The Issue Whether the Respondent’s group home license issued by the Agency for Persons with Disabilities (APD) should be revoked or otherwise disciplined on charges stated in an Administrative Complaint, APD License 5604-6GA.
Findings Of Fact The Respondent, Aspiring Ambitions, LLC, is owned and operated by Tanya Warren. The Respondent holds APD license 5604- 6GA to operate a group home for developmentally disabled residents on Spillers Avenue in Tampa. The license was issued in April 2017 and had no prior incidents of any kind until September 2017. Tanesha Clarke3/ was listed on the Respondent’s license application as a “director,” but the evidence was that Ms. Clarke was not an owner or director, but rather an employee providing direct care to residents and performing some additional duties for the Respondent. Count I On September 12, 2017, Ms. Clarke and another employee of the Respondent were on duty at the Spillers Avenue home. Ms. Clarke became frustrated when H.B., a resident in the home, urinated on the floor and couch. In her frustration, Ms. Clarke struck and kicked H.B., who was defenseless due to his disability. The other employee on duty did not immediately call the abuse hotline or report the incident to Ms. Warren. The next day, the incident was reported via the abuse hotline. The identity of the reporter is confidential by statute. It was not Ms. Warren, who still did not know about the incident. A sheriff’s office child protective investigator responded to the group home to investigate on behalf of the Department of Children and Families (DCF). It was quickly established that Ms. Clarke had physically abused H.B., and she was arrested. Ms. Warren could not be contacted immediately, and APD sent a licensing specialist to the home to help take care of the residents in Ms. Clarke’s absence until Ms. Warren arrived about 20 minutes later. Ms. Warren fully cooperated with the investigation. She denied having any reason to be concerned that Ms. Clarke would abuse a resident. Two of the three other staff interviewed, plus a social worker who provided services to residents of the group home, also denied ever seeing Ms. Clarke behave in an abusive manner towards a resident and denied having any reason to be concerned that Ms. Clarke would abuse a resident. The staff member who was on duty with Ms. Clarke on September 12, 2017, stated that she had seen similar behavior by Ms. Clarke previously but did not report it to Ms. Warren or to anyone else. The investigation verified the abuse by Ms. Clarke, and APD licensing explained to Ms. Warren that her license would be in jeopardy if Ms. Clarke continued to work at the group home. Ms. Warren understood and fired Ms. Clarke. Ms. Warren also provided additional in-service training to the rest of her staff on the Respondent’s zero tolerance for abuse and on what to do and how to report incidents of abuse against residents of the facility. No further follow-up by the child protective team was deemed necessary. Count II On November 24, 2017, which was the Friday after Thanksgiving, a resident of the Spillers Avenue group home bit another resident, A.S., on the shoulder. The bite was fairly severe and resulted in a red bite mark. On that evening, there were five residents and only one direct care employee at the home. A second employee who was scheduled to work that evening called in sick and arrangements were not made to replace the sick employee for the evening. Because of their disabilities, the Respondent’s residents that evening were considered in moderate need of supervision, and two direct care employees were required to be on duty to meet staffing requirements. The Respondent’s employee on duty that evening noticed the bite mark while bathing A.S. and made a record of it in the home’s log. She did not call the abuse hotline or report the incident to Ms. Warren. The employee, who had been working for the Respondent for a few months, had not been trained on the policy of zero tolerance for abuse, including what to do and how to report in the event of an incident causing injury to a resident. On the following Monday, A.S. went to school, where the bite mark was noticed, and A.S. was seen and treated by a physician. The physician reported the abuse, and a DCF investigation was opened. At first, it was not clear how or when the bite was inflicted. Ms. Warren was contacted and fully cooperated. She discovered the bite incident entry in the home’s log, and the investigation was converted to an investigation of the Respondent. The DCF investigation was closed as substantiated for inadequate supervision by the Respondent (i.e., Ms. Warren) for two reasons: first, inadequate staffing; and, second, inadequate training of staff on what to do and how to report in the event of an incident causing injury to a resident. No findings were made against the employee on duty at the time of the bite incident because she had not been trained adequately, which was the responsibility of the Respondent (i.e., Ms. Warren). In response to the incident, Ms. Warren expressed her intention to ensure proper staffing and to train staff on the policy of zero tolerance of abuse, including what to do and how to report in the event of an incident causing injury to a resident. On follow-up by APD on December 27, 2017, it was determined that staffing was correct, the required zero tolerance training had been delivered, and there were “no other concerns at this time.” Count III In December 2017, APD conducted an annual licensing survey of the Respondent’s group home. It was determined that there was a broken window in one of the bedrooms. The Respondent had the window fixed before the follow-up inspection in January 2018. Shortly before (perhaps the night before or morning of) the re-inspection, a resident broke the window again, punching it completely out this time. When the inspector arrived, the bedroom was cold (well below 68 degrees Fahrenheit), as the temperature had gone down into the 30s overnight. Ms. Warren promptly had the window fixed again. The Respondent did all that could reasonably be expected under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that APD enter a final order dismissing Counts I and III, finding the Respondent guilty under Count II, and fining the Respondent $1,000. DONE AND ENTERED this 20th day of August, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 20th day of August, 2018.
