The Issue The issue is whether the provisional license issued to Kiddie Kampus Day Care (Respondent), should be renewed.
Findings Of Fact Reatha Simmons is the owner of the Respondent facility and is licensed by Petitioner to operate a Child Care Facility under License No. DC-1320-E. As a consequence of a pattern of problems and violations at the Kiddie Kampus Day Care, Respondent was placed on provisional license status from January 20, 2000 through April 1, 2000. An inspection of the Respondent facility on January 7, 2000, revealed that the facility was "out-of-ratio" with too many children and not enough supervising employees, as well as insufficient square footage. Additional citations were made for Respondent's employee screening violations and lack of tuberculosis (TB) testing of the employees. A supervisory conference was held with Reatha Simmons and Petitioner employees on January 13, 2000, to discuss the pattern of repeat violations and non-compliance by the Respondent facility. Consequently, the facility was placed on a three-month provisional license status and Reatha Simmons was warned that it was her last chance to correct repeated violations. Another inspection on February 16, 2000, by Petitioner's representative revealed continued personnel screening violations and various facility violations. Included within the violations were two children who did not have required physicals on January 27, 2000, and were still out of compliance. An attempted review of documents at the Respondent facility by Petitioner's representative on March 6, 2000, was not possible as the documents were locked in an office in the facility at that time. Problems occurred at the Respondent facility on March 4, 2000. An underage employee was alone for approximately nine hours with children at the facility. There was a ratio violation as to the number and ages of the children at the facility. A family member was called to come and pick up a child early and the facility closed earlier than its posted hours. These matters were reported to Petitioner's personnel on March 7, 2000. At an inspection by Petitioner personnel on March 9, 2000, Respondent acknowledged the veracity of the March 4, 2000 incident. On March 16, 2000, an inspection of the facility showed additional fill dirt or ground cover was needed under the monkey bars, a piece of recreational machinery. While employee fingerprint and background verification were eventually accomplished, along with required TB tests, these actions were tardy and not expediently accomplished. Likewise, physical examinations of two children were not timely accomplished.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered by Petitioner confirming the decision not to renew Respondent's license. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 19th day of December, 2000. COPIES FURNISHED: Reatha Simmons, Qualified Representative Kiddie Kampus Day Care 1216 Portland Street Pensacola, Florida 32534 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether CAP Head Start – Gibson Center (“Respondent”) committed the violations alleged in the Administrative Complaint issued by the Department of Children and Families (“the Department”) on February 12, 2018.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties and Relevant Provisions of Law The Department is the state agency responsible for licensing child care facilities in Florida and ensuring that those facilities comply with requirements imposed through the Florida Statutes and the Florida Administrative Code. In order to fulfill that duty, the Department conducts routine and complaint inspections. Every facility receives three routine inspections a year. If the Department learns that a facility may have committed a violation, then the Department conducts a complaint inspection within 48 hours of receiving the information. The Department classifies violations as Class I, Class II, or Class III. Rule 65C-22.010(1)(d)1., defines Class I violations as those that “are the most serious in nature, pose an imminent threat to a child including abuse or neglect and which could or [do] result in death or serious harm to the health, safety or well-being of a child.” Rule 65C-22.010(1)(d)2., states that 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.” Rule 65C-22.010(1)(d)3. provides that 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.” If a facility commits three or more Class I violations within a two-year period, Rule 65C-22.010(2)(e)1.b., mandates that the Department shall suspend, deny or revoke the facility’s license. Section 39.201(1)(a), Florida Statutes, requires that [a]ny person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to [the Department] in the manner provided in subsection (2). Section 