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
The Issue Whether the application filed by CaSarah Henderson to obtain a license to operate a child care facility through an entity known as Parramore Christian Center should be granted or denied.
Findings Of Fact The Department is the state agency charged with regulating licensed child care providers in the State of Florida. CaSarah Henderson owns 80 percent of Parramore Christian Academy, an entity organized for the purpose of operating a child care facility. On October 29, 2019, Ms. Henderson filed an application with the Department to obtain a child care provider license for Parramore Christian Academy to enable her to operate a child care facility at 800 West Central Boulevard in Orlando, Florida.1 On March 9, 2020, the Department denied that application based upon Ms. Henderson’s history of multiple violations operating another child care facility at the same location known as Little Kings and Queens Learning Center (“Little Kings and Queens”). The Department also denied the Parramore Christian Academy license application based upon the assertion that Ms. Henderson had a history of violations in the operation of a second child care facility—also operated at the same location— known as Beautiful Angels Academy. The Department has proven that Ms. Henderson has a history of multiple violations while operating Little Kings and Queens. The Department did not prove, however, that Ms. Henderson owned or operated Beautiful Angels Academy, and the history of violations committed through the operation of Beautiful Angels Academy will not be considered a basis to deny the Parramore Christian Academy license filed by Ms. Henderson. Little Kings and Queens Ms. Henderson was the sole owner and operator of a licensed child care facility known as Little Kings and Queens located at 800 West Central Boulevard in Orlando, Florida. On May 5, 2017, the Department filed an Administrative Complaint against Little Kings and Queens, citing two supervision violations2 that occurred on November 2, 2015, and April 7, 2017, and five ratio violations3 1 Neither party offered the application that Ms. Henderson filed as the owner/operator of Parramore Christian Academy as an exhibit. The Department has not alleged that the application was incomplete or deficient in any way. Rather, the sole basis for the denial of the Parramore Christian Academy license application is Ms. Henderson’s history of multiple violations and fines incurred in the operation of child care centers she previously owned and operated on the same property. As such, the undersigned presumed for the purpose of this Recommended Order that the Parramore Christian Academy application was complete and otherwise comported with the applicable statutory and rule requirements necessary to obtain a child care license. 2 A supervision violation occurs when a child’s activities are not adequately supervised at the child care center. Fla. Admin. Code R. 65C-22.001(5)(a) (2016). 3 A ratio violation occurs when the prescribed ratio of staff to children has not been met. Fla. Admin. Code R. 65C-22.001(4) (2016). that occurred on March 21, 2017, April 4, 2017, April 7, 2017, April 11, 2017, and April 18, 2017. All of the violations charged in the Administrative Complaint were Class II violations, the second most severe violation category.4 The Administrative Complaint sought fines totaling $1,385 and a 30- day suspension of Little Kings and Queens’ child care provider license. That action was settled on August 1, 2017. In the settlement agreement that resolved that case (“Settlement Agreement”), Little Kings and Queens admitted to the violations of the supervision rule and ratio rule as charged in the Administrative Complaint, and agreed to pay a $500 fine. Little Kings and Queens also agreed to be placed on probation for three months in lieu of the 30-day license suspension sought in the Administrative Complaint. The Settlement Agreement also states: If the Department initiates an administrative action against Little Kings and Queens in the future, for any reason, the Department shall not be required to re-prove the [supervision and ratio violations admitted to in the settlement agreement]. On November 1, 2017, Little Kings and Queens filed an application to renew its child care provider license. On December 7, 2017, the Department 4 When the Administrative Complaint was filed, the Department categorized violations into four severity categories: Class I, Class II, Class III and Technical Support violations. See Fla. Admin. Code R. 65C-22.010(d) (2016). Class I violations are the most serious in nature, pose 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(d)1. Class II violations are less serious in nature than Class I violations, and could be anticipated to pose a threat to the health, safety or well-being of a child, although the threat is not imminent. Fla. Admin. Code R. 65C-22.010(d)2. Class III violations are less serious in nature than either Class I or Class II violations, and pose a low potential for harm to children. Fla. Admin. Code R. 65C-22.010(d)3. Technical Support Violations are the first or second occurrence of noncompliance of an individual Class III standard or the first occurrence of noncompliance of an individual Class II standard. Fla. Admin. Code R. 65C- 22.010(d)4. Rule 65C-22.010 was amended on October 25, 2017, to eliminate the Technical Support violation categories. The amendment also redefined Class I violations, but Class I remained the most serious violation category. issued a notice of intent to deny the renewal application (“Notice of Intent”) because it found more violations when the facility was on probation. Specifically, the Department found Class II ratio violations on August 1, 2017, and September 27, 2017. In addition, the Department charged three separate Class I violations because on October 26, 2017, a