Petitioner did not file the version of her application that she completed with Ms. Lewis which included a “Yes” answer in Section 3 and the name Wiggles & Giggles. Instead, Petitioner’s second Form 5017 simply had the “No” box marked and did not include Petitioner’s reference to Wiggles & Giggles. Upon receiving Petitioner’s Form 5017, the Department reviewed whether to grant her application. The Department discovered that Petitioner was the subject of several prior Administrative Complaints while she was the owner and operator of Wiggles & Giggles III, another childcare facility licensed in her name. Petitioner’s disciplinary history included the following2/: On August 20, 2014, the Department issued an Administrative Complaint against Petitioner alleging that she did not timely renew her childcare license. The Department fined Petitioner in the amount of $50. On March 9, 2015, the Department issued an Administrative Complaint against Petitioner alleging that she committed a Class I violation by leaving an unscreened individual alone to supervise children in her care. The Department fined Petitioner in the amount of $500. On October 1, 2015, the Department issued an Administrative Complaint against Petitioner alleging that she committed a background screening violation. The Department fined Petitioner in the amount of $60. Consequently, Petitioner’s submission of her revised Form 5017 marking “No” in Section 3 to the question of whether she had been the subject of a disciplinary action was not true.3/ On July 5, 2016, the Department issued a letter to Petitioner denying her application for a license to operate Little Einstein’s. Ms. Lewis prepared the denial letter. She explained that the Department denied Petitioner’s application based on two reasons. First, the Department found that Petitioner falsified her application by failing to disclose prior disciplinary actions from her operation of Wiggles & Giggles III. Second, the Department determined that Petitioner’s prior violations made her unfit to receive a license to operate another childcare facility. At the final hearing, Petitioner did not deny that she was the subject of several disciplinary actions by the Department while operating Wiggles & Giggles III. Petitioner also expressed that she now understands that she incorrectly marked Section 3 of Form 5017. Regarding her submission of the revised Form 5017 marking “No” in Section 3, Petitioner testified that she initially left Section 3 blank. She wanted advice from the Department on the proper manner in which to complete her application. Following her meeting with Ms. Lewis, however, Petitioner stated that she was still confused about which box to mark. Petitioner recalled that she and Ms. Lewis agreed that “No” was the appropriate response. Therefore, after she initially answered “Yes” in Section 3, she changed her response to “No” on the version of her Form 5017 she submitted to the Department on June 6, 2016. Based on the competent substantial evidence presented at the final hearing, the Department presented sufficient factual and legal grounds to deny Petitioner’s application. Further, Petitioner failed to meet her ultimate burden of establishing, by a preponderance of the evidence, that she is entitled to a license to operate a childcare facility.
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 Petitioner’s application for a license to operate a childcare facility. DONE AND ENTERED this 12th day of January, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 12th day of January, 2017.
