The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
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 the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 9th day of February, 2017.
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
The Issue The issues to be determined are whether Respondent committed the violations as alleged in the Administrative Complaint (AC), and, if so, the appropriate penalty.
Findings Of Fact DCF is the state agency responsible for licensing child care facilities and enforcing regulations to maintain the health, safety, and sanitary conditions at those facilities operating in the State of Florida. See §§ 402.305-.311, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. In order to fulfill its regulatory duty, DCF conducts complaint and routine inspections. The factual allegations, as stated in the AC, provide the following: a. On December 20, 2018, the Department received an allegation that the owner/ director of the facility hit a child on the face with a ruler and slapped him. The teacher also hit another child on the chest with a ruler and that a child had slight bruising and a round scratch under his left eye. The Department conducted an investigation into these allegations starting on December 28, 2018. At the conclusion of the investigation, the Department determined the facility committed Class I violations of child care facility standards for child abuse and unscreened individuals. Licensing Counselor, Tiffani Brown, along with a Child Protective Investigator (CPI) Barbara Smith commenced their investigation on December 28, 2018, after the facility reopened from the holidays. They met with the owners [sic] daughter, Danita Gaines and spoke to the owner via the phone. While at the facility, Counselor Brown questioned Anthony Council, who stated he does help take care of children. Mr. Council was located in a room with children present. Mr. Council is not background screened and was ordered to leave. The owner, Cloe Gaines was on vacation and would not return until 1/2/19. Counselor Brown and CPI Smith returned to the facility on 1/2/19 to speak to the owner. Ms. Cloe Gaines was interviewed, and she stated she is a foster parent. Due to the allegations, Ms. Cloe Gaines was handed a restriction letter, which she signed and left the facility. Counselor Brown and CPI Smith interviewed Ms. Cloe Gaines [sic] foster children. The first foster child, G.M. said for punishment Ms. Cloe Gaines makes him go to sleep. The second foster child, M.M. continued to nod her head indicating yes when asked if he gets spanked for punishment. Counselor Brown and CPI Smith interviewed four other children at the facility. The first child, A.J. stated that Mrs. Cloe whips them with a belt or ruler on the arms and hands. The second child, A.J. stated that Mrs. Cloe hits people if they be bad. The third child, O.E. said that Mrs. Cloe hits them if they are bad with a blue ruler that she keeps in her desk. The last child, T.J. stated that they get hit with a pink and purple ruler that is kept in the classroom. The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified. Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations: a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C. b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC. Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month. Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy. On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018. Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018. CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview. During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines. B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer. Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview. CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019. When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview. A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also. In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck. During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads. On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later. During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present. Mr. Council admitted that Ms. Gaines had told him (Mr. Council) to get the required background screening completed, but he had not done so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order revoking the license of CG Academy. DONE AND ENTERED this 4th day of June, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2019.
The Issue The issue is whether the Beatrice Guardian Angel Daycare violated provisions of chapters 402 and 435, Florida Statutes (2012), and/or Florida Administrative Code Chapter 65C-22, such that its license should not be renewed.
