The Issue The issue is whether Respondent should revoke Petitioner's license to operate a child care facility for failure to comply with the Director Credential requirements in Subsection 402.305(2)(f), Florida Statutes (2003), and Florida Administrative Code Rule 65C-22.003(7).
Findings Of Fact Respondent is the state agency responsible for registering family day care homes in Florida. Petitioner is licensed as a child care facility and has operated as a child care facility since October 4, 1990. It is undisputed that Petitioner has satisfied all of the Director Credential requirements, except one. Respondent alleges that Petitioner has not provided Respondent with written verification that Petitioner successfully completed 20 hours of courses required to be certified as a Child Development Associate (CDA). Petitioner completed the courses required to be a CDA in September 1988, but the record of completion is no longer available from the former state agency responsible for administering the program and maintaining those records. Respondent admits that routine licensing inspection reports by Respondent document that Petitioner completed the courses necessary for the CDA certificate in September 1988, and subsequent inspections never cited Petitioner for failure to comply with the CDA requirement. The testimony of Ms. Terry DeLong, Petitioner's director, was credible and persuasive. Petitioner has satisfied all of the Director Credential requirements. Respondent should not revoke Petitioner's license because another state agency failed to maintain its records. It would be unreasonable to require Ms. Delong to repeat the courses she has already completed in order to keep operating the child care facility. The statutory requirement for a CDA certificate is intended to ensure minimal standards of competence. The legislature did not intend to put competent child care facilities out of business because state agencies are unable to maintain records of completion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner has satisfied the statutory Director Credential requirements. DONE AND ENTERED this 2nd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 2nd day of November, 2004. COPIES FURNISHED: Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Terry DeLong Tuskawilla Montessori School 1625 Montessori Point Oviedo, Florida 32765 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.
Findings Of Fact The Learning Tree Child Care Development Center is a licensed child care facility owned and operated by Priscilla Johnson. On August 21, 2006, Carmen Burruezo, an employee of the Petitioner, conducted an inspection of the facility and observed several violations of statutory requirements related to operation of a child care facility. An insufficient number of staff was present to comply with applicable staffing ratio requirements, certain transportation documentation was not available for review and the outdoor play area was in unsafe condition. The inspector observed that only one staff person was in the area where 20 three-year-old children were located. According to staffing requirements, there must be one staff for every 15 three-year-old children in the area, and accordingly, an additional staff member should have been sharing supervisory responsibility for the children. The staffing violation was corrected during the course of the inspection. At the hearing, the Respondent Johnson questioned how staffing ratios could be met during times when a staff member leaves an area for various reasons including using restroom facilities, but did not offer any evidence that the inspector's observations were incorrect. During the inspection, the inspector attempted to review documentation of a vehicle inspection for the facility vehicle but none was available. Similarly, the inspector requested to review the vehicle driver's physician certification, but it was not available. Respondent Johnson provided such documentation to the Petitioner at a date subsequent to the inspection. In the outside play area, the inspector observed that there was no resilient surface under the swing set, and that the resilient surface provided elsewhere (which consisted of padded mats) was not fitted together and, therefore, presented a tripping hazard to small children. The play area was completely exposed to the sun and no shaded area was available. The inspector also observed a broken bed frame and other discarded equipment within the playground area, and found the location of the debris to be unsafe. Respondent Johnson offered no testimony disputing these observations. In previous inspections, the facility has been previously cited for the same types of infractions. Staffing ratio issues were cited in inspections dated April 21 and January 6, 2006. Inadequate transportation documentation was cited in an August 25, 2005 inspection. Unsafe playground issues were addressed in an inspection dated December 23, 2004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order imposing an administrative fine of $300 against The Learning Tree Child Development Center d/b/a The Learning Tree Child Care Development Center and Priscilla Johnson. DONE AND ENTERED this 10th day of January, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 10th of January, 2007. COPIES FURNISHED: Stacy N. Robinson, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Priscilla Johnson The Learning Tree Child Care Development Center, Inc. 4540 South Orange Blossom Trail Orlando, Florida 32839 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 1, 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
