The Issue The issue in this case is whether Respondent violated provisions of Florida Statutes and Florida Administrative Code relating to the operation of a child care facility, and, if so, whether sanctions should be imposed.
Findings Of Fact The Department is the government agency responsible for licensing, inspecting, and monitoring child care facilities in Florida. At all times subject hereto, the Department was operating according to its statutory mandates. The Center is a child care facility located at 5034 18th Street, Zephyrhills, Florida. It operates under License No. C06PA0156 and is licensed for a maximum capacity of 67 students. The Center has been operating for approximately five years.1/ It is owned by Ms. Gollhardt and her daughter, Ms. Kirk. On July 22, 2011, the Department issued an Administrative Complaint against the Center. The Administrative Complaint contained allegations concerning four separate incidents over a four-month period, from September 2010 to January 2011. The incidents, as set forth in pertinent part from the Administrative Complaint, are as follows: On August 5, 2010, G.H., a staff member, was observed by another staff member to have slapped K.L., a three (3) year old child, across the face. Another staff member heard the incident and the child crying subsequent to the slapping. On October 6, 2010, a four (4) year old child, B.G., had been spitting on other children and had previously been disciplined for his inappropriate behavior. The child continued to spit and R.G., the owner/director, sprayed the child in the face with the liquid from a bottle that was being used to sanitize the tables. The liquid in the bottle was diluted bleach and water. R.G. stated the solution was 3 table spoons [sic] bleach to 5 gallons water. After conducting an investigation of an incident on November 29, 2010, it was determined that a staff member, T.C., used her hands to press down on a two (2) year old child's forearms to keep the child from getting up from the time out chair. On January 24, 2011, D.L., a five (5) year old child, had an accident and the owner/director needed to change his underwear. The child threw a fit because he wanted [sic] boxers and the facility did not have boxers to put on him. After conducting an investigation[,] it was determined that struggle [sic] the owner/director, R.G., had been observed dragging the child by the arms across the floor. A complaint form was drafted for each of the four incidents after the Department finished its investigation for each incident. The complaints were provided to the Center for review, and the Center signed an acknowledgement that it had received each of the complaints. After the first incident (the slapping of a child), the Department issued an Administrative Warning Notification dated September 22, 2010. The warning advised the Center that the incident was the first Class II violation against the Center within a two-year period. The Center was warned that another Class II violation within two years would result in a fine in the amount of $50.00. The warning did not include a process for the Center to appeal or contest the Department's findings. After the second incident (the spray bottle), the Department issued a Notice of Administrative Action dated October 13, 2010. The Notice advised the Center that the incident constituted the second Class II violation within a two-year period and of the Department's "intent to impose an administrative fine as a result of this repeat Class II violation." The Notice advised the Center that it would receive a formal administrative complaint imposing the fine and that upon receipt of the administrative complaint, the Center would have 21 days to either pay or appeal the fine. According to the Department's witness, the action taken by the staff member constituted a "physical form of discipline that could have caused the child to be harmed." Following the third incident (teacher holding child in a chair), the Department issued another Notice of Administrative Action, this one dated November 30, 2010. This Notice advised the Center that the Department intended to issue an Administrative Complaint imposing a fine commensurate with a third Class II violation within a two-year period. The Notice had the same language as the prior Notice concerning appeal rights. Finally, after the fourth incident (the soiled boy), the Department issued yet another Notice of Administrative Action dated January 25, 2011. This final Notice advised the Center that the Department intended to impose a fine and to change the Center's license to probationary status. The Notice also advised that another Class II violation "within [two] years from the date of this report" would result in the Center's license being suspended, denied, or revoked.2/ The Notice again stated that an Administrative Complaint would be issued from which an appeal could be taken within 21 days. On July 22, 2011, the Department issued its promised Administrative Complaint setting forth allegations as to each of the four incidents. The Administrative