39.201(2)(a), requires that [e]ach report of known or suspected child abuse, abandonment, or neglect by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare as defined in this chapter, except those solely under s. 827.04(3), and each report that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall be made immediately to [the Department]’s central abuse hotline. Rule 65C-22.001(11)(b) specifies that “[f]ailure to perform the duties of a mandatory reporter pursuant to Section 39.201, F.S., constitutes a violation of the standards in Sections 402.301-.319, F.S.” Respondent is a federally funded, nonprofit agency with its corporate headquarters in Pensacola, Florida. Respondent has 190 employees and four core programs, the largest of which is a Head Start program serving 935 children in Escambia County. The Gibson Center in Pensacola is a Florida-licensed childcare facility and part of Respondent’s Head Start program. The Gibson Center cares for 190 children every school day and transports 160 children to and from its facility on buses. The September 20, 2017 Incident On September 20, 2017, a bus dropped off children at the Gibson Center, but the bus driver and her aide failed to conduct a complete visual sweep3/ to ensure that all the children had left the bus. As a result, no one realized that a five- year-old child, J.H., was still on the bus until the children arrived at their classroom. The bus driver briefly left the bus to retrieve a stapler from her car, drove to the “bus pen,” and began completing paperwork. After the aide called the driver to inquire if J.H. was still on the bus, the driver found J.H. asleep on a seat and unbuckled. J.H. was unattended on the bus for approximately five minutes. The bus driver and aide disclosed the incident to their supervisors. The September 28, 2017 Incident On September 28, 2017, Shenevia Jones, a bus driver’s aide, conducted a visual sweep to ensure that all of the children were off a bus but failed to notice that a four-year- old child, M.J., was hiding under a seat. M.J. remained on the bus while it took 20 minutes to complete an additional route. Upon the bus’s return to the Gibson Center, Ms. Jones discovered the child after he sprang from under a seat and said “ta dah.” Respondent’s Actions Following the Incidents Respondent’s upper management met on September 21, 2017, to discuss the September 20th incident and decided that a review of the loading and unloading procedures would be conducted with drivers and aides on September 22, 2017. In addition, the Executive Director would discuss the incident with all employees on September 23, 2017. After the September 28th incident, Respondent’s management decided that a more robust response was necessary. As a result, Ms. Jones was suspended for three days without pay, and Respondent rewrote its procedures for loading and unloading buses.4/ According to Respondent, these new procedures were “site specific” in that larger facilities such as the Gibson Center had different procedures than smaller ones.5/ Deborah Nagle, Respondent’s Director of Compliance, Governance, and Head Start, reported both incidents to the regional Health and Human Services (“HHS”) Office in Atlanta, Georgia via an October 6, 2017, e-mail. As a federally-funded, non-profit agency, Respondent receives funding from HHS. HHS issued a report on February 15, 2018, finding that Respondent violated a federal regulation prohibiting a child care program from leaving a child behind in a classroom or on a vehicle. Ms. Nagle and Doug Brown, Respondent’s Executive Director, discussed whether the incidents amounted to “neglect” within the meaning of Chapter 39 and determined they were not reportable events. In October of 2017, the Department issued a new handbook to child care facilities, and this handbook contained a section about reporting neglect. After reviewing the aforementioned section, Ms. Nagle sent an e-mail to Roger Thompson, the Department’s Supervisor of Child Care Regulation in Escambia, Santa Rosa, Okaloosa and Walton Counties, on Friday, December 8, 2017,6/ describing the incidents: I have attached 2 incidents we had with children on the bus along with the revised procedure. We had reported this to our Regional office and have worked with our Training and Technical Assistance to complete a corrective action plan and put enhanced monitoring in place. All staff will be trained on Jan. 2 when we return from the Christmas break on the revised procedures. I felt it necessary to send this information to you after reading the new Field manual which lists items we must have in policy on reporting on page 27. I will be out of the office until Dec 15th, but will be able to retrieve e-mail while traveling. Mr. Thompson responded on