Findings Of Fact The Department is the state agency responsible for inspecting, licensing, and monitoring child care facilities such as the one operated by the Daycare. It is the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department inspects each licensed day care center three times a year: two unannounced routine inspections (to ensure compliance with the applicable laws and rules), and one renewal application inspection. In the event of a complaint, additional inspections and/or investigations are conducted. Ms. Giles owned, operated and directed the Daycare. The Daycare located on West Lancaster Road opened in November 2011, and was in continuous operation at all times material.6/ Ms. Giles opened the Daycare at this particular location after operating it at a different location. Luz Torres is a family service counselor for the Department. Ms. Torres is trained to inspect day care centers for initial applications, renewal applications and routine inspections. Ms. Torres is familiar with the Daycare, having inspected it several times while it was operational. Inspections of the Daycare revealed operational deficiencies during four inspections, dated February 15; June 20,; July 2,; and November 7, 2012. The specific deficiencies were set forth on inspection reports provided to Ms. Giles at the time of each inspection. Ms. Torres conducted a routine inspection of the Daycare on February 15, 2012 (inspection one). A number of areas of noncompliance areas included physical environmental issues, such as insufficient lighting, gaps in fencing, ground cover for outdoor equipment, and training. Other areas included: a lack of documentation of employee educational courses showing literacy and developmental course training, a 40-hour child care course, and 10 hours of in-service training; items in the first aid kit were missing; deficiencies in food and nutrition, such as unlabeled bottles and sippy cups; and deficiencies in children's health and immunization records, personnel records, and background screening. The Department issued an "Administrative Warning Notification" (notification) to Petitioner based upon the following violations: "[T]he facility's fencing, walls or gate area had gaps that could allow children to exit the outdoor play area. The gate was observed broke [sic] with gaps on both sides." This notification advised Petitioner that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." On June 20, 2012, Ms. Torres conducted a routine inspection (inspection two) of the Daycare. The noncompliant areas included: missing documentation for some children's immunization records; missing documentation of ten hours of in-service training for the Daycare's director; and missing documentation of background screening documents, including an affidavit of good moral character for employees. A second notification7/ (dated June 20, 2012) was issued to the Daycare following inspection two. This notification involved issues regarding a child's health and immunization records, and missing documentation for employees. One child's immunization records had expired. Four staff members were deficient regarding in-service training logs, and an additional staff member had not received the level two screening clearance. In response to a complaint (complaint one), Ms. Torres conducted an investigation of the Daycare on July 2, 2012. The Daycare was found to be out-of-ratio regarding the number of children to staff, and background screening documentation for level two screening for staff members was missing. In a mixed group of children ages one and two years old, the ratio of one staff for six children is required. At the time of the complaint one investigation, there was one staff per eight children. Although this ratio issue was rectified during the complaint one investigation, it was and is considered a violation. The documentation for the level two screening violation for the staff was not corrected during this investigation. A third notification was issued to the Daycare following the complaint one investigation. This notification involved the staff-to-child ratio, and the lack of background screening documentation. The Daycare was notified that the appropriate staff-to-child ratio must be maintained at all times, and the missing Level two screening documentation had to be resolved. This notification advised the Daycare that the "next violation of a licensing standard outlined in this notice, [would] result in an administrative fine." 8/ On August 1, 2012, the Daycare was notified that its license would expire on November 29, 2012. The Daycare's renewal application was due 45 days before the expiration date, or before October 15, 2012. The denial letter set forth that the Daycare's renewal application was filed on October 30, 2012.9/ In June 2012, Ms. Giles became aware that her daughter, Alexis Anderson, had a drug addiction problem when Ms. Anderson's baby was born addicted to drugs. Ms. Anderson and her two children were required to live with Ms. Giles while Ms. Anderson addressed her addiction problem. Ms. Anderson's two children attended the Daycare. Ms. Anderson would visit the Daycare to see her children. On November 7, 2012, as a result of another complaint (complaint two) being filed, DCF conducted