The Issue The issue for determination is whether Respondent properly denied Petitioner's application for renewal of her family child care home license.
Findings Of Fact Respondent, the Department of Children and Family Services (Department), issued a family child care home license to Vernetta Rossi (Petitioner) on January 15, 2001. The license was effective for a year, and automatically expired one year later. The maximum number of children for which Petitioner was licensed was ten. On or about November 11, 2001, Petitioner submitted an application for renewal of her family child care home license. On December 4, 2001, Donna Richey, an inspector with the Department went to Petitioner's home to conduct a re- licensing inspection. The purpose of the inspection was to determine if Petitioner was complying with the licensing rules and to make a recommendation on Petitioner’s application for renewal. Ms. Richey arrived at Petitioner’s house at about 1:30 p.m. Through a pane glass window, Ms. Richey observed a child sleeping on a mat in the dining room hall area. She also heard a child whimpering. Because Ms. Richey knew that there were children in the house and it was naptime, she knocked softly on the door for a few minutes. After getting no answer, Ms. Richey rang the doorbell twice, but still received no answer. After there was no response to Ms. Richey’s knocking on the door and ringing the doorbell, she walked to the back of Petitioner’s house, thinking that Petitioner may have been out in the back of the house. Finding no one there, Ms. Richey then returned to the front of the house and rang the doorbell again. When Ms. Richey returned to the front of the house, she observed that the child on a mat in the dining room hall area was still asleep. Upon returning to the front of the house, Ms. Richey tried the front door handle and discovered that it was unlocked. Ms. Richey then entered the house where she observed Petitioner asleep on the couch in the family room. Ms. Richey then called Petitioner, who woke up and appeared startled. Petitioner had dozed off and advised Ms. Richey that the reason she may not have heard the doorbell ring or the knock on the door was that she had a hearing loss and was lying on her “good” ear. Ms. Richey and Petitioner then toured the areas of Petitioner’s house where the five children, in Petitioner's care that day, were down for their naps. At the time of the tour, all five of the children, who were ages three and four, were in their designated napping areas and on their mats. One child was asleep on a mat in the dining room hall area; two children were on separate mats in one bedroom; one child was on a mat in the hallway; and another child was sleeping in the classroom area. During the time Ms. Richey was at Petitioner’s house for the re-licensure inspection, none of the children were crying, all the children were clean, and Petitioner’s house was neat and clean. There was a fence around the children’s playground in Petitioner's backyard. The fence had been approved by the Department as part of the licensure process. Also, there was a lock on the back door of Petitioner's house that was placed at a height that was not within the children's reach. There was a canal behind Petitioner’s house, which was about 60 yards from the house. In addition there was a five- foot high chain link fence that extended across the back of Petitioner’s property that served as a barrier between Petitioner’s yard and the canal. The fence provided a barrier that made it impossible for the children to easily access the canal. However, the Department determined that the canal was a potential hazard for the children in Petitioner’s care, when she was asleep and the front door of the house was unlocked. There was a main road within the subdivision in which Petitioner's house was located that was about 100 yards from her house. The Department was concerned that because Petitioner’s front door was unlocked and Petitioner had dozed off, the main road could have been a possible hazard to the pre-school children. During the approximately ten minutes that Petitioner was asleep, the children in her care were not being supervised. The Department requires that individuals licensed to provide child care supervise the children in their care. Following the Department’s re-licensing inspection on December 4, 2001, a report of neglect was made and an investigation was conducted. The results of that investigation and the findings and conclusions thereof are summarized in Abuse Report 2001-194692 (abuse report), which was completed on or about December 21, 2001. The abuse report found that on December 4, 2001, Petitioner fell asleep for a few minutes after she had put the five children in her care down for their afternoon nap and that during the time Petitioner was asleep, the children were not supervised. With regard to observations of Petitioner's “day care center,” the investigator noted in the abuse report that Petitioner’s home was “very clean and well kept” and “hazard free” and that there were no hazards observed in the home. Based on the findings of the investigator, relative to Petitioner’s falling asleep, the case was “closed with verified findings of neglect due to inadequate supervision with caretaker present.” The abuse report notes that officials closed Petitioner's facility on or about December 5, 2001. In addition to the incident that occurred on December 4, 2001, the abuse report referred to alleged incidents that took place prior to Petitioner’s being licensed in January 2001. These alleged incidents are not relevant or material to this proceeding in that they were not