The Issue The issues in this case are: (1) whether Respondent misrepresented or fraudulently provided information to Petitioner regarding compliance of its child care facility with the annual physical examination and annual vehicle inspection requirements in Florida Administrative Code Rule 65C- 22.001(6)(a) and (c), in violation of section 402.319(1)(a), Florida Statutes, and Child Care Facility Standard No. 63, incorporated by reference into rule 65C-22.010(1)(d)1.; and (2) if Respondent committed the alleged violations, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency responsible for licensing, inspecting, and monitoring child care facilities pursuant to chapter 402, Florida Statutes. Respondent is a child care facility licensed by Petitioner, operating under License No. C11MD1476. Respondent's facility is located at 968 Southwest 82nd Avenue, Miami, Florida. Soraya Sanabria and Lyan Barrus are the Respondent's owners, and Sanabria is its Director. At the time of the alleged conduct giving rise to this proceeding, Respondent was designated a Gold Seal Quality Care provider pursuant to section 402.281(1)(b) and was participating in the Gold Seal Quality Care program. Events Giving Rise to this Proceeding License Renewal Process Pursuant to section 402.308(1), Respondent applied for the annual renewal of its child care facility license in mid- to late 2013. On November 20, 2013, Pauline Kinsey, Family Service Counselor, conducted a license renewal inspection of Respondent's facility. During the inspection, Kinsey identified a few minor noncompliance issues, which Respondent expeditiously addressed and are not at issue in this proceeding. As part of the annual license renewal application review process, Petitioner's auditors carefully review each application to ensure compliance with the statutes and rules governing child care facility licensure. Gloria Johnson, an auditor with Petitioner's child care facility regulation program, reviewed Respondent's 2013 license renewal application.5/ The Vehicle Inspection and Health Examination Forms In the course of her review of Respondent's 2013 application, Johnson discovered that Respondent had submitted a vehicle inspection form for its facility's child transportation vehicle dated June 14, 2011, that previously had been submitted as part of Respondent's 2011 license renewal application. Johnson notified Kinsey, who contacted Sanabria on December 17, 2013. Kinsey requested that Respondent submit a current vehicle inspection form for inclusion in its 2013 license renewal application. That same day, Sanabria faxed a vehicle inspection form, dated June 14, 2013, to Petitioner. Johnson reviewed this vehicle inspection form and determined that it was a copy of the June 14, 2011, form that had been altered. Specifically, the date in the top left space on the form had been altered by writing a "3" over the last "1" in "2011." In every other respect——including handwriting, vehicle mileage, name of inspector and business (Goodyear),6/ and date of inspection written in the lower right-hand corner——the two forms were identical. This spurred Johnson to take a closer look at Respondent's facility licensing files. In doing so, she discovered that the June 14, 2011, vehicle inspection form also had been submitted to Petitioner as part of Respondent's 2012 license renewal application.7/ Johnson notified Kinsey that the vehicle inspection form Respondent submitted on December 17, 2013, was an altered version of the form dated June 14, 2011. Kinsey immediately contacted Respondent regarding the altered form. On December 18, 2013, Respondent submitted a vehicle inspection form indicating that the vehicle had been inspected at Tires Plus that same day. Petitioner refused to accept the December 18, 2013, form. Kinsey informed Respondent that Petitioner had determined that the vehicle inspection form Respondent had submitted on December 17, 2013, was altered, so the matter was being referred to Petitioner's legal department to determine appropriate action. In the course of reviewing Respondent's license renewal application files, Johnson also discovered that a "Health Examination" form that Respondent had submitted in its 2012 license renewal application8/ also was altered. Respondent submitted a copy of the Health Examination form dated "6/10/2011" as part of its 2011 application, and then again submitted the same form in its 2012 application; however, the date on the form submitted in the 2012 application had been changed from "6/10/2011" to "6/10/2012" by whiting out the last "1" in "2011" and replacing it with a "2." In every other respect, including handwriting and other marks, the forms were identical.9/ Complaint Inspection and Administrative Complaints As a result of Johnson's discovery of the altered vehicle inspection and health examination forms in Respondent's application files, Kinsey conducted a complaint inspection of Respondent's facility on December 20, 2013. At that time, Petitioner issued an Administrative Complaint citing Respondent for violating section 402.319(1)(a), rules 65C-22.001(11) and 65C-22.001(6)(c), and Petitioner's Child Care Facility Standard No. 63, by having misrepresented information and fraudulently provided information to Petitioner related to Respondent's child care facility. On January 13, 2014, Respondent filed a request