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 At issue in DOAH Case No. 03-3152 is whether the Department of Children and Family Services ("Department") established sufficient grounds for suspending the provisional child care license of S & S Achievers Learning Center ("S & S Achievers") for 30 days due to noncompliance with minimum licensing standards. At issue in DOAH Case No. 03-4240 is whether S & S Achievers' license to operate a child care facility should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Department is the state agency responsible for licensing and regulating child care facilities. S & S Achievers, owned by Lavaine Shuler, was initially licensed in April 2001 to operate a child care facility in Apopka. The licensed capacity for the facility was 30 children. The Department routinely inspected the facility. On October 5, 2001, Milhem Ashy, a licensing counselor for the Department, conducted a routine inspection of the facility. Mr. Ashy's inspection checklist reported S & S Achievers for multiple violations of minimum licensing standards: failure to post a list of planned daily activities in a place accessible to parents; old, unsafe toys and long sticks on the outdoor playground; no adult at the facility with first aid or CPR training; failure to have physical examination and immunization records in children's files; and failure to complete and document the background screening of facility staff. Mr. Ashy discussed the deficiencies with Ms. Shuler, who also received a copy of the inspection checklist. On February 18, 2002, Mr. Ashy conducted another routine inspection of the S & S Achievers facility. Mr. Ashy's inspection checklist again reported S & S Achievers for multiple violations of minimum licensing standards. The most critical violation regarded the staff-to-children ratio. Among the children at S & S Achievers were some under one year of age. Florida Administrative Code Rule 65C-22.001(4)(b) provides that in groups of mixed ages where children under one year of age are included, the minimum ratio is one staff member for any four children. Mr. Ashy observed a ratio of one staff member for five children. After discussing the matter with Ms. Shuler, Mr. Ashy decided not to recommend a fine for this violation. On the February 18, 2002, inspection, Mr. Ashy found that the facility continued not to post a list of planned daily activities in a place accessible to parents. He found insufficient lighting in the infant room. On the outdoor playground, Mr. Ashy found that the frame of the swing set was not securely anchored. S & S Achievers continued its failure to have immunization records in children's files and to have documentation of staff's background screening. In April 2002, S & S Achievers' license was scheduled for renewal. On April 15, 2002, Mr. Ashy conducted a renewal inspection of the facility. In this inspection, Mr. Ashy found that the kitchen needed cleaning. He noted that the files still did not indicate sufficient credentialed staff at the facility, did not document employees' background screening, and did not contain students' immunization and health examination records. After discussing the noted deficiencies with Ms. Shuler, Mr. Ashy concluded that S & S Achievers was making progress toward full compliance. In light of the good working relationship between the Department and S & S Achievers, he recommended that the deficiencies cited in his report should not affect the facility's license renewal. On April 15, 2002, the Department issued an annual license to S & S Achievers. On June 26, 2002, Mr. Ashy conducted a routine inspection of the facility. He found the following elements of noncompliance with minimum standards: the infant teacher was observed caring for three infants, one six-year-old child and one four-year-old child, where the ratio requirements stated that she should have been caring for no more than four children; the second teacher was observed caring for 16 children, including one child under one year of age, three one-year-olds, four two-year-olds, one three-year-old, one four-year-old, and six children who were at least five years old; two children were observed in the rest room without any adult supervision; the facility's plan of scheduled activities was not posted in a place accessible to parents; the floors were stained and cluttered, tiles were peeling off the floors, and walls were peeling in the infant room; plastic and paper trash were observed on the playground; the swing set frame was not anchored; the facility could not document that it had conducted the monthly fire drills required by Department rules; the facility had no documentation that any staff member was trained in first aid or infant and child CPR. The facility continued to lack documentation regarding background screening and student health records. On his inspection checklist, Mr. Ashy noted that Ms. Shuler would be required to bring in the required documents for review at the Department's offices. By letter dated June 27, 2002, Patricia Richardson, supervisor of the Department's child care licensing office, notified S & S Achievers that the repeat violation of ratio and supervision requirements were being referred to the Department's legal counsel with a recommendation that a fine be imposed on S & S Achievers. Ms. Richardson further requested that S & S Achievers provide a "full and complete corrective action plan" addressing all the violations cited in the June 26, 2002, inspection checklist and that the plan be submitted no later than July 10, 2002. Ms. Shuler scheduled a meeting with Mr. Ashy for July 5, 2002. At that meeting, she provided some files regarding staff and children at the facility. On July 6, 2002, Ms. Shuler filed a plan of corrective action responsive to Ms. Richardson's letter of June 27, 2002. Nonetheless, on July 12, 2002, the Department filed an Administrative Complaint against S & S Achievers seeking a civil penalty, totaling $200.00 for the violations of staff-to-child ratio requirements and for the failure to supervise the children in the bathroom. S & S Achievers did not contest the imposition of the penalty. On July 16, 2002, Mr. Ashy conducted a follow-up inspection of S & S Achievers. He found that S & S Achievers was within the required staff-to-child ratios, but was in excess of its licensed capacity of 30 children. On August 30, 2002, Mr. Ashy visited the S & S Achievers facility