stated in the January 9, 2001, denial letter to Petitioner as the basis for the Department’s decision to deny Petitioner’s application for renewal of her family child care home license.1 The Department’s January 9, 2002, letter denying Petitioner’s application for renewal of her family child care home license stated in relevant part the following: This letter is to advise you that your application to renew your family day care license, dated November 11, 2001, is denied. In accordance with Section 402.310(10)(a), Florida Statutes, the department may deny a license for the violation of any provision of Sections 402.301-402.319, Florida Statutes, or rules adopted thereunder. The decision is based on the fact that abuse report number 2001-194692 indicates you have a verified report of child neglect for inadequate supervision-caretaker present. On December 4, 2001, during a re-licensing inspection, you were found to be asleep while five children ages, 3 years to 4 years, were in your care. This is in violation of Section 65C-20.009(3)(a), Supervision by Staff, Florida Administrative Code. This states[,] “At all times which includes when children are sleeping, the operator shall remain responsible for the supervision of children in care and capable of responding to the emergencies and needs of children. During the daytime hours of operation, children shall have adult supervision which means watching and directing children’s activities, both indoors and outdoors, and responding to each child’s needs.” Additionally, your actions were in violation of Section 402.301, Florida Statutes, which express [sic] the intent of the Florida Legislature to protect the health, safety, and well being of the children of the state and to promote their emotional and intellectual development and care. Petitioner does not dispute that she dozed off a few minutes on December 4, 2001, but testified credibily that this was an isolated incident. This is substantiated in a letter of support from Cynthia Ray, a former employee of Petitioner who worked at the center. Ms. Ray also served as a substitute for Petitioner and was listed on Petitioner's family child care home license as such. The letter from Ms. Cheryl Ray states that Petitioner has a high energy level, seldom sits down for any length of time, and is always "preparing, cleaning, organizing and doing book work." According to Ms. Ray's letter, it "was out of character for [Petitioner] to fall asleep" while the children were napping or at the center. With regard to the front door being unlocked, Petitioner explained that over the years, the policy or practice of the Department has changed. Petitioner was aware that at one time, the Department required that the door of a child care facility be unlocked so that parents could come in unannounced. Apparently, the Department’s current policy or procedures require that the doors of a child care facility be locked. In light of the policy, Petitioner stated that she would ensure that the doors of her family child care home would be locked. Petitioner has a combined 30 years of experience as a teacher and a principal in Montessori schools. At the time she was licensed by the Department, Petitioner used the Montessori method of instruction and had her home set up consistent with this approach. Parents of children who have been cared for by Petitioner expressed satisfaction, trust, and confidence in Petitioner’s ability to care for their children. They also believe that she has had a positive influence on the children's intellectual and emotional well-being. Many of the parents who testified had several years of experience working with Petitioner as the child care provider for their children. The parents believe that the educational program provided to their children while they were in Petitioner’s care is exceptional. Those parents whose children have left Petitioner’s program to attend kindergarten believe that the educational program provided by Petitioner prepared the children for kindergarten and made the transition to school easier for them. Parents who have had children in Petitioner’s care over the years and up until December 2001, have “dropped in” Petitioner’s home during the day when children were in her care and have never seen anything “amiss” or of concern to them. Parents who have had children in Petitioner's care testified credibly that Petitioner never neglected their children and that they felt their children were safe at Petitioner’s home and not in any danger. Despite the incident that occurred on December 4, 2001, the parents who testified at hearing continue to trust Petitioner to care for their children. The four-year-old daughter of Kevin and Rachel Walsh attended Petitioner's center from the time she was four weeks old, until the center closed in December 2001. The Walshes also have an older son who attended Petitioner's center for four years. During the time Petitioner has been caregiver for their children, the Walshes have been very pleased and satisfied with the care and the education that Petitioner provided to the children. For the past six years, Mrs. Walsh has dropped in unannounced at Petitioner's center and has been satisfied with what she has observed. According the to the Walshes, when in Petitioner's care, their children were in a "clean, safe, happy and learning environment" and learned "not only reading, writing, and math, but also manners and respect." The Walshes indicated that "those qualities make it comfortable for us to relax at our jobs knowing our kids are comfortable and happy." The Walshes live in the same neighborhood as Petitioner and, like Petitioner, they also