for administrative hearing challenging the Administrative Complaint. Attached to the request for hearing was a vehicle inspection form dated June 14, 2013. The information on the form stated that the vehicle had been inspected on that date by Francisco Perez, a mechanic employed at Albert of Miami. This document had not previously been submitted to Petitioner and was not part of Respondent's 2013 license renewal application. On February 18, 2014, Petitioner issued an Amended Administrative Complaint, alleging in greater detail the facts giving rise to its charges that Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility. The Amended Administrative Complaint charged Respondent with the same statutory and rule violations as had been charged in the Administrative Complaint, and imposed the same penalties. Respondent's Defenses At the final hearing, Barrus and Sanabria testified that Respondent inadvertently had submitted a copy of the June 14, 2011, vehicle inspection form in its 2013 license renewal application. When contacted by Kinsey, Sanabria had accidentally faxed a draft copy of the vehicle inspection form with the date changed to June 14, 2013. Barrus and Sanabria testified that this draft had been prepared for the purpose of demonstrating to the mechanic how to complete the form. They claimed that Perez did, in fact, inspect the vehicle on June 14, 2013, as evidenced by the vehicle inspection form showing his name that was submitted as an exhibit to the request for administrative hearing filed on January 13, 2014.10/ They claimed that the vehicle actually had been inspected twice in 2013, so that Respondent was in compliance with the rule requirement regarding annual vehicle inspection.11/ Barrus testified that the June 14, 2011, vehicle inspection form mistakenly had been included in the 2012 license renewal application. Barrus and Sanabria both testified that Respondent did not transport children in its facility vehicle in 2012, so that in any event, Respondent was not required to submit a vehicle inspection form showing current inspection status for that year. Neither Barrus nor Sanabria disputed that the Health Examination form discovered in its 2012 license renewal application file had been altered by the date having been changed from "6/10/2011" to "6/10/2012." Barrus testified that she did not know how the altered form came to be part of Respondent's 2012 license renewal application. She reiterated that Respondent did not transport children in its facility vehicle in 2012, so that under any circumstances, Sanabria was not required to have a physical examination that year.12/ Findings of Ultimate Fact The undersigned finds the testimony of Barrus and Sanabria regarding the vehicle inspection form issue incredible and unpersuasive. The evidence establishes that Respondent submitted the June 14, 2011, inspection form as part of its 2013 license renewal application. The credible, persuasive evidence in the record gives rise to the inference that when Petitioner discovered the outdated form and contacted Respondent, on December 17, 2013, Respondent intentionally submitted the altered inspection form with the date changed from June 14, 2011, to June 14, 2013. Petitioner discovered this alteration and contacted Respondent. Thereafter, in an attempt to comply with the annual inspection requirement, Respondent had the vehicle inspected by Tires Plus on December 18, 2013, and submitted the vehicle inspection form to Petitioner that day. The credible, persuasive evidence further gives rise to the inference that when Petitioner refused to accept the December 18, 2013, form, Respondent created another vehicle inspection form that it dated June 14, 2013, obtained Perez' handwritten name on the form, and submitted the form to Petitioner as an exhibit to the request for hearing that it filed on January 13, 2014.13/ In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. The undersigned also finds the testimony of Barrus and Sanabria regarding the "Health Examination" form in the 2012 application incredible and unpersuasive.14/ The credible, persuasive evidence gives rise to the inference that Respondent altered the Health Examination form by changing the date from "6/10/2011" to "6/10/2012" and intentionally submitted the altered form to Petitioner as part of its 2012 renewal application. In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. In sum, Petitioner has proved, by clear and convincing evidence, that Respondent committed the violations alleged in the Amended Administrative Complaint.
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 imposing a $200.00 administrative fine on Respondent, My First School, Inc.; converting Respondent's child care facility license, License No. C11MD1476, to probation-status for a six-month period; and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 6th day of August, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of August, 2014.
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.
The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2017.
The Issue The issue in this case is whether Petitioner should have her application to renew her childcare facility license denied by Respondent, Department of Children and Families (“Department”), for the reasons set forth in the Amended Denial of Application to Renew Child Care Facility License.