Findings Of Fact Chapter 402, Florida Statutes, provides for licensing of child care facilities by the Department of Health and Rehabilitative Services (hereinafter "HRS"). It mandates minimum standards for personnel, physical facilities, sanitation and safety, nutritional practices, admissions and record keeping, transportation safety, child discipline, and plans of activities. Section 402.306, Florida Statutes, allows counties whose licensing standards meet or exceed state minimum standards to perform child care facility licensing in that county rather than HRS performing that activity. Chapter 402, Florida Statutes, was originally enacted in 1974 to provide minimum standards for the growing number of commercial day care facilities. In the definitional section of that Chapter, the legislature specifically defined a child care facility and further specified those programs and facilities exempted from the child care facility licensing laws. Section 402.302(4), Florida Statutes, provided as follows: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools which are in compliance with the Compulsory School Attendance Law, chapter 232; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during vacation periods. [Emphasis supplied.] Due to extensive publicity involving certain abuse incidents by personnel at child care facilities and public opinion, the child care facility licensing laws were revisited in 1984. In a special session, the Legislature strengthened some requirements of Chapter 402 and provided for screening and background checks of personnel in child care facilities and for reasonable parental access to children in those facilities. Chapter 84-551, Laws of Florida. Due to the insistence of HRS and certain counties performing their own child care facility licensing that pre- kindergarten programs in schools required those schools to obtain licensure as child care facilities, Chapter 402 was further amended in 1985 to clarify the exclusion of schools. As amended, the statutory definition of child care facility now provides: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools and their integral programs; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during during vacation periods. [Emphasis supplied.] Section 402.302(4), Florida Statutes 1985. The Senate Staff Analysis and Economic Impact Statement regarding the amendment of Chapter 402 provides that this change is a "Technical amendment which clarifies that public and non-public school programs are not subject to licensure as child care facilities." Respondent's Exhibit numbered 6. Following the 1985 amendments to Chapter 402, HRS and the Palm Beach County Health Department (which was responsible for child care facility licensing in Palm Beach County) jointly requested a legal opinion from the Attorney General regarding the scope of the statutory exclusions from child care licensing laws for public and nonpublic schools and their integral programs. The specific question posed was as follows: Do the exemptions under s. 402.302(4), F.S., as amended, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer: Prekindergarten classes during regular school hours in the same physical plant or in an adjoining structure? Infant care during regular school hours in the same physical plant or in an adjoining structure? School age child care services before and after school hours in the same physical plant or in an adjoining structure? In a lengthy analysis of the statutory exclusion of schools from child care facility licensing requirements, the Attorney General concluded: In sum, then, and unless and until legislatively or judicially determined otherwise, it is my opinion that the exemptions under s. 402.302(4), F.S., as amended by Chs. 84-551 and 85-54, Laws of Florida, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer prekindergarten classes or infant care during regular schools hours or school age child care services before and after school hours. . . . AGO 55-74, p. 7. Attorney General Opinion 85-74 also provides at page 3 as follows: Thus, public schools and nonpublic schools and their integral programs are not "child care facilit[ies]" for purposes of ss. 402.301-402.319, F.S., as amended. The term "integral programs" is not defined within ss. 402.301-402.319, F.S., as amended, or Oh. 85-54, Laws of Florida; however, the word "integral" has generally been defined as "[c]onstituting a completed whole; . . . lacking nothing of completeness." See, 46 C.J.S. Integral p. 1100; Ballentine's Law Dictionary 645 (3rd ed. 1969). And see, Random House Dictionary of the English Language Integral p. 738 (unabridged ed. 1967) (pertaining to or belonging as a part of the whole; constituent or component; necessary to the completeness of the whole); Webster's Third International Dictionary Integral p. 1173 (1966) (composed of constituent parts; making up a whole). Of., Matezak v. Secretary of Health, Education and Welfare, 299 F.Supp. 409, 413 (D.C.N.Y. 1969)("integral" means part of constituent component necessary or essential to complete the whole). Whether a particular child care center or arrangement constitutes an integral program for purposes of s. 402.302(4), FS., as amended, would appear to present a factual question which can only be reached on a case-by-case basis. [Emphasis supplied.] During the special session in 1984 and the regular session in 1985, the Legislature increased funding for HRS' child care facility licensing activities and also created 48 additional staff positions for those licensure activities. Several HRS employees determined that (1) the Attorney General's Opinion was confusing, (2) it was too difficult to determine on a case-by-case basis whether a program was an integral part of a school or a child care facility, and (3) the exclusion of schools from child care facility licensing requirements was inconsistent with legislative intent of protecting children. Accordingly, HRS drafted an amendment to Rule 10M-12.001, Florida Administrative Code, to define the term "integral program". The "rule package" prepared by HRS in compliance with Section 120.54, Florida Statutes, commences with the following language: Reason rule is being filed or amended: Chapter 402.302(4), Florida Statutes, provides the definition of a child care facility. Public and non public schools and their integral programs are precluded from this definition as a child care facility and therefore are not subject to licensure. . . . The term "integral programs", which is not defined by statute, is ambiguous and has been the subject of various interpretations by public and non public schools. For purposes of licensure, this rule amendment is necessary in order to clarify which specific child care programs in the public and non public schools are required to be