an investigation of the Daycare. Ms. Giles reported that on two different occasions, two small bags were found at the Daycare. One small empty bag was found in the Daycare's common hallway. A second bag was found on a desk in the Daycare's office and contained a white residue. After the second bag was found and Ms. Giles was told by an employee what the bags might be used for ("people transport drugs in"), she suspected that Ms. Anderson might have left the bags at the Daycare. Also, after finding the second bag, Ms. Giles banned Ms. Anderson from the Daycare. There was speculation that the two bags contained an illegal substance; however, the two bags were discarded before any scientific testing could be done or any photographs could be taken. There is simply no proof as to what was in either bag.10/ There was no clear and convincing evidence that Ms. Anderson supervised or tended to children other than her own while she was at the Daycare. There was clear and convincing evidence that Ms. Anderson was at the Daycare on multiple occasions and had access to every room and child/children there. Ms. Anderson did not have the appropriate level two screening. In addition to investigating complaint two, child care regulations counselor Christina Bryant also observed inadequate ratios between staff and children, and a lack of qualified or unscreened individuals supervising children. Ms. Bryant observed one staff for five children in the zero to twelve month age group (ratio should be one to four), and she observed one staff to nine children, in the one-year-old classroom (ratio should be one staff to six children). Upon completing a review of the Daycare's record keeping, Ms. Bryant also found that background screening documents were missing for staff members. On November 14, 2012, Child Protective Investigator (CPI), Beauford White was directed to go to the Daycare and remove Ms. Anderson's two children from the Daycare.11/ When CPI White advised Ms. Giles he was removing the children from the Daycare, Ms. Giles became very emotional, and initially told CPI White he could not take the children. CPI White contacted his supervisor who directed CPI White to contact the Orange County Sheriff's Office (OCSO) for assistance in removing the children. Between the time the OCSO was called and when the deputy arrived, approximately 45 to 60 minutes, CPI White had obtained compliance, and Ms. Giles released the two children to his custody.12/ On Thursday afternoon, November 29, 2012, Ms. Giles was asked to attend a meeting on Friday, November 30, 2012, in the Department's legal office regarding the Daycare's license. Because of the short notice, Ms. Giles was unable to obtain an attorney to accompany her to the meeting on November 30, 2012. Ms. Giles attended the meeting by herself with a number of Department staff. Ms. Giles was given the following option: execute a relinquishment of the Daycare's license, or the Department would seek to revoke the license. Ms. Giles did not know the law. Ms. Giles executed the relinquishment13/ of the Daycare's license because she was thinking that "revoke sound[ed] horrible to" her. She did not want to relinquish her license, nor close her business, but she did not feel she had any choice in the matter. The totality of the circumstances under which Ms. Giles found herself renders the "relinquishment" less than voluntary. After this meeting, Ms. Giles returned to the Daycare and was present when Ms. Torres removed the Daycare's license from the wall. Mytenniza Boston, a Daycare employee, was also present when Ms. Torres removed the license. Ms. Giles did not tell Ms. Boston or any of the other Daycare employees that the Daycare's license had been relinquished, nor did she start notifying parents of the Daycare's closing. On Monday, December 3, 2012, around noon, Department investigators arrived at the Daycare and found children in the opened facility. Ms. Giles was at the Daycare making telephone calls to parents asking them to come pick up their child or children. The Daycare was open for business despite the fact that Ms. Giles had relinquished her license on Friday, November 30, 2012. On occasion Pervis Giles, Ms. Giles' then husband would walk to the Daycare to talk with Ms. Giles. Mr. Giles would also cut the Daycare's grass, unlock the Daycare's door for daily operations, and participate with Ms. Giles in making business decisions about the Daycare. Ms. Giles did not consider these activities to be working for the Daycare; however, common sense dictates otherwise. Ms. Giles has several children. At various times during the Daycare's operation, Ms. Giles' children were at the Daycare volunteering, cleaning up or helping with the Daycare children in some fashion. Ms. Giles' children did not have the required level two background screening as Ms. Giles did not know that her children needed to be screened. Ms. Giles' lack of understanding regarding who is required to be screened is troublesome. Ms. Giles has been in the daycare business for many years, yet she failed to comply with basic safety measures.
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 the renewal application. DONE AND ENTERED this 22nd day of July, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2013.