Findings Of Fact Petitioner, Roslyn Smith, holds license No. C07V00140, by which she is licensed to operate the Rising Stars childcare facility pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Chapter 65C-22. Petitioner has operated the Rising Stars childcare facility for 12 years. She serves very low-income children in the Daytona Beach area. There is no question but that Petitioner offers superior service to the children under her care. Petitioner maintains a clothing bank to ensure that the children in her care are adequately clothed. Petitioner prepares wholesome, homemade, nutritious meals for the children, eschewing the more common chicken nuggets and corn dogs offered up at other facilities. The children are encouraged in their classrooms, with appropriate and well-kept educational materials. The facility is clean and well maintained. Petitioner’s husband frequents the facility to perform maintenance and upkeep. The children in her care love Petitioner, a feeling that she returns in kind. On September 20, 2010, Petitioner and the Department entered into a Settlement Agreement to resolve several background screening and training violations. The agreement resulted in Petitioner’s license being placed on probationary status for a period of six months. The Department’s denial of Petitioner’s license renewal was based solely on alleged violations discovered during an inspection conducted on November 3, 2010, and on an alleged violation discovered on February 2, 2011. The November 3, 2011 inspection was conducted by Patricia Medico. Ms. Medico began working for the Department on May 18, 2010. The November 3, 2010 inspection was her first at Rising Stars. Despite having been trained since her hire, and having had a small caseload in DeLand, Ms. Medico considered herself to be “a very new counselor starting at [Petitioner’s] place in November.” Ms. Medico made it a practice to inspect facilities without first reviewing any information or previous Department inspection reports, a common practice with other inspectors. She believed that by going out “cold,” it allowed her to be more objective, and to have no preconceived notions or prejudices. On November 18, 2010, a re-inspection of the facility was performed by Ms. Medico. All deficiencies identified during the November 3, 2010 inspection had been resolved, and no further violations were discovered. Since the November 3, 2010 inspection, Rising Stars has been in substantial -- if not almost perfect -- compliance with all childcare facility standards. From November 3, 2010 through the August 26, 2011 inspection, the only violations discovered were Quinetta Edwards’ missing affidavit of good moral character discussed below, one classroom without a posted lesson plan in March 2011, a minor attendance roster discrepancy in March 2011 that was corrected during the inspection, and one time when the posted lunch menu was not dated. The evidence demonstrates that Petitioner made substantial, effective, and sufficient progress toward compliance since the entry of the settlement agreement on September 20, 2010, and it is so found. The specific violations that form the basis for the denial of Petitioner’s license renewal are as follows: Training Violations Veronica Dickson The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner did not have documentation in the employment file of Veronica Dickson showing that she had started her 40-clock-hour training within 90 days of commencement of her employment at Rising Stars. The evidence suggests that the documentation of Ms. Dickson’s training was in her file since at least October 8, 2010, and another copy was printed from the Daytona State College website and provided to Ms. Medico during the inspection. Ms. Medico stated that she had no recollection of having seen Ms. Dickson’s training records during the inspection. At various times, Ms. Medico admitted that due to her large caseload, she was unclear as to the specifics of any given inspection. However, she indicated that the inspection report is her contemporaneous statement of the facts. She further indicated that it was her practice to print out a copy of the report and go over it with the licensee before having the licensee sign it. When Ms. Medico left a facility, the inspection report provided to the licensee “isn’t necessarily the written in stone inspection.” Rather, it is subject to review, occasionally with items that were found to be non-compliant changed to being compliant, and items that were found to be compliant changed to being non-compliant. If items were changed, Ms. Medico would call the licensee to advise them of the change. Contrary to Ms. Medico’s description of the process, Petitioner testified that, as the normal practice, Ms. Medico did not go over the inspection reports point-by-point. Rather, she indicated that she would receive an unsigned report from Ms. Medico after having accompanied her during the inspection and having discussed -- and oftentimes resolved -- problems at the time. She would sign the computerized signature block without reviewing the report, relying on the earlier discussions. If necessary, she would review the report after the inspection. Having personally provided Ms. Dickson’s training records to Ms. Medico, Petitioner did not realize that the training records were identified as a violation on November 3, 2010. Petitioner would have disputed the violation had she known at the time that she was being cited. The evidence as to whether the training documentation was in Ms. Dickson’s file is contradictory. However, the more persuasive evidence supports a finding of fact that the documentation was provided at the time of the inspection, but was either overlooked or forgotten by Ms. Medico. Therefore, there was no violation of any childcare standard associated with Ms. Dickson’s training records. Alicia Thomas The Department listed, as a basis for the denial of Petitioner’s license renewal, that Alicia Thomas had not started her 40-hour training within 90 days of having started employment in