Findings Of Fact Petitioner is the state agency responsible for regulating child day care facilities in Florida. Respondent, Caring Heart Preschool and Day Care, Inc. ("Caring Heart"), is licensed as a child day care facility for children, ages 1-12, pursuant to certificate number 1190-21. Respondent, Pamela McFarlane, is the owner of Caring Heart within the meaning of Section 402.302(7), Florida Statutes. 2/ Ms. McFarlane operates Caring Heart at 1408 West Michigan Street, Orlando, Florida, 32805. Michigan Street is a busy four lane street. On December 15, 1994, a four year old child left Caring Heart without the knowledge of his teacher or Ms. McFarlane. The child wandered outside the facility, left the premises, and crossed Michigan Street. The child was found by a bus driver. The bus driver returned the child to Caring Heart. Respondents failed to provide quality child care within the meaning of Sections 402.3015(1) and 402.302(3). Respondents failed to maintain direct supervision of the child within the meaning of Section 402.305(1)(d) and Florida Administrative Code Rule 10M-12.002(5)(a)2. 3/ The potential harm to the child was severe within the meaning of Section 402.310(1)(b)1. The period in which Respondents failed to maintain direct supervision of the child was substantial. The child had time to leave the premises, cross a busy four lane street, and converse with an adult who, fortunately for the child, took the time to secure the child's safety. Respondents' failure to maintain direct supervision of the child did not result in any actual harm to the child. Respondents have no history of any prior discipline.
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 $500. RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida. DANIEL 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 6th day of October, 1995.
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of child care facilities operating in the State of Florida. The Respondent is a licensed child care facility, Florida license number 400-9, located at 1221 South Washington Avenue in Apopka, Florida. On March 1, 2001, the Petitioner received a complaint related to alleged poor conditions at the Respondent facility, including unclean bathrooms, and unsupervised children. An investigator employed by the Petitioner was assigned to inspect the facility. He visited the child care center on the afternoon of March 1, 2001, and recorded his observations on an "inspection checklist." On March 1, 2001, the facility was observed to be "dirty and cluttered." One of the restrooms was unclean and apparently not functional. Additionally, three infants were left alone in a room without adult supervision. The closest adult to the infant room was conducting business with a customer and was not within sight of the children.
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 a fine of one hundred dollars ($100) against the Respondent. DONE AND ENTERED this 29th day of August, 2001, in Tallahassee, Leon County, Florida. 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 29th day of August, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street, Suite 1106 Orlando, Florida 32801 Carol Wiggins Central Avenue Child Care 1221 South Washington Avenue Apopka, Florida 32703 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 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 The issue in this case is whether Respondent's license to operate a child care facility should be revoked for alleged violations of Chapter 402, Florida Statutes (2002 through 2005),1 and Florida Administrative Code Chapter 65C-22 as set forth in the Administrative Complaint.
Findings Of Fact The Department is the state agency responsible for licensing and disciplining child care facilities. In carrying out its responsibilities, the Department conducts routine inspections of child care facilities, as well as inspections based on any complaints concerning a child care facility. Youth in Action is a child care facility located in Panama City, Florida. On February 5, 2003, Dia Green, who at that time was employed by the Department, conducted an inspection of Youth in Action based on a complaint. Ms. Green observed children in the two, three, and four-year-old age groups going to the restroom without direct supervision. A child at Youth in Action scratched his nose while going down the slide. Staff at Youth in Action did not document the incident on the day that it occurred. The facility did not have a staff person trained in first aid present during all operating hours. On March 10, 2003, Ms. Green made a routine inspection of Youth in Action. She found that Youth in Action had no documentation to show that monthly fire drills had been completed. On January 6, 2004, Ms. Green conducted a routine inspection of Youth in Action. Again, she found that Youth in Action lacked documentation to show that monthly fire drills had been completed. There were broken furniture and toys that needed to be removed from the facility. The immunization records for some of the children being cared for at the facility were incomplete. By letter dated January 22, 2004, the Department advised the owner/operator of Youth in Action, Sherlene McClary, that Youth in Action's license was being changed to provisional for failure to have a director meeting the credentialing requirements of Subsection 402.305(2)(f), Florida Statutes (2003). The provisional license was effective January 2, 2004, through June 1, 2004. On April 28, 2004, Lee Anne Case, a child licensing counselor employed by the Department, inspected Youth in Action. She found the