The Issue At issues are whether Respondent committed the violation alleged in the Administrative Complaint; and, if so, what penalty 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 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. Ms. Hall owns and operates the child care facility doing business as Children of Liberty pursuant to License Number C04DU0101. The facility is located at 232 East 19th Street, Jacksonville, Florida. Ms. Hall testified that she has operated the facility for 21 years. C.R. was born on October 21, 2013. C.R. was four years old on August 27, 2018, the date of the event that precipitated the investigation in this case. L.S. is the mother of C.R. She enrolled C.R. at Children of Liberty from November 2017 through early August 2018. As of August 9, 2018, L.S. withdrew C.R. from Children of Liberty in order to enroll him in “big boy school,” i.e., the voluntary pre-kindergarten (“VPK”) program at North Shore Elementary School (“North Shore”). Because of his age, C.R. was not yet eligible to attend kindergarten in a Florida public school. See § 1003.21(1)(a)2., Fla. Stat. Therefore, C.R. was not a “school-age child” for purposes of Florida Administrative Code Rule 65C-22.008, or the “School-Age Child Care Licensing Handbook” adopted by reference therein. Supervision of C.R. was governed by the Department’s “Child Care Facility Handbook,” adopted by reference in rule 65C-22.001(6). L.S. is a full-time nursing student during the week and works at Panera on the weekends. She testified that her only support system in Jacksonville is her grandparents, both of whom are in precarious health. L.S. stated that it would be very difficult for her to take C.R. to VPK given her school schedule. She was hesitant to place C.R. on a school bus at his young age. She had hoped that her grandparents would be able to help her get C.R. back and forth from the North Shore VPK program, but her grandfather told her that he was unsure of their ability to do so. After discussing the situation with Ms. Hall, L.S. re- enrolled C.R. at Children of Liberty because Ms. Hall agreed to take C.R. to and from his VPK program. L.S. would drop off C.R. at Children of Liberty at 7:30 a.m. C.R. would be given breakfast and then be driven to VPK by 8:00 a.m. Ms. Hall then would pick up C.R. in the afternoon and keep him at Children of Liberty until L.S. could pick him up at 4:30 p.m. North Shore requires its students to wear uniforms. The uniform for North Shore is royal blue, navy blue, or white shirts, and black, khaki, or navy blue pants. Parents sometimes send their children to school out of uniform, but the school sends reminders home to inform the parents of the correct uniform colors. Children are not sent home for being out of uniform. C.R.’s first day of being transported to North Shore by Ms. Hall was August 27, 2018. L.S. brought C.R. to Children of Liberty that morning. C.R. was dressed in the uniform for North Shore. L.S. testified that she had made it clear to Ms. Hall that C.R. was attending North Shore. L.S. was taken aback that morning when Ms. Hall mentioned that C.R. would be attending Andrew Robinson Elementary School (“Andrew Robinson”). L.S. corrected Ms. Hall, reminding her that C.R. was going to North Shore. Ms. Hall said, “That’s right, that’s right.” Ms. Hall denied that any such conversation took place and denied that L.S. ever told her that C.R. was attending North Shore. Ms. Hall testified that when L.S. first broached the subject of C.R.’s needing school transportation, she told L.S. that she drove only to Andrew Robinson. Ms. Hall believed that L.S. understood that Andrew Robinson was the only option for transportation from Children of Liberty to school. Ms. Hall testified that on two occasions prior to August 27, 2018, L.S. asked her to pick C.R. up from school in the afternoon. On both occasions, Ms. Hall drove to Andrew Robinson and did not find C.R. there. She assumed that C.R.’s grandparents had picked him up. Ms. Hall stated that she had no reason to believe she had driven to the wrong school because she never heard a complaint from L.S. about her failure to pick up C.R. C.R.’s enrollment form at Children of Liberty indicated “Andrew Robinson” as the school attended by the child. However, this form was completed by L.S. well before she enrolled the child in VPK. The “Andrew Robinson” notation was made later, apparently by Ms. Hall, and is therefore at best indicative of Ms. Hall’s state of mind on August 27, 2018.2/ Ms. Hall drove another child, K.A., to Andrew Robinson every morning. K.A. was born on January 12, 2013. She was five years old on August 27, 2018, and eligible to attend kindergarten at a Florida public school. Therefore, K.A. met the Department’s definition of a “school-age child.” On the morning of August 27, 2018, K.A. was wearing the uniform of Andrew Robinson. The Andrew Robinson uniform varies depending on the day of the