The Issue The issue for determination in this proceeding is whether Respondent failed to maintain direct supervision of four minor children and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating child day care facilities in Florida. Respondent is licensed as a child care facility within the meaning of Section 402.302(4), Florida Statutes. 1/ Respondent is licensed to care for 36 children, ages 0-12, pursuant to license number 994-39. Ms. Augustina Peash is the owner of Augustina Academay within the meaning of Section 402.302(7). Ms. Peash operates Augustina Academy at 1307 Pinehills Road, Orlando, Florida, 32808. On April 7, 1995, Petitioner conducted a quarterly inspection of Respondent. Four children were alone with no direct supervision. Two children were sweeping the kitchen. Another child was alone in a classroom. An infant was alone in a crib in a room adjacent to the director's office. Ms. Augustina Peash was in the director's office. The potential harm to the children was not severe within the meaning of Section 402.310(1)(b)1. All of the children were on the premises of Augustina Academy and within close proximity of supervising personnel. The period in which Respondent failed to maintain direct supervision of the children was not substantial. Respondent's employees corrected the failure immediately. Respondent's failure to maintain direct supervision of the children did not result in any actual harm to the children. Respondent has a history of prior discipline within the meaning of Section 402.310(1)(b)3. On November 7, 1994, Petitioner cited Respondent for a similar violation. Petitioner informed Respondent in writing of the violation
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of the charges in the Administrative Complaint and imposing an administrative fine of $100. RECOMMENDED this 5th day of January, 1996, in Tallahassee, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996.
Findings Of Fact The abuse incident central to the underlying proceeding in this case was a sexual assault against a female child by an older male child, both of whom were residents at the Lee County Children's Home where L. T. was employed as a caregiver. The abuse occurred while the residents were on a trip to the beach with other residents of the facility. Three adults, one male and two female, accompanied a total of 19 residents to the beach. The residents did not remain together once at the beach. The males residents went with the male adult and the females remained with the females. A series of events resulted in L. T. being the only one of the three who was able to visually locate the residents. She became aware that not all the residents were accounted for and began to search for the missing children. She discovered that a sexual assault had taken place. Subsequent to the abuse incident, the DHRS received an abuse report related to the matter. The investigative report in this matter incorrectly indicates that an investigation was performed by Michael B. Gregory. Another investigator, Mike Hally, investigated the incident, and apparently forwarded the materials to his supervisor for review prior to closing the case. A substantial period of time passed without DHRS action on the matter, during which time Mr. Hally transferred to another DHRS job. Agency officials eventually decided to classify the case as "proposed confirmed." Because Mr. Hally was, for technical reasons, unable to close out the case file, the matter was brought to Mr. Gregory by Jane Pigott, a DHRS official, who directed Mr. Gregory to close the case as "proposed confirmed." L. T. was apparently notified of the matter and requested that the report be expunged. By letter dated November 21, 1991, the Department of Health and Rehabilitative Services informed Respondent L. T. (through counsel) that her request to expunge the report of abuse was denied. The letter stated, "[o]n August 20, 1990, the department received a report that your client failed to ensure proper supervision resulting in injury to a child. A child protective investigation took place and was classified as proposed confirmed. As a result of your request, the record was reviewed and determined to be classified correctly." Respondent L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding. At hearing, the evidence failed to establish that the injury to a child was a result of any failure by L. T. to ensure proper supervision of the child.