Complaint provided the Center its first opportunity to contest or challenge the allegations set forth in the four previous notices or warnings. The Center timely filed a request for formal administrative hearing to contest the Department's findings. The four incidents will be discussed more fully below, including the Department's basis for its findings and the Center's explanation, mitigation or other response. Incident No. 1--Slapping a child This incident occurred on Thursday, August 5, 2010, while Ms. Gollhardt and Ms. Kirk were both out of town on family matters. A teacher, Gayla, was observed by another teacher slapping a child's face. The second teacher immediately contacted the owners via cell phone to report what had happened. Ms. Gollhardt had the observing employee do a written statement and place it in Ms. Gollhardt's lock box for safe keeping. Then Ms. Gollhardt verified that Gayla had left the Center for the day. Ms. Gollhardt returned to the Center and looked into the matter. She directed Gayla not to report back to work and then called the Department's abuse hotline to self-report the incident. Ms. Gollhardt then contacted Ms. Richey, the Department's counselor assigned to the Center. Ms. Richey came to the Center on the following Tuesday and conducted her own investigation of the matter. When it became clear that the incident had indeed occurred as reported, Ms. Gollhardt terminated Gayla's employment at the Center. From the day of the incident until she was terminated, Gayla had not been allowed back into the Center. The Department found out about this incident in two ways: First, a Child Protection Investigator ("CPI") notified Ms. Richey after the initial hotline call made by Ms. Gollhardt, i.e., after the Center self-reported the incident. Second, when Ms. Gollhardt contacted Ms. Richey directly to report the incident. There was no testimony from the parents of the child or from the terminated employee. Incident No. 2--The Spray Bottle As set forth in the Administrative Complaint, the child at issue, B.G., had been disciplined previously for spitting on other students. Ms. Gollhardt had written reports about B.G.'s behavior and sent the reports home with B.G. However, B.G.'s parents never responded to the reports or made any effort to discuss his behavior with the Center. On October 6, 2010, B.G. was again spitting on other children. Ms. Gollhardt tried to prevent B.G. from doing this by holding him in her lap as she sat and read a story to a group of students. This worked until the story was over and the students got up from the carpeted reading area. At that time, B.G. spat on another child. Ms. Gollhardt, who was standing nearby and holding a bottle in her hand, sprayed a mist towards B.G., who was three or four feet away, i.e., on the other side of a toy shelf from Ms. Gollhardt. Her intent was to get his attention and to show him that it was uncomfortable to have liquid of any kind involuntarily foisted upon you. The bottle was apparently set on a "mist" mode and there is insufficient evidence as to whether the liquid actually touched B.G. or not. The liquid was contained in a bottle that had been used to sanitize tables at the Center. The bottle contained water and bleach, but there is no competent evidence as to the ratio of the mixture. The Administrative Complaint alleges that Ms. Gollhardt said that the mixture was three tablespoons of bleach to five gallons of water, but that is the only evidence concerning the mixture. Nor was there any testimony provided as to the potential harm to a person that such a mixture might cause. If the mixture was as reported, there would seem to be a very minimal amount of bleach in the misted spray. Ms. Gollhardt prepared an incident report to show to B.G.'s parents, but she was not at the Center when they picked him up on the day of the incident. The next morning, when B.G.'s father dropped him off at school, Ms. Gollhardt told him what had happened and showed him the incident report. The father examined the contents of the spray bottle and indicated that no further action would be necessary. Later that day, Ms. Gollhardt advised the parents that if B.G. did not stop this behavior, they would have to find another place for him to go. The mother took great exception to this admonition, so she reported the incident to the Department. B.G.'s mother thereafter withdrew B.G. from the Center, and he has never returned. While spraying a water and bleach mixture at a child is never a good idea and is not condoned, it does not rise to the level of a punishment or discipline of the child. Incident No. 3--The Crying Chair The Center utilizes two different methods of dealing with children who are disruptive or act inappropriately. The Center uses the "time out" method, wherein they place a child in a designated place for a specified period of time so the child has an opportunity to think about their behavior. The Center also employ a "crying chair," which is a chair to which a crying child is directed to sit until they stop crying. The children apparently understand