Monday, December 11, 2017, with the following message: Was the Hotline called on the incident? Also, that needs to be addressed in the [corrective action plan]. Anything like this needs to be reported immediately to the Hotline. Not reporting can resort in an additional Class I violation. Ms. Nagle responded 13 minutes later by stating the incidents were not reported. Just over an hour later, Ms. Nagle transmitted the following inquiry: I have a question. Is what happened considered an abuse report? To my knowledge there has not been any specifics on what is reported other [than] injury to a child or a report from a parent or other staff member that there was abuse []. We did not consider these as reportable, but due to the new field guide thought it necessary to inform you. So far every call we have made to the hotline when it was deemed an abuse situation was only taken as information. Mr. Thompson responded five minutes later with the following: Remember . . . it isn’t always ABUSE. It is anything that possibly fits Abuse and/or Neglect. This was NEGLECT. If you contact Paula Doty at the Gulf Coast Kids House, she will do a great training for free at your location. She goes into the details. It would be great for your staff, in-service training credit, and it may head some of this stuff off at the pass. The Department’s Investigation Mr. Thompson initiated a complaint investigation, and two Department employees, Casey Gully and Shacondra Primm, inspected the Gibson Center on December 13, 2017. During that inspection, one of Respondent’s teachers showed Ms. Primm a hole in the floor of a modular classroom unit. Approximately one week prior to the inspection, the teacher’s foot had fallen through the floor, resulting in a 6 inch by 12 inch hole about 3 to 4 feet from the classroom’s entrance. At the time of the inspection, a trashcan and caution tape covered the hole. Respondent was in the process of collecting bids to have the hole fixed over the Christmas break.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families issue a Final Order imposing a $1,000.00 fine on Respondent. DONE AND ENTERED this 10th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 10th day of September, 2018.
The Issue The issue in this matter is whether the Department of Children and Families should impose an administrative fine on Respondent.
Findings Of Fact The Department is the state agency charged with regulating licensed or registered child care facilities in Florida. Respondent is licensed to operate a child care facility in Lakeland, Florida. The Department seeks to sanction Respondent based on an incident that occurred on November 2, 2015. The Department’s Administrative Complaint specifically alleges that: The facility driver, Antuan Bunkley was looking at his phone while transporting children in the facility’s vehicle. Two witnesses observed Antuan Bunkley texting and/or scrolling while driving. The witnesses observed a phone in Antuan’s hands and him looking down several times while driving with children in the van. Several children on the van told the Department that Antuan text [sic] while he drives, plays games on his phone, and receives calls while driving. The Department asserts that Mr. Bunkley must “be able to respond to the needs of the children” and “be alert and avoid any and all distractions in order to effectively respond to those needs.” The Department categorized Respondent’s (i.e., Mr. Bunkley’s) actions as a Class I violation of a child care licensing standard. The Department desires to fine Respondent in the amount of $250 because Mr. Bunkley’s “inadequate supervision posed an imminent threat to the child, or could or did result in death or serious harm to the health, safety or well-being of a child.” The Department issued the Administrative Complaint following a complaint received from Shana Nicholes, who had observed Mr. Bunkley driving Respondent’s van. At the final hearing, Ms. Nicholes testified that on November 2, 2015, at approximately 3:30 p.m., she was driving her sports utility vehicle on Highway 98 North in Lakeland. Her brother was riding with her in the passenger seat. As she drove, her brother called her attention to Respondent’s van which was driving in front of them. He commented that the van was full of children who were not wearing seat belts. As her vehicle drew closer to the van, Ms. Nicholes observed that not only were the children not wearing seat belts, but she believed that she saw the driver (Mr. Bunkley) looking down at his cell phone while driving. Ms. Nicholes explained that Highway 98 North has four lanes through Lakeland. Over a stretch of about three to four miles, Ms. Nicholes drove in the left side lane roughly parallel to Mr. Bunkley. Ms. Nicholes testified