week, but the uniform shirts are required to bear the school’s logo. However, as with North Shore, children are not sent home or disciplined for failing to wear the correct uniform. On this day, the Andrew Robinson uniform was green or pink shirts with khaki, blue, or black pants. Ms. Hall testified that she generally pays little attention to the uniforms the children are wearing. Her experience is that children often go to school out of uniform. The Children of Liberty transportation log for August 27, 2018, shows that C.R. and K.A. left the child care facility at 8:15 a.m. It is undisputed that Ms. Hall was driving the children in a van. Billing records for Ms. Hall’s cell phone show that she phoned or attempted to phone L.S. at 8:15 a.m. on August 27, 2018. The call lasted one minute. Ms. Hall phoned or attempted to phone L.S. again at 8:16 a.m. This call lasted two minutes. Ms. Hall had no explanation for why she phoned L.S. at the precise time she was also driving C.R. to school. She speculated that she must have been returning a call from L.S., but produced no documentation to support her theory. The Children of Liberty transportation log indicates that Ms. Hall dropped off C.R. and K.A. at Andrew Robinson at 8:18 a.m. Ms. Hall testified that she pulled up at the front of the school, made sure that the school patrol and teachers were at the drop-off point, and dropped off the children. Ms. Hall stated that C.R. told her that he knew where to go. She did not personally hand the child off to responsible school personnel at the drop-off point. Ms. Hall’s practice of dropping off the students was acceptable under Department standards for K.A., who was a school-age child. See Section 2.5.2, “Driver Requirements,” of the School-Age Child Care Licensing Handbook. However, C.R. was not a school-age child. Ms. Hall was required by Department standards to directly place C.R. into the care of an authorized individual from the school. See Section 2.4.1E of the Child Care Facility Handbook. Ms. Hall claimed that Department rules prevented her from leaving the van to ensure that an authorized individual took over supervision of C.R. However, the Department standard referenced by Ms. Hall requires only that the correct staff-to- child ratio be maintained during transportation. See Section 2.5.4.C of the Child Care Facility Handbook. Because Ms. Hall was dropping off both of the children in her van, nothing prevented her from exiting the van to make sure that C.R. was received by an authorized individual at the school. Had Ms. Hall escorted C.R. onto the Andrew Robinson campus, she likely would have learned the child was not enrolled at that school. The school patrol at Andrew Robinson realized that C.R. was not a student there. They brought C.R. to school staff, who took him to the main office. They looked through the child’s backpack and found paperwork indicating C.R. was enrolled at North Shore. They contacted their counterparts at North Shore, who in turn contacted C.R.’s family. L.S. testified that she learned of the situation from her grandmother, who had received the call from North Shore. She was not sure why they called her grandmother first, but shortly thereafter she got a call from the principal of North Shore. L.S. was informed that the school could not undertake the liability of transporting C.R. and that she would have to pick him up at Andrew Robinson and deliver him to North Shore. She drove to Andrew Robinson and picked up C.R., then headed to Children of Liberty to find out why Ms. Hall dropped her child off at the wrong school. C.R. was at the wrong school for at least an hour before his mother picked him up. Ms. Hall testified that L.S. cursed and threatened her bodily harm upon her arrival at Children of Liberty, although no physical altercation took place. L.S. conceded that she was very angry and used inappropriate language, though she said much of her anger was due to Ms. Hall’s refusal to take responsibility for taking C.R. to the wrong school. L.S. never took C.R. back to Children of Liberty after August 27, 2018. Ms. Hall testified that she believed C.R. was enrolled at Andrew Robinson. Her phone calls to L.S. during the drive to the school raise the question of whether she was in doubt about the matter. Her alteration of C.R.’s enrollment form, and her unlikely story about her two attempts to pick up C.R. at Andrew Robinson, also call into question her good faith belief that the child attended Andrew Robinson. As she stated repeatedly, Ms. Hall had no reason to drop off the child at the wrong school. Nonetheless, Ms. Hall took on the responsibility for C.R.’s safe transport to and from his VPK. Even giving full credit to her good intentions does not change the fact that she left C.R. at the wrong school and, in so doing, failed to supervise the child in accordance with the standards set forth in the Department’s rules and Child Care Facility Handbook.