two-year-old boy left Little Kings and Queens, unsupervised, and was found at a bus station down the street by a good samaritan who reported the incident. Ms. Henderson was also accused of providing false information to law enforcement regarding this incident. Specifically, she was accused of falsely claiming that the two-year-old boy ran out the door when she opened the door to take out the trash, but returned to the center immediately. The Notice of Intent sought total fines of $1,700 for the new Class I and Class II violations in addition to the non-renewal of the license. The Notice of Intent also cites the history of Class II violations admitted to in the Settlement Agreement as a basis to non-renew. The Notice of Intent indicates it was hand-delivered to Ms. Henderson, and provides notice of her right to request a hearing to challenge the denial of the renewal application. Ms. Henderson denies having received the Notice of Intent. The Department did not offer any testimony from the individual who hand-delivered the Notice of Intent to Ms. Henderson, and did not offer any other proof of delivery. Nevertheless, Ms. Henderson admits to surrendering the Little Kings and Queens license in December of 2017 to avoid fighting over the renewal of the license, and admits that she knew there were unresolved violations and pending fines when she surrendered the license. It is reasonable to infer based upon Ms. Henderson’s surrender of the license with this knowledge that she received the Notice of Intent and therefore had actual knowledge of the charges pending as identified in the Notice of Intent when she surrendered the license. Ms. Henderson did not request a hearing to contest the non-renewal of the Little Kings and Queens license, or the fines sought therein, and the Notice of Intent became final. See § 402.310(2), Fla. Stat. (2017)(“If the applicant, registrant, or licensee makes no written request for a hearing to the local licensing agency within 15 days after receipt of the notice, the license shall be deemed denied, suspended, or revoked; the license or registration shall be converted to probation status; or an administrative fine shall be imposed.”). The fines assessed in the Notice of Intent totaling $1,700 have not been paid. As to the grounds for non-renewal identified in the Notice of Intent, Ms. Henderson admitted when she testified at the final hearing that the two- year-old wandered off the property without supervision on October 26, 2017. Although Ms. Henderson did not state that she agreed with the ratio violations cited during the inspections that occurred on August 1, 2017, and September 27, 2017, she acknowledged that she received notice of them and offered no evidence to contest these ratio violations at the final hearing. For all of these reasons, the undersigned finds that Ms. Henderson has a history of multiple violations during the operation of Little Kings and Queens child care center, as stipulated to in the Settlement Agreement, and as charged in the Notice of Intent. Beautiful Angels Academy The Department contends that Ms. Henderson owned and operated a child care facility under the name Beautiful Angels Academy, also located at 800 West Central Boulevard in Orlando, Florida, after she surrendered the child care facility license for Little Kings and Queens. The record owner of Beautiful Angels Academy was Kim Holman, Ms. Henderson’s mother. The Department contends that Ms. Holman was the owner in name only, and that Ms. Henderson was the real owner and operator of Beautiful Angels Academy. Ms. Henderson testified that she volunteered to work part-time at Beautiful Angels Academy and that Ms. Holman also paid her a consultant fee, but denies that she owned or operated Beautiful Angels Academy. The Department’s evidence to the contrary is based largely on hearsay, primarily statements made from unidentified employees of Beautiful Angels Academy to Department child protective investigators. The Department also relies on the fact that Ms. Henderson was found on site at Beautiful Angels Academy during a complaint inspection on February 13, 2019. Ms. Henderson testified that she was on the premises because her children received day care at Beautiful Angels Academy. This evidence falls short of establishing that Ms. Henderson was the real owner and operator of Beautiful Angels Academy, and the history of violations committed in the operation of Beautiful Angels Academy is not a proper additional reason to deny the license application Ms. Henderson submitted for Parramore Christian Academy.
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 for a child care facility license that Ms. Henderson filed for Parramore Christian Academy. DONE AND ENTERED this 16th day of July, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 16th day of July, 2020. COPIES FURNISHED: Brian Christopher Meola, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 (eServed) CaSarah Henderson Little Kings and Queens Learning Center 800 West Central Boulevard Orlando, Florida 32805 Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent committed the child care licensing violations alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Reid’s Educational Child Care Centre, LLC, d/b/a Reid’s Educational Child Care Center (“Reid’s” or “the facility”) is a child care facility licensed by the Department. Reid’s is owned and operated by Nickesha Reid and is located at 10658 Biscayne Boulevard in Jacksonville, Florida. License Violation History Reid’s has a dizzying history of violating Department child care licensing standards. At final hearing, Department investigators testified that they had to rely upon the Department’s matrix, which documents a facility’s history of violations by date and class, as well as the penalties imposed, and whether monetary penalties have been paid. The matrix allows Department staff to cross-reference