that during that drive, she saw Mr. Bunkley holding a phone. She further stated that he looked down at the phone in his lap several times as he drove. Ms. Nicholes guessed that Mr. Bunkley lowered his eyes for approximately 10 to 20 seconds each time he glanced down. She stressed that “he wasn’t paying attention to the road.” Ms. Nicholes expressed that the two vehicles drove as fast as 45 mph. Ms. Nicholes was quite alarmed by Mr. Bunkley’s actions. As she drove next to him, she took several photographs of him with her cell phone. Copies of Ms. Nicholes’ photographs were introduced at the final hearing. The photographs show Mr. Bunkley looking down as he is sitting in the driver’s seat. However, neither Mr. Bunkley’s right hand nor a cell phone are visible in the pictures. (Respondent disputes that the van was moving at the time Ms. Nicholes took the pictures.) Ms. Nicholes was shocked by the incident. She was worried for the safety of the children in the van. She commented that if her child were riding in the van, and the driver was distracted like Mr. Bunkley was, she would be furious. Later that day, Ms. Nicholes posted her photographs of Mr. Bunkley driving Respondent’s van on her Facebook page. She added the caption, “Well, this is safe, we’re doing about 45 down 98 and this guy is texting with a van full of children. Not cool, dude.” The next morning, Ms. Nicholes was still distressed by what she had witnessed. Therefore, she decided to visit Respondent’s place of business to discuss the incident. Ms. Nicholes had no knowledge of Respondent prior to November 2, 2015. She identified Respondent from the name on the side of the van. Ms. Nicholes maintained that her only interest in approaching Respondent was to alert Respondent of the risk to the children in the van because of a distracted driver. When Ms. Nicholes arrived at Respondent’s facility, she spoke to Elizabeth Jackson. Ms. Nicholes advised Ms. Jackson that she had observed her van driver using his cell phone while driving, and she showed Ms. Jackson her photographs. Ms. Jackson informed Ms. Nicholes that the driver was her son, Antuan Bunkley. Ms. Jackson told Ms. Nicholes that she would be taking him off driving until the matter was resolved. After her meeting with Ms. Jackson, Ms. Nicholes drove to Subway for lunch. While standing in line, she was approached by a woman who identified herself as an employee of Respondent. The employee asked Ms. Nicholes if she was the one who had posted the photos of the van driver on Facebook. At that point, Mr. Bunkley entered Subway. Ms. Nicholes took a picture of Mr. Bunkley while he was standing in line behind her. The next day, Ms. Nicholes reported the incident to the Department. Upon receiving Ms. Nicholes’ complaint, the Department initiated an investigation. The case was assigned to Brandy Queen, a Child Protective Investigator. Cheryl Dishong, a Child Care Regulations Counselor, assisted her. Ms. Queen testified that she started her investigation by visiting Respondent’s facility. She was accompanied by Ms. Dishong. There, she met Ms. Jackson. During their conversation, Ms. Jackson acknowledged that her facility owned the van and that the driver was Mr. Bunkley. Ms. Jackson told Ms. Queen that Mr. Bunkley had picked up six children on the afternoon of November 2, 2015. She provided the children’s names to Ms. Queen. Ms. Jackson also allowed Ms. Queen and Ms. Dishong to examine the van. Ms. Queen and Ms. Dishong spent some time climbing through the van. The van has two bucket seats in the front row and three rows of back seats. Ms. Queen and Ms. Dishong sat in different seats to determine the vantage point of the driver by the children riding in the van. They wanted to see if the children could have observed Mr. Bunkley texting while he drove. Ms. Dishong climbed into the back rear seat. Taking into account that she is taller than the children who rode in the van, Ms. Dishong slouched down to simulate a child passenger. Ms. Queen stated that Ms. Dishong believed that a child could adequately see the driver from the back, rear seat. However, Ms. Queen conceded that during their inspection of the van, no one was sitting between the rear back seat and the drivers’ seat. Neither did a driver sit in the front seat to determine whether Mr. Bunkley’s body would prevent a clear view of his hand while he was driving (particularly, a driver as large as Mr. Bunkley as discussed below). Next, Ms. Queen interviewed the six children who had been riding with Mr. Bunkley on the afternoon of November 2, 2015. At the final hearing, Ms. Queen explained that, before she asked the children about Mr. Bunkley’s driving, she presented several preliminary questions to ascertain whether the children understood