the childcare industry. According to the Department’s personnel records, Ms. Thomas was first employed in the childcare industry on April 5, 2010. There is no evidence to indicate by whom she was employed on that date. The Department provided no information as to how a licensee is to know when a person is employed “in the industry.” However, it is clear that a candidate for employment at a child care facility is to commence training within 90 days of employment at any licensed childcare facility, and that the employing childcare facility is responsible for obtaining documentation from childcare personnel. The evidence is undisputed that Ms. Thomas’s background screening was complete and clear. Furthermore, Ms. Thomas had completed her required in-service training by June 30, 2010. The Department personnel summary sheet indicates that Ms. Thomas started her employment at Rising Stars on May 5, 2010. However, the greater weight of the evidence indicates that Ms. Thomas was hired by Petitioner in July, 2010. From July through November, 2010, which was the period of Ms. Thomas’s employment at Rising Stars, she worked fewer than 30 days due to various medical issues. The evidence indicates that Ms. Thomas’s failure to commence her 40-hour training was not cited by the Department as a violation on November 3, 2010. The unsigned inspection report provided by Ms. Medico for Petitioner’s review did not list a violation related to Ms. Thomas’s training. Ms. Medico testified that she did not cite Petitioner for a violation related to Ms. Thomas on November 3, 2010. Rather, she indicated that “all I did was tell her in notes that Alisca needed to get this,” and that “the next time I went out, she would be cited if she did not correct that.” (emphasis added). Ms. Adams testified that “technically, [Petitioner] should have been cited additionally for Alisca Thomas not starting her training on time,” but that “I overlooked it, and I don’t know what [Ms. Medico’s] rationale was [for not citing], but I overlooked it.” Petitioner testified that Alisca Thomas never appeared on any inspection report that she received. The greater weight of the evidence demonstrates that Petitioner was not cited for a violation related to Ms. Thomas’s training status, and that the deficiency would be considered to be a violation only if it was not corrected by the November 18, 2010 re-inspection. By the time of the November 18, 2010 re-inspection, Ms. Thomas had commenced her training, documentation of which was in her file. Thus, Petitioner made sufficient progress toward compliance, and in fact completely resolved the issue, by the time Ms. Medico went back to the facility. Despite having come into compliance with her training requirements, Ms. Thomas was let go shortly after November 18, 2010 due to her ongoing health issues. Based on the foregoing, Ms. Thomas’s training status, having been completely resolved prior to it being cited as a violation, and its having had no proven effect on the health, safety, or child development needs of the children in Petitioner’s care, is not a sufficient basis for denial of the renewal license. Record-Keeping Course Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner did not complete the Guide to Record Keeping online course or the CEU assessment as required by the September 20, 2010 settlement agreement. As part of the settlement agreement, Petitioner was required by the Department to take and pass the course, and get credit for the Continuing Education Units (CEUs). Petitioner had taken the course in 2009, and had received a certificate of completion. The certificate had not expired. Petitioner attempted to take the Guide to Record Keeping online course as required by the settlement agreement. When Petitioner tried to enroll for the course, the course provider refused to allow her to pay the fee or enroll. Such refusal is consistent with the warning on the course registration home page, which states that “[y]ou can only earn one certificate for each course, and you may not earn CEUs for a course you have previously taken.” Petitioner testified that she advised Ms. Medico and Ms. Adams of the problem with taking the online course. Ms. Adams had a recollection of meeting Petitioner in the lobby of the DCF building, and discussing Ms. Dickson’s and Ms. Thomas’s training issues with her, but did not mention discussing Petitioner’s difficulty in taking the record keeping class. Whether Ms. Adams was told of the problem or not is immaterial. The evidence is sufficient to demonstrate, at the very least, that Petitioner advised Ms. Medico, a representative of the Department, of the problem in taking the course. The Department should have known of the restriction on retaking the course at the time it imposed that requirement on Petitioner. Petitioner had no reason to expect that the Department’s required settlement condition could not be performed, and did not know of the restriction until she attempted to comply. Petitioner made a good faith effort to comply with the condition but, since the course provider prohibited Petitioner from retaking the course and receiving CEU credit, performance of that element of the settlement agreement was impossible. Based on the foregoing, Petitioner’s failure to take, complete, and receive CEU credit for the Guide to Record Keeping course, in light of the impossibility of doing so, is not a sufficient basis for denial of the renewal license. Untimely Meeting Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that Petitioner failed to meet with Susan Liebee, a coordinator at the Daytona State College, within 10 days of the date of the settlement agreement to discuss staff training requirements. The meeting was to have been held by September 30, 2010, but did not take place until October 8, 2010. Petitioner testified that she went to Ms. Liebee’s office to meet with her, but that she was not there. She subsequently called and made an appointment with Ms. Liebee to meet on October 8, 2010, and met as scheduled. Petitioner made every reasonable