The Issue The issues to be determined are whether Respondent committed the violations as alleged in the Administrative Complaint (AC), and, if so, the appropriate penalty.
Findings Of Fact DCF is the state agency responsible for licensing child care facilities and enforcing regulations to maintain the health, safety, and sanitary conditions at those facilities operating in the State of Florida. See §§ 402.305-.311, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. In order to fulfill its regulatory duty, DCF conducts complaint and routine inspections. The factual allegations, as stated in the AC, provide the following: a. On December 20, 2018, the Department received an allegation that the owner/ director of the facility hit a child on the face with a ruler and slapped him. The teacher also hit another child on the chest with a ruler and that a child had slight bruising and a round scratch under his left eye. The Department conducted an investigation into these allegations starting on December 28, 2018. At the conclusion of the investigation, the Department determined the facility committed Class I violations of child care facility standards for child abuse and unscreened individuals. Licensing Counselor, Tiffani Brown, along with a Child Protective Investigator (CPI) Barbara Smith commenced their investigation on December 28, 2018, after the facility reopened from the holidays. They met with the owners [sic] daughter, Danita Gaines and spoke to the owner via the phone. While at the facility, Counselor Brown questioned Anthony Council, who stated he does help take care of children. Mr. Council was located in a room with children present. Mr. Council is not background screened and was ordered to leave. The owner, Cloe Gaines was on vacation and would not return until 1/2/19. Counselor Brown and CPI Smith returned to the facility on 1/2/19 to speak to the owner. Ms. Cloe Gaines was interviewed, and she stated she is a foster parent. Due to the allegations, Ms. Cloe Gaines was handed a restriction letter, which she signed and left the facility. Counselor Brown and CPI Smith interviewed Ms. Cloe Gaines [sic] foster children. The first foster child, G.M. said for punishment Ms. Cloe Gaines makes him go to sleep. The second foster child, M.M. continued to nod her head indicating yes when asked if he gets spanked for punishment. Counselor Brown and CPI Smith interviewed four other children at the facility. The first child, A.J. stated that Mrs. Cloe whips them with a belt or ruler on the arms and hands. The second child, A.J. stated that Mrs. Cloe hits people if they be bad. The third child, O.E. said that Mrs. Cloe hits them if they are bad with a blue ruler that she keeps in her desk. The last child, T.J. stated that they get hit with a pink and purple ruler that is kept in the classroom. The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified. Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations: a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C. b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC. Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month. Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy. On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018. Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018. CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview. During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines. B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer. Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview. CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019. When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview. A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also. In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck. During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads. On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later. During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present. Mr. Council admitted that Ms. Gaines had told him (Mr. Council) to get the required background screening completed, but he had not done so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order revoking the license of CG Academy. DONE AND ENTERED this 4th day of June, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2019.
The Issue The issue is whether Petitioner is entitled to the renewal of her license as the operator of a child care facility.
Findings Of Fact Petitioner was licensed to operate a child care facility continuously from December 31, 1985, through June 30, 1997. Several licenses issued by Respondent to Petitioner were provisional due to Respondent's concerns about Petitioner's compliance with various statutes and rules governing child care facilities. (References to Respondent include the predecessor agency to the Department of Children and Family Services.) On June 5, 1997, Respondent notified Petitioner that it would not renew her child care facility license when it expired on June 30, 1997. Presumably because Petitioner timely requested a hearing, Respondent allowed her to continue to operate her facility past June 30. However, on July 3, 1997, Respondent issued an order of emergency suspension pending review of the decision not to renew. Petitioner has not since operated her child care facility. The two major issues in this case involve Petitioner's repeated failures to employ sufficient staff to satisfy the staff-to-child ratios and repeated failures to ensure that staff directly supervise all children. Although these standards are related in purpose, the staffing-ratio standard requires that a certain number of staffpersons be responsible for a maximum number of children, with a lower ratio for younger children, and the direct-supervision standard requires in most instances that a staffperson be in the same room as the children. As a result of 31 facility inspections, Respondent identified 40 violations of these two standards. Five of these inspections resulted in Respondent filing administrative complaints, in response to which Petitioner eventually paid relatively small fines. The remaining 26 inspections resulted in nothing more serious than Respondent issuing warning letters. The first Administrative Complaint, which is dated February 8, 1993, alleges that Respondent conducted inspections on August 9 and September 22, 1992, and found each time insufficient staff to satisfy the required ratio of staff to children. The Administrative Complaint alleges that Respondent sent Petitioner a letter on October 2, 1992, warning that further infractions of the staffing ratio could result in a fine, but Respondent's inspectors found on December 16, 1992, another staffing-ratio violation, as well as a direct-supervision violation. The Administrative Complaint seeks a fine of $30. Petitioner did not contest the allegations of the February 8 Administrative Complaint. Instead, she paid the $30 fine on April 19, 1993. Respondent filed another Administrative Complaint dated June 9, 1993. The Administrative Complaint alleges that a 15-year-old staffperson had not undergone the necessary screening. Three months later, Respondent converted the Administrative Complaint to a warning due to Petitioner's confusion concerning the screening requirements applicable to such a young staffperson. Respondent filed a third Administrative Complaint on December 9, 1993. The Administrative Complaint alleges that, on November 17, 1993, three staffpersons were supervising 37 children, in