that they can get up from the chair as soon as they stop crying. The Center says the crying chair is a very effective tool. On November 29, 2010, a small, just-turned-two-year- old child (referred to as "Lisa"--not her real name) came to the Center late. She had been at a doctor's appointment with her grandmother and arrived at the Center at the time her class was playing on the playground. "Lisa" was upset that she could not stay with her grandmother and was crying and unruly when her grandmother left. After failing in her efforts to calm "Lisa" down, her teacher, Ms. Clemmer, placed "Lisa" in a crying chair on the covered porch adjacent to the playground. "Lisa" got up from the chair three or four times and continued to cry and act out. Ms. Clemmer placed "Lisa" back in the chair each time she got out and remembers that she "may have" placed her hands on "Lisa" when she directed her back to the chair. Ms. Clemmer does not remember any one return to the chair to be different from the others. Ultimately, "Lisa" calmed down, hugged Ms. Clemmer and went off to play with her classmates. Meanwhile, Ms. Dye was parked across the street from the Center waiting for her daughter's school bus to arrive. Ms. Dye said that children were not usually out on the playground when she picked up her daughter, but they were on this day. She was parked approximately 25 yards (75 feet) from the playground area. Ms. Dye does not remember any posts or other items obstructing her view. She does not remember a porch or covered area next to the playground. Upon hearing shouts or other noises, Ms. Dye turned to watch what was happening on the playground. Ms. Dye observed a little girl sitting in a chair and interacting with a teacher. The little girl got up from the chair three or four times, but each time a teacher would direct her back to the chair. The little girl seemed to be trying to go over to a plastic playhouse where other children were playing. This interaction went on for ten or 15 minutes. Ms. Dye remembers that the last time the teacher brought the girl back to the chair, she "may have" yelled at the girl. Then, the teacher grabbed the child's upper arm, pulled her across the playground, and placed her roughly into the chair. She could not tell exactly, but it looked to Ms. Dye like the teacher may have pulled the student's ponytail, jerking her head backwards. Ms. Dye does not believe that what she observed was a teacher attempting to keep an unruly child from hurting herself. Ms. Dye reported the incident to the Department. Ms. Richey, a CPI, and a police officer were dispatched to the Center to investigate the allegations. When they came to the Center, they identified the victim as a black child with a ponytail. Ms. Gollhardt said she had no children with ponytails and only one black child in the two-year-old age group. She offered to wake the child from her nap, but the investigators said not to do so. The investigators eventually talked with Ms. Clemmer and with the child's mother. Ms. Richey remembers Ms. Clemmer being very nervous and saying that she placed a child in time out for not behaving properly. Ms. Clemmer remembers the incident a little differently than reported by Ms. Dye. She says that when "Lisa" was dropped off by her grandmother, the child was having extreme separation anxiety. Ms. Clemmer tried to calm "Lisa" by holding her and walking out to the fence so "Lisa" could wave goodbye to her grandmother. That didn't work. After "Lisa" continued screaming and crying, Ms. Clemmer took her to the crying chair, with which "Lisa" was familiar. The chair was located on a covered patio adjacent to the playground area. "Lisa" kept "flopping out of the chair" and running across the playground. Each time, Ms. Clemmer would redirect her back to the chair and try to calm her down. She does not remember any one of the interactions with "Lisa" to be more forceful or different from any other. The last time she sat "Lisa" down, however, Ms. Clemmer remembers placing her hand in the chair between Lisa's legs to prevent "Lisa" from flopping out of the chair. Eventually, "Lisa" had had enough crying and stopped being upset. She went over and hugged Ms. Clemmer, then ran off to play with the other children. That was the end of the matter. "Lisa" is still a student at the Center. Incidentally, "Lisa" is a child of mixed races (African-American and Caucasian); she has very short hair and does not have a ponytail. Ms. Clemmer holds an early childhood associate certificate, obtained after a six-month course of study. Her testimony was credible, and she appears to have the interests of her students as a priority. Based on the foregoing facts, there is no evidence that Ms. Clemmer "used her hands to press down on a two (2) year old child's forearms to keep the child from getting up from the time out chair" as alleged in the Administrative Complaint. Incident No. 4--The Boy with Soiled Pants On January 24, 2011, D.L., a five-year-old boy, was playing on the playground when he announced an immediate need to go to the bathroom. His