Findings Of Fact Respondent owns and operates a licensed child care facility known as Toddler Village. The license number is 889- 15. On October 1, 1991, at approximately 10:45 a.m., the facility had one adult supervising two children up to 12 months old, one adult supervising 11 children between 12-24 months old, and one adult supervising 17 children over two years old with the majority being four years old. The inspector gave the inspection report to Shirley Davenport and explained that Respondent had to correct the deficiency immediately. Ms. Davenport is the president of Respondent and, with her mother, owns the company. The inspector ordered Respondent to report on compliance by October 2, 1992. The evidence establishes that, following receipt of the letter, Respondent failed to reduce the number of children in the 12-24 months age group that each staff person was supervising. On January 16, 1992, the inspector again visited the facility. The ratios were one adult supervising two children up to 12 months old, one adult supervising 10 children between 12 and 24 months old, and one adult supervising 25 children over two years old with the majority being four years old. The inspector left an inspection report with Melissa Davenport, who is Shirley Davenport's daughter and was an adult employee of the facility at the time. The report ordered Respondent to provide proof of sufficient staff ratios by January 20, 1992, or else Respondent would face administrative action. On January 30, 1992, at approximate 9:25 a.m., the inspector again visited the facility. In the interim, Respondent had reported to Petitioner other corrective actions concerning alleged violations that are not involved in this case. However, Respondent failed to report corrective actions concerning the ratio of adults to children. The ratios on January 30 were one adult supervising six children up to 12 months old, one adult supervising nine children between 12 and 24 months old, and one adult supervising 21 children from two to four years old. The Administrative Complaint was signed by the District Administrator on February 3, 1992. There are 124 days between October 1, 1991, and February 3, 1992.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondent guilty of violating the staff-child ratio for 121 days and imposing an administrative fine of $1210. ENTERED this 28 day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Robert B. Williams, Secretary ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of July, 1992. Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 James A. Sawyer, Jr. District 7 General Counsel Department of Health and Rehabilitative Services South Tower, Suite S827 400 West Robinson Street Orlando, FL 32801 Shirley Davenport 6510 Edgewater Drive Orlando, FL 32810
The Issue Whether sufficient grounds exist to justify denial of Petitioner's license renewal application to operate a child care facility.
Findings Of Fact Based on the persuasive and credible evidence presented, the undersigned concludes that: The Department proved that the violations outlined in the September 25, 2015, "Checklist" (Department's Exhibit 3) existed on September 25, 2015. Further, that on October 1, 2015, it was clear under section 402.308 that all standards required by sections 402.301 through 402.319 and chapter 65C-22 had not been met. Petitioner had not corrected any of the Checklist violations as of October 1, 2015, and several material violations, which justify disciplinary action, existed and were still not corrected by October 9, 2015. Based on the credible and persuasive evidence, the undersigned finds that the Class I violation under section 14-04 of the "Checklist" was not brought into compliance by October 9, 2015. Nonetheless, the undersigned is constrained by the explicit and clear provisions of rule 65C-22.010, which sets forth a mandatory progressive disciplinary scheme that the Department was obligated to follow. This rule was created by and must be read in pari materia with the enabling statute, section 402.310(1)(c), which provides: The department shall adopt rules to: 1. Establish the grounds under which the department may deny, suspend, or revoke a license or registration or place a licensee or registrant on probation status for violations of ss. 402.301-402.319. (Emphasis added). The rule adopted to implement this provision, 65C-22, expressly provides that a license may only be revoked or denied for a Class I violation for the third or fourth violation in a two-year period.19/ Since this was the first Class I violation for Petitioner in a two-year period, the mandatory progressive disciplinary sanctions of rule 65C-22.010(2)(e)1.a. applied and had to be followed. The Department was entitled to impose a fine of not less than $100, nor more than $500 per day, for each violation and had the discretion to impose other disciplinary sanctions in addition to the fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned is constrained by the progressive disciplinary standards mandated by rule 65C-22.010(2)(e)1.a. to recommend the following: Children's Academy Preschool Inc., d/b/a Children's Academy Preschool I, be issued its renewal license converted to probation status as permitted by section 402.310(1)(a)2. See Dep't of Child. & Fams. v. Davis Fam. Day Care, Case No. 11-0916 (Fla. DOAH Oct. 25, 2011; Fla. DCF Feb. 8, 2012). As conditions of the probation status, unannounced periodic inspections by the Department should be made, requiring strict compliance with licensing standards. Furthermore, as a condition of probation, adequate monthly pest control and cleaning services must be provided to the extent reasonably necessary to control the problem and eliminate the exposure of children and staff to health or safety concerns. Conversion to probation status should be imposed for a minimum of six (6) months from the date of the Department's final order. Children's Academy Preschool Inc., d/b/a Children's Academy Preschool I, should be assessed a daily administrative fine of $100 for the period from September 25 through October 9, 2015, for a total amount of $1,400, to be paid as a condition of probation within 60 days. In closing, this recommendation comports with the progressive discipline required by rule 65C-22.010. It also strikes the best balance of respecting the legislative intent to provide child care services to the economically disadvantaged, while at the same time protecting the safety and welfare of the children using a child care facility which had been used by the local community for over 15 years. DONE AND ENTERED this 8th day of March, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2016.