licensed. Without the rule amendment, some schools will continue to interpret their "integral programs" as meaning their infant and preschool programs, or before and after school programs, thereby avoiding licensure and resulting in no regulation by the department . . . Rule 10M-12.001, Florida Administrative Code, as proposed, would provide as follows: (1) Child Care Standards and Licensure. Child Care Standards included in this chapter were adopted by the department to protect the health, safety and well being of the children of the State who receive child care in child care facilities as defined in Section 402.302, Florida Statutes, and to promote their emotional and intellectual development and care. Public and nonpublic schools and their integral programs are not child care facilities as defined in Section 402.302(4) Florida Statutes, and are not subject to licensure. The term "integral programs" includes school activities which are directly related to the educational component of the school for 5 year old kindergarten programs through grade 12, and extra curricular activities, such as sport teams, school yearbook, school band, meetings, and service clubs. The term also includes child care programs administered directly by the school to care and supervise children from 5 year old kindergarten through grade 12 before and after the school day. The term "integral program" does not include child care programs for children below 5 year old kindergarten, such as infants and preschoolers, and child care programs which are contracted by the school to provide care and supervision for children from 5 year old kindergarten through grade 12 before and after the school day. The proposed rule as published and noticed by HRS, although defended by HRS vigorously in this proceeding, is not in fact the rule that HRS intends to adopt. HRS now admits that it has no authority to regulate any program in a public school since only the Florida Department of Education can regulate public schools. HRS intends, therefore, to delete the reference to public schools in its proposed rule and to only regulate nonpublic schools although it admits that such regulation of only nonpublic schools would therefore be discriminatory. HRS further intends to amend its proposed rule so as to clarify that those nonpublic schools which are religious in affiliation will continue to enjoy the additional exemption from child care facility licensure given to them by Section 402.316(1), Florida Statutes, which provides: The provisions of ss. 402.301-402.319, except for the requirements regarding screening of child care personnel, shall not apply to a child care facility which is an integral part of church or parochial schools conducting regularly scheduled classes, courses of study, or education programs accredited by, or by a member of, an organization which publishes and requires compliance with its standards for health, safety, and sanitation. However, such facilities shall meet minimum requirements of the applicable local governing body as to health, sanitation, and safety and shall meet the screening requirements pursuant to ss. 402.305 and 402.3055. Failure by a facility to comply with such screening requirements shall result in the loss of the facility's exemption from licensure. Petitioner Florida Association of Academic Nonpublic Schools (hereinafter "FAANS") is comprised of approximately 25 associations of schools. Additionally, archdioceses, which are separate corporate entities, and which own and operate schools, are direct members as are county organizations and the Florida Catholic Conference. The organization itself represents nonpublic schools in the state of Florida before state agencies, including the Legislature which it actively lobbies. It has a direct relationship as a state representative, one of only five in the country, with the United States Department of Education. It is involved in accreditation and has a code of ethics with which all schools (both direct members and indirect members) must comply. FAANS presently represents 943 schools with approximately 230,000 students, out of the approximate 1,750 nonpublic schools in the state of Florida. A majority of the schools represented by FAANS operate educational programs for children under 5 years of age. For the most part, these school programs are not licensed as child care facilities although some of the schools have licensed their programs under duress rather than have their programs closed by the child care facility licensing agencies. All of the nonpublic schools represented by FAANS comply with the Florida Department of Education requirement that they annually submit statistical information including the number of students and faculty in their prekindergarten programs for the Department of Education's Nonpublic School Data Base. Petitioner Jacksonville Country Day School presented no evidence in this proceeding. Petitioner The Cushman School is a nonpublic school in Miami, Florida, and is an indirect member of FAANS. It has been in operation for 62 years and has operated educational programs for children under 5 since it was founded. It begins enrolling students at the age of 3 years (and on rare occasion 2 years) and offers education through grade 6. It is not presently licensed as a child care facility. Under the proposed rule as published in the June 6, 1986, Florida Administrative Weekly, The Cushman School would be required to obtain a child care facility license, the economic impact of which would be significant. First, it would lose its exemption from property taxes as an educational institution at a speculated cost of approximately $10,000. Structural modifications would need to be made to the school for bathing and sleeping facilities. Additional requirements, such as fencing and child-staff ratios, would come into play imposing more costs on the school. The Cushman School possesses historic site status which means even minor repairs, let alone structural modifications, have extensive restrictions imposed as to how they can be done and the materials that can be used. The end result is that if the proposed rule goes into effect, The Cushman School will have to discontinue