prior cases to identify repeated violations of the same standard. For purposes of this Recommended Order, the undersigned has included only the violations documented within the two-year period preceding the consolidated administrative complaints at issue in this case. On December 14, 2017, Reid’s was cited for lack of a Level II background screening (“background screening”) for Ms. Reid.2/ During a renewal inspection on July 11, 2018, Petitioner cited Reid’s for the following violations of child care licensing standards: (1) the child-to-teacher ratio for mixed age ranges including a child under the age of one, direct supervision of children in its care, and background screening for Ms. Reid. Each of these violations is a Class II violation of child care licensing standards. One of the most egregious violations cited during the July 11, 2018 inspection was a 10-year-old child in charge of the infant classroom. Moreover, the infant classroom was out of ratio, with the 10-year-old “teacher” in charge of five infants, rather than the required ratio of 1:4. While Department staff was on-site at the facility, Ms. Reid responded to the Department’s calls, appeared at the facility, and attempted to address the ratio violation by personally covering the infant room. However, Ms. Reid still had no background screening documentation, which led to the citation for violation of the background screening requirement. The Department filed an Administrative Complaint against Reid’s on July 25, 2018, solely on the background screening violation. In the complaint, the Department imposed a fine of $50 for this Class II violation, the second violation of the same child care licensing standard within a two-year period. On July 23, 2018, during a complaint investigation,3/ Petitioner cited Reid’s for the following violations of child care licensing standards: (1) teacher-to-child ratios, (2) inadequate supervision, (3) potentially harmful items accessible to children in care, and (4) background screening for child care personnel, all of which are Class II violations. In addition, the Department cited Reid’s with a Class I violation for serious health hazard conditions. Pursuant to the administrative complaint issued August 20, 2018 (based on the July 23, 2018 complaint inspection), Reid’s was placed on a probationary status for six months. The terms of the probation were as follows: The facility shall incur no Class I violations during the probationary period. The facility shall incur no Ratio, Background Screening or Supervision violations during the probationary period. The facility shall incur no Facility Environment violations during the probationary period. The facility must always maintain a safe and clean environment. Non-active individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. The administrative complaint provided, “Failure to comply with these conditions may result in revocation of Respondent’s license.” The Department’s findings in the administrative complaint became final on October 24, 2018, when Reid’s request for hearing on the administrative complaint was dismissed as untimely. The Department’s final order was not appealed. Reid’s probationary status was effective October 24, 2018, through April 22, 2019, and required monthly Department inspections. In addition, on August 20, 2018, Petitioner issued Reid’s a provisional license, effective August 21, 2018, through February 16, 2019, because Reid’s then-director, Delaria Blake, did not have the director credentials required by section 402.305(2)(f). Failure to maintain a credentialed director is a Class II violation of the Department’s child care licensing standards. The provisional license was resolved shortly after issuance when Reid’s hired Tracee Creighton, a properly credentialed director, who served as Reid’s interim director through September 2018. November 16, 2018 Administrative Complaint The November 16, 2018 Administrative Complaint was initiated pursuant to another complaint investigation,4/ conducted by Child Care Supervisor, Hannah McGlothlin, on September 13, 2018. Background Screening When Ms. McGlothlin arrived at Reid’s, she was greeted by Grady Dixon, the staff member in charge. Mr. Dixon is also Ms. Reid’s husband and Respondent’s registered agent. Ms. McGlothlin observed that Mr. Dixon was supervising two employees on-site. Upon review of the employee files, Ms. McGlothlin determined that Mr. Dixon became employed at Reid’s on August 2, 2018, but that his required background screening was not completed until August 3, 2018. When asked by Ms. McGlothlin, Mr. Dixon verified August 2, 2018, as his date of employment. At final hearing, Mr. Dixon maintained there was an error in his personnel file, and that he did not become employed at Reid’s until August 3, 2018. Mr. Dixon said he made a mistake in writing August 2, 2018, on his personnel form. Mr. Dixon’s testimony was not persuasive. Mr. Dixon became employed by Reid’s as “other personnel” on August 2, 2018. Mr. Dixon’s required background screening was not complete and on file at the facility until August 3, 2018. On July 25, 2018, Ms. Reid completed a Non-Active Member Affidavit for the Department, in which she swore that she had “a non-active role” at Reid’s, meaning she is an “individual who does not interact with the children, does not go on-site of the program operation during operating hours, and whose role does not involve the day-to-day operation of the child care program.” Further, the affidavit provided that Ms. Reid understood she must immediately notify the Department at any time in the future her role changed to an active role and “complete a background screening” as provided by statute. During Ms. McGlothlin’s field visit on September 13, 2018, she determined that Ms. Reid’s role had become that of an active member because she was going on-site during operating hours, had contact with children