have a canal behind their house. Because there is a fence which serves as a barrier between Petitioner's yard and the canal, the Walshes do not believe the canal was a hazard for children at Petitioner's center on December 4, 2001, or at any other time. On the day of the re-licensure inspection, the Walsh's daughter was not at the center. Nonetheless, the Walshes expressed utmost confidence in Petitioner to care for their daughter. Since Petitioner's center has been closed, the Walshes have not placed their daughter in another center. It is their desire to return their daughter to the care of Petitioner. Keith and Sharon Delafield's daughter was in the care of Petitioner on the day of the re-licensure inspection and had been in Petitioner's care for about three years. Mr. Delafield testified that during the time that his daughter attended the center, he visited the center, was satisfied with the care his daughter received, and always found the home to be neat and clean. Mr. Delafield believes that his daughter was the child who was whimpering on the day of the re-licensure inspection because she does not like to take naps. However, Mr. Delafield does not believe that she would have gone out of the house without permission of Petitioner. Moreover, despite the events of December 4, 2001, the Delafields trust Petitioner "whole heartedly" with the care of their daughter. According to the Delafields, during the time that their daughter was in the care of Petitioner, there was not a day that she "came home unfed, unclean, untaught, or unloved." Mr. and Mrs. Delafield, are planning to have another child and when they do, it is their desire to place the child with Petitioner. Valerie Senden has had two children attend Petitioner's center even though it is a 30 to 40 minute drive from her house. Ms. Senden's decision to place her children with Petitioner was made after she visited six other centers, all of which she found unsatisfactory. The basis of her dissatisfaction was her observation of the way that children were treated at those centers. During the time that Ms. Senden's children attended Petitioner's center, Ms. Senden made unannounced visits to the center and also spent the day and various parts of the day at the center helping Petitioner. During these visits, Ms. Senden never saw anything that caused her to be concerned about Petitioner's care of the children. Had Ms. Senden seen anything she didn't like or that she believed to be improper, she would have "pulled her children out of the center." Since Petitioner's center was closed, Ms. Senden has not placed her children in another center. Diann Myrick has a son who attended Petitioner's center from about August 2001 until it was closed in December 2001. Ms. Myrick does not believe that her child was ever neglected by Petitioner and is completely satisfied with the care that he has received from her. Moreover, Ms. Myrick testified that every time that she has come to the center to pick up her son, the door is always locked. According to Ms. Myrick, with Petitioner's guidance, her son is learning discipline as well as receiving an education. Ms. Myrick believes that these are things that she has been unable to find in private day care centers. With regard to Petitioner, Ms. Myrick testified that Petitioner is a good caregiver, and that both the children and the parents love Petitioner. Ms. Myrick testified that she wants to put her son in Petitioner's center when and if it is re-opened. Eight letters of support for Petitioner substantiate the testimony at hearing. In these letters, parents whose children have been in the care of Petitioner describe her as "a wonderful teacher and caregiver," an individual who is "honest, competent, and genuine," and a "teacher with compassion, care, and respect for others." Petitioner's center is described as being "not just clean, but immaculate." The parents expressed satisfaction with the education and care that Petitioner provided to their children; indicated that they trust Petitioner to care for their children; and believe it would be a disservice to the children, the parents, and the community to refuse to allow Petitioner to re-open her center.
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 that denies Petitioner's application for renewal of her family child care home license without prejudice to her right to re-apply for such license in the future. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002.
The Issue The issue in this matter is whether the Department of Children and Families should grant Petitioner’s application for a license to operate a childcare facility.
Findings Of Fact The Department is the state agency charged with regulating providers who are licensed or registered to provide childcare in the State in Florida. On May 26, 2016, Petitioner applied to the Department for a license to operate a childcare facility. Petitioner submitted her application using the Department’s prescribed form CF-FSP 5017 (“Form 5017”). See Fla. Admin. Code R. 65C-22.001(1)(a). Petitioner named her desired childcare facility “Little Einstein’s Early Education Center” (“Little Einstein’s”). On May 27, 2016, the Department issued a letter to Petitioner notifying her that her application was incomplete. Of relevance to this matter, the Department informed Petitioner that she needed to complete section 3 of Form 5017 (“Section 3”). She also needed to sign and date her application. Section 3 is entitled ATTESTATION and queries, “Has the owner, applicant, or director ever had a license denied, revoked, or suspended in any state or jurisdiction, been the subject of a disciplinary action, or