its educational programs for children under 5 years of age. The economic impact of compliance with child care facility licensing requirements by schools is not unique to The Cushman School. Section 120.54, Florida Statutes, requires each agency proposing or amending a rule to provide a detailed economic impact statement. The purpose of an economic impact statement is to promote informed decision-making by ensuring an accurate analysis of economic factors, and those factors an agency must consider are clearly specified. An agency must also consider the impact of a proposed rule on small businesses as defined in the Florida Small and Minority Business Assistance Act of 1985. There are nonpublic schools throughout Florida which fit the statutory definition of small business. It is clear from the economic impact statement for proposed rule 10M-12.001 that HRS did not consider the impact of the rule on small business nonpublic schools. Also to be considered is the cost to an agency of implementing the rule. According to HRS' impact statement, actual implementation statewide will only cost $31. There is no consideration of additional staff time and paperwork to process applications, issue additional licenses, or conduct additional inspections. There is no comment in the economic impact statement of the impact on competition and the open market for employment, or any indication that such an analysis is inapplicable; rather, the agency's estimate of effect on competition speaks to potential cost savings from deregulation of before and after school care programs. Similarly, the required analysis of the costs or economic benefits to all persons directly affected by the proposed rule speaks in terms of deregulation and substantial savings and is, accordingly, deceptive. An agency is also required to provide a detailed statement of the data and method used in making each of the estimates required in the economic impact statement. The only detailed statement in HRS' economic impact statement refers to the costs of printing and mailing, publication of the proposed rule in the Florida Administrative Weekly, and conducting a public hearing on the proposed rule. There is no hint of the data and method used, if any, in reaching other conclusions contained within the economic impact statement. The economic impact statement accompanying proposed rule 10M-12.001 is inadequate. Section 120.54(1), Florida Statutes, further requires that an agency proposing a rule give notice of its intended action and the specific legal authority under which its adoption is authorized. As set forth above, the rule proposed by HRS does not reflect its intended action since the rule purports to apply to both public and nonpublic schools and HRS intends to further amend the rule so as to exclude its application to public schools and its application to religious nonpublic schools. As to the specific legal authority under which the proposed rule is authorized, HRS cites, at the end of the proposed rule, as its rulemaking authority Section 402.301, Florida Statutes. That section is entitled "Child care facilities; legislative intent and declaration of purpose and policy". Nowhere in that legislative intent section is HRS authorized to promulgate rules. The proposed rule thus fails to fulfill that requirement.
The Issue Whether Respondent committed the child care licensing violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Reid’s Educational Child Care Centre, LLC, d/b/a Reid’s Educational Child Care Center (“Reid’s” or “the facility”) is a child care facility licensed by the Department. Reid’s is owned and operated by Nickesha Reid and is located at 10658 Biscayne Boulevard in Jacksonville, Florida. License Violation History Reid’s has a dizzying history of violating Department child care licensing standards. At final hearing, Department investigators testified that they had to rely upon the Department’s matrix, which documents a facility’s history of violations by date and class, as well as the penalties imposed, and whether monetary penalties have been paid. The matrix allows Department staff to cross-reference prior cases to identify repeated violations of the same standard. For purposes of this Recommended Order, the undersigned has included only the violations documented within the two-year period preceding the consolidated administrative complaints at issue in this case. On December 14, 2017, Reid’s was cited for lack of a Level II background screening (“background screening”) for Ms. Reid.2/ During a renewal inspection on July 11, 2018, Petitioner cited Reid’s for the following violations of child care licensing standards: (1) the child-to-teacher ratio for mixed age ranges including a child under the age of one, direct supervision of children in its care, and background screening for Ms. Reid. Each of these violations is a Class II violation of child care licensing standards. One of the most egregious violations cited during the July 11, 2018 inspection was a 10-year-old child in charge of the infant classroom. Moreover, the infant classroom was out of ratio, with the 10-year-old “teacher” in charge of five infants, rather than the required ratio of 1:4. While Department staff was on-site at the facility, Ms. Reid responded to the Department’s calls, appeared at the facility, and attempted to address the ratio violation by personally covering the infant room. However, Ms. Reid still had no background screening documentation, which led to the citation for violation of the background screening requirement. The Department filed an Administrative Complaint against Reid’s on July 25, 2018, solely on the background screening violation. In the complaint, the Department imposed a fine of $50 for this Class II violation, the second violation of the same child care licensing standard within a two-year period. On July 23, 2018, during a complaint investigation,3/ Petitioner cited Reid’s for the following violations of child care licensing standards: (1) teacher-to-child ratios, (2) inadequate supervision, (3) potentially harmful items accessible to children in care, and (4) background screening for child care personnel, all of which are Class II violations. In