the difference between telling the truth and telling a lie. Ms. Queen testified that she believed the children were telling her the truth during her interview. However, the children’s statements were not given under oath.3/ Ms. Queen stated that, based on the evidence she gathered, which included the children’s statements, Ms. Nicholes’ pictures,4/ and her own observations of the van, she “verified” that Mr. Bunkley’s conduct constituted inadequate supervision. Ms. Queen further stated that Mr. Bunkley’s driving while distracted caused concern since he ran “the risk of getting into a wreck.” She believed that he had placed himself and the children in his care “at risk of harm, of dying.” Of the six children, the Department presented A.O. at the final hearing to tell her story.5/ A.O. was seven years old at the time of the incident. (She was eight years old on the date of the final hearing.) A.O. testified that she had attended Respondent’s child care facility for about a year. A.O. was familiar with Mr. Bunkley and identified him in Ms. Nicholes’ photographs. A.O. relayed that three to four different people had driven her in Respondent’s van, including Mr. Bunkley. A.O. stated that on the afternoon in question, Mr. Bunkley picked her up after school in Respondent’s van. At the final hearing, A.O. demonstrated proficient knowledge of the functions of a cell phone. A.O. described various uses of a cell phone including talking, texting, playing games, and looking at Facebook. A.O. testified that Mr. Bunkley used his cell phone when he drove the van. A.O. stated that Mr. Bunkley texts while driving. By “texting,” A.O. recounted that she observed Mr. Bunkley moving his fingers on the phone at the same time he was driving. A.O. also described seeing Mr. Bunkley looking at Facebook on his cell phone while he was driving the van. A.O. added that sometimes when she was riding with Mr. Bunkley, he swerved off the road while he was using his phone. She also described how the van would sometimes get near other cars on the road. She commented that Mr. Bunkley occasionally drives the van with his knees. She imparted that the way he drove scared her sometimes. A.O. expressed that when she rode in the van, she sat in the very back seat on the right side. A.O. conveyed that, despite sitting in the very back row, she could still see Mr. Bunkley hold and use a cell phone. At the final hearing, Mr. Bunkley acknowledged that he was driving Respondent’s van on November 2, 2015, and was the individual seen in Ms. Nicholes’ photographs. Mr. Bunkley also confirmed that he was transporting children in the van at that time. Mr. Bunkley firmly denied that he was texting while driving Respondent’s van. He denied ever using his phone while driving the van. Mr. Bunkley admitted that he does carry his cell phone when he drives. However, he claimed that he routinely keeps his phone in his pocket. Mr. Bunkley asserted that he would only use his cell phone in the case of an emergency. Mr. Bunkley expressed that Ms. Nicholes must have seen him looking down at his transportation log when she observed him on November 2, 2015. Mr. Bunkley explained that his log sheet registers when and where he is to pick up and drop off children. Mr. Bunkley relayed that he periodically reviews the log sheet as he transports children. However, he only checks the transportation log when the van is stopped. He remarked that Ms. Nicholes must have taken her pictures of him on Highway 98 North when they were stopped at a stoplight. Mr. Bunkley stated that he is 5’11” tall and weighs 330 pounds. Because of his large size, he did not believe that it was possible for A.O. to see anything he held in his lap from her seat in the right rear of the van. Mr. Bunkley offered his cell phone records to support his assertion that he was not texting on the afternoon of November 2, 2015. However, the phone records do not confirm whether Mr. Bunkley was accessing or reading text messages as he was driving. Nor do they provide any information regarding his alleged “scrolling” or using Facebook. Respondent is owned and operated by Ms. Jackson. She is also Mr. Bunkley’s mother. Ms. Jackson did not believe that Mr. Bunkley was texting on his cell phone while he was driving the van. Instead, she posited that the van was stationary when Ms. Nicholes took her pictures, and that Mr. Bunkley was looking down at his transportation log. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Mr. Bunkley was scrolling and/or texting on his cell phone while driving Respondent’s van on November 2, 2015. Accordingly, the Department failed to meet its burden of proving that Respondent committed “inadequate supervision” which would support an administrative fine under section 402.310.
