The Issue The issue in this proceeding is whether the Respondent committed the offenses described in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Respondent, Child Care 2000, Inc. No. 2, is a licensed child care facility located in Wildwood, Florida. Clark Henning is employed by the Department and is responsible for overseeing child care facilities in Wildwood, Florida. Mr. Henning went to Respondent's facility on January 25, 2005, to perform a routine inspection. While conducting the routine inspection, he observed a group of 11 children of mixed ages and one staff member. He observed two of the children, which he believed to be between one and two years old, in the group of 11. The inspection report reflects that there were a total of 15 children and two staff members in the day care facility at the time of the report. When making inspections, Mr. Henning counts the children present and, if he has any question as to a child's age, he checks the facility's records to determine the child's age. He is not certain that he checked the facility's records on January 25, 2005, but believes there is a "high degree of possibility" that he did so. As a result of his observation of what he believed to be two one-year-olds in the group of 11 children, Mr. Henning found Respondent to be in violation of the required staff-to- children ratio. The staff-to-children ratio was the only category which he found to be in non-compliance on his written inspection checklist. He signed the inspection checklist and gave it to a staff member. The section of the inspection report entitled "Due Date" states, "Correction made at time of inspection." According to Mr. Henning, he did not seek to impose a fine because the Department does not routinely impose a fine on a first violation. Michelle Mayo is the staff member who signed for the January 25, 2005, report. Ms. Mayo disagrees with Mr. Henning's observations regarding the ages of the children present in the group of 11 children on January 25, 2005. Ms. Mayo was caring for four of the 15 children in the infant room. She took an infant and three one-year-olds with her to the infant room, leaving no children in the group of 11 under the age of two. Mr. Henning did not ask Ms. Mayo about the ages of the children. While both Mr. Henning's and Ms. Mayo's testimony were equally credible, Ms. Mayo was in a position of knowing first- hand the ages of the children she was caring for. Accordingly, the weight of the evidence does not establish that a staff-to- children ratio violation existed on January 25, 2005. On or about January 31, 2005, the Department received a complaint regarding Respondent's facility. On February 4, 2005, Mr. Henning went to Respondent's facility to make a surprise inspection. During the February 4, 2005, inspection, Mr. Henning found no evidence to support the allegations raised in the complaint he was investigating. However, he did observe fifteen children and only one staff member present. Mr. Henning identified the children's ages to be one infant, one one-year- old, and three two-year-olds. According to Mr. Henning, there should have been three staff members for this group of children for an appropriate child-to-staff ratio. His written report of the February 4, 2005, complaint inspection found Respondent to be in violation of staff-to- children ratio requirements. Again, the section of the report entitled "Due Date" states, "Correction made at time of inspection." A staff-to-children ratio violation is classified as a Class 2 violation in that there is potential harm to the children. As a result of his finding a class 2 violation, he issued an Intent to Impose Administrative Action which was again signed for by Ms. Mayo. Mr. Henning recommended imposing a fine upon Respondent to his supervisor, Diana McKenzie, because he found this to be a second violation of the same type. Ms. McKenzie made the final decision to impose a fine of $100 against Respondent. While the Administrative Complaint only references the February 4, 2005, incident, it is clear from the evidence presented that the Department's decision to impose a fine was based on the finding that this was a second violation of the same type. Alicia Barrett is President of the corporation which owns Child Care 2000, Inc. Ms. Barrett acknowledges that there was a brief period of time on February 4, 2005, when the facility was out of compliance concerning the staff-to-student ratio. According to Ms. Barrett, the problem was the result of a staff member whose car broke down on the way to work. One staff member arrived to open the facility. A second staff member was scheduled to arrive ten to 15 minutes later. However, it was that staff member whose car broke down. A third staff member arrived and left briefly to pick up the second staff member whose car had broken down nearby. Mr. Henning arrived after the staff member left to pick up her co-worker. After the February 4, 2005, incident, Ms. Barrett fired the staff member who left the facility to pick-up her co- worker while she should have been watching the children in her care. Prior to the incidents described herein, Respondent's facility had not received a citation for a staff-to-children ratio violation. The Department's Enforcement Fact Sheet reads in pertinent part as follows: The Department is given enforcement authority by sections 42.310, 402.311, 402.312, [sic]and 402.313, 402.3131, Florida Statutes, and shall take the following actions in accordance with the following guidelines: Require corrective action. -Corrective action plan documents all standards cited for non-compliance with corrective action, task, and due dates. * * * Impose an administrative fine. -If corrective action is not completed within specified time frame, an administrative fine may be levied.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order dismissing the Administrative Complaint issued against Respondent. DONE AND ENTERED this 3rd day of August, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 3rd day of August, 2005.
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 The issues to be determined are whether Respondent committed the violations as alleged in the Administrative Complaint (AC), and, if so, the appropriate penalty.