addition, the Department cited Reid’s with a Class I violation for serious health hazard conditions. Pursuant to the administrative complaint issued August 20, 2018 (based on the July 23, 2018 complaint inspection), Reid’s was placed on a probationary status for six months. The terms of the probation were as follows: The facility shall incur no Class I violations during the probationary period. The facility shall incur no Ratio, Background Screening or Supervision violations during the probationary period. The facility shall incur no Facility Environment violations during the probationary period. The facility must always maintain a safe and clean environment. Non-active individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. The administrative complaint provided, “Failure to comply with these conditions may result in revocation of Respondent’s license.” The Department’s findings in the administrative complaint became final on October 24, 2018, when Reid’s request for hearing on the administrative complaint was dismissed as untimely. The Department’s final order was not appealed. Reid’s probationary status was effective October 24, 2018, through April 22, 2019, and required monthly Department inspections. In addition, on August 20, 2018, Petitioner issued Reid’s a provisional license, effective August 21, 2018, through February 16, 2019, because Reid’s then-director, Delaria Blake, did not have the director credentials required by section 402.305(2)(f). Failure to maintain a credentialed director is a Class II violation of the Department’s child care licensing standards. The provisional license was resolved shortly after issuance when Reid’s hired Tracee Creighton, a properly credentialed director, who served as Reid’s interim director through September 2018. November 16, 2018 Administrative Complaint The November 16, 2018 Administrative Complaint was initiated pursuant to another complaint investigation,4/ conducted by Child Care Supervisor, Hannah McGlothlin, on September 13, 2018. Background Screening When Ms. McGlothlin arrived at Reid’s, she was greeted by Grady Dixon, the staff member in charge. Mr. Dixon is also Ms. Reid’s husband and Respondent’s registered agent. Ms. McGlothlin observed that Mr. Dixon was supervising two employees on-site. Upon review of the employee files, Ms. McGlothlin determined that Mr. Dixon became employed at Reid’s on August 2, 2018, but that his required background screening was not completed until August 3, 2018. When asked by Ms. McGlothlin, Mr. Dixon verified August 2, 2018, as his date of employment. At final hearing, Mr. Dixon maintained there was an error in his personnel file, and that he did not become employed at Reid’s until August 3, 2018. Mr. Dixon said he made a mistake in writing August 2, 2018, on his personnel form. Mr. Dixon’s testimony was not persuasive. Mr. Dixon became employed by Reid’s as “other personnel” on August 2, 2018. Mr. Dixon’s required background screening was not complete and on file at the facility until August 3, 2018. On July 25, 2018, Ms. Reid completed a Non-Active Member Affidavit for the Department, in which she swore that she had “a non-active role” at Reid’s, meaning she is an “individual who does not interact with the children, does not go on-site of the program operation during operating hours, and whose role does not involve the day-to-day operation of the child care program.” Further, the affidavit provided that Ms. Reid understood she must immediately notify the Department at any time in the future her role changed to an active role and “complete a background screening” as provided by statute. During Ms. McGlothlin’s field visit on September 13, 2018, she determined that Ms. Reid’s role had become that of an active member because she was going on-site during operating hours, had contact with children at Reid’s, and was involved in day-to-day business of Reid’s. As part of her investigation, Ms. McGlothlin spoke with a parent who stated “it is always [Ms. Reid] and [Mr. Dixon] at the facility” when she picks up her child in the afternoons. Virginia Ritter is the parent of a child formerly enrolled at Reid’s. Ms. Ritter testified that she met Ms. Reid at the facility in June 2018 when she first enrolled her son at Reid’s. Ms. Ritter further testified that, although she paid her monthly tuition online, she met with Ms. Reid at the facility at least twice between June 2018 and December 2018 to address billing issues--once when she changed the number of days her son was attending, and once when she withdrew him. Ms. Reid denied meeting with Ms. Ritter at the facility. The Department alleged that Ms. Reid was further involved in the day-to-day activities of the facility by corresponding with parents and the Department via electronic mail. Respondent introduced an undated email from reidseducationalchildcare@gmail.com to Ms. Ritter and John Kennedy5/ which reads, as follows: Good morning, We are contacted Emmett parents because he has not been at school for the last week and no one has advised us of what is going on. [sic] to his mother and no responded. Can we please have an update. Although the email was not signed by Ms. Reid, or any employee of Reid’s, Ms. Ritter testified, credibly, that she knew the email was from Ms. Reid because it reads consistently with Ms. Reid’s speech patterns. The email reads consistently with Ms. Reid’s speech patterns exhibited at final hearing. On Monday, December 31, 2018, Ms. Ritter replied to reidseducationalchildcare@gmail.com, informing Reid’s that her son would not be returning to the facility and the reasons therefor. Ms. Ritter further testified that Ms. Reid was often on-site when she picked up her son from the center on Fridays prior to her withdrawal of him in December 2018. Ms. Reid prepares meals at home and delivers them to the facility to be served to the children. She testified that she does not enter the facility to deliver the meals, but rather leaves them at the door outside the facility. Ms. Reid’s testimony was contradicted by Carrie Gaouette, a former employee, who testified, credibly, that Ms. Reid delivered meals to the front desk at the facility on a daily basis. In addition to the