The Issue The issues for determination are whether Respondent committed the acts alleged in a denial letter issued by Petitioner, and, if so, whether Petitioner should refuse to renew Respondent's family day care license pursuant to Subsection 402.310(1)(a), Florida Statutes (2003).
Findings Of Fact Petitioner is the agency responsible for licensing and regulating day care homes in the state. Respondent is licensed to operate a day care home known as Kidz Kingdom Academy at 738 Glenwood Avenue, Sebring, Florida 33876 (the facility). Petitioner inspected the facility nine times between November 25, 2003, and July 7, 2004. The specific dates of inspection were November 25, 2003; March 30 and 31; April 21 and 28; June 2, 11, and 15; and July 7, 2004. With a few exceptions, Respondent committed 53 violations of applicable statutes and rules during the nine inspections. Approximately 13 of the 53 violations are potentially repeat violations because they involve violations of the same statute or rule. However, they may not be repeat violations because most of the violations arise from distinctly different facts, i.e., a different factual offense that violates the same statute or rule. The remaining violations are frequent violations but are not repeat violations because they do not violate the same statute or rule on more than one occasion irrespective of the factual basis of the violation. Neither party cited any statute, rule, or case law that defines a repeat violation. On July 14, 2004, Petitioner issued a denial letter proposing to deny Respondent's application for renewal of her license. The denial letter is the notice of charges against Respondent. The literal terms of the denial letter are ambiguous. For example, the denial letter, in relevant part, notifies Respondent that the nine inspections revealed "repeat violations" of applicable statutes and rules. The notice of charges further notifies Respondent that based on "these violations" Petitioner proposes to deny Respondent's application for renewal of her license. The reference in the denial letter to "these violations" arguably could be construed to mean the "repeat violations," however the term "repeat violation" may be defined. Alternatively, the reference to "these violations" arguably could be construed to mean the 13 "repeat violations" and the 40 frequent violations. The denial letter adequately resolves the apparent ambiguity by attaching and referencing a "chart setting out specific violations" that Petitioner found during the nine inspections. The reference to "these violations" includes all 53 violations listed on the "chart." The distinction between "repeat violations" and "frequent violations" is not material to the grounds stated in the denial letter for the proposed refusal to renew Respondent's license. The denial letter does not include an allegation that Respondent has failed to pay an outstanding fine that Petitioner previously imposed against Respondent. During testimony, however, Petitioner's agency representative testified that she would recommend that the agency renew the license if Respondent were to pay the fine. The testimony of the agency representative is not relevant and material to an allegation that Respondent failed to pay an outstanding fine. The denial letter does not include any such allegation, and Petitioner cannot refuse to renew Respondent's license on grounds not included in the denial letter. Nor did the agency representative provide any written evidence of the imposition of an unsatisfied fine. The testimony of the agency representative is relevant and material to Petitioner's argument during the hearing that any one violation, or all of them together, threaten children or others with serious harm within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The agency representative is the person charged with responsibility for evaluating the severity of the alleged offenses and explicating the evidentiary grounds for the proposed agency action. It is axiomatic that the agency representative would not recommend renewal of the license upon payment of the fine if any one or all of the 53 violations represented any harm to the public, including children. One or all of the 53 violations do not threaten harm to children or other members of the public within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). Although Petitioner showed by clear and convincing evidence that Respondent committed the 53 violations, Petitioner failed to show by clear and convincing evidence that one or all of the 53 violations threatened children or others with serious harm. One "repeat violation" involved missing hand towels in the bathroom or hand towels mounted too high for children to reach. Respondent regularly replenished hand towels and placed them where children could reach them. Respondent failed to adequately supervise children during nap times. Volunteers, rather than full-time staff, sometimes supervised children. However, full-time staff members were close by in the adjacent room. Respondent repeatedly failed to comply with applicable standards of maintenance and cleanliness. On one occasion, the microwave oven needed to be cleaned and sanitized. During one inspection, some ceiling tiles in the facility were "coming down and showed evidence of water damage," and there was some evidence of "rodent or vermin infestation." Respondent corrected both violations in a timely manner. On March 30 and June 11, 2004, lighting at the facility was inadequate. Respondent adequately corrected the violation during each inspection by turning on more lights and opening the blinds during nap time. Gaps in a wood fence enclosing the play area were too large. However, a chain link fence immediately inside the wooden fence prevented a child from exiting through the gaps in the wooden fence. During two inspections, the facility placed soiled diapers in an open container. The facility corrected both violations at the time of the inspection by covering the containers or taking them outside. On November 25, 2003, the facility left some electrical plugs in the music room uncovered. The inspection was a preliminary inspection, and the facility corrected the problem before any follow inspection. No follow-up inspections cite Respondent for a similar violation. On March 30, 2004, the facility used highchairs that had been recalled. The facility immediately corrected the problem by taking the recalled highchairs out of service and replacing them with new high chairs not subject to a recall. On March 30, 2004, a wooden climber for a slide in the playground was wobbly. A "slat was not secured to the railing." In addition, a latch on a toddler swing did not function properly. Respondent