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 dismissing the Administrative Complaint against Respondent, The Early Years Child Development Center. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 30th day of March, 2017.
The Issue The issues to be resolved in this proceeding concern whether the application submitted by the Petitioner for a new one-year license for Small Fries Day Care, Inc., should be granted, or denied based upon violations of specified statutes and rules referenced below as alleged by the Respondent. It must also be resolved whether the application to operate a new facility known as the Growing Tree Learning Center and Nursery should be denied because of the same alleged instances of non- compliance with the relevant statutes and rules.
Findings Of Fact The Petitioner operates a child care facility known as Small Fries Day Care, Inc. She also has applied for a license to open a new facility known as the Learning Tree. The Department notified the Petitioner, by letter of July 23, 2004, that the application submitted for a new one-year license for Small Fries was denied. The letter of denial was based on violations of statutes and rules enforceable by the Department, which were purportedly discovered during the inspections of the facility in April, May, and July of 2004. Thereafter by letter of August 3, 2004, the Petitioner was notified that her application for a license to operate a second child care facility known as the Growing Tree Learning Center and Nursery was also denied, based upon the history of alleged violations and non-compliance with statutes and rules during the operation of the Small Fries. The Petitioner requested a formal administrative proceeding to contest both decisions and the matter was referred to the Division of Administrative Hearings. The two cases were later consolidated into the instant proceeding. The Department received a complaint regarding transportation of children. It therefore dispatched an investigator, Judy Cooley, to conduct an inspection of the Petitioner's facility on April 6, 2004. The precise nature of the complaint was never substantiated. Ms. Cooley, however, upon conducting her inspection, discovered a violation of Florida Administrative Code Rule 65C-22.001(6)(f). This is a rule which mandates that children transported in a van must be counted and that both the driver of the van and one staff member must both count the children and sign a transportation log verifying that all children had exited the van. This is required to be done each time children leave or board the van. The failure to document an inspection of the van by both the driver and another staff member to ensure that all children are accounted for and out of the van is considered to be a major violation of the Department's rules and policy. The purpose of that requirement is to prevent children from being accidentally left in a van in the hot sun (or left at some location away from their home or the Petitioner's facility when the van departs a location.) If a child is left in a van in the hot sun a serious injury can result, rendering this infraction a serious one. Ms. Cooley also determined that a violation had occurred concerning the "background screening" requirements upon her inspection on April 6, 2004. That is, the Petitioner's records did not show that screening had been done for all personnel employed by the Petitioner's facility. On May 11, 2004, another investigation or inspection of the facility was conducted by the Department. This was because the Department had received an anonymous abuse report concerning the Petitioner's facility. Upon investigation it was determined that the report was unfounded. It had been alleged that a child had sustained an eye injury while in the custody and care of the Petitioner, but that was determined not to be the case; rather, the eye problem was determined to have been "Sty" infectious process and not a result of any injury sustained while a child was in the care of the Petitioner or her staff members. The Petitioner was also charged with a violation regarding this eye injury issue for failing to file an "incident report" concerning it and failing to give a copy of the report to the child's parent the same day of the incident. This violation has not been proven by the Department because, in fact, no injury occurred. The child had to have appeared on the premises of the Petitioner's facility that day already suffering from the eye condition. Therefore, there was no "incident" occurring on the premises of the Petitioner, or while the child was in the Petitioner's care. Therefore, there could be no incident requiring reporting to the Department and the parent under the Department's rules and policies. Apparently, the owner of the facility, Ms. Carter, later provided a copy of an incident report in the belief that the Department required it. In any event, this purported violation was not shown to have legally or factually amounted to an incident or a violation. As to that May 11, 2004, inspection or investigation, however, the Department's evidence derived from that May 11, 2004, inspection which was not refuted establishes that the Child Protective Investigator (CPI) who conducted the investigation observed other violations. The investigator noted that the staff was failing to adequately supervise children and that the staff had not had required training. The CPI found that after observing the day care facility on three different occasions in a two-week period, there were always children "running around," not in their classroom and without staff providing supervision of them. The CPI noted prior reports for inadequate supervision and noted that some of the staff had not been trained in all of the required hours for teachers required by the Department's rules. These findings by the CPI were supported by unrefuted evidence adduced by the Department at hearing, and accepted as credible. Ms. Cooley returned to the facility to conduct a follow-up inspection on July 23, 2004. This inspection was specifically related to the pending application filed by the Petitioner for a renewed one-year license for the facility. Ms. Cooley prepared a list of activities, conditions, or records as to the facility, its operations, the children, and the staff personnel, for purposes of indicating whether those checklist items, based upon Department rules, had been complied with or had not been complied with. There were a total of 63 specific requirements under the Department's statutes and rules for Ms. Cooley to employ in inspecting the facility. Ultimately, she found that the facility was in non-compliance on 11 out of the 63 items. Ms. Cooley thus determined on this visit that the required staff-to-child ratio was improper. The facility was out of compliance on this issue by having only one staff member supervising the "infant room" with one child less than a year old, and five children aged one year. The number of staff needed is controlled by the age of the youngest child in a group. Two staff members were required in this instance instead of one. Ms. Cooley also found, as a minor violation, that the facility had an open door with no screen, with only a curtain covering the opening and that children were sleeping on the floor on only towels instead of the required individual sleeping mats (minimum one inch thick.) The owner of the facility, Ms. Carter, however, testified that indeed the mats were in use but were covered with towels and therefore they were not readily visible. It is thus difficult to determine whether all the children slept on required sleeping mats or some of them, or none of them. The testimony in this regard at least roughly amounts to an equipoise, and it is determined that this violation has not been established. Another violation Ms. Cooley found to have occurred was that there were no records which would establish that the facility had conducted required fire drills for one and one-half months. Child care facilities such as this mandatorily must conduct at least once a month fire drills. They mandatorily must document each fire drill in a record for ready inspection. Ms. Cooley also found that there was no record proof of enrollment by staff members in the required 40-hour training course which all employees must undergo within 90 days after they are hired. The facility also had been cited for this violation on the April 6, 2004, visit. It remained uncorrected during the interim and on the day of Ms. Cooley's second visit. Another violation was found on this occasion in that, for the number of children present in the facility, there must be at least two staff members who have the necessary child development associate credentials. There was only one staff member who had those necessary credentials. There are also no records to establish that the required in-service training for staff members had been conducted. The additional three violations found by Ms. Cooley involve the failure to maintain required records concerning child immunizations, staff personnel records, and background screening records establishing that background screening had been properly done. If that required information is not appropriately filed and available at the facility, that in itself is a violation. If the file record was required to document compliance with some requirements, such as staff training, the absence of the documentation results in a presumption that there was no compliance. The lack of adequate staff in the infant room necessary to meet the statutorily required staff-to-child ratio, as noted on the July 23, 2004, inspection, is a major violation under Department rules and policies. Direct supervision is mandated for children of that age at all times. The maintenance of this staff-to-child ratio is considered to be so important by the Department that its staff are not allowed to leave a facility if an improper staff-to-child ratio (inadequate) is found to exist until the problem is corrected. The failure to keep records establishing timely compliance with background screening requirements for staff of the facility, provided for in Chapter 435, Florida Statutes, was found on the April 6, 2004, inspection and found to still exist at the time of the July 23, 2004, visit. The same factor was true with regard to the requirement that new staff be enrolled in the mandatory 40 hours training program within 90 days of being