The Issue Whether Respondent, a licensed child care facility, committed two Class I violations as alleged in the Administrative Complaint; and, if so, the appropriate penalty, including whether Petitioner may terminate Respondent's participation in the Gold Seal Quality Care program.
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities in the state in Florida. StarChild is a licensed child care facility located in Apopka, Florida. StarChild is designated as a Gold Seal Provider and has a contract with the Early Learning Coalition to provide school readiness services. As a designated Gold Seal Quality Care Provider, StarChild is subject to the provisions of section 402.281, Florida Statutes. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility must not have had any Class I violations, as defined by rule, within the two years preceding its application for designation as a Gold Seal Quality Care provider. § 402.281(4)(a), Fla. Stat. "Commission of a Class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no Class I violations for a period of two years." § 402.281(4)(a), Fla. Stat. 1 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216. As of the date of the final hearing, StarChild had never had a Class I violation. The May 5, 2020, Incident At all times relevant to this case, CJ was a two-year-old boy who attended StarChild. On May 5, 2020, CJ, along with several other children and two teachers, were in a two-year-old classroom at StarChild. The actions of the children and a teacher, Ms. Crisman, were recorded by a surveillance camera mounted in the room. The factual allegations in the Administrative Complaint are primarily based on an incident captured on video. In the video, CJ is seen interacting with other children in the room. The children are all engaged in different activities; some are standing while others are sitting on the floor. CJ stood near a group of children who were sitting on the floor in close proximity to Ms. Crisman, who also sat on the floor. CJ walked up behind another child who sat in front of Ms. Crisman. CJ placed his hands on the other child's shoulders. The other child turned his torso toward CJ, while still sitting, and pushed CJ away from him. This was by no means a hard push. CJ stumbled into a seated position and then immediately thereafter laid on his back. CJ remained laying on his back for approximately five to ten seconds, during which he playfully kicked his feet. Ms. Crisman stood up from her seated position, walked over to CJ, and stood over him. She then grabbed CJ by both wrists and forcefully yanked him off the ground. It is clear from the video that Ms. Crisman used great force when she pulled CJ off the floor—CJ's feet flew up in the air and his head flew back. Ms. Crisman then pulled CJ, by his wrists, approximately ten feet across the room, and placed him in a corner in timeout. CJ sat in the corner clutching his arm. Zuleika Martinez (Ms. Martinez) was one of the two teachers assigned to CJ's classroom. She was not present during the incident, but came back to see CJ sitting in timeout. Ms. Martinez noticed that CJ was favoring one hand over the other. Approximately 30 minutes after noticing this, Ms. Martinez notified Deborah Files (Ms. Files). Ms. Files has been employed by StarChild since March 2005, and has been serving as the Director of StarChild since April 2020. Ms. Files walked over to the classroom to check on CJ and speak to Ms. Martinez. She learned that CJ was holding his arm and he would not use it for play or to eat. Ms. Files brought CJ into StarChild's front-desk area—the area typically used for children who are not feeling well. Ms. Files iced CJ's arm. Shortly thereafter, Ms. Files contacted Shelby Feinberg (Ms. Feinberg). At the time of the incident, Ms. Feinberg was the Executive Director of StarChild. Ms. Feinberg was working remotely and, therefore, not at StarChild's facility. Ms. Files explained to Ms. Feinberg that CJ appeared to be having difficulty utilizing one of his arms. Ms. Feinberg advised Ms. Files to contact CJ's parents. Ms. Files contacted CJ's mother, Meghan Jones, at approximately 11:00 a.m. Ms. Files reported to the mother that CJ was favoring one arm, and that he was not using the other arm at all. Ms. Files encouraged Ms. Jones to pick CJ up. At approximately 12:30 p.m., CJ's father, Kurt Jones (Mr. Jones), arrived at StarChild to pick CJ up. Mr. Jones found CJ in the classroom, lying on the floor. He told CJ to get up. CJ attempted to push himself up off the floor but was unable to do so. CJ appeared to be in pain and unable to support his body weight on his arm. It was clear to Mr. Jones that his son was in pain. Mr. Jones had difficulty getting CJ strapped into his car seat. Mr. Jones drove CJ to their home, which was five minutes away. When at home, Mr. Jones noticed that CJ still appeared to be in pain. Mr. Jones noticed that CJ would not move or touch his arm. He was holding his arm as if it was in a sling. CJ would periodically cry. Mr. Jones grew worried as his son still appeared to be in pain and did not seem to be getting better as time passed. Mr. Jones considered taking CJ to the emergency room but decided against it because of concerns related to the COVID-19 pandemic. He could not take CJ to his primary care pediatrician as there were scheduling difficulties also tied to the COVID-19 pandemic. The family's usual after-hours urgent care pediatrics office did not open until 4:00 p.m. At approximately three or four hours after picking CJ up from StarChild, Mr. Jones, with