effort to meet the time frame for the meeting established in the settlement agreement, but due to reasons outside of her control was not able to meet until Ms. Liebee was available on October 8, 2010. Petitioner’s testimony on that point was credible, and there was no evidence to the contrary. Based on the foregoing, Petitioner’s failure to meet with Ms. Liebee due to circumstances involving Ms. Liebee’s schedule that were out of Petitioner’s control, is not a sufficient basis for denial of the renewal license. Affidavit of Good Moral Character Violation The Department listed, as a basis for the denial of Petitioner’s license renewal, that an Affidavit of Good Moral Character was not in the file of new hire Quinetta Edwards. Ms. Edwards was hired effective February 1, 2010. The inspection during which Ms. Edward’s employment file was reviewed was conducted on February 2, 2010. As stated by Ms. Medico, a new employee’s background investigation consists of the level 2 background screening required in Chapter 435, the Affidavit of Good Moral Character signed by the employee, the signed and notarized Child Abuse Reporting Form, the employee’s employment history, checked references for two years, and a supplemental statement that the employee has not had a child care license denied or revoked in the past. All of the screening requirements listed by Ms. Medico, and established in rule 65C-22.006(4), had been met but for the affidavit. Due to a simple oversight, Ms. Edwards failed to execute the Affidavit of Good Moral Character prior to her employment with Petitioner. Upon learning of the oversight, Ms. Edwards executed the Affidavit on February 8, 2010. Petitioner thereupon submitted the affidavit to the Department by facsimile on that date. There was no attempt to backdate the form, or to do anything other than honestly correct the oversight. Ms. Edwards has cleared all screening, meets all employee standards, and remains on the staff of Rising Stars without any problems to this day. The simple and unintentional oversight in having Ms. Edwards execute her affidavit one week after commencement of employment, given that all other background screening was completed without incident, had no effect on the health or safety of the children attending Rising Stars. That oversight was not a material violation of the Department’s licensing standards or of the settlement agreement, and is not a sufficient factual basis for the denial of Petitioner’s license renewal. Other Violations Not Pled In addition to the issues pled as reasons for denial in the Department’s Amended Denial of Application to Renew Child Care Facility License, the parties introduced testimony and documentary evidence regarding a number of alleged minor deficiencies at the Rising Stars facility discovered during the November 3, 2010 inspection. Both Ms. Medico and Ms. Adams admitted that the deficiencies did not form the basis for the Department’s proposed action. As to the facility violations -- which included among other minor deficiencies, a missing lesson plan; exposed “S” hooks on the swing set; worn electrical outlet covers; an exposed, but generally inaccessible screw point underneath a bench; uneven boards on a deck; and two forks in a drawer accessible but off-limits to children -- the evidence demonstrates conclusively that those deficiencies are “common problems” and that “those things, they happen everywhere.” The evidence further demonstrates that Petitioner’s husband keeps the facility well kept and maintained, and that Petitioner does a “wonderful job” with the Rising Stars facility. The evidence is undisputed that each of the alleged violations identified in the November 3, 2010 inspection report were either corrected on the spot during the inspection, or were corrected by the November 18, 2010 re-inspection. They have not recurred. To the extent that those alleged deficiencies are considered in the final decision regarding renewal of Petitioner’s license, despite having not been pled by the Department, it is found that the alleged deficiencies, have had no adverse effect on the health, sanitation, safety, and adequate physical surroundings for the children in Petitioner’s care, have had no adverse effect on the health and nutrition of the children in Petitioner’s care, and have had no adverse effect on the child development needs of the children in Petitioner’s care. Therefore, those alleged deficiencies do not form a sufficient basis for denial of Petitioner’s license renewal. Finally, evidence was received regarding the employment of Jennifer Geier by Petitioner during a period that she was disqualified from employment. Petitioner was not aware that Ms. Geier was subject to disqualification, especially since she had received a letter from the Department of Corrections dated September 9, 2009, stating that “there are no stipulations in her order that prevents her from employment in a child care facility.”1/ Upon discovering that the offense was, in fact, disqualifying, Ms. Geier was terminated. It is clear that at the time the Department issued its Amended Denial of Application to Renew Child Care Facility License on August 2, 2011, the Department was well aware of Ms. Geier and her relationship with Petitioner, with all aspects of her employment at Rising Stars having been resolved in the September 20, 2010 Settlement Agreement, and with her having received a Final Order from the Department granting an exemption from disqualification on January 3, 2011. Since all aspects of Ms. Geier’s employment were resolved by the settlement agreement, and since Ms. Geier’s employment by Petitioner was not pled by the Department, her previous employment does not form a sufficient basis for denial of Petitioner’s license renewal.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order granting the renewal of license, No. C07V00140, to Petitioner Roslyn Smith for the operation the Rising Stars childcare facility. DONE AND ENTERED this 4th day of November, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 November, 2011.