at Reid’s, and was involved in day-to-day business of Reid’s. As part of her investigation, Ms. McGlothlin spoke with a parent who stated “it is always [Ms. Reid] and [Mr. Dixon] at the facility” when she picks up her child in the afternoons. Virginia Ritter is the parent of a child formerly enrolled at Reid’s. Ms. Ritter testified that she met Ms. Reid at the facility in June 2018 when she first enrolled her son at Reid’s. Ms. Ritter further testified that, although she paid her monthly tuition online, she met with Ms. Reid at the facility at least twice between June 2018 and December 2018 to address billing issues--once when she changed the number of days her son was attending, and once when she withdrew him. Ms. Reid denied meeting with Ms. Ritter at the facility. The Department alleged that Ms. Reid was further involved in the day-to-day activities of the facility by corresponding with parents and the Department via electronic mail. Respondent introduced an undated email from reidseducationalchildcare@gmail.com to Ms. Ritter and John Kennedy5/ which reads, as follows: Good morning, We are contacted Emmett parents because he has not been at school for the last week and no one has advised us of what is going on. [sic] to his mother and no responded. Can we please have an update. Although the email was not signed by Ms. Reid, or any employee of Reid’s, Ms. Ritter testified, credibly, that she knew the email was from Ms. Reid because it reads consistently with Ms. Reid’s speech patterns. The email reads consistently with Ms. Reid’s speech patterns exhibited at final hearing. On Monday, December 31, 2018, Ms. Ritter replied to reidseducationalchildcare@gmail.com, informing Reid’s that her son would not be returning to the facility and the reasons therefor. Ms. Ritter further testified that Ms. Reid was often on-site when she picked up her son from the center on Fridays prior to her withdrawal of him in December 2018. Ms. Reid prepares meals at home and delivers them to the facility to be served to the children. She testified that she does not enter the facility to deliver the meals, but rather leaves them at the door outside the facility. Ms. Reid’s testimony was contradicted by Carrie Gaouette, a former employee, who testified, credibly, that Ms. Reid delivered meals to the front desk at the facility on a daily basis. In addition to the foregoing evidence of Ms. Reid’s involvement in the day-to-day business of the facility, Ms. Reid has entered the facility during operating hours, at times since executing her Non-Active Member Affidavit, to check mail and collect payments. During field visits by Department staff on September 13 and October 17, 2018, Ms. Reid contacted and spoke to Department staff to address the pending citations. Subsequent to signing the Non-Active Owner Affidavit, Ms. Reid has been on-site at the facility during operating hours, and has been actively involved in the day-to-day operation of the center, including meal preparation, interacting with parents for enrollment and changes thereto, addressing billing issues, and intervening in licensing issues. As an active owner, Ms. Reid is required to undergo background screening. During the complaint investigation on September 13, 2019, Ms. McGlothlin placed Reid’s on notice of the background screening violation and set a due date for compliance by November 7, 2018. At a subsequent inspection on December 27, 2018, Ms. McGlothlin determined that the background screening violation for Ms. Reid had not been corrected. The Department proved the August 20, 2018 Administrative Complaint allegations of background screening violations with regard to both Mr. Dixon and Ms. Reid. Penalties The background screening requirement is a Class II child care licensing standard. Reid’s was previously cited for failure to meet background screening requirement on December 17, 2017, July 11, 2018, and July 23, 2018. The August 20, 2018 Administrative Complaint is Reid’s fourth citation for background screening violations within a two-year period. According to Department rule, the monetary penalty for the fourth violation of the same Class II child care licensing standard is $75 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. The Department seeks to impose a fine of $2,925 against the facility for this violation, calculated at $75 per day for 39 days--from September 13, 2018 (the violation notice date), through November 7, 2018 (the corrective action date). The Department correctly calculated the monetary penalty to be imposed against Reid’s for the background screening violations. The Department also seeks revocation of Reid’s child care license based on the background screening violation. In the Administrative Complaint, the Department alleges, as follows: Provider is currently on Probation for Facility Environment of which the terms were not to incur any Background Screening and Non-Active Individuals listed in the Corporation cannot be involved in the day- to-day operation or present around children at any time. Provider has failed to comply with the terms of the Probation therefor their license is being Revoked. The Department’s allegation is unfounded. Reid’s probationary status was effective October 24, 2018, but the violation was cited on October 20, 2018. This violation of the background screening requirement was not a violation of the terms of the probation. January 11, 2019 Administrative Complaint Because Reid’s was placed on probation, it was required to undergo monthly inspections. Ms. McGlothlin conducted a routine inspection of the facility on December 27, 2018. Direct Supervision Upon her arrival at the facility, Ms. McGlothlin was greeted at the door by Carrie Gaouette, the only child care personnel on-site. When Ms. Gaouette opened the entry door, she closed the door leading to the classrooms, effectively blocking her view of the children and leaving them with