been fined while employed in a child care facility?” Section 3 includes boxes for the applicant to mark either “Yes” or “No.” Section 3 then states, “If yes, please explain: (attach additional sheet(s) if necessary).” Form 5017 further instructs that “Falsification of application information is grounds for denial or revocation of the license to operate a child care facility. Your signature on this application indicates your understanding and compliance with this law.” In her initial Form 5017 Petitioner submitted to the Department on May 26, 2016, she placed an “X” in the “No” box in Section 3. Following the Department’s letter on May 27, 2016, Petitioner ventured to the Department’s Orlando office to request assistance to complete her Form 5017. There, Petitioner spoke with Ida Lewis, a licensing counselor for the Department. Ms. Lewis reviews applications for childcare facilities as part of her job responsibilities for the Department. At the final hearing, Ms. Lewis confirmed that she reviewed the unsigned Form 5017 with Petitioner. Ms. Lewis testified that she specifically pointed out Section 3 to Petitioner because it is common for applicants to incorrectly mark that section. Together, Petitioner and Ms. Lewis completed Section 3. Ms. Lewis testified that Petitioner had initially marked “No” to the Section 3 question regarding prior disciplinary action. Ms. Lewis advised Petitioner that if she had ever been the subject of disciplinary action involving other childcare facilities, then Petitioner must document that history on the application. Ms. Lewis also counseled Petitioner that if her initial response in Section 3 was not correct, then Petitioner needed to mark the “Yes” box and add the name(s) of the prior childcare facility(ies) where the disciplinary action took place. Following their discussion, Petitioner appears to have followed Ms. Lewis’ instructions. On her Form 5017, Petitioner drew a line through the “No” box and initialed her correction. She then placed an “X” in the “Yes” box. Next to the boxes, Petitioner wrote “Wiggles & Giggles Learning Center I, II, III” (“Wiggles & Giggles”). Ms. Lewis accepted Petitioner’s application, then handed a copy back to Petitioner. On June 6, 2016, Petitioner resubmitted her Form 5017 to the Department. However, Petitioner did not file the version of her application that she completed with Ms. Lewis which included a “Yes” answer in Section 3 and the name Wiggles & Giggles. Instead, Petitioner’s second Form 5017 simply had the “No” box marked and did not include Petitioner’s reference to Wiggles & Giggles. Upon receiving Petitioner’s Form 5017, the Department reviewed whether to grant her application. The Department discovered that Petitioner was the subject of several prior Administrative Complaints while she was the owner and operator of Wiggles & Giggles III, another childcare facility licensed in her name. Petitioner’s disciplinary history included the following2/: On August 20, 2014, the Department issued an Administrative Complaint against Petitioner alleging that she did not timely renew her childcare license. The Department fined Petitioner in the amount of $50. On March 9, 2015, the Department issued an Administrative Complaint against Petitioner alleging that she committed a Class I violation by leaving an unscreened individual alone to supervise children in her care. The Department fined Petitioner in the amount of $500. On October 1, 2015, the Department issued an Administrative Complaint against Petitioner alleging that she committed a background screening violation. The Department fined Petitioner in the amount of $60. Consequently, Petitioner’s submission of her revised Form 5017 marking “No” in Section 3 to the question of whether she had been the subject of a disciplinary action was not true.3/ On July 5, 2016, the Department issued a letter to Petitioner denying her application for a license to operate Little Einstein’s. Ms. Lewis prepared the denial letter. She explained that the Department denied Petitioner’s application based on two reasons. First, the Department found that Petitioner falsified her application by failing to disclose prior disciplinary actions from her operation of Wiggles & Giggles III. Second, the Department determined that Petitioner’s prior violations made her unfit to receive a license to operate another childcare facility. At the final hearing, Petitioner did not deny that she was the subject of several disciplinary actions by the Department while operating Wiggles & Giggles III. Petitioner also expressed that she now understands that she incorrectly marked Section 3 of Form 5017. Regarding her submission of the revised Form 5017 marking “No” in Section 3, Petitioner testified that she initially left Section 3 blank. She wanted advice from the Department on the proper manner in which to complete her application. Following her meeting with Ms. Lewis, however, Petitioner stated that she was still confused about which box to mark. Petitioner recalled that she and Ms. Lewis agreed that “No” was the appropriate response. Therefore, after she initially answered “Yes” in Section 3, she changed her response to “No” on the version of her Form 5017 she submitted to the Department on June 6, 2016. Based on the competent substantial evidence presented at the final hearing, the Department presented sufficient factual and legal grounds to deny Petitioner’s application. Further, Petitioner failed to meet her ultimate burden of establishing, by a preponderance of the evidence, that she is entitled to a license to operate a childcare facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner’s application for a license to operate a childcare facility. DONE AND ENTERED this 12th day of January, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2017.