hired. The failure to correct these problems concerning background screening and training and the documenting of it, between April 6, and July 23, 2004, becomes even more critical when one considers that Ms. Carter, the owner of the Petitioner, had been provided with technical assistance by Ms. Cooley designed to help her bring her facility into compliance in all respects at the April 6, 2004, inspection visits. These violations concerning the background screening, training requirements and then documentation are considered to be serious infractions by the Department in its interpretation of its rules, and in the carrying out of its policies. In summary, although one or two of the violations were not proven and at least one, such as the failure to have a screen on a door, was not established to be a serious violation, the established violations do show an overall pattern of disregard of statutes and rules adopted for the safety, health, and welfare of children entrusted to the care of such a child care facility owner and operator. That this was so, even the Petitioner was informed of and counseled regarding the violations. Some of them remained in non-compliance or at least again in non-compliance, upon the second inspection visit. It is not enough that the operator or owner of the facility provided the required documentation later after its absence is discovered or that she corrected the training, background screening, and other violations after they were discovered. The statutes and rules which apply require that such operations be done correctly at all times, and that performance be timely documented at all times. The keeping of documentation in the facility's records concerning the violative items referenced above is not required for mere hollow bureaucratic convenience, but rather, because the Department has a very high standard of public trust in ensuring that children in such facilities are maintained in a safe fashion. It must have available, for ready inspection, at all reasonable times, the documents which support that the duties imposed by the various relevant statutes and rules are being properly carried out, so that it can know, before severe harm occurs to a child or children, that they might be at risk. These established violations contribute to the overall pattern, shown by the Department, of an habitual disregard of the statutes and rules adopted and enforced for purposes of the safety of the children entrusted to the care of the Petitioner (or at least timely compliance). Indeed, prior to the denial of a new one-year license for Small Fries and the denial of initial licensure for the proposed Growing Tree Facility, the licensing supervisor, Ms. McKenzie, conducted a review of the licensing file of the Petitioner. Ms. McKenzie thus established in the evidence in this record, that the file reflected repeated past violations involving failing to adequately supervise children and concerning the background screening and training and timely training of employees. Upon completion of each inspection involved in this proceeding Ms. Carter, the operator, was given a copy of the report or checklist prepared by Ms. Cooley. She was given an opportunity at that point to respond to it or to write any comments thereon. On neither occasion, April 6, 2004, nor July 23, 2004, were there any written comments made by Ms. Carter that disputed the fact of the violations found by Ms. Cooley. There were some notes by way of explanation or of justification concerning the hiring of a teacher "for my toddlers" etc., but the notes or explanations provided by Ms. Carter in writing and in her testimony at hearing, do not refute the fact of the occurrence of the violations delineated in the above Findings of Fact. In summary, Ms. Carter's explanations in her testimony to justify or explain the failures or the violations found above are not credible, in terms of showing that the violations did not occur.
Recommendation That having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a provisional license to Small Fries Day Care, Inc., conditioned on the holder of that license undergoing additional training at the direction of the Department, designed to educate the operator under the license regarding the proper, safe care, and protection of children in her custody, operation of a child care facility, including the proper screening and training of staff, record keeping, and the other items of concern shown by the violations found in this case. Such provisional licensure shall be in effect for a period of one year when such training shall be completed, and shall be conditioned on monthly inspections being performed by relevant Department personnel to ensure compliance with the relevant statutes and rules. It is, further, RECOMMENDED that the application for licensure by the Growing Tree Learning Center and Nursery, Inc., be denied. DONE AND ENTERED this 12th day of September, 2005, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 12th day of September, 2005. Gregory Venz, 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 Robyn A. Hudson, Esquire 3900 Lake Center Drive, Suite A-2 Mount Dora, Florida 32757 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