no supervision. Ms. Gaouette explained that she shut the door to the classroom to prevent children from running out the front door while it was open to allow Ms. McGlothlin to enter. Florida Administrative Code Rule 65C-22.001(5)(b) provides, “[d]irect supervision means actively watching and directing children’s activities with the same room or outdoor play area . . . and responding to the needs of each child while in care.” The rule requires child care personnel to “be present with [their assigned] group of children at all times.” For the brief time Ms. Gaouette opened the door to greet and allow Ms. McGlothin entry to the facility, Ms. Gaouette was not in the same room with, and not directly supervising, the children in her care. The direct supervision requirement is a Class II standard. Reid’s was previously cited for violating the direct supervision standard on July 11 and 23, 2018. According to Department rule, the monetary penalty for the third violation of the same Class II child care licensing standard is $60 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, Department seeks to impose a monetary penalty of $60 for one day. The Department correctly calculated the fine to be imposed for this violation of the direct supervision standard. Child Health Examination Forms During her inspection, Ms. McGlothlin reviewed the records of all 11 children enrolled at the facility on that date. Ms. McGlothlin found that Reid’s did not have a current Student Health Examination form DH 3040 (“health examination form”) on file for child M.S. Pursuant to rule 65C-22.001(7)(q), Reid’s is responsible for obtaining a complete and properly executed health examination form for each child in its care. Reid’s violated the child care licensing standard when it failed to maintain a current health examination form for child M.S. The requirement to maintain child health examination forms is a Class III standard. Reid’s was previously cited for violation of this standard on July 11 and November 20, 2018. This violation is the third violation of the same Class III standard within a two- year period. According to Department rule, the monetary penalty for the third violation of the same Class III child care licensing standard is $25 per day for each such violation. See Fla. Admin. Code R. 65C-22.010. In the Administrative Complaint, the Department seeks to impose a monetary fine of $25 against Reid’s for this violation of child care licensing standards. The Department correctly calculated the fine to be imposed on Respondent for this violation of the child health examination form standard. False Statement/Information Pursuant to Department rule, Reid’s is required to have at least one staff member on-site at all hours of operation with First Aid/CPR training, verified by a current, valid First Aid/CPR card. See Fla. Admin. Code R. 65C-22.001(6). Ms. Gaouette was a new employee, and the only child care provider on-site, during Ms. McGlothlin’s inspection on December 27, 2018. When Ms. McGlothlin returned to the office on December 27, 2018, she reviewed her inspection report and realized that she had not checked the files to ensure that Ms. Gaouette had a valid First Aid/CPR card. Ms. McGlothlin both called and emailed Reid’s on the afternoon of December 27, 2018, to obtain a First Aid/CPR card for Ms. Gaouette; however, she was unable to reach anyone at the facility. No one from the facility either returned her calls or responded to her emails on December 27, 2018. On the morning of December 28, 2018, Mr. Dixon, who was the staff member in charge, read Ms. McGlothlin’s emails and reviewed her telephone messages requesting a First Aid/CPR certificate for Ms. Gaouette. Mr. Dixon reviewed Ms. Gaouette’s personnel file and found no First Aid/CPR certificate. Ms. McGlothlin returned to Reid’s on December 28, 2018, and requested Ms. Gaouette’s First Aid/CPR card from Mr. Dixon. Mr. Dixon provided Ms. McGlothlin with a First Aid/CPR card purporting to certify that Ms. Gaouette completed the required training on November 6, 2018, from instructor Palecia Crawford. The space on the card for the trainee’s name had been “whited out” and Ms. Gaouette’s name written in. The spaces for the date of the training and date of expiration were also “whited out” and the date “Nov/6/2018” written in for the date of training, and “Nov/6/2020” written in for the date of expiration. Ms. Crawford did not train Ms. Gauoette on November 6, 2018, or on any other date prior to December 28, 2018. Ms. Gaouette had not received First Aid/CPR training from any entity prior to December 28, 2018. Mr. Dixon, on behalf of Reid’s, presented Ms. McGlothlin with falsified documentation of Ms. Gauoette’s First Aid/CPR training. At final hearing, Mr. Dixon denied that the First Aid/CPR certificate provided to Ms. McGlothlin was Ms. Gaouette’s certification. Instead, he testified that, on December 28, 2018, he was unable to locate a certificate in Ms. Gaouette’s personnel file, so he provided Ms. McGlothlin with a First Aid/CPR card from the facility’s “demo file,” a file set up as an example of what a complete employee file should contain. Mr. Dixon’s testimony was not credible. Mr. Dixon did not represent to Ms. McGlothlin when he provided the certificate to her that it was just an example from a demo file. If it was just an example, there was no reason to change the name and date of the training on the original card. The original, or for that matter, a copy of, the trainee’s card would be sufficient for an example in a “demo file.” Mr. Dixon had both motive and opportunity to falsify a First Aid/CPR training card for Ms. Gaouette. Mr. Dixon admitted on cross-examination that it would have been easier to just tell Ms. McGlothlin that the facility did not have a valid First Aid/CPR certificate on file for Ms. Gaouette. Child care personnel providing fraudulent information related to the child care facility to a licensing authority, that could result in the death or serious harm to the health, safety, or well-being of a child is a violation of a Class I licensing standard. Penalties Class I violations of Department rules are described as “the most serious in nature, [which] pose 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)1. Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In the Administrative Complaint, the Department seeks to impose a fine of $250 and to revoke Reid’s child care license. This violation is severe. Significant harm could befall a child left under the care of personnel who have not had basic CPR training. This violation is the facility’s second Class I violation within a two-year period. This violation occurred during the facility’s probationary period, which commenced on October 24, 2018. The terms of probation prohibited the facility from incurring any Class I violations during the probationary period. The Department has authority to revoke Reid’s license based on this violation of its probationary terms. Ms. Gaouette received First Aid/CPR training on January 2, 2019. The facility has a lengthy and dizzying history of violations. Many of the monetary penalties imposed for past violations remain unpaid. Throughout the final hearing, Ms. Reid refused to accept responsibility for the violations documented in the subject, as well as previous, administrative complaints. She attacked the credibility of Department witnesses and demonstrated a complete lack of respect for the Department’s authority. Despite Ms. Reid’s unwillingness, or inability, to complete the required background screening, she has failed to comply with the non-active owner requirements and place competent, qualified, employees in charge of the day-to-day operations of the facility.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Reid’s Educational Child Care Centre, LLC, d/b/a Reids, Educational Child Care Center, committed Class I, II, and III violations of child care facility licensing standards, imposing a monetary penalty in the amount of $3,260, and revoking Reid’s child care facility license. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 5th 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 The issue is whether Petitioner is entitled to the renewal of her license as the operator of a child care facility.
Findings Of Fact Petitioner was licensed to operate a child care facility continuously from December 31, 1985, through June 30, 1997. Several licenses issued by Respondent to Petitioner were provisional due to Respondent's concerns about Petitioner's compliance with various statutes and rules governing child care facilities. (References to Respondent include the predecessor agency to the Department of Children and Family Services.) On June 5, 1997, Respondent notified Petitioner that it would not renew her child care facility license when it expired on June 30, 1997. Presumably because Petitioner timely requested a hearing, Respondent allowed her to continue to operate her facility past June 30. However, on July 3, 1997, Respondent issued an order of emergency suspension pending review of the decision not to renew. Petitioner has not since operated her child care facility. The two major issues in this case involve Petitioner's repeated failures to employ sufficient staff to satisfy the staff-to-child ratios and repeated failures to ensure that staff directly supervise all children. Although these standards are related in purpose, the staffing-ratio standard requires that a certain number of staffpersons be responsible for a maximum number of children, with a lower ratio for younger children, and the direct-supervision standard requires in most instances that a staffperson be in the same room as the children. As a result of 31 facility inspections, Respondent identified 40 violations of these two standards. Five of these inspections resulted in Respondent filing administrative complaints, in response to which Petitioner eventually paid relatively small fines. The remaining 26 inspections resulted in nothing more serious than Respondent issuing warning letters. The first Administrative Complaint, which is dated February 8, 1993, alleges that Respondent conducted inspections on August 9 and September 22, 1992, and found each time insufficient staff to satisfy the required ratio of staff to children. The Administrative Complaint alleges that Respondent sent Petitioner a letter on October 2, 1992, warning that further infractions of the staffing ratio could result in a fine, but Respondent's inspectors found on December 16, 1992, another staffing-ratio violation, as well as a direct-supervision violation. The Administrative Complaint seeks a fine of $30. Petitioner did not contest the allegations of the February 8 Administrative Complaint. Instead, she paid the $30 fine on April 19, 1993. Respondent filed another Administrative Complaint dated June 9, 1993. The Administrative Complaint alleges that a 15-year-old staffperson had not undergone the necessary screening. Three months later, Respondent converted the Administrative Complaint to a warning due to Petitioner's confusion concerning the screening requirements applicable to such a young staffperson. Respondent filed a third Administrative Complaint on December 9, 1993. The Administrative Complaint alleges that, on November 17, 1993, three staffpersons were supervising 37 children, in violation of the staffing ratios and Petitioner's licensed capacity. Issuing a warning as to the capacity violation, Respondent sought a $75 fine for the staffing-ratio violation. Petitioner did not contest the December 9 Administrative Complaint. Instead, she paid the $75 fine on February 17, 1994. Respondent filed a fourth Administrative Complaint on February 17, 1995. The Administrative Complaint alleges, among other things, that Petitioner did not have a sink with the