The Issue Whether Petitioner's license to operate a day care center should be suspended or revoked. Whether Petitioner's license to operate a day care center should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities. Respondent routinely conducts inspections of licensed child care facilities to determine whether facilities are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the facility's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on child care facilities which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect child care facilities at any time with or without notice. Petitioner is the owner and operator of a licensed child care facility located at 2625 North Hiawasee Road, Orlando, Florida, which is operated under the business name: Today's Kids Daycare Center (hereinafter "Petitioner's facility" or "the facility"). Petitioner has operated the child care facility at the above address for approximately five years and previously worked as director of another child care facility for five years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating child care facilities. The Incident Following a complaint, Susan Wujastyk, former child protective investigator for Respondent, interviewed the mother of the child, W.P., at the child's school on March 5, 2004, in relation to an alleged incident which occurred at Petitioner's facility on March 3, 2004. She then prepared a preliminary report and went to Petitioner's facility to investigate further. Respondent's child care licensing division was also notified and an inspector came to the facility, as well. On or about March 3, 2004, the child, W.P., a pre- kindergarten student at Petitioner's facility, swallowed an unknown solid substance while in Tangela Muskin's classroom. Muskin believed the substance to be rat pellets and lead W.P. to Petitioner, who was in another room, and told her of her suspicions. Petitioner, who had taken some nursing courses at the local community college, put on a rubber glove and swabbed the child's mouth to dislodge any other substances that might still be in the child's mouth. She also gave him some milk, with the intent to make him throw up. Petitioner then inspected the vomit but found no foreign substances in it. Petitioner did not call "9-1-1" for emergency assistance, nor did she call the poison control center. Instead, she observed W.P. for a period of time and sent him back to his classroom. Muskin also testified that she found the child, W.P., with a bag labeled rat pellets and claimed that Petitioner, in the presence of another employee at the facility, threw the rat pellets in the trash and told Muskin and the other employee not to report this to anyone. This statement is not credible. Petitioner testified that she attempted to call the child's mother, but could not reach her by telephone. Thereafter, she waited for the child's father to come and pick him up and she told him that W.P. had swallowed something but that Petitioner believed that she got all of the material out of his mouth. She advised him to take the child to the emergency room, but the father declined to do so. This statement appears to be credible. Susan Wujastyk inspected the facility on March 5, 2004, as part of her investigation of this matter and found two pellets under a toy chest in Muskin's classroom. Wujastyk thought they were rat pellets; however, that fact was never verified. An examination of the child, W.P., on March 5, 2004, found no evidence of ingestion of a toxic substance, and his condition was found to be stable. Petitioner retains a pest control company that performs regular services at the facility, but does not use rat pellets or any form of rodent control devices. Three of Petitioner's employees testified that they perform regular inspections of the facility and none of them ever found rat pellets or other toxic substances on the premises. Following the joint investigation, a joint report was prepared and approved by Respondent's staff, and it was recommended that Petitioner's license be revoked. Thereafter, on March 23, 2004, the acting district director sent a letter to Petitioner informing her that her license was being revoked and advised Petitioner of her right to "appeal" that decision through the administrative process. Subsequently, on June 10, 2004, Petitioner was sent a letter informing her that her license would not be renewed. The basis for the denial was the same as the revocation letter. At the hearing, Patricia Richard testified that she was particularly concerned that Petitioner was aware the W.P. may have swallowed a toxic and other dangerous substance and did not take immediate action to report it to "9-1-1" or the poison control center; and did not take it upon herself to take the child to a health care professional for examination but waited for the parents to arrive to inform them of the incident. Richard also testified that it was improper for Petitioner to put her fingers down the child's throat in order to induce vomiting. She characterized these as serious child safety violations and failure to follow proper emergency procedures. These were the primary reasons she recommended that Petitioner's child care license be revoked and not renewed. Petitioner, in her testimony, did not deny giving the child milk and swabbing his mouth with her finger, but did deny that she stuck her fingers in his mouth in order to induce vomiting. The evidence is not clear and convincing that the child, W.P., swallowed a toxic or hazardous material; and it is not at all clear from the evidence what it was that the child swallowed. However, it is clear that the child swallowed something that was suspected to be toxic; and when this fact was reported to Petitioner, she did not follow proper emergency procedures and did not properly notify the child's parents promptly. Petitioner has demonstrated that her license for a child care facility should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rule 65C-22.004(2)(d)1. and 2. (one count each). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rule 65C-20.010(1)(b) or similar provisions. Imposing a fine of $200, and a one-month suspension of Petitioner's license, followed by the issuance of a provisional license. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2004.