foregoing evidence of Ms. Reid’s involvement in the day-to-day business of the facility, Ms. Reid has entered the facility during operating hours, at times since executing her Non-Active Member Affidavit, to check mail and collect payments. During field visits by Department staff on September 13 and October 17, 2018, Ms. Reid contacted and spoke to Department staff to address the pending citations. Subsequent to signing the Non-Active Owner Affidavit, Ms. Reid has been on-site at the facility during operating hours, and has been actively involved in the day-to-day operation of the center, including meal preparation, interacting with parents for enrollment and changes thereto, addressing billing issues, and intervening in licensing issues. As an active owner, Ms. Reid is required to undergo background screening. During the complaint investigation on September 13, 2019, Ms. McGlothlin placed Reid’s on notice of the background screening violation and set a due date for compliance by November 7, 2018. At a subsequent inspection on December 27, 2018, Ms. McGlothlin determined that the background screening violation for Ms. Reid had not been corrected. The Department proved the August 20, 2018 Administrative Complaint allegations of background screening violations with regard to both Mr. Dixon and Ms. Reid. Penalties The background screening requirement is a Class II child care licensing standard. Reid’s was previously cited for failure to meet background screening requirement on December 17, 2017, July 11, 2018, and July 23, 2018. The August 20, 2018 Administrative Complaint is Reid’s fourth citation for background screening violations within a two-year period. According to Department rule, the monetary penalty for the fourth violation of the same Class II child care licensing standard is $75 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. The Department seeks to impose a fine of $2,925 against the facility for this violation, calculated at $75 per day for 39 days--from September 13, 2018 (the violation notice date), through November 7, 2018 (the corrective action date). The Department correctly calculated the monetary penalty to be imposed against Reid’s for the background screening violations. The Department also seeks revocation of Reid’s child care license based on the background screening violation. In the Administrative Complaint, the Department alleges, as follows: Provider is currently on Probation for Facility Environment of which the terms were not to incur any Background Screening and Non-Active Individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. Provider has failed to comply with the terms of the Probation therefor their license is being Revoked. The Department’s allegation is unfounded. Reid’s probationary status was effective October 24, 2018, but the violation was cited on October 20, 2018. This violation of the background screening requirement was not a violation of the terms of the probation. January 11, 2019 Administrative Complaint Because Reid’s was placed on probation, it was required to undergo monthly inspections. Ms. McGlothlin conducted a routine inspection of the facility on December 27, 2018. Direct Supervision Upon her arrival at the facility, Ms. McGlothlin was greeted at the door by Carrie Gaouette, the only child care personnel on-site. When Ms. Gaouette opened the entry door, she closed the door leading to the classrooms, effectively blocking her view of the children and leaving them with no supervision. Ms. Gaouette explained that she shut the door to the classroom to prevent children from running out the front door while it was open to allow Ms. McGlothlin to enter. Florida Administrative Code Rule 65C-22.001(5)(b) provides, “[d]irect supervision means actively watching and directing children’s activities with the same room or outdoor play area . . . and responding to the needs of each child while in care.” The rule requires child care personnel to “be present with [their assigned] group of children at all times.” For the brief time Ms. Gaouette opened the door to greet and allow Ms. McGlothin entry to the facility, Ms. Gaouette was not in the same room with, and not directly supervising, the children in her care. The direct supervision requirement is a Class II standard. Reid’s was previously cited for violating the direct supervision standard on July 11 and 23, 2018. According to Department rule, the monetary penalty for the third violation of the same Class II child care licensing standard is $60 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, Department seeks to impose a monetary penalty of $60 for one day. The Department correctly calculated the fine to be imposed for this violation of the direct supervision standard. Child Health Examination Forms During her inspection, Ms. McGlothlin reviewed the records of all 11 children enrolled at the facility on that date. Ms. McGlothlin found that Reid’s did not have a current Student Health Examination form DH 3040 (“health examination form”) on file for child M.S. Pursuant to rule 65C-22.001(7)(q), Reid’s is responsible for obtaining a complete and properly executed health examination form for each child in its care. Reid’s violated the child care licensing standard when it failed to maintain a current health examination form for child M.S. The requirement to maintain child health examination forms is a Class III standard. Reid’s was previously cited for violation of this standard on July 11 and November 20, 2018. This violation is the third violation of the same Class III standard within a two- year period. According to Department rule, the monetary penalty for the third violation of the same Class III child care licensing standard is $25 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, the Department seeks to impose a monetary fine of $25 against Reid’s for this violation of child care licensing standards. The Department correctly calculated the fine to be imposed on Respondent for this violation of the child health examination form standard. False Statement/Information Pursuant to Department rule, Reid’s is required to have at least one staff member on-site at all hours of operation with First Aid/CPR training, verified