few options, searched for help on the internet. He researched possible causes of CJ's pain and why he was holding his arm like a sling. After watching several videos, he came across a YouTube video made by a nurse who described a condition called "nursemaid elbow." A nursemaid elbow is a dislocated elbow. The symptoms matched what CJ was experiencing and Mr. Jones determined CJ had dislocated his elbow. The video provided instructions on how to correct the nursemaid elbow. Desperate to help his son who was still in pain, he attempted the procedure to put CJ's elbow back in place. Mr. Jones followed the instructions. He heard a "pop" noise, which was to be expected per the instructions in the video. CJ cried for ten to 15 seconds. Thereafter, CJ regained full mobility of his arm and no longer appeared to be in pain. CJ began acting like his typical self. The next day, Mr. and Mrs. Jones took CJ to his pediatrician. CJ was diagnosed with nursemaid elbow. They were advised that the procedure that Mr. Jones conducted the previous day was the correct one. The Department conducted an investigation of the incident. As part of its investigation, the Department scheduled an examination of CJ by its Child Protective Team (CPT). Margarita Diaz (Nurse Diaz) is a pediatric nurse practitioner who works for CPT. She has been with CPT for three years. She has received extensive training in child abuse. On May 7, 2020, she did a complete head- to-toe examination of CJ. She reviewed the history of CJ's injury provided by CJ's parents and collateral information which included the video of the incident. She diagnosed CJ as having suffered a nursemaid elbow due to child abuse. Nurse Diaz described a nursemaid elbow as a condition that occurs when the ligament in the elbow gets trapped between two bones. When a child's arm is pulled away, the tendon slips down. When the arm goes back into place, the tendon gets stuck between the humerus and the radial bones. When this condition happens, it is usually very painful for the child. The child often presents as protective of the arm and will not move it. Nurse Diaz further testified that the most common mechanism of injury is when a child is pulled. Other mechanisms for injury include swinging or lifting a child by the arm. She testified that a nursemaid elbow is easy to correct and once corrected, a child is back to normal in five to ten minutes. Nurse Diaz testified that her finding of child abuse was based on her observations of the actions of the teacher as shown in the video. She confirmed that the actions of the teacher in the video were consistent with the infliction of a nursemaid elbow injury on CJ. StarChild's Response to Incident When Ms. Martinez reported CJ's injury, StarChild took immediate action to address the situation. They removed CJ from the classroom, tended to his injuries, promptly contacted his parents, and set out to find out the cause of the injury. StarChild administrators watched video footage of the activity leading up to CJ's change in behavior. In reviewing the video, StarChild determined that Ms. Crisman used improper form by lifting CJ by his wrists when moving CJ to the timeout corner. By noon on the same day of the incident, StarChild terminated Ms. Crisman's employment. StarChild then contacted the Department to report the incident. Mr. Jones made a request to review video footage of the incident. Danny King, the owner of StarChild, reached out to Mr. Jones personally and agreed to meet with him and Mrs. Jones to review the video together in person. The parents were informed that Ms. Crisman was terminated. Following the incident, StarChild developed a self-imposed Corrective Action Plan, that included re-training its entire staff. Ms. Feinberg met with all members of the staff and conducted in-person training in small class settings. All staff members were provided StarChild's discipline policy and child interaction policies. Staff members were also required to take a child abuse and training course. StarChild re-wrote its staff handbook to include stronger and clearer language about how children are to be moved and repositioned in the classroom. Additionally, StarChild implemented permanent policy changes which required discussions during weekly staff meetings about behavior and how staff members should positively deal with behavior in the classroom. All staff members were also provided with information on nursemaid elbow, specifically. StarChild has current plans to bring in guest speakers, such as a behavior management professional and a CPT speaker, to further educate their staff members. StarChild acted commendably in response to the incident. It took immediate and comprehensive action to try to reduce the probability of an incident like that occurring again. It must be noted that complete prevention is an impossibility. CJ continued to attend StarChild after the incident. Indeed, he attended StarChild the day after the incident and appeared to be in good spirits. CJ's younger sister was also enrolled at StarChild after the incident, when she was three-and-a-half months old.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families impose a fine of $100.00 against StarChild and revoke its designation as a Gold Seal Quality Care provider. DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Brian Christopher Meola, Assistant General Counsel Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2021. Lucia C. Pineiro, Esquire Lucia C. Pineiro & Associates, P.A. Suite 309 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