The Issue Whether Respondent proved by clear and convincing evidence the allegations contained in its August 27, 2004, letter denying Petitioner's licensure renewal application.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; exhibits admitted into evidence; stipulations and arguments of the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2004); and the record complied herein, the following relevant and material facts are determined: The Parties Respondent is the state agency responsible for licensing, inspecting, and regulating child care facilities, including family day care homes. Respondent is authorized to inspect a family day care home at any time. Regular and routine inspections, as well as inspections resulting from complaints received, are conducted of licensed family day care homes to ascertain whether the home is in compliance with applicable statutes and promulgated rules. Violations (or "non-compliances") of statutes and rules and/or other problematic situations found during inspections are noted on a hand-written inspection report. The inspector takes those noted non-compliance items back to the office and transfers them to Respondent's "Family Child Care Home Inspection Checklist" (Inspection Checklist).1 Inspectors may or may not discuss each non-compliance item with the home operator at the time of the inspection. On those occasions non- compliance items are discussed with the home operator, those items capable of instant correction are corrected before the inspector departs the premises. When appropriate, the Inspection Checklist provides a time frame within which the operator must correct the cited non-compliance item(s) indicated on the Inspection Checklist. The Family Day Care Home Facility Ms. Lanier is the provider and licensed owner of Lanier Family Day Care Home ("the care facility") located at 1039 Madison Avenue, Lakeland, Florida. Ms. Lanier is a tenant at this location, and Angela Lisbon and/or her relatives are the landlord. The Inspections and Cited Violations Tim Graddy conducted a re-licensure inspection of the care facility on August 7, 2003. Re-licensure inspections are conducted when the family child care owner's current license is about to expire, and the owner's application for re-licensure has been filed. The non-compliance items recorded on the Inspection Checklist were: operator's training in first aid not current, operator's CPR training not current, litter (foam cups) in the children play area, access to a road and a four-foot fence was "not provided"--the gate needed repair, floor mats not covered with impermeable surface, evidence of rodents/vermin in the home, one broken window needs replacement, no operative landline telephone available-only cellular telephone available, and supplies missing from first aid kit. At the time of Mr. Graddy's re-inspection on August 18, 2003, all non-compliance items recorded on the Inspection Checklist dated August 7, 2003, had been addressed and corrected by Ms. Lanier, but for the vermin infestation. However, Ms. Lanier's request of her landlord to exterminate the property to address the reoccurring problem of vermin infestation had occurred. On March 31, 2004, Nianza Green, another inspector, completed a routine child care licensing inspection of the child care facility. The non-compliance items noted by Ms. Green on the Inspection Checklist were: unsafe storage of materials dangerous to children was observed in that cleaning supplies were in an unlocked cabinet and in the bathroom; water hose, dirty towels, and some mops on playground--play areas in home not clean; and evidence of rodents/vermin in home--"most [sic] have professional pest control before next visit. Copy of inspection to be faxed or mailed to licensing office"; all parts of the home and premises including furnishings and equipment were not kept clean and sanitary; all parts of the home and premises including equipment, furnishings and plumbing were not kept in orderly condition; meals and snacks supplied by the operator were not of a quantity and/or quality to meet the daily nutritional needs of the children; soiled items were not disposed of in a plastic lined, securely covered container; potty chairs were not cleaned and sanitized after each use; diaper changing surface was not cleaned with a sanitizing solution after each use--used as a storage, cords and other harmful items on shelves of changing table; first aid kit missing some supplies; monthly fire drills not conducted; written record of fire drills not completed; operator did not have record of drills for the past six months; and neither DH Form 680, Certification of Immunization, nor DH Form 681, Religious Exemption from Immunization, was on file for child(ren). On April 29, 2004, Mr. Graddy conducted a routine inspection of the care facility. Mr. Graddy listed the