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 finding that Respondent provided inadequate supervision in violation of Section 2.4.1E of the Child Care Facility Handbook, and imposing a fine of $250.00 upon Terri Hall, d/b/a Children of Liberty Child Care Center. DONE AND ENTERED this 1st day of May, 2019, 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 1st day of May, 2019.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family day care home should be denied based upon the reasons asserted in the denial letter.
Findings Of Fact The Petitioner, until denial of licensure, owned and operated a licensed day care facility, licensed under Chapter 402, Florida Statutes. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering and regulating the statutory and regulatory provisions governing entry into and licensure of the business of operating day care facilities and with regulating the practice of day care facilities and operators such as the Petitioner. Witness Tamika McConner is the mother of a child who was placed by Ms. McConner in the Petitioner's day care facility under Petitioner's care at the time pertinent hereto. Ms. McConner maintains that the Petitioner struck her child with a sandal while they were in the Petitioner's car or van on one occasion and that the Petitioner did not see to it that the child ate properly or at the proper times while in her facility. The Petitioner denies these occurrences or indications of improper child care. The evidence show that there is a hostile relationship between Ms. McConner and the Petitioner, apparently stemming from a check written by Ms. McConner for services to the Petitioner which was returned for insufficient funds and concerning which they apparently had a dispute. Under these circumstances, it is not found that Ms. McConner's testimony is preponderant evidence to establish that the occurrences she related actually happened. Moreover, as near as can be gleaned from the paucity of concise pleadings of the agency's allegations, this incident or incidents was not the subject of the report which led to license denial. On or shortly before October 3, 1996, an abuse report was received by the above-named agency concerning a child T.S. T.S. was enrolled in the care of the Petitioner in her day care center. An incident occurred that day when the Petitioner was taking the children in her charge to the Regency Mall for shopping. While at the mall, when the Petitioner was in a store shopping with the children, the child T.S. got to close to her and almost knocked something over on a shelf in the store. The Petitioner maintained that the child was so close to her that she contacted him when she turned around and it caused her to lose her balance and start to fall with the result that she reached out, accidentally knocking the child to the floor. Instead, however, witness Quinones testified and at least one witness in the store verified to the Department's investigator (see Respondent's exhibit 5 in evidence and the testimony of Mr. Gore) that the Petitioner struck the child in anger and knocked him to the floor. Ms. Quinones testified that the child didn't cry but was visibly shaken and Ms. Quinones was concerned that the Petitioner appeared to lose control of her temper on that occasion. Witness David Gore of the Department of Children and Family Services is in the business of inspecting and licensing child care facilities and has owned and operated a child care facility himself. He inspected the Petitioner's facility and found deficiency problems involving immunization records, some sanitary conditions, inoperative smoke detectors and hazardous household products left in reach of children, an incomplete first aid kit and paint and lumber left in the play area. The paint and lumber was there temporarily for the purpose of building a swing set for the children. The deficiencies were promptly corrected by the Petitioner. These deficiencies, however, were not the basis for the notice of licensure denial to the Petitioner however. Witness Roxanne Jordan testified on behalf of the Petitioner. The Petitioner cares for her child or did before the licensure problem arose and said she never had a problem with the Petitioner's care for her child nor did she observe any deficiencies or improprieties in the care of other children she observed at the Petitioner's facility. Ms. Jordan's describes the Petitioner as an excellent caregiver for children. This testimony is corroborated by substantial number of "testimonial letters" from people who have experience with her child care activities, in evidence as "corroborative hearsay." These served to establish that indeed the Petitioner is a caring, compassionate keeper of children in the operation of her day care facility and in the course of her duties baby-sitting for friends' children before she was licensed as a day care facility operator. The Petitioner is in earnest about pursuing the profession of child care and becoming re-licensed to do that. The Petitioner has demonstrated a long-standing interest and aptitude for caring for children. Indeed, in the last two years, she has earned approximately 55 hours of educational training at Florida Community College in Jacksonville in courses generally applicable to the profession of child care. The direct, competent evidence of record and the corroborative hearsay evidence in the form of testimonial letters, from people who have experience with her child care skills and her personality, establish that she has been, in most ways, a competent child care facility operator and caregiver for children and has the capability of becoming more so. In order to justify her re- licensure, however, she must demonstrate a willingness to and a capability of controlling her anger and enhancing her positive child discipline skills.