and observed that there were 40 children at the facility. He also noted that the facility was again out of compliance with staff-to-child ratios and instructed S & S Achievers that it was required to comply with the Department's minimum standards for child care facilities. On October 10, 2002, Mr. Ashy conducted a routine inspection of the S & S Achievers facility. He found the following elements of noncompliance with minimum standards: the kitchen needed to be cleaned; the outdoor playground contained debris and rusted toys; the facility still had no documentation of monthly fire drills; the frame of the swing set remained unanchored; and staff training was still not documented. A follow-up inspection on October 31, 2002, indicated that the facility had corrected the items cited in the October 10, 2002, inspection. On December 30, 2002, Mr. Ashy conducted a surprise inspection. In this inspection, he looked only at the facility's staff-to-child ratios and supervision of children. The inspection found no violation of staff-to-child ratios and found that adult supervision of children was adequate. On March 17, 2003, Mr. Ashy conducted the annual license renewal inspection of S & S Achievers. He counted a total of 32 children under the supervision of S & S Achievers, either at the facility itself or on a field trip. Mr. Ashy found that the facility did not maintain a log for all children that it transported in its van, did not have documentation of an annual vehicle inspection, and did not have verification of insurance coverage for its van. The swing set frame was still not anchored. The facility did not have documentation showing that its staff persons had enrolled in or completed the required introductory course in child care or that staff had completed the required eight hours of annual in-service training. The facility still lacked documentation of criminal background screening for all staff. By letter dated March 20, 2003, Ms. Shuler clarified that S & S Achievers did not provide transportation to and from the facility for any of its students. Therefore, the deficiencies cited by Mr. Ashy related to transportation did not require correction. A follow-up inspection by Mr. Ashy on April 9, 2003, found that S & S Achievers had corrected the remaining items found deficient in the March 17, 2003, inspection. By letter dated April 10, 2003, Ms. Richardson informed Ms. Shuler that S & S Achievers would be issued a provisional license, pending completion of a corrective action plan to increase compliance with minimum standards. This provisional license was to be valid for a period of six months. S & S Achievers did not contest the issuance of the provisional license. By letter to Ms. Shuler dated May 19, 2003, Ms. Richardson noted the repeated violations of S & S Achievers regarding ratios and supervision, as well as the maintenance of records. She stated that these continuing violations were "repetitive, serious, and reflect a lack of organization in management and oversight of the facility." Ms. Richardson "strongly recommended" that Ms. Shuler enroll in a training course for child care facility owners. Ms. Richardson notified Ms. Shuler that her facility "will be inspected more frequently during this provisional period for increased compliance," and cautioned that insufficient progress toward compliance could lead to suspension of the license and could jeopardize future licensing for S & S Achievers. Donna Boatwright was a pediatric occupational therapist. From roughly April until June 2003, Ms. Boatwright visited S & S Achievers from one to three times per week to provide therapy to a one-year-old child with spina bifida. On June 4, 2004, Ms. Boatwright arrived at S & S Achievers to find her patient in a crib. The child was covered in vomit, "from his head to his butt, feet, on both sides, back and front," as if he had rolled around in it. Ms. Boatwright picked up the child and called for the staff person in the room to help her clean him. Ms. Boatwright noted that there was one adult in the room caring for ten small children, all of whom she described as "toddlers." She had seen similar ratios on previous visits. The staff person took the baby from Ms. Boatwright and left the room. For about five minutes, Ms. Boatwright was the only adult in the room with nine children. The staff person returned with the child after cleaning him. Ms. Boatwright took the child to another room and treated him. She saw that his clothes had been changed, but he still smelled strongly of vomit. After Ms. Boatwright was finished, a staff person returned the child to his crib. Ms. Boatwright did not believe the crib had been cleaned, because it still smelled of vomit. On June 4 or 5, 2003, Ms. Boatwright wrote a letter to Ms. Richardson to report this incident. In her letter, Ms. Boatwright added that in her visits to S & S Achievers, she had observed two toddlers playing in a toilet, dirty and broken toys within reach of small children, staff persons constantly yelling at children, and a general atmosphere of chaos. On or about June 5, 2003, Gwendolyn Butler, a child protective services investigator for the Department, went to S & S Achievers to investigate Ms. Boatwright's allegations. Ms. Butler counted 24 children in the facility. She stated that the youngest child was about three months old and the oldest was four or five years old. Ms. Butler noted that there were only two adults to supervise the 24 children spread among four or five rooms of the facility, meaning that some of the children were unsupervised. She was never able to see Ms. Boatwright's patient or to contact the child's parents because Ms. Shuler was unable to give her a correct phone number or address for the family. Ms. Butler closed the investigation with a finding of "some indicators" of physical injury and threatened harm to children and a "verified" finding of inadequate supervision. By letter dated June 25, 2003, Ms. Richardson notified Ms. Shuler of the Department's decision to suspend the license of S & S Achievers for a period of 30 days. On July 22, 2003, Ms. Shuler met with Mr. Ashy and initially informed him that she intended to comply with the suspension and make use of the 30-day period to bring her facility into compliance with the Department's minimum standards. However, later on the same day, Ms. Shuler wrote Mr. Ashy a note stating that she wished to confer with her attorney before