teacher, Susan, took him inside to use the toilet. However, before getting to the bathroom, D.L. had a small bowel movement and soiled his pants. Susan and D.L. remained in the bathroom for a while and then Susan came out to report that D.L. was "having issues." Ms. Gollhardt then went in to see if she could help. She found the little boy screaming and fussing, upset, and refusing to cooperate. Ms. Gollhardt began to try to calm the boy down. D.L. was upset because he had been wearing boxer shorts and wanted a new pair to replace the ones he had soiled. Unfortunately, his cubicle did not contain any clean boxers. Instead, Ms. Gollhardt offered D.L. a pair of his brother's underwear, but they were briefs, and D.L. wanted no part of them. She also offered D.L. his own soiled underwear, because they were only slightly soiled and gave him the option of wearing a pair of his sister's pull-ups. He wanted none of those. As Ms. Gollhardt continued to try to reason with D.L., he became more agitated and upset. He tried to crawl behind the toilet and began kicking and hitting at Ms. Gollhardt. Ms. Gollhardt was eventually able to dress D.L. (although it is unclear which pair of underwear was placed on him). Then Ms. Gollhardt picked up D.L., wrapping her arms around him as he faced away from her and carried him out of the bathroom. As they left the bathroom, D.L. reached up and knocked Ms. Gollhardt's glasses off her face. When she bent down to retrieve her glasses, D.L. began to kick her. At that point, D.L. dropped to the ground in a sitting posture and refused to move. Ms. Gollhardt gathered her glasses and reached down, grabbing D.L.'s arm. When D.L. refused to get up, Ms. Gollhardt slid him across the floor as she held him by his arm. They went into a classroom where D.L. could be watched by another teacher and closed the door. Then Ms. Gollhardt came out of the room and left the door open as she placed a call to D.L.'s parents. While this was going on, Ms. Conner, another child's parent, arrived at the Center to retrieve her infant child. She saw D.L. in the bathroom kicking and screaming as Ms. Gollhardt attempted to dress him. She saw Ms. Gollhardt dragging D.L. three or four feet across the floor by his arm as D.L. whimpered. She remembers them going into a classroom and Ms. Gollhardt closing the door. She does not remember the door being re-opened as Ms. Golldardt made the phone call. After placing D.L. in the classroom, Ms. Gollhardt called his mother to come and get him at the Center. D.L.'s mother arrived shortly and discussed the situation with Ms. Gollhardt. She then talked calmly with D.L. and had him apologize to Ms. Gollhardt for his bad behavior. D.L. apologized and then hugged Ms. Gollhardt. D.L. and his four siblings are still students at the Center. Ms. Conner's testimony is somewhat suspect. She had been admonished by Ms. Gollhardt just prior to this incident for being behind on her child's tuition payments. Despite the alleged incident, Ms. Conner kept her infant and one other child at the Center until August of this year (2011). Further, Ms. Conner appears to have initially told the Department's investigator a different story, i.e., that Ms. Gollhardt dragged D.L. across the floor all the way from the bathroom into another classroom. The Center's Discipline Policy The Center has a policy concerning how it will administer discipline to its students. Each teacher is expected to comply with the policy. Each student's parent(s) must acknowledge receipt and review of the policy. It is the intent of the Center that its discipline policy be consistent with the Department's Basic Guidance and Discipline protocols. The Department's protocols distinguish between discipline and punishment. Discipline includes tools and actions used to teach a child a lesson or to redirect their behavior. Punishment is "more of a consequence" of a child's behavior and is used to control a child. Or, as stated by the Department's licensing supervisor, "punishment is an action that is taken by a caregiver in response to a bad choice. And it's a consequence of some kind of bad inappropriate behavior that a child is engaged in." There is no published definition of the distinction between discipline and punishment in the Department's rules, and its witnesses acknowledged there is a fine line between the two. According to the Center's policies, discipline is not to be associated with food, rest, or toileting. Nor should discipline be severe, humiliating, or frightening. Spanking or other forms of physical punishment are not to be used by a teacher. Enforcement of the Law The Department utilizes progressive enforcement when citing child care facilities for violations of statutes and rules. When looking at violations, there are three classes of violations to be considered: Class I violations are those which may endanger a child's life; they are the most severe. Class II violations address disciplinary actions, teacher-to-student ratios, and other practical aspects of operating a child care facility. Class III violations are those