by a current, valid First Aid/CPR card. See Fla. Admin. Code R. 65C-22.001(6). Ms. Gaouette was a new employee, and the only child care provider on-site, during Ms. McGlothlin’s inspection on December 27, 2018. When Ms. McGlothlin returned to the office on December 27, 2018, she reviewed her inspection report and realized that she had not checked the files to ensure that Ms. Gaouette had a valid First Aid/CPR card. Ms. McGlothlin both called and emailed Reid’s on the afternoon of December 27, 2018, to obtain a First Aid/CPR card for Ms. Gaouette; however, she was unable to reach anyone at the facility. No one from the facility either returned her calls or responded to her emails on December 27, 2018. On the morning of December 28, 2018, Mr. Dixon, who was the staff member in charge, read Ms. McGlothlin’s emails and reviewed her telephone messages requesting a First Aid/CPR certificate for Ms. Gaouette. Mr. Dixon reviewed Ms. Gaouette’s personnel file and found no First Aid/CPR certificate. Ms. McGlothlin returned to Reid’s on December 28, 2018, and requested Ms. Gaouette’s First Aid/CPR card from Mr. Dixon. Mr. Dixon provided Ms. McGlothlin with a First Aid/CPR card purporting to certify that Ms. Gaouette completed the required training on November 6, 2018, from instructor Palecia Crawford. The space on the card for the trainee’s name had been “whited out” and Ms. Gaouette’s name written in. The spaces for the date of the training and date of expiration were also “whited out” and the date “Nov/6/2018” written in for the date of training, and “Nov/6/2020” written in for the date of expiration. Ms. Crawford did not train Ms. Gauoette on November 6, 2018, or on any other date prior to December 28, 2018. Ms. Gaouette had not received First Aid/CPR training from any entity prior to December 28, 2018. Mr. Dixon, on behalf of Reid’s, presented Ms. McGlothlin with falsified documentation of Ms. Gauoette’s First Aid/CPR training. At final hearing, Mr. Dixon denied that the First Aid/CPR certificate provided to Ms. McGlothlin was Ms. Gaouette’s certification. Instead, he testified that, on December 28, 2018, he was unable to locate a certificate in Ms. Gaouette’s personnel file, so he provided Ms. McGlothlin with a First Aid/CPR card from the facility’s “demo file,” a file set up as an example of what a complete employee file should contain. Mr. Dixon’s testimony was not credible. Mr. Dixon did not represent to Ms. McGlothlin when he provided the certificate to her that it was just an example from a demo file. If it was just an example, there was no reason to change the name and date of the training on the original card. The original, or for that matter, a copy of, the trainee’s card would be sufficient for an example in a “demo file.” Mr. Dixon had both motive and opportunity to falsify a First Aid/CPR training card for Ms. Gaouette. Mr. Dixon admitted on cross-examination that it would have been easier to just tell Ms. McGlothlin that the facility did not have a valid First Aid/CPR certificate on file for Ms. Gaouette. Child care personnel providing fraudulent information related to the child care facility to a licensing authority, that could result in the death or serious harm to the health, safety, or well-being of a child is a violation of a Class I licensing standard. Penalties Class I violations of Department rules are described as “the most serious in nature, [which] pose an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child.” Fla. Admin. Code R. 65C-22.010(1)(d)1. Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In the Administrative Complaint, the Department seeks to impose a fine of $250 and to revoke Reid’s child care license. This violation is severe. Significant harm could befall a child left under the care of personnel who have not had basic CPR training. This violation is the facility’s second Class I violation within a two-year period. This violation occurred during the facility’s probationary period, which commenced on October 24, 2018. The terms of probation prohibited the facility from incurring any Class I violations during the probationary period. The Department has authority to revoke Reid’s license based on this violation of its probationary terms. Ms. Gaouette received First Aid/CPR training on January 2, 2019. The facility has a lengthy and dizzying history of violations. Many of the monetary penalties imposed for past violations remain unpaid. Throughout the final hearing, Ms. Reid refused to accept responsibility for the violations documented in the subject, as well as previous, administrative complaints. She attacked the credibility of Department witnesses and demonstrated a complete lack of respect for the Department’s authority. Despite Ms. Reid’s unwillingness, or inability, to complete the required background screening, she has failed to comply with the non-active owner requirements and place competent, qualified, employees in charge of the day-to-day operations of the facility.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Reid’s Educational Child Care Centre, LLC, d/b/a Reids, Educational Child Care Center, committed Class I, II, and III violations of child care facility licensing standards, imposing a monetary penalty in the amount of $3,260, and revoking Reid’s child care facility license. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 5th day of June, 2019.