Recommendation Accordingly, in consideration of the greater weight of the evidence, supportive of the above findings of fact and these conclusions of law, it is
The Issue The issue in this proceeding is whether Respondent committed the violations as alleged in the Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact The Department of Children and Families is the agency charged with the responsibility of licensing child care facilities in the State of Florida. § 402.305, Fla. Stat. Respondent was licensed by the Department to operate a child care facility located in Callahan, Florida. Tausha Howard is the co-owner/director of Agape, and has been since it opened approximately 10 years ago. Tracey Flanders is a family services counselor. As a family services counselor, Ms. Flanders is responsible for inspecting child care facilities and family child care homes. Agape was one of the child care facilities that she inspected. She has been a family services counselor for three years and prior to that was a child protective investigator for DCF. Prior to her employment with DCF, she was a preschool teacher for eight years, which included some supervisory responsibilities and knowledge of compliance with DCF rules. Out of Ratio/Improper Supervision The Administrative Complaint charged Respondent with being out-of-ratio regarding the number of children per staff member in violation of Florida Administrative Code Rule 65C- 22.001(4)(b)2. Specifically, the Administrative Complaint alleges as follows: During a routine inspection conducted on March 6, 2013, DCF licensing counselor Tracey Flanders observed that: There was one (1) staff member supervising seven (7) children between the ages of one (1) and two (2) years old. A ratio of one staff for (6) children is required. This violation is based on Ms. Flanders’ observations during a March 6, 2013 routine inspection of Agape. She did a walk-through of the facility and examined the children’s records. As part of her walkthrough, she went to all of the classrooms. In each classroom, she counted the children and inspected for cleanliness. While in the toddler room, Ms. Flanders observed the children playing on the floor around the teacher. She counted seven children between the ages of one to two years old being supervised by one teacher. There was one two-year-old and six one-year-old children. Ms. Flanders explained at hearing that in mixed age groups, the required ratio of the youngest child applies. For mixed aged groups of children between one and two years of age, the minimum staff to child ratio is one staff member to six children. Agape has a classroom for preschool children, as well as one for the toddler children. Ms. Howard, however, disagrees that there were seven children in the toddler room and insisted that there were only six. She believes there was some kind of “miscommunication or oversight” because the seventh child (W.) had recently “aged out” of the toddler room and had been moved to the preschool class. The toddler class was where W. was assigned prior to his second birthday and reassignment to the preschool class. At the time of the inspection, the preschool children were out on the playground and came in while Ms. Flanders was present. Ms. Howard recalls she was standing in the baby room window. According to Ms. Howard, W. was being redirected from “bothering the blocks” to go rejoin the preschool group who was having story time. Therefore, she contends that the child was not in the toddler room, but was being redirected into the preschool classroom. Ms. Flanders insists that Ms. Howard was not with her when this incident happened, that the children were playing on the floor, and that the two-year-old in question (W.) was not moved from the toddler room to the preschool room when she was there. Accordingly, she cited Respondent for an out-of-ratio violation. Prior to the March 6, 2013 routine inspection, Agape had previous instances of being in violation of the ratio requirements. As a result of prior Administrative Complaints which included ratio violations, DCF and Respondent entered into a settlement agreement in March 2013, in which Respondent acknowledged that there have been five Class II ratio violations within a two-year period. Additionally, Respondent agreed that if future ratio violations occurred, the license “will again be subject to suspension or revocation.” The settlement