The Issue The issue in this proceeding is whether the Respondent committed the offenses described in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact Respondent, Child Care 2000, Inc. No. 2, is a licensed child care facility located in Wildwood, Florida. Clark Henning is employed by the Department and is responsible for overseeing child care facilities in Wildwood, Florida. Mr. Henning went to Respondent's facility on January 25, 2005, to perform a routine inspection. While conducting the routine inspection, he observed a group of 11 children of mixed ages and one staff member. He observed two of the children, which he believed to be between one and two years old, in the group of 11. The inspection report reflects that there were a total of 15 children and two staff members in the day care facility at the time of the report. When making inspections, Mr. Henning counts the children present and, if he has any question as to a child's age, he checks the facility's records to determine the child's age. He is not certain that he checked the facility's records on January 25, 2005, but believes there is a "high degree of possibility" that he did so. As a result of his observation of what he believed to be two one-year-olds in the group of 11 children, Mr. Henning found Respondent to be in violation of the required staff-to- children ratio. The staff-to-children ratio was the only category which he found to be in non-compliance on his written inspection checklist. He signed the inspection checklist and gave it to a staff member. The section of the inspection report entitled "Due Date" states, "Correction made at time of inspection." According to Mr. Henning, he did not seek to impose a fine because the Department does not routinely impose a fine on a first violation. Michelle Mayo is the staff member who signed for the January 25, 2005, report. Ms. Mayo disagrees with Mr. Henning's observations regarding the ages of the children present in the group of 11 children on January 25, 2005. Ms. Mayo was caring for four of the 15 children in the infant room. She took an infant and three one-year-olds with her to the infant room, leaving no children in the group of 11 under the age of two. Mr. Henning did not ask Ms. Mayo about the ages of the children. While both Mr. Henning's and Ms. Mayo's testimony were equally credible, Ms. Mayo was in a position of knowing first- hand the ages of the children she was caring for. Accordingly, the weight of the evidence does not establish that a staff-to- children ratio violation existed on January 25, 2005. On or about January 31, 2005, the Department received a complaint regarding Respondent's facility. On February 4, 2005, Mr. Henning went to Respondent's facility to make a surprise inspection. During the February 4, 2005, inspection, Mr. Henning found no evidence to support the allegations raised in the complaint he was investigating. However, he did observe fifteen children and only one staff member present. Mr. Henning identified the children's ages to be one infant, one one-year- old, and three two-year-olds. According to Mr. Henning, there should have been three staff members for this group of children for an appropriate child-to-staff ratio. His written report of the February 4, 2005, complaint inspection found Respondent to be in violation of staff-to- children ratio requirements. Again, the section of the report entitled "Due Date" states, "Correction made at time of inspection." A staff-to-children ratio violation is classified as a Class 2 violation in that there is potential harm to the children. As a result of his finding a class 2 violation, he issued an Intent to Impose Administrative Action which was again signed for by Ms. Mayo. Mr. Henning recommended imposing a fine upon Respondent to his supervisor, Diana McKenzie, because he found this to be a second violation of the same type. Ms. McKenzie made the final decision to impose a fine of $100 against Respondent. While the Administrative Complaint only references the February 4, 2005, incident, it is clear from the evidence presented that the Department's decision to impose a fine was based on the finding that this was a second violation of the same type. Alicia Barrett is President of the corporation which owns Child Care 2000, Inc. Ms. Barrett acknowledges that there was a brief period of time on February 4, 2005, when the facility was out of compliance concerning the staff-to-student ratio. According to Ms. Barrett, the problem was the result of a staff member whose car broke down on the way to work. One staff member arrived to open the facility. A second staff member was scheduled to arrive ten to 15 minutes later. However, it was that staff member whose car broke down. A third staff member arrived and left briefly to pick up the second staff member whose car had broken down nearby. Mr. Henning arrived after the staff member left to pick up her co-worker. After the February 4, 2005, incident, Ms. Barrett fired the staff member who left the facility to pick-up her co- worker while she should have been watching the children in her care. Prior to the incidents described herein, Respondent's facility had not received a citation for a staff-to-children ratio violation. The Department's Enforcement Fact Sheet reads in pertinent part as follows: The Department is given enforcement authority by sections 42.310, 402.311, 402.312, [sic]and 402.313, 402.3131, Florida Statutes, and shall take the following actions in accordance with the following guidelines: Require corrective action. -Corrective action plan documents all standards cited for non-compliance with corrective action, task, and due dates. * * * Impose an administrative fine. -If corrective action is not completed within specified time frame, an administrative fine may be levied.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order dismissing the Administrative Complaint issued against Respondent. DONE AND ENTERED this 3rd day of August, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2005.
The Issue At issue is whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalties should be imposed.