following non-compliance items on the Inspection Checklist: unsafe storage of materials dangerous to children was observed in that disinfectant was left on lower shelf of changing table, children in the outdoor play space had access to a trafficked road/street, and fencing a minimum of four feet in height was not provided--top rail of fence broken in front corner of fence, and evidence of rodents/vermin--live bugs observed in kitchen. On August 11, 2004, Mr. Graddy conducted a re-licensure inspection of the care facility and listed the following non- compliance items on the Inspection Checklist: front gate is not in good repair and does not close properly, live bugs seen in kitchen, loose pieces of ceramic title in kitchen, no operable smoke detector, up-to-date and age-appropriate immunization record missing, and DH Form 3040 not available. On May 6, 2004, by certified mail, Respondent issued an "Intent to Impose Administrative Action" letter, citing that repeated violations were revealed during four inspections conducted on August 7, 2003; August 18, 2003; March 31, 2004; and April 29, 2004. For those repeated violations, Respondent levied a $330 fine.2 Respondent's Cross-Examination re: Inspection Checklist Regarding his August 7, 2003, inspection, Mr. Graddy acknowledged that the inspection report indicated no children were present during the inspection, and, thus, no children were in any immediate danger as a result of the cited non- compliances. The cited non-compliance, fence was "not provided," was, in fact, the gate itself closed but the latch did not close properly. Therefore, no children were in immediate danger. Mr. Graddy acknowledged that the August 18, 2003, re- inspection Inspection Checklist listed a non-compliance item contained in the August 7, 2003, Inspection Checklist, and that the August 7, 2003, non-compliance items had been corrected, but for the vermin infestation. Mr. Graddy was informed by Ms. Lanier that the exterminator (landlord) had been contacted and that he/she would exterminate the care facility. No children were present at the care facility during the August 18, 2003, inspection and, therefore, were not subjected to any harm or immediate danger. Ms. Green acknowledged that her March 31, 2004, inspection did not accurately reflect the conditions of the daycare. Specifically, she described the non-compliance item as the property was "cluttered up"; yet, she failed to describe in the inspection report what she meant by that term. Ms. Green's report indicated that the potty chair was not cleaned after each use; however, upon cross-examination, Ms. Green admitted that she never saw the potty chair being used by the one child in the care facility at the time of her inspection. Likewise, she reported that the diaper changing table surface was not cleaned after each use although she never saw the diaper changing table being used and had no idea whether the allegation had a basis in fact. Ms. Green's Inspection Checklist noted, "[t]he center was not stocked with adequate supplies of food," but she never checked the food cabinets and other storage areas. Ms. Green testified that a bucket was present outside the facility and presented a hazard to children, but she did not note this particular non-compliance on her Inspection Checklist. Ms. Green was unable to confirm that Ms. Lanier was even aware of the "bucket" non-compliance. Ms. Green's Inspection Checklist noted fire drills "had not" been conducted, when, in fact, she was fully aware that fire drills had been conducted on a monthly basis. Ms. Green knew the approved capacity of the care facility was ten children, but only one child was present during her inspection. She could not articulate whether the "missing" immunization records were missing for a particular child or children, if any. After her walk-through, Ms. Green spent little time in the care facility and chose instead to "work" (list her non- compliance items) in her car because she "was concerned about bugs" she believed to have been in the facility might adversely affect her computer. When asked if she advised or discussed with Ms. Lanier her problems and concerns, Ms. Green stated that her job was to "inform the supervisor of the inspecting." At the time of this inspection, Ms. Green had worked as an inspector for only three months. Regarding the April 29, 2004, inspection, Mr. Graddy noted one child present and that child "did not have access to disinfectant near the changing table." His notation, the "top rail of the fence broken in the far corner," was not a repeated violation of an existing problem previously noted. Mr. Graddy also testified that any gaps that existed in the fence were not in sections of the fence less than the required four feet height; therefore, no children were placed at risk or were endangered in any manner by the alleged condition of the fence. Regarding "vermin in the facility," Mr. Graddy acknowledged that he only saw "more than two," acknowledging more than two was not "infestation." Regarding the August 11, 2004, inspection, Mr. Graddy testified that his notation, "the fence [gate] would not lock," on the Inspection Checklist was made without him actually attempting to lock the gate, and, thus, he acknowledged his notation was speculation. He added that this particular problem was different from prior fence problems and did not constitute a repeat violation. The "broken tile" problem noted on this Inspection Checklist had not previously existed; likewise, this non-compliance was not a repeat violation. Mr. Gaddy's non-compliance notation, "smoke detector missing," was that in reality the smoke detector