relating to paperwork or other less harmful matters. When looking at Class II violations, the Department will assign a progressively more serious sanction when multiple violations occur within a two-year period. For example, a single Class II violation may warrant only a warning; a second Class II within a two-year period will result in a fine. Four Class II violations within a two-year period will result in a license being placed under probationary status. Five violations during a two-year period can result in denial or suspension of the license. The effect of a probationary license is serious. A facility with a probationary license is required to post its violation citations on the wall of its facility. A facility is not allowed to advertise while it is on probation. Facilities under probation forfeit their connection to the Early Learning Coalition (the "Coalition"), the entity that provides payment or subsidies for low-income families to place their children in a licensed day care facility. Ms. Kirk cooperated with the Department concerning its investigation into the four alleged incidents. She provided names of witnesses and even offered written statements from eyewitnesses. The Department did not accept the written statements, saying their investigation was complete. No further explanation was provided by the Department as to why they would not review additional information that may have led them to a more informed conclusion. Instead, the Department warned Ms. Kirk that the Center had better "straighten up" or they would be facing more severe sanctions. Ms. Kirk says that a Department representative told her the Department had talked with the Coalition. According to the representative, the Coalition said it had received numerous complaints about the Center and that the Center was not cooperating with the Coalition. Ms. Kirk was concerned about those comments. About one half of the Center's students are receiving subsidies through the Coalition. Loss of connection to the Coalition would be an extreme hardship for the Center. Ms. Kirk contacted the Coalition to find out if there was indeed a problem of some kind. Neither Ms. Kay Williams, the voluntary pre-kindergarten representative at the Coalition, nor her supervisor, Kim Bergeau (phonetically spelled), could verify that any complaints had been received concerning the Center. The Center has not been contacted directly by the Coalition about any complaints. Each of the four incidents discussed above was investigated by the Department, by CPI, and by local law enforcement. No evidence as to the findings or conclusions by CPI or law enforcement was entered into evidence as support for the Department's position, so there is no independent corroboration that the incidents occurred as alleged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Children and Families, upholding the issuance of the letter of warning against Respondent, Lil' Stars Learning Center, Inc., d/b/a Lil' Stars Learning Center, but dismissing the other allegations in their entirety. DONE AND ENTERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 December, 2011.
Findings Of Fact Respondent owned and operated a licensed child care facility in Fort Myers, pursuant to a license that expired June 30, 1997. The name of the licensed facility was Patti Cake Nursery. Respondent is not presently licensed to operate Patti Cake Nursery. By final order in DOAH Case No. 97-3032 on May 1, 1998, Petitioner either revoked this license or denied an application for its renewal on grounds separate from the training violations that are the subject of this Recommended Order. In the Partial Final Order and Remand Order, Petitioner cited the following paragraphs from the Administrative Complaint dated February 11, 1997, which commenced DOAH Case No. 97-2146: 10. [sic] On June 14, 1996, an agent from the Department conducted a routine inspection. At that time, five employees were lacking the 30 hours of training. An administrative warning letter was sent on June 24, 1996, giving a deadline for corrective action of December 30, 1996, and advising that future deficiencies would result in an administrative fine of $25.00 per employee per day of every day of noncompliance. 9. On January 28, 1997, an agent from the Department conducted a recall inspection and determined that staff had completed the 20 hour training, however, the 10 hour portion of the 30 hour training had not yet been obtained. On February 3, 1997, Child Care of Southwest Florida, Inc., had no record of their enrollment for this training. 