staff-to-child ratio was not sufficient for different age groups. There was one staff person for seven children in the 0 to 12-month-old group. There was one staff person for seven children in the one-year-old group. There was one staff person for nine children in another one-year-old group. There was one staff person for 16 children in the two- year-old group. Ms. Case observed that, when the children were coming in from the playground, Youth in Action staff were leaving a child on the playground. The cook for the facility noticed the child and brought it to the attention of staff. Ms. Case found that areas in the facility were not in good repair. The carpet was dirty, had holes, and was fraying on the edges, creating tripping hazards. The thermostat was hanging by wires from the wall, and, when the thermostat was touched, the lights would flicker. There was a five-inch hole in the wall leading directly to the outside. The floor mats on which the children napped were torn. The bathrooms lacked supplies such as paper towels, soap, and toilet paper. During the April 28, 2004, inspection, Ms. Case found that diaper changing in the infant room was being done on a surface that was not impermeable. The container for soiled diapers was not covered and was accessible to children. Ms. Case also observed indoor and outdoor equipment which was not safe. Inside the facility, a changing table was broken, the power cord to a portable radio was accessible to children, and the air conditioning unit was not properly mounted, leaving sharp corners exposed. On the playground, there were exposed roots, which created a tripping hazard; broken toys were left in the area; and a picnic table was pushed up to the fence negating the required four-foot height requirement for the fence. Additionally, during the April 28, 2004, inspection, Ms. Case found that there was a lack of documentation to show that some of the staff members had completed the required 40-Hour Introductory Child Care Training. Personnel records for some of the staff were missing. The Department gave Youth in Action until May 5, 2004, to correct the deficiencies in the torn and dirty carpet, the thermostat, the hole in the wall, the debris and broken toys on the playground, the picnic table pushed against the fence, the air conditioning unit, the power cord to the radio, the personnel records, and the training requirements. On May 7, 2004, Youth in Action was re-inspected to determine if the deficiencies had been corrected. The carpet had not been repaired or cleaned. The hole in the wall had been filled loosely with paper towels. The playground still contained debris and leaves were piled next to the fence, eliminating the four-foot fence requirement. Sleeping mats were torn. The diaper changing in the infant room was being done on an impermeable surface. The deficiencies related to the changing table and the air conditioning unit had not been corrected. The deficiencies in the training documentation and the personnel records also remained uncorrected. Youth in Action was given until May 10, 2004, to make the necessary corrections. It was also noted during the May 7, 2004, inspection that the facility had a staff-to-children ratio deficiency. One staff person was observed with seven infants. One staff person was with seven children in the room for one-year-old children. In a second room with one and two-year-old children, there was one staff person for seven children. In one group of three and four-year-old children there were 17 children and one staff person. On May 13, 2004, another inspection was made of Youth in Action to determine if the deficiencies found on May 5, 2004, had been corrected. On May 13, 2004, sleeping mats in the one- year-old room were torn and needed to be replaced; the diaper changing pad was still torn; and the sharp corners of the air conditioner had not been eliminated. On August 11, 2004, Jason Kesterman, an employee of the Department, inspected Youth in Action. He found that the facility's plan of scheduled events was not posted in a place accessible to parents. Paper towels or air dryers were not available and within reach of the children in the bathroom next to the one-year-olds' room. Some of the staff of the facility had not completed the 40-hour mandatory training course within the allotted time frame, and some lacked the ten-hour training course. One of the staff did not have documentation of the initiation of training within the allotted time. The first aid kit for the facility lacked moist wipes and rubber gloves. On November 12, 2004, Ms. Case inspected Youth in Action. Numerous deficiencies were noted. There was an insufficient ratio of staff to children. There was one staff person for 16 children when there should have been two staff members. During nap time, there was insufficient staff accessible for the one-year-olds. Ms. Case observed a heavy- duty bathroom cleaner that was accessible to children. The floor mats for napping were torn. Staff did not clean and disinfect the diaper changing surface after each use. The pad on the diaper changing table was torn. The ground cover within the fall zone of the swings was not maintained. A rocking fish toy had sharp and jagged handles. One of the staff did not have documentation of one of the required ten-hour training courses. The director of the facility was not onsite a majority of the hours of operation. The first aid kit for the facility did not contain a thermometer, moistened wipes, and a guide on first aid. The facility did not have a staff member trained in current infant and child cardiopulmonary resuscitation