making any decision. S & S Achievers challenged the suspension decision, and the facility remained open pending the results of its challenge. On August 28, 2003, Janice Nilles, a licensing counselor for the Department, conducted an inspection of the S & S Achievers facility. Ms. Nilles found the facility once more in violation of staff-to-child ratios. She found no daily plans posted. She noted several aspects of disrepair in the facility: exposed metal on a doorframe; a metal bracket holding some carpeting in place had come loose, exposing a cutting edge and causing a tripping hazard; three electrical outlets were uncovered; a nail protruded from the wood frame of the girls' bathroom door; detergents and bleach were within the reach of children in the boys' bathroom; the general storage of cleaning products did not prevent children's access to them; soap and paper towels or air dryers were not provided in the bathrooms; old wooden chairs created a splinter hazard; and lighting was insufficient. As to the outdoor playground, Ms. Nilles found debris and broken play equipment. The wooden gate to the playground was unaligned, with an exposed nail between the slats. The ground cover within the landing zones of swings and slides was not properly maintained. Wooden play blocks littered the playground, creating landing and tripping hazards. A protruding screw on the slide created a hazard. Ms. Nilles found that the facility did not provide developmentally appropriate toys for the ages of children in care and did not provide enough play equipment for the number of children under care at the facility. She found that linens, pillows, and blankets were not provided for napping children, and some of the bedding that was provided was dirty. The facility's first aid kit was incomplete. The facility still did not have on file the required background screenings for staff or the immunization information for children. On September 18, 2003, Ms. Nilles conducted an inspection for the renewal of S & S Achievers' provisional license. She found that the facility had "repaired" the loose carpet bracket by placing a rug over it. The splintered wooden chairs had not been replaced. Ms. Nilles observed cans of paint inside a storage cabinet in the infant room, with no secure lock for the cabinet. The first aid kit remained incomplete. The diapering changing area was not on an impermeable surface. The wooden blocks remained on the playground, and the broken play equipment had not been repaired or replaced. A nail protruded on the slide. The ground cover for the landing zones of the slides and swings remained insufficient. The facility did not have documentation showing that staff had enrolled in the introductory course in child care or had completed the required eight hours of in-service training. The facility had no documentation of criminal background screening for its employees. On October 14, 2003, one day before the scheduled expiration of the provisional license, Ms. Shuler applied to renew the license of S & S Achievers. Ms. Shuler hand-delivered the application to Ms. Richardson and told Ms. Richardson that every violation noted in the September 18, 2003, inspection had been corrected. Because of the number and frequency of S & S Achievers' violations, Ms. Richardson sent a team of licensing counselors to inspect the facility on October 16, 2003, in order to verify Ms. Shuler's claim to have corrected all of the noted deficiencies. The inspection revealed that some of the violations had been corrected, but that many others continued: the failure to document criminal background screening of employees; dangerous conditions on the playground; toxic cleaning supplies accessible to children; no soap or paper towels in the bathrooms; diaper changing area not on an impermeable surface; the protruding nail on the slide; incomplete first aid kit; and operating in excess of licensed capacity. By letter dated October 17, 2003, the Department notified Ms. Shuler that her license would not be renewed based upon continuing violations that were "repetitive, serious, and pose potential risk to children" under the care of S & S Achievers. At the hearing, Ms. Shuler testified at length on the various violations found by the Department's inspectors. She admitted to most of them, attempted to minimize others, and sought to leave the impression that Mr. Ashy and Ms. Richardson were of little assistance and seemed intent on closing her facility. In fact, the evidence establishes that the Department bent over backward to help Ms. Shuler bring her facility close enough to the minimum standards to justify keeping it open. The evidence leads to a finding that Ms. Shuler did not take the Department's authority seriously and that the Department was, if anything, too lenient in allowing her to avoid the consequences of repeated, serious violations of its minimum standards. Several parents testified at the hearing to the effect that even if all the alleged violations were true, they would nonetheless continue to place their children at S & S Achievers. This testimony is credited as honest, but it is irrelevant. To keep its license, S & S Achievers was bound to comply with the requirements of Florida Administrative Code Chapter 65C-22, even if parents were willing to waive those requirements. At the hearing, Ms. Shuler introduced considerable evidence that after receiving the October 17, 2003, denial letter, she finally corrected many of the deficiencies in the structure of her facility and in the playground. This evidence is irrelevant to the instant cases, though it should assist Ms. Shuler should she apply for a child care facility license in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order: Sustaining its initial decision to suspend the license of S & S Achievers for the reasons set forth in the Department's letter dated June 25, 2003; and Sustaining its initial decision to deny the application of S & S Achievers for a license to operate a child care facility for the reasons set forth in the Department's letter dated October 14, 2003, with the exception that S & S Achievers be found not to have violated the provisions of Florida Administrative Code Rule 65C-22.001(6), related to the transportation of children. DONE AND ENTERED this 9th day of February, 2005, 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 SUNCOM 278-9675 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, 2005.