11. The acts and practices in paragraphs 9 & 10 above violate 402.305(2)(d) Florida Statutes and Rule 10M12-12.002(4) Florida Administrative Code, which requires all employees to within 90 days of employment, [sic] child care personnel shall begin training to meet the 30 hour training requirement and must complete the requirement within one year of the date on which training began. The Department imposes the minimum fine of $25.00 per employee per day of noncompliance. To date there have been 30 business days of noncompliance by 3 employees for a fine thus far of $2,250.00. This fine will continue to accrue until compliance is met. The Preliminary Statement of the Recommended Order states, in relevant part, that the material allegations were that Respondent "employed staff without the required amount of training on January 28, 1997; and employed staff without the required amount of training on June 14, 1996. Petitioner sought fines of $200 for the January 28 violations and ongoing fines of $2250, plus $25 per day times three employees, for the June 14 violations." The $200 in fines sought for the January 28 violations pertained solely to the violations of the staffing-ratio and supervision requirements; Petitioner sought no fine for the January 28 alleged training violation. The Recommended Order ultimately sustained the staffing-ratio and supervision allegations and noted that Petitioner properly sought fines totaling $200 for these two separate violations. The only fines sought for training violations pertained to the alleged June 14 violations. The Recommended Order states that the Administrative Complaint charged that, as of the June 1996 inspection, five employees lacked the required 30 hours of training, but the Administrative Complaint did not charge that these employees were employed on the corrective date of December 30, 1996, and had failed to complete the required training by that date. The Recommended Order states that the Administrative Complaint charged that, as of the January 1997 "recall inspection," unidentified staff had failed to complete the required 10 hours, which is part of the 30 hours of required training. The amount of the fine for the alleged training violations confirms that they pertain to the failure to obtain the required training by the December 30 corrective date. As noted above, the fine is $2250 and accrues at $25 daily times three employees for the June 14 violations. A fine of this amount represents 30 days of violation: $2250 divided by three employees divided by $25. Likely, Petitioner calculated the fine from December 31, 1996, which was the first day following the end of the corrective period arising from the June 14 violations. Likely, the calculation did not run through the date of the Administrative Complaint due to the lapse of time between the preparation and filing of the Administrative Complaint. The allegations are thus that three employees who had not completed their required training as of the June 14, 1996, inspection had failed to complete their required training by the corrective date of December 30, 1996. The June 14, 1996, inspection report found that unnamed employees had not completed their required training. According to the Partial Final Order and Remand Order, by letter dated June 24, 1996, Petitioner identified five employees as lacking the required training. These employees were Michelle Stroman, Westonia Walker, Debra Dorenus, Joan Grey, and Dana Royal. Clearly, the appellate court concurred with the reasoning of the Partial Final Order and Remand Order that the June 14 inspection report must be read in conjunction with the June 24 letter, and, together, these documents charge that Respondent violated the training requirements because Ms. Stroman, Ms. Royal, and Ms. Grey had not completed the required training by the end of 1996. In its opening statement, Petitioner confirmed this interpretation of the issue when its counsel asserted that she would show that three employees had not completed their required training within one year and 90 days of their date of hire, which had expired by the time of the June 14 inspection; that these three employees likewise failed to complete their required training within the additional time granted by Petitioner through the December 30 corrective date; that two of the employees had not completed their required training until April 30, 1997; and that the third employee had not completed her required training through the date of the final hearing, May 20, 1997. One of Petitioner’s witnesses was Marjorie Wilson, who was employed as the Director of Education by Child Care of Southwest Florida, Inc. Child Care of Southwest Florida, Inc., held a contract with the State of Florida to provide the required 30 hours of training for staff of child care facilities. However, Child Care of Southwest Florida, Inc., is not the sole provider of such training in the State of Florida. There is no central registry of information concerning who has taken the required coursework. Each training provider must search its own records for such information. In this case, Ms. Wilson testified that she searched the records of only Child Care of Southwest Florida, Inc., and found information concerning Ms. Stroman, Ms. Royal, and Ms. Gray. Ms. Wilson testified that Ms. Stroman and Ms. Royal completed their 30 hours of training on April 30, 1997. Ms. Wilson testified that Ms. Grey completed the 20-hour class on November 2, 1996, but, checking their 10-hour classes "back over a couple of years [we] saw nothing and don’t know where else we could