was "present," but the battery may have run down. Mr. Graddy gave Ms. Lanier until the next day to correct this problem, but he never checked back for compliance. Likewise, Ms. Lanier contacted the telephone company and had the landline telephone that was present in the care facility activated which corrected the "no landline telephone" non-compliance item. Regarding the medical records for children non- compliance items noted by Mr. Graddy, he did not check whether the missing medical records on file were for the four children present on the day he noted this item or other children who were not present. Thus, he was unable to identify any specific medical records that were missing. According to Mr. Graddy, "he always goes over the inspection report with the provider, gives them a date after which the noted infractions need be corrected." His above self- imposed inspection standard was later qualified by his admission that he did not provide Ms. Lanier an opportunity to correct/comply with non-compliances contained on his Inspection Checklist before declining renewal of her current license number F14PO0266. Immediately after the August 11, 2004, inspection, the Department determined to deny Ms. Lanier's license renewal application request. The $330 fine issued against Ms. Lanier by the Department on May 6, 2004, was based upon five facility inspections that had occurred on August 7, 2003; August 18, 2003; March 31, 2004; April 29, 2004; and August 11, 2004. Ms. Lanier paid the $330 fine on August 26, 2004. The Department accepted and deposited Ms. Lanier's $330 fine despite the obvious fact that the Department had decided to deny Ms. Lanier's pending license renewal application at the time it levied the fine and accepted her $330 payment of the fine. Ms. Lanier's testimony that she paid the $330 fine on August 26, 2004, with the understanding that her license renewal application would be granted, went unchallenged by the Department. On this particular point, the lack of challenge by the Department regarding this ambiguous statement, whether Ms. Lanier's understanding was induced by suggestion or silence or was assumed in the absence of explanation to the contrary by accepting the $330 fine, is resolved in favor of Ms. Lanier. Patricia Hamilton, child care licensing supervisor, did not personally perform inspections of this facility. She compiled the five inspection reports submitted by the inspectors, charted those inspections, and assumed each non- compliance item on each subsequent inspection was a repeated non-compliance item; when, in fact, they were not. Ms. Lanier testified that upon notice of vermin, she contacted her landlord who sprayed for bugs on regular monthly intervals. Ms. Lisbon, landlord's representative, confirmed that Ms. Lanier made more than one request for additional extermination of the property. Ms. Lanier testified that she addressed/corrected non- compliance items identified by the Department's inspector(s) during their several inspections of her facility. Many small items were corrected by the close of business on the day noticed. Items such as floor mats were replaced, foam cups and other debris in play area were removed, food supplies were available in storage in the house (during spring break the kitchen itself was not stocked as it would be during a normal school week), broken window was repaired, smoke detector battery was replaced, and first aid supplies were replenished. The continuous efforts demonstrated by Ms. Lanier evidenced a sincere intent and cooperative desire to comply with the Department's rules and regulations, noted and interpreted by the several inspectors at the time they inspected the facility, to provide a safe and necessary family day care home for working parents in her immediate community. The Department proved that the facility had a reoccurring bug problem. Without more, a "reoccurring bug problem," common in many areas, does not, ipso facto, equate to infestation.3 When noticed, Ms. Lanier did not fail or refuse to address this issue, she secured extermination and, from the property owner, requested monthly treatments thereafter. The Department did not allege nor introduce evidence of any probability that death, serious harm to the health or safety of any person would, could, or had resulted, nor evidence of the severity, the actual or potential harm, and the extent to which Sections 402.301 through 402.319, Florida Statutes (2004), had been violated. There is no evidence of record whatsoever that any child was harmed or evidence that a particular or a combination of specific non-compliance items, not timely corrected, presented a hazard to the children observed in the facility. The Department's post-hearing argument in vague terms such as "understandably concerned" and "were justified in expecting," "did not rehabilitate her or correct her propensity to violate," and "Department justifiably had enough" are statements open to more than one interpretation and does not constitute direct evidence of an objective standard by which to evaluate appropriate conduct or lack thereof.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order issuing to Petitioner a provisional license until the following conditions are met to the satisfaction of Respondent: Petitioner provides documentation that a licensed extermination service has serviced the facility for vermin. Petitioner provides documentation of a quarterly, semi- annually, or monthly service agreement between Petitioner and a licensed extermination service. DONE AND ENTERED this 18th day of April, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 18th day of April, 2005.