Findings Of Fact The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes. Section 402.311 authorizes the Department to inspect licensed child care facilities. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. A Step Above is a child care facility operating pursuant to License Number C07VO0425. The facility is located at 1122 Dr. Mary McLeod Bethune Boulevard, Daytona Beach, Florida 32114. Cynthia McGuire-Moore is the owner of A Step Above. Jennifer Overley works for the Department as a child care regulation licensing counselor. At the time of the hearing, Ms. Overley had worked in this position for two years. Ms. Overley was assigned to A Step Above as a licensing counselor. Among her duties was to inspect the facility on a regular basis to assure that it met the statutory and rule requirements regarding the ratio of staff to children. Ms. Overley testified that she first discovered a ratio violation at A Step Above on December 17, 2015. At the time, there was a requirement of one staff member for each four children. Ms. Overley observed a ratio of one staff member to seven children at A Step Above on that date. Ms. Overley testified that, under these circumstances, the licensing counselor is required to stay at the facility until the management brings it into ratio compliance. On this occasion, Ms. McGuire-Moore remedied the situation by having some parents come in and pick up their children. Because this was a first violation, Ms. Overley offered technical assistance and issued an administrative warning letter. Ms. Overley discovered a second ratio violation on March 30, 2016. She stated that Ms. McGuire-Moore was out of ratio in two rooms. In the first room, the ratio requirement was one staff person per four children, and the actual ratio was one staff member per seven children. In the second room, the required ratio was one staff member per four children and the actual ratio was one staff member per five children. Ms. McGuire-Moore was not at the facility when Ms. Overley first arrived. Ms. McGuire-Moore’s appearance restored the required ratio in one of the rooms. Ms. McGuire- Moore proceeded to rearrange the children in the second room to bring it into ratio. Ms. Overley testified that she issued an administrative letter to Respondent for the second violation. She also counseled Ms. McGuire-Moore regarding ratio violations and how to stay in ratio. Ms. Overley discovered a third ratio violation on June 16, 2016. At that time, a ratio of one staff person per six children was required, and she observed that the ratio was one staff person to nine children. Before Ms. Overley left the facility, another staff person arrived to bring it into the required ratio. The Department issued A Step Above a fine and another administrative warning letter. Ms. Overley testified that she discovered the fourth ratio violation on July 21, 2016. The ratio on that day was one staff member to ten children when it should have been one staff member to four children. Ms. Overley stated she stayed on-site until another staff person arrived. A Step Above was issued another fine, another administrative action letter, and was placed on six-months' probation. The probation period ran from October 2016 to February 2017. Ms. Overley also stated that during the probation period, she visited the daycare every month as required by law, and noted that A Step Above was in ratio for the entire term of its probation. Ms. Overley testified that in February 2017, the facility was placed on a provisional license because Ms. McGuire-Moore had allowed her director’s credential to lapse. Ms. McGuire-Moore received her new director’s credential in October 2017 and A Step Above was shortly thereafter returned to the status of a regular license. At the outset of the hearing, the Department stipulated that its revocation action was based only on the facility’s repeated ratio violations and not on Ms. McGuire-Moore’s lapsed director’s license. As to the fifth and final ratio violation that led the Department to seek revocation of A Step Above’s license, Ms. Overley testified that she went to the facility on September 21, 2017, to check on the status of Ms. McGuire- Moore’s director’s credential renewal. While there, Ms. Overley noted that the facility was once again out of ratio. The required ratio was one staff person per four children, and A Step Above was at one staff person per twelve children. Some of the children were infants. Because this was the fifth ratio violation, the Department began revocation proceedings. Ms. Overley testified that she had several conversations with Ms. McGuire-Moore as to the need to remain within ratio. Ms. Overley suggested that the facility reduce the need for employees by enrolling older children and declining to care for infants and one-year-olds, whose care requires more staffing. Ms. Overley testified that she conducted an inspection of A Step Above on December 15, 2017, while this formal hearing on revocation was pending. She observed the facility to be out of ratio yet again, with a ratio of one staff person per eight children, when the proper ratio was one to four. Ms. Overley was unsure how to proceed, as the revocation process was already underway and a formal hearing was scheduled. She consulted her supervisor, and together they determined that a cease and desist letter should be issued to A Step Above. Ms. Overley delivered the cease and desist letter on December 22, 2017, with directions that A Step Above should close its doors by December 29, 2017. Ms. Overley testified that she has since gone by the facility three times and has observed no activity. Family services counselor supervisor Betsy Lewis testified regarding the matrix that the Department follows when it discovers violations. Ms. Lewis testified that chapter 402 sets forth the Department's enforcement procedures and standards. Violations are classified according to their severity, with Class I being the most severe and Class III being the least severe. The ratio violations in this case are Class II violations, indicating that there is no imminent danger to a child, but there is the potential for harm. Ms. Lewis testified that Department rules provide for progressive discipline for repeated violations. As to Class II violations, a first violation would result in only a citation and technical assistance to the daycare. A second Class II violation results in a $50.00 fine, and a third Class II violation results in a $60.00 fine. A facility receiving a fourth Class II violation is usually placed on probation, as A Step Above was in this case. A fifth violation requires the Department to suspend or revoke the daycare’s license and to impose a fine of up to $100.00. Under all the circumstances, the Department chose to seek revocation and a $50.00 fine. Ms. McGuire-Moore testified on behalf of A Step Above. She did not contest the violations, but also declined to take responsibility for them. She blamed her employees for not showing up on time. Ms. McGuire-Moore also stated that she had been unaware that a daycare’s license could be revoked for repeated ratio violations.
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 revoking License Number C07VO0425 issued to A Step Above Christian Academy, LLC, d/b/a A Step Above Christian Academy, LLC. DONE AND ENTERED this 21st day of March, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 21st day of March, 2018.