look." Tr. p. 68. At the hearing, Petitioner’s counsel admitted that she had not deposed Ms. Stroman, Ms. Royal, or Ms. Gray. Evidently, Petitioner did not serve requests for admission concerning their training. Petitioner’s counsel accurately noted that the required certificates of completion were not in the respective personnel files of these employees, but she conceded that this omission was relevant only as proof of the lack of required training and was not alleged as a separate basis for discipline. Petitioner proved that Ms. Stroman, Ms. Royal, and Ms. Gray took classes following the June 14 inspection. It is unclear why Petitioner did not obtain the testimony of these three employees to establish that they had never completed the necessary training in the required timeframe. Absent such affirmative evidence, Petitioner invites inferences based on the absence of findings from an examination of the records of Child Care of Southwest Florida, Inc., and the subsequent enrollment in classes of the three employees. However, these sources of information do not provide the same quantum of evidence that would be provided by the testimony of the three employees. As already noted, the records of Child Care of Southwest Florida, Inc., do not purport to be the records of all persons who have completed the required training, and the testimony of Ms. Wilson at times did not inspire great confidence. Absent testimony from the three employees, their motivation in taking the classes is open to speculation. Perhaps they took the classes to obtain the required training; perhaps, having already obtained the required training, they, unaware of the legal requirements, took the classes to satisfy the demands of the inspector or Respondent. At the hearing, Petitioner attempted to establish the dates of hire for these three employees through Petitioner Exhibit 12. This document is a form completed by Petitioner’s inspector based on her review of the personnel files kept at Respondent’s child care facility. Representing herself, Respondent objected on the basis of repetitiousness, and Judge Meale overruled her objection. However, this exhibit constitutes hearsay, and findings cannot be predicated strictly on hearsay. Even if Respondent waived her objection to this exhibit, the weight of the exhibit is a matter for the Administrative Law Judge to determine. In this case, the summary document prepared by Petitioner’s inspector does not provide clear and convincing evidence of the dates of hire for these three employees. Electing not to subpoena the personnel records themselves, Petitioner has failed to establish the claimed dates of hire for these three employees: February 10, 1994, for Ms. Stroman; February 28, 1995, for Ms. Royal; and February 28, 1995, for Ms. Grey. Respondent testified briefly on the training allegations. Her testimony did not establish any hire dates. As for training, her testimony was confusing as it attempted to establish a training deadline of November 1997. She was evidently less concerned with providing factual testimony than in advancing a legal argument directed toward the "proper" calculation of the one year and 90 days within which an employee must obtain the required training. At one point (Tr. p. 205), Respondent testified: "I feel that right now I have one that has not complied with this, and that’s Mrs. Joan Gray." This apparent concession does not make Petitioner's case, even as to only Ms. Gray. First, the apparent concession does not establish the direct facts of date of hire or date of completion of training; rather, it concedes only a failure to comply with Respondent’s imperfect and somewhat incomprehensible "understanding" of the ultimate legal requirements concerning training. Second, as for Respondent's knowledge of Ms. Gray's training, it is difficult even to infer that, given her imperiousness and lack of cooperation, Respondent would have bothered to talk to Ms. Gray to find out her training status. Even if she had, Respondent's knowledge would be hearsay that is insufficient to establish the fact of training. For these reasons, Respondent's apparent concession as to Ms. Gray fails to establish, by clear and convincing evidence, her dates of hire and completion of training.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the remainder of the Administrative Complaint against Respondent. DONE AND ENTERED this 3rd day of December, 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 3rd day of December, 1998. COPIES FURNISHED: Eugenie G. Rehak District Legal Counsel Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Bruce A. Tischler Greene & Tischler, P.A. 2503 Del Prado Boulevard, Suite 402 Cape Coral, Florida 33904 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Office of the General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner should discipline Respondent for his failure to file fingerprint and abuse-registry screening forms for one of his employees, in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code, and failure to employ a person certified in first aid, in violation of Rule 10M-12.004(1), Florida Administrative Code.