present during all hours of operation. Diaper ointment was dispensed without written authorization from the parent. Some of the children did not have documentation of a student health examination. Personnel records for some of the staff were incomplete. On December 2, 2004, the Department issued an Administrative Complaint assessing a $500 fine against Youth in Action for failure to supervise a 19-month-old child who walked away from the facility. Youth in Action paid the $500 fine. On January 27, 2005, the Department notified Youth in Action that its license was being placed on provisional status effective December 1, 2004, for repeated violations of Florida Administrative Code Chapter 65C-22. The provisional license was to remain in effect until June 1, 2005. The Department advised the facility that inspections in addition to the routine inspections would be made of the facility to monitor the facility's compliance with Florida Statutes and the Florida Administrative Code. The facility was notified that "failure to immediately correct documented violations during your facility's inspections will leave the [D]epartment no alternative but to seek revocation of your license." Sherrie Gainer, an employee of the Department, inspected Youth in Action on January 19, 2005. She found cleaning supplies that were accessible to children as well as knives in a lower kitchen cabinet that was accessible to children. This deficiency was corrected at the time of the inspection. Ms. Gainer found that the director's file was not located at the facility. Some of the children's files were incomplete. Some of the personnel files for staff were incomplete. Youth in Action was given until January 31, 2005, to correct the deficiencies. On March 2, 2005, Ms. Gainer inspected Youth in Action. She found that there was a deficiency in the staff-to- child ratio. One group of children had seven three and four- year-old children and one one-year-old child. Such a mix required the supervision of two staff and only one staff was supervising. Ms. Gainer inspected Youth in Action on March 22, 2005. She found that the facility did not have complete records for some of the child care personnel. In response to a complaint, Ms. Gainer inspected Youth in Action on May 4, 2005. She found a staff-to-child ratio deficiency. There should have been two staff persons for eight children, but there was only one staff person supervising the children. She observed that there was an uncovered vent in the ceiling of the bathroom that allowed rain to enter the facility and that the toilet seats were loose. Ms. Gainer inspected Youth in Action on October 11, 2005. She found that the facility did not have documentation to show completion of a five-hour literacy training course by June 30, 2005, for staff hired on or before December 31, 2004. Additionally, records or copies of records were not being maintained at the facility for review by the Department. Files were being maintained across the street from the facility. On November 14, 2005, Ms. Gainer again inspected Youth in Action. A bathroom light did not work. Cleaning supplies in the kitchen were accessible to the children. Bedding did not fit against the crib, leaving a big gap. The bedding was dirty and brown in color. Several sheets found on the infant beds were badly stained. On November 29, 2005, Ms. Gainer re-inspected Youth in Action. Cleaning supplies in the kitchen were accessible to the children. A radio cord was hanging within reach of the children in the toddlers' room. Ms. Gainer inspected Youth in Action on December 20, 2005. There was a deficiency in the staff-to-children ratio. Two staff were needed for five children in the infant group, and only one staff person was supervising the five children. Ms. Gainer observed that the white lattice by the walkway was coming undone. On February 23, 2006, Ms. Gainer inspected Youth in Action and noted a staff-to-children ratio deficiency. There was one staff person supervising seven children, consisting of four one-year-olds and three two-year-olds. Two persons were required to supervise that particular age group. Based on a complaint, Ms Gainer made an inspection of Youth in Action on March 1, 2006, and she observed another staff-to-children ratio violation. One staff person was present with 18 children, three of whom were one-year-old and 15 of whom were two and three-year-old. Based on another complaint, Ms. Gainer made an inspection of Youth in Action on March 13, 2006. She found there were 13 children in one room watching television with one staff person. There were seven one-year-old children in with a group of two, three, and four-year-old children. On April 12, 2006, Ms. Gainer was advised by an employee of Youth in Action that the director of the facility was employed full time by the local school district and was not at the facility a majority of the operating hours. On April 13, 2006, Ms. Gainer inspected Youth in Action and found that the emergency plan was not posted. She observed a volunteer left alone supervising three one-year-old children in a classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Youth in Action violated Section 402.305, Florida Statutes, and Florida Administrative Code Rules 65C-20.001, 65C-20.002, 65C-20.003, 65C-20.004, and 65C-20.006, and revoking it license to operate a child care facility. DONE AND ENTERED this 29th day of January, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 29th day of January, 2007.
The Issue The issue in this case is whether Respondent should approve Petitioner's registration to operate a family day care home.