violation of the staffing ratios and Petitioner's licensed capacity. Issuing a warning as to the capacity violation, Respondent sought a $75 fine for the staffing-ratio violation. Petitioner did not contest the December 9 Administrative Complaint. Instead, she paid the $75 fine on February 17, 1994. Respondent filed a fourth Administrative Complaint on February 17, 1995. The Administrative Complaint alleges, among other things, that Petitioner did not have a sink with the required number of compartments to allow the kind of food preparation that she was undertaking at the facility. The parties settled this allegation without the imposition of a fine or other discipline. Respondent filed a fifth Administrative Complaint on May 23, 1996. The Administrative Complaint alleges that Petitioner's employees propped up three feeding bottles for infants. The Administrative Complaint seeks a $50 fine. Petitioner paid the $50 fine on June 27, 1996. Respondent filed the sixth and seventh Administrative Complaints on February 11 and 26, 1997. Petitioner contested these allegations, as well as the allegations contained in an eighth Administrative Complaint dated March 18, 1997. All three complaints were consolidated for a single hearing. The partial final order resulting from the hearing on the three complaints imposed $400 in fines against Petitioner for two violations of the staffing ratios (alleged in the February 11 Administrative Complaint), one violation of the staffing ratios (alleged in the February 26 Administrative Complaint), and one violation of the direct-supervision requirement (alleged in the February 26 Administrative Complaint). The partial final order dismissed the March 18 Administrative Complaint and remanded allegations of inadequate training of staff. (The administrative law judge declined the remand, and the Respondent has appealed the order declining remand.) In addition to the above instances of violations of staffing ratios or direct supervision, Respondent also proved numerous other instances of violations of these two minimum- care standards. Respondent proved that Petitioner violated the following minimum-care standards: May 7, 1986 (staffing ratio); May 13, 1987 (staffing ratio and capacity limit); June 20, 1987 (staffing ratio); November 18, 1987 (staffing ratio); April 14, 1988 (staffing ratio); May 6, 1988 (staffing ratio); June 7, 1988 (staffing ratio); August 16, 1988 (staffing ratio); May 16, 1989 (staffing ratio and direct supervision); March 2, 1990 (staffing ratio); June 22, 1990 (direct supervision); October 2, 1990 (staffing ratio); October 5, 1990 (staffing ratio and direct supervision); November 5, 1990 (staffing ratio and direct supervision); November 8, 1990 (staffing ratio); November 15, 1990 (staffing ratio); May 14, 1991 (direct supervision); December 16, 1992 (staffing ratio and direct supervision); March 26, 1993 (staffing ratio); April 7, 1994 (staffing ratio and direct supervision); June 29, 1994 (direct supervision); July 28, 1995 (staffing ratio and direct supervision); December 6, 1995 (staffing ratio); January 28, 1997 (staffing ratio and direct supervision); February 17, 1997 (staffing ratio and direct supervision); June 25, 1997 (staffing ratio); and June 30, 1997 (staffing ratio). Respondent issued inspection reports for all of the violations listed in the preceding paragraph and provided Petitioner with copies of this documentation. Respondent periodically wrote letters to Petitioner advising her of the legal requirements as to staff ratios and direct supervision. Respondent repeatedly offered Petitioner technical advice regarding these crucial minimum standards for the provision of child care. There is no possibility that Petitioner did not understand the staffing-ratio and direct-supervision requirements. Petitioner's noncompliance constituted nothing less than defiance of these two minimum-care requirements over a period of 11 years. From 1986 through 1990, Petitioner violated these two standards 16 times. In 1991, she violated them only once. However, she violated them three times in 1992--resulting in the first administrative fine for the violation of these standards. Petitioner violated these standards twice in 1993--the second violation resulting in the second administrative fine for the violation of these standards. Petitioner violated the staffing-ratio and direct- supervision standards twice in 1994 and twice in 1995, but not at all in 1996. However, she violated these standards six times in 1997, including twice after the issuance of a third administrative complaint concerning the violation of these standards. These last two, particularly ill-timed violations, led directly to the decision not to renew her license and the later decision not to allow her to operate pending review of the nonrenewal decision. Although Petitioner has greatly reduced the number of her violations of the staffing-ratio and direct-supervision standards, she has nonetheless refused to comply with these important requirements designed to ensure the safety of the children for whom she is caring. Her violation of these standards while cases were still pending over earlier violations betrays a hardened resolve not to comply with these two standards. Respondent also proved that Petitioner repeatedly violated other requirements, such as for timely screening of employees and recordkeeping. However, Petitioner's repeated failures to comply with the staffing-ratio and direct- supervision requirements are sufficient to warrant the denial of her application for renewal of her license or, in the alternative, the revocation of her license.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for renewal of her child care facility license. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: Bruce A. Tischler Greene & Tischler, P.A. 10175 Six Mile Cypress Parkway Suite 4 Fort Myers, Florida 33912 Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Office of the General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Fun and Learning Center is a child care facility operated by Altagracia Munoz (Respondent) and licensed by the Department of Health and Rehabilitative Services (Petitioner.) On November 13, 1994, an employee of the Petitioner conducted a routine inspection of the Fun and Learning Center. At the time of the inspection, the staff members present were insufficient to comply with regulations established by the Petitioner. According to the regulations, one staff member must be present for every four infants in the facility. Seven children were located in the "infants" room with one staff person present. According to the regulations, one staff member must be present for every six one-year old children in the facility. Six children were located in the "one-year" room with no staff person present. According to the regulations, one staff member must be present for every eleven two-year old children in the facility. Eleven children were located in the "two-year" room with no staff person present.
Recommendation It is hereby RECOMMENDED that the Petitioner enter a Final Order imposing a fine of $50.00 on the Respondent. DONE and RECOMMENDED this 30th day of August, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1995. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 James A. Sawyer, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 827 Orlando, Florida 32801 Altagracia Munoz Fun and Learning Center 2630 Martina Avenue Kissimmee, Florida 34744