Findings Of Fact Petitioner issued Respondent license number 288-7 on February 15, 1988, for the operation of a child-care facility at 261-B S. Central Avenue in Oviedo, Florida. The license was amended on October 3, 1988. On November 15, 1988, Larry D. Lowe, a Human Services Program Analyst employed by Petitioner, conducted an inspection of the subject facility. At the conclusion of the inspection, he prepared a checklist noting deficiencies as to background screening. Specifically, Mr. Lowe noted that the fingerprint cards and abuse-registry forms had not been completed for an employee named Cindy Samons and that these omissions were in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code. Mr. Lowe gave Ms. Samons a copy of the checklist, which gave Respondent until November 22, 1988, to submit the required forms. Mr. Lowe returned to the subject facility on December 28, 1988, and discovered that the forms had been completed and placed in the employee's file, but they had never been submitted to Petitioner. Thus, Petitioner had never had the chance to conduct the necessary background screening on Ms. Samons, who was at the time the sole employee at the facility. Mr. Lowe recommended an administrative fine of $360 based upon a daily fine of $10 for the 36-day period between the initial corrective due date and the date of the follow-up inspection. On October 11, 1988, Ms. Marilyn Willming, R.N., who is a public health nurse with the Seminole County Public Health Unit, performed a medical inspection of the subject facility and discovered that, among other things, no employee on the premises had obtained a current first-aid certificate and that this omission was in violation of Rule 10M-12.004(1), Florida Administrative Code. Ms. Willming gave one of the employees a copy of the medical inspection checklist, which gave Respondent until October 25, 1988, to correct this problem. Flora Kavitch, R.N., who is also an employee of the Seminole County Public Health Unit, conducted a reinspection of the facility on December 23, 1988, and discovered, among other things, that the facility still had no employee with a current first-aid certificate. She recommended an administrative fine of $780 based upon a daily fine of $10 for the 78-day period between the date of the initial inspection and the date of the follow-up inspection. Each of the above-described deficiencies is a condition or occurrence related to the operation and maintenance of a facility and indirectly or potentially threatens the physical or emotional health, safety, or security of the children.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1140. ENTERED this 1st day of August, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 1st day of August, 1989. COPIES FURNISHED: James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 911 Orlando, Florida 32801 Hilton J. Soto 6501 Palmetto Drive Winter Park, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Hilton J. Soto Little Theresa Child Care 261-B South Central Avenue Oviedo, Florida 32765 =================================================================
The Issue At issue in this proceeding is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact In or about December 1998, the Department of Children and Family Services (Department) initiated an employment screening pursuant to Chapter 435, Florida Statutes, incident to Petitioner's application for employment at a child day care center in Delray Beach, Florida. That screening revealed that on September 28, 1998, Petitioner was arrested for exposure of sexual organs, a violation of Section 800.03, Florida Statutes, and unnatural and lascivious acts, a violation of Section 800.02, Florida Statutes. The screening further revealed that on October 20, 1998, Respondent entered a plea of guilty to the charges; adjudication was withheld; and Respondent was placed on probation for a term of 6 months. Given the screening results, the Department notified Respondent by letter of December 14, 1998, that he was ineligible for continued employment in a position of special trust (working with children or the developmentally disabled), and accorded him an opportunity to request an exemption under the provisions of Section 435.07, Florida Statutes. Petitioner requested such an exemption, and the Department duly-convened a hearing to consider Petitioner's request. Subsequently, the Department advised Petitioner by letter of January 29, 1999, that his request for exemption was denied, and these proceedings ensued at Petitioner's request to challenge the Department's decision. As observed in the preliminary statement, neither Petitioner nor anyone on his behalf appeared at hearing, and no proof was offered to support his claim for exemption. Such failing is dispositive of the case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 30th day of July, 1999. COPIES FURNISHED: Henry C. Cornelius 2315 Southwest 22nd Avenue Boynton Beach, Florida 33445 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