Findings Of Fact DCF is the state agency responsible for licensing child care facilities and enforcing regulations to maintain the health, safety, and sanitary conditions at those facilities operating in the State of Florida. See §§ 402.305-.311, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. In order to fulfill its regulatory duty, DCF conducts complaint and routine inspections. The factual allegations, as stated in the AC, provide the following: a. On December 20, 2018, the Department received an allegation that the owner/ director of the facility hit a child on the face with a ruler and slapped him. The teacher also hit another child on the chest with a ruler and that a child had slight bruising and a round scratch under his left eye. The Department conducted an investigation into these allegations starting on December 28, 2018. At the conclusion of the investigation, the Department determined the facility committed Class I violations of child care facility standards for child abuse and unscreened individuals. Licensing Counselor, Tiffani Brown, along with a Child Protective Investigator (CPI) Barbara Smith commenced their investigation on December 28, 2018, after the facility reopened from the holidays. They met with the owners [sic] daughter, Danita Gaines and spoke to the owner via the phone. While at the facility, Counselor Brown questioned Anthony Council, who stated he does help take care of children. Mr. Council was located in a room with children present. Mr. Council is not background screened and was ordered to leave. The owner, Cloe Gaines was on vacation and would not return until 1/2/19. Counselor Brown and CPI Smith returned to the facility on 1/2/19 to speak to the owner. Ms. Cloe Gaines was interviewed, and she stated she is a foster parent. Due to the allegations, Ms. Cloe Gaines was handed a restriction letter, which she signed and left the facility. Counselor Brown and CPI Smith interviewed Ms. Cloe Gaines [sic] foster children. The first foster child, G.M. said for punishment Ms. Cloe Gaines makes him go to sleep. The second foster child, M.M. continued to nod her head indicating yes when asked if he gets spanked for punishment. Counselor Brown and CPI Smith interviewed four other children at the facility. The first child, A.J. stated that Mrs. Cloe whips them with a belt or ruler on the arms and hands. The second child, A.J. stated that Mrs. Cloe hits people if they be bad. The third child, O.E. said that Mrs. Cloe hits them if they are bad with a blue ruler that she keeps in her desk. The last child, T.J. stated that they get hit with a pink and purple ruler that is kept in the classroom. The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified. Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations: a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C. b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC. Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month. Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy. On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018. Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018. CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview. During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines. B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer. Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview. CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019. When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview. A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also. In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck. During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads. On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later. During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present. Mr. Council admitted that Ms. Gaines had told him (Mr. Council) to get the required background screening completed, but he had not done so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order revoking the license of CG Academy. DONE AND ENTERED this 4th day of June, 2019, 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 4th day of June, 2019.
The Issue Whether Respondent committed a Class II violation by failing to properly supervise children in its care, and, if so, what is the appropriate penalty.
Findings Of Fact The Department has the authority to license and regulate day care facilities pursuant to sections 402.301 through 402.319, Florida Statutes.1/ Respondent is licensed by the Department to operate a child care facility named Marroquin's Learning Center, which is located at 1220 Highway 29 South, LaBelle, Florida 33935. MaryAnn Marroquin is the owner/director of the facility. Ms. Marroquin has been providing child care services for approximately 30 years. Chemenda Sawyer is employed as a child care regulation worker for the Department, and has worked in this capacity for the previous four years. In 2015, Ms. Sawyer was assigned to monitor Respondent's facility for compliance with applicable child care regulations. On January 7, 2016, and again on April 5, 2016, Respondent was cited for violating child care supervision standards, which require that children be supervised at all times. Each deviation from the standard constituted a Class II violation. In order to assist Respondent with compliance, Ms. Sawyer provided the facility with technical support regarding the violations and explained to Respondent strategies for ensuring future compliance. Following the April 5, 2016, violation, an administrative fine was imposed against Respondent. On February 23, 2017, Ms. Sawyer, while performing a re-inspection of Respondent’s facility, again noticed that Respondent was not providing proper supervision for some of the children in its care. Specifically, soon after Ms. Sawyer arrived at Respondent’s facility on February 23, 2017, she was seated alone in the “yellow classroom” when the backdoor of the classroom opened and at least two boys, who were both enrolled at the child care facility, entered the room. The door closed behind the boys and Ms. Sawyer observed that the children were not being supervised. According to Ms. Sawyer, the boys were “horsing around” as they entered the room, and they stopped in a corner of the room to play for one to two minutes. A staff member then called the children into the “multicolor classroom” where proper supervision of the boys was provided. Ms. Sawyer then exited the “yellow classroom” to report the violation to Ms. Marroquin, who was at her desk in another room eating lunch.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Marroquin’s Learning Center committed its third violation of the same Class II standard and imposing a fine of $60. DONE AND ENTERED this 19th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 19th day of January, 2018.