required number of compartments to allow the kind of food preparation that she was undertaking at the facility. The parties settled this allegation without the imposition of a fine or other discipline. Respondent filed a fifth Administrative Complaint on May 23, 1996. The Administrative Complaint alleges that Petitioner's employees propped up three feeding bottles for infants. The Administrative Complaint seeks a $50 fine. Petitioner paid the $50 fine on June 27, 1996. Respondent filed the sixth and seventh Administrative Complaints on February 11 and 26, 1997. Petitioner contested these allegations, as well as the allegations contained in an eighth Administrative Complaint dated March 18, 1997. All three complaints were consolidated for a single hearing. The partial final order resulting from the hearing on the three complaints imposed $400 in fines against Petitioner for two violations of the staffing ratios (alleged in the February 11 Administrative Complaint), one violation of the staffing ratios (alleged in the February 26 Administrative Complaint), and one violation of the direct-supervision requirement (alleged in the February 26 Administrative Complaint). The partial final order dismissed the March 18 Administrative Complaint and remanded allegations of inadequate training of staff. (The administrative law judge declined the remand, and the Respondent has appealed the order declining remand.) In addition to the above instances of violations of staffing ratios or direct supervision, Respondent also proved numerous other instances of violations of these two minimum- care standards. Respondent proved that Petitioner violated the following minimum-care standards: May 7, 1986 (staffing ratio); May 13, 1987 (staffing ratio and capacity limit); June 20, 1987 (staffing ratio); November 18, 1987 (staffing ratio); April 14, 1988 (staffing ratio); May 6, 1988 (staffing ratio); June 7, 1988 (staffing ratio); August 16, 1988 (staffing ratio); May 16, 1989 (staffing ratio and direct supervision); March 2, 1990 (staffing ratio); June 22, 1990 (direct supervision); October 2, 1990 (staffing ratio); October 5, 1990 (staffing ratio and direct supervision); November 5, 1990 (staffing ratio and direct supervision); November 8, 1990 (staffing ratio); November 15, 1990 (staffing ratio); May 14, 1991 (direct supervision); December 16, 1992 (staffing ratio and direct supervision); March 26, 1993 (staffing ratio); April 7, 1994 (staffing ratio and direct supervision); June 29, 1994 (direct supervision); July 28, 1995 (staffing ratio and direct supervision); December 6, 1995 (staffing ratio); January 28, 1997 (staffing ratio and direct supervision); February 17, 1997 (staffing ratio and direct supervision); June 25, 1997 (staffing ratio); and June 30, 1997 (staffing ratio). Respondent issued inspection reports for all of the violations listed in the preceding paragraph and provided Petitioner with copies of this documentation. Respondent periodically wrote letters to Petitioner advising her of the legal requirements as to staff ratios and direct supervision. Respondent repeatedly offered Petitioner technical advice regarding these crucial minimum standards for the provision of child care. There is no possibility that Petitioner did not understand the staffing-ratio and direct-supervision requirements. Petitioner's noncompliance constituted nothing less than defiance of these two minimum-care requirements over a period of 11 years. From 1986 through 1990, Petitioner violated these two standards 16 times. In 1991, she violated them only once. However, she violated them three times in 1992--resulting in the first administrative fine for the violation of these standards. Petitioner violated these standards twice in 1993--the second violation resulting in the second administrative fine for the violation of these standards. Petitioner violated the staffing-ratio and direct- supervision standards twice in 1994 and twice in 1995, but not at all in 1996. However, she violated these standards six times in 1997, including twice after the issuance of a third administrative complaint concerning the violation of these standards. These last two, particularly ill-timed violations, led directly to the decision not to renew her license and the later decision not to allow her to operate pending review of the nonrenewal decision. Although Petitioner has greatly reduced the number of her violations of the staffing-ratio and direct-supervision standards, she has nonetheless refused to comply with these important requirements designed to ensure the safety of the children for whom she is caring. Her violation of these standards while cases were still pending over earlier violations betrays a hardened resolve not to comply with these two standards. Respondent also proved that Petitioner repeatedly violated other requirements, such as for timely screening of employees and recordkeeping. However, Petitioner's repeated failures to comply with the staffing-ratio and direct- supervision requirements are sufficient to warrant the denial of her application for renewal of her license or, in the alternative, the revocation of her license.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for renewal of her child care facility license. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: Bruce A. Tischler Greene & Tischler, P.A. 10175 Six Mile Cypress Parkway Suite 4 Fort Myers, Florida 33912 Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Office of the General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's license to operate a day care center should be suspended or revoked. Whether Petitioner's license to operate a day care center should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities. Respondent routinely conducts inspections of licensed child care facilities to determine whether facilities are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the facility's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on child care facilities which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect child care facilities at any time with or without notice. Petitioner is the owner and operator of a licensed child care facility located at 2625 North Hiawasee Road, Orlando, Florida, which is operated under the business name: Today's Kids Daycare Center (hereinafter "Petitioner's facility" or "the facility"). Petitioner has operated the child care facility at the above address for approximately five years and previously worked as director of another child care facility for five years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating child care facilities. The Incident Following a complaint, Susan Wujastyk, former child protective investigator for Respondent, interviewed the mother of the child, W.P., at the child's school on March 5, 2004, in relation to an alleged incident which occurred at Petitioner's facility on March 3, 2004. She then prepared a preliminary report and went to Petitioner's facility to investigate further. Respondent's child care licensing division was also notified and an inspector came to the facility, as well. On or about March 3, 2004, the child, W.P., a pre- kindergarten student at Petitioner's facility, swallowed an unknown solid substance while in Tangela Muskin's classroom. Muskin believed the substance to be rat pellets and lead W.P. to Petitioner, who was in another room, and told her of her suspicions. Petitioner, who had taken some nursing courses at the local community college, put on a rubber glove and swabbed the child's mouth to dislodge any other substances that might still be in the child's mouth. She also gave him some milk, with the intent to make him throw up. Petitioner then inspected the vomit but found no foreign substances in it. Petitioner did not call "9-1-1" for emergency assistance, nor did she call the poison control center. Instead, she observed W.P. for a period of time and sent him back to his classroom. Muskin also testified that she found the child, W.P., with a bag labeled rat pellets and claimed that Petitioner, in the presence of another employee at the facility, threw the rat pellets in the trash and told Muskin and the other employee not to report this to anyone. This statement is not credible. Petitioner testified that she attempted to call the child's mother, but could not reach her by telephone. Thereafter, she waited for the child's father to come and pick him up and she told him that W.P. had swallowed something but that Petitioner believed that she got all of the material out of his mouth. She advised him to take the child to the emergency room, but the father declined to do so. This statement appears to be credible. Susan Wujastyk inspected the facility on March 5, 2004, as part of her investigation of this matter and found two pellets under a toy chest in Muskin's classroom. Wujastyk thought they were rat pellets; however, that fact was never verified. An examination of the child, W.P., on March 5, 2004, found no evidence of ingestion of a toxic substance, and his condition was found to be stable. Petitioner retains a pest control company that performs regular services at the facility, but does not use rat pellets or any form of rodent control devices. Three of Petitioner's employees testified that they perform regular inspections of the facility and none of them ever found rat pellets or other toxic substances on the premises. Following the joint investigation, a joint report was prepared and approved by Respondent's staff, and it was recommended that Petitioner's license be revoked. Thereafter, on March 23, 2004, the acting district director sent a letter to Petitioner informing her that her license was being revoked and advised Petitioner of her right to "appeal" that decision through the administrative process. Subsequently, on June 10, 2004, Petitioner was sent a letter informing her that her license would not be renewed. The basis for the denial was the same as the revocation letter. At the hearing, Patricia Richard testified that she was particularly concerned that Petitioner was aware the W.P. may have swallowed a toxic and other dangerous substance and did not take immediate action to report it to "9-1-1" or the poison control center; and did not take it upon herself to take the child to a health care professional for examination but waited for the parents to arrive to inform them of the incident. Richard also testified that it was improper for Petitioner to put her fingers down the child's throat in order to induce vomiting. She characterized these as serious child safety violations and failure to follow proper emergency procedures. These were the primary reasons she recommended that Petitioner's child care license be revoked and not renewed. Petitioner, in her testimony, did not deny giving the child milk and swabbing his mouth with her finger, but did deny that she stuck her fingers in his mouth in order to induce vomiting. The evidence is not clear and convincing that the child, W.P., swallowed a toxic or hazardous material; and it is not at all clear from the evidence what it was that the child swallowed. However, it is clear that the child swallowed something that was suspected to be toxic; and when this fact was reported to Petitioner, she did not follow proper emergency procedures and did not properly notify the child's parents promptly. Petitioner has demonstrated that her license for a child care facility should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rule 65C-22.004(2)(d)1. and 2. (one count each). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rule 65C-20.010(1)(b) or similar provisions. Imposing a fine of $200, and a one-month suspension of Petitioner's license, followed by the issuance of a provisional license. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2004.