Findings Of Fact The Parties Petitioner is a 25-year-old female who admittedly has been providing unlicensed child day care in her home for the past several years. While she has no formal training in child care, she has been employed in the child care field for many years and obtained her GED in 1995. Petitioner has been married to her husband, A.P., for six years, and they live together. Respondent is the state agency responsible for regulating child care facilities pursuant to Chapter 402. The Application On September 18, 2002, Petitioner submitted an application to Respondent seeking licensure to operate a registered family day care within her home located at 6351 Redwood Oaks Drive in Orlando, Florida. Respondent processed the application and effectuated the required background screening of the individuals living within the household, including Petitioner and A.P. The screening of Petitioner revealed that on October 3, 2000, a young girl, living within Petitioner's home and under her supervision, was removed following a report to the abuse hotline and the subsequent investigation by Donald Griffin, a protective services investigator employed by Respondent. The screening of A.P. revealed that he was arrested in October 2000 on charges of lewd, lascivious assault or act on a child; prostitution; lewd or lascivious molestation; renting space to be used for prostitution; and lewd or lascivious conduct. The screening further revealed that on May 15, 2002, the State Attorney's Office determined that the case was not suitable for prosecution and filed a "No Information Notice." Upon receipt and consideration of the screening results, Respondent denied Petitioner's application on January 23, 2003, advising her that: . . . the Department is unable to approve your application to operate a family day care due to safety concerns for children that may be placed under your care for the following reasons: Background screening revealed that a child was removed from your care following an allegation of abuse or neglect. Background screening revealed that a member of your household lacks moral character due to their arrest record involving minors which would place the children at risk of harm. With respect to Petitioner's screening results, Petitioner admits that a child was removed from her home, but alleges that the removal was at her request. Petitioner denies any allegation of abuse and insists that the removed child, her friend's daughter, was "extremely unruly and too difficult to handle." As a result, Petitioner claims that she requested that Respondent remove the child and Respondent complied. Respondent's investigator, Mr. Griffin, testified otherwise. Investigator Griffin stated that he personally investigated Petitioner following a report to Florida's child abuse hotline. He separately interviewed both Petitioner and the child and noticed clear bruises and welts on the child. Investigator Griffin determined that Petitioner's home was not suitable for the young girl and removed her from the residence. Mr. Griffin's testimony was more credible. No evidence was offered to support Petitioner's assertion. With respect to the screening results of A.P., Respondent presented compelling evidence that A.P. lacks the requisite good moral character. First, Respondent demonstrated and Petitioner admits that A.P. occasionally gets angry and lacks self-control. In fact, the local police department has responded to domestic disturbance calls from the family home on at-least two occasions. In addition, the evidence surrounding A.P.'s arrest demonstrates that A.P. lacks good moral character. Specifically, A.B., the alleged victim of A.P., credibly testified at hearing that in October 2000, at age 12, she and her minor female friend, L.M. were walking near their school during the early evening when an unknown black male, later identified as A.P., driving a green sports utility vehicle, offered them a ride. The female minors entered his S.U.V. and were taken to a convenience store and then to a hotel. A.B. testified that while in the hotel room, the male inappropriately touched her butt, pushed her on the bed and solicited her to have sex with him for money. A.B. said "no" to his offer and asked him to stop. Shortly thereafter, the male departed the hotel and abandoned the girls in the hotel room with the room key. The police were contacted and investigator Rick Salcido conducted an investigation. After interviewing the girls, Mr. Salcido acquired physical evidence at the hotel linking A.P. to the room and supporting A.B.'s allegations. He retrieved a copy of A.P.'s driver's license and hotel credit card used at check-in from the hotel manager. In addition to the physical evidence linking A.P. to the hotel, A.B. positively identified A.P.'s photo as the perpetrator. Moreover, the investigator determined, and Petitioner admits that A.P. owned and drove a green sports utility vehicle at the time of the alleged incident. While Petitioner asserts that she and A.P. were out of town and on vacation on the date of the incident, she admits that they returned home at approximately 7:00 p.m. that evening. Although A.P. was subsequently arrested, the State Attorney's Office later declined to prosecute and filed a "No Information Notice." At hearing, counsel for A.P. indicated that the statute of limitations had not expired and A.P. invoked his Fifth Amendment privilege to remain silent. A.P. declined to testify and answer questions related to his moral character and the circumstances of his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for a registration to operate a child care facility. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 29th day of August, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Jeremy K. Markman, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 Paul 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 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