agreement also stated that Respondent would finish out its then current probationary status through March 11, 2013, at which time Agape would be returned to an annual license. It is assumed that since the instant Administrative Complaint was dated April 11, 2013, that the license is currently on regular license status. Immunization Form Violation The Administrative Complaint charged Respondent with not having required immunization forms for children in its care, in violation of Florida Administrative Code Rule 65C- 22.006(2)(c). Specifically, the Administrative Complaint alleged that during the routine inspection by Ms. Flanders on March 6, 2013, she observed that a current form 680, Florida Certification of Immunization, was missing for two children. This allegation was based upon a file review made by Ms. Flanders which revealed that immunization records for two of the children, H.A. and M.C., had expired. The same violation was cited three previous times within a two-year period. On a reinspection, the center’s immunization records were current. According to Ms. Howard, the child, H.A., was out of the center for a medical reason and was not enrolled in the center at that time. However, his file was still there. Further, she discussed this with Ms. Flanders and afterwards wrote a statement that H.A. was not currently enrolled in the school and placed it in his file. As for child M.C., the child was enrolled but was no longer attending the center until M.C. obtained a current immunization record. Ms. Flanders explained that the child care facility must inform her if a child is enrolled but not attending. In that event, she skips that child’s record during her review. Level 2 Screening Documentation The Administrative Complaint charged Respondent with a violation of Florida Administrative Code Rule 65C-22.006(4)(d) and alleged the following: Documentation of Level 2 screening was missing for one (1) staff member. The Preschool Teacher’s adult son, D.W., was observed in the classroom with children on more than one occasion. Director stated D.W. is at the facility one (1) to two (2) hours a day, every other day. Licensing Counselor previously advised provider D.W. could not be present without passing a Level 2 screening. These charges were based on Ms. Flanders observing the adult son (D.W.) of one of the preschool teachers sitting at the desk in the preschool room with the children present, and the content of a conversation she had with Ms. Howard regarding this issue. There is an exception to the background screening requirement for volunteers who work there less than 10 hours a month. Accordingly, Ms. Flanders spoke to Ms. Howard to determine how often D.W. was at the school. According to Ms. Flanders, Ms. Howard told her that he would come to the daycare and wait before work every other day for an hour or two before walking to Winn-Dixie. Ms. Flanders calculated that every other day would be 15 days a month, for one or two hours each time. Therefore, she determined that he was there more than 10 hours a month. D.W. does not have background screening on file. The Administrative Complaint states that the same violation was previously cited on May 14, 2011, resulting in Technical Assistance, making this the second Class II violation within two years about persons caring for children without background screening. Ms. Howard, however, denies that D.W. was ever in her child care center that frequently. According to Ms. Howard, D.W.’s family temporarily (for about a month to a month and a half) had only one car. During that time, D.W. would come to the center, but was only there a total of 2 hours in a month. “Again, D.W. is not in my center. He’s not ever been in my center every other day. He’s not ever been in my center more than 30 minutes to an hour.” Moreover, Ms. Howard asserts that when D.W. was in her center, he was not with the children but was in a classroom where there were no children. Both Ms. Flanders and Ms. Howard were credible witnesses.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order placing Respondent’s license on probation until the related cases involving Respondent have been heard and final orders entered; and imposing a fine of $100 per day for one day, and $30 per day for eight days, for a total of $340. DONE AND ENTERED this 8th day of May, 2014, 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 8th day of May, 2014