The Issue The issues are as follows: (1) whether Respondent violated Section 402.305(2), Florida Statutes (2005), and Florida Administrative Code Rule 65C-22.003(2) by failing to show that two staff members had enrolled in the introductory child care course within 90 days of employment; and if so, (2) what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the responsibility of enforcing Sections 402.301 through 402.319, Florida Statutes. At all times relevant here, Respondent has been licensed to operate a child care facility located at 10550 Deerwood Park Boulevard, Jacksonville, Florida (the facility.) Respondent's current license to operate the facility is effective May 6, 2005, through May 5, 2006. On April 22, 2003, Petitioner performed a renewal-of- licensure inspection at the facility. The inspection revealed that Respondent was not in compliance with the requirement that all staff members enroll in the introductory course in child care within 90 days of employment. The citation for non- compliance involved three of Respondent's staff members, including R.A., M.P., and G.S. On August 20, 2003, Petitioner performed a routine inspection at Respondent's facility. The inspection revealed that Respondent was in compliance with the requirement that all staff members enroll in the introductory course in child care within 90 days of employment. During the hearing, Respondent presented undocumented testimony that it was in compliance with staff training requirements during an inspection on January 6, 2004. On April 20, 2004, Petitioner performed a renewal-of- licensure inspection at the facility. Once again the inspection revealed that Respondent failed to have documentation to show enrollment in the introductory course in child care for all staff employed for at least 90 days. On May 4, 2004, Petitioner performed a re-inspection of the facility. The inspection revealed that Respondent continued to be out of compliance with the requirement for staff members to enroll in the introductory child care course within 90 days of employment. The relevant portion of the May 4, 2004, re- inspection checklist contains the following comment by Petitioner's inspector: CA [corrective action] states the cited employees have not completed the required 40-hour training nor have they enrolled. The facility is working toward getting them enrolled. Staff worker G.S. was previously cited 04/22/03 for not enrolling in the required Observation and Screening module. CA received in this office on June 09, 2003, states G.S. registered 04/07/2003. On May 4, 2004, Petitioner issued a Notice of Intent to Impose Administrative Action against Respondent. The notice states that Petitioner intended to take such action if Respondent did not take corrective action within a certain time frame to ensure that all staff members enrolled in required training classes in a timely manner or if the same deficiencies continued. During the hearing, Respondent presented undocumented testimony that it was in compliance with staff training requirements during an inspection on August 18, 2004. On March 28, 2005, Petitioner performed a renewal-of- licensure inspection at the facility. During the inspection, Petitioner determined that Respondent did not have documentation to show enrollment in the introductory course in child care for two staff members, who had been employed for at least 90 days. Respondent hired I.N. on October 18, 2004. At the time of the March 28, 2005, inspection, I.N. had been working at the facility for approximately five months without enrolling in the appropriate training classes. Respondent hired Y.W. on November 29, 2004. At the time of the March 28, 2005, inspection, Y.W. had been working at the facility for approximately four months without enrolling in the appropriate training classes. Following the March 28, 2005, inspection, Petitioner required Respondent to provide documentation showing that I.N. and Y.W. were enrolled in the appropriate training classes. Respondent had until April 7, 2005, to provide Petitioner with such verification. On or about April 7, 2005, Respondent provided Petitioner with a Corrective Action Statement. Respondent also enclosed verification of I.N. and Y.W.'s compliance with training requirements. Petitioner's April 8, 2005, re-inspection of the facility confirmed that the two staff members were enrolled to begin the introductory child care training course. Accordingly, Respondent was in compliance with staff training requirements. On August 15, 2005, Petitioner performed a routine inspection of the facility. Respondent was in compliance with staff training requirements at that time. As of August 31, 2005, I.N. had completed the 40-hour introductory child care course. At all times material here, Respondent was aware that I.N. and Y.W. were not enrolled in the appropriate training classes. On more than one occasion, Respondent's administrative staff counseled with I.N. and Y.W. regarding the need for I.N. and Y.W. to enroll in the introductory child care course within 90 days of employment. At some point during the first 90 days of employment, Respondent sent I.N. and Y.W. a letter reminding them of the need to enroll in the introductory child care course. The letter advised I.N. and Y.W. that they might be subject to suspension from work if they did not meet the training requirements. However, Respondent never suspended I.N. or Y.W. because Respondent's administrators believed that the staff members were having difficulty registering for the course at Florida Community College Jacksonville (FCCJ) due to the unavailability of classes. There is no evidence to show the specific efforts that I.N. and Y.W. made to register for class. Respondent routinely advises its new staff members that they can register over the Internet for the introductory child care course with FCCJ. Respondent occasionally gives new staff members an opportunity to leave work during school hours so that they can go to FCCJ to register in person. In either event, efforts by new staff members to enroll in required training classes are sometimes unsuccessful due to the unavailability of classes. If timely enrollment in required classes is not possible in Jacksonville/Duval County, Florida, Respondent advises its new staff members of the opportunity to register for classes in adjacent counties. Neither Petitioner nor Respondent requires new teachers to verify their unsuccessful efforts to register for classes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order imposing an administrative fine in the amount of $50 on Respondent. DONE AND ENTERED this 26th day of September, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 26th day of September, 2005. COPIES FURNISHED: Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Thomas Blitch Owner/Operator Magellan Educational Services, Inc. Post Office Box 55109 Jacksonville, Florida 32255-1509 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tamayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