corrected both violations at the time of the inspection. On June 11, a swing and a rope ladder were broken. A fence was beginning to sag. Respondent corrected both violations before a follow-up inspection. On March 30 and 31, 2004, Respondent failed to maintain signed parental authorizations for the facility to administer prescription medications to children at the facility. Respondent corrected the deficiencies immediately by requiring the parents to remove the medications from the facility because the parents failed to comply with the facility's request for a signed authorization form. Petitioner alleged, but did not show by clear and convincing evidence, that Respondent failed to give medications to children as prescribed. Petitioner submitted no evidence that Respondent ever administered the specific medication at issue contrary to the prescribed dosage or without a signed authorization. On November 11, 2003, and June 11, 2004, Respondent failed to properly dispose of a bottle after use by leaving the bottle in an infant room after use. Respondent corrected the violation at the time of inspection by moving the bottle to the kitchen where Respondent properly stored the other bottles for subsequent cleaning. In addition, Respondent failed to properly refrigerate baby formula supplied to the facility for one of the infants in Respondent's care. Petitioner failed to show how long the formula had not been refrigerated. Respondent corrected these deficiencies at the time of inspection. On November 25, 2003, and June 2, 2004, Respondent failed to maintain immunization records for some of the children at the facility. Immunization records for other children had expired. The parents had not returned the completed immunization records to the facility by the deadline of December 5, 2003. Respondent failed to maintain health examination records for 14 students. Petitioner did not show that this was an ongoing or uncorrected violation. From November 25, 2003, through June 2, 2004, Respondent failed to maintain forms required to be signed by employees that the employees understood the requirements for reporting child abuse and neglect. On June 2, 2004, Respondent failed to maintain on file a signed affidavit of good moral character for an employee. The insufficiencies could have been corrected by obtaining the signature of the respective facility employees. From November 25, 2003, through June 11, 2004, Respondent failed to maintain required records showing that background screening for facility employees had been completed. On June 11, 2004, Respondent had a fingerprint card on file for an employee, but had not submitted the card to the Department of Law Enforcement within five working days of the first day of employment. Respondent failed to maintain documentation that volunteers at the facility were in fact volunteers. Petitioner submitted no evidence of which volunteers or employees were involved, the beginning date for employment or volunteer service, or whether the individuals continued to be volunteer or be employed at the time of the alleged deficiency. Petitioner alleges that Respondent failed to maintain required attendance records on June 2, 2004, for a field trip. The inspector did not reconcile attendance lists from the staff managing the field trip with those maintained by staff at the facility. The two lists, together, may or may not have accounted for all of the children either at the facility or on the field trip. Respondent corrected the alleged deficiency at the time of the inspection. However, Respondent failed to obtain required parent permission slips for some of the students and failed to inform some parents that their children would be on a field trip. Respondent failed to maintain required attendance records from April 21 through June 11, 2004. On June 11, 2004, Respondent failed to maintain proper attendance records. Approximately 16 children attended the facility on that date, but the parents of only 12 children actually signed the attendance sheet. On November 25, 2003, Respondent failed to maintain a written discipline policy and failed to maintain properly signed student discipline forms. On March 30, 2004, Respondent failed to maintain proper ratios of staff to children. On July 7, 2004, Respondent left toxic or hazardous cleaning materials exposed to children. On June 2, 2004, Respondent failed to maintain staff with adequate first aid and CPR training. On June 2, 2004, Respondent failed to post the menu and failed to adequately implement single service items. Petitioner conducted re-inspections on March 31, April 28, and June 11 and 15, 2004. Of the 53 alleged violations, Petitioner cited only 13 on re-inspection. However, only four of the 13 were uncorrected deficiencies. The remaining nine were deficiencies cited for the first time on re- inspection. The four deficiencies cited as uncorrected on re- inspection were the failure to maintain attendance and background screening record reports and the failure to maintain a clean facility in good repair. As previously stated, none of the violations were severe within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The violations did not result in death or serious harm to a child. There was no evidence that the violations created a probability, rather than a possibility, of death or serious harm to a child. The agency representative would have approved the application for renewal but for an unpaid fine by Respondent. It is axiomatic that an agency representative would not ignore severe deficiencies in exchange for the payment of a fine. The licensee corrected all of the alleged violations except those pertaining to attendance records, a clean facility, and background screening record reports. Petitioner failed to show by clear and convincing evidence that the missing or incomplete background screening record reports pertained to specific employees who were currently on staff at the facility. The evidence was vague and lacked the specificity required in a license discipline proceeding. Petitioner intends the denial letter to be an administrative complaint. The Administrative Complaint does not allege that the licensee has any previous violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Respondent guilty of committing those acts found to be violations in this Recommended Order and imposing an administrative fine of $2,900. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of November, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Keith Peterson, Esquire 170 North Florida Avenue Bartow, Florida 33830 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner, Department of Children and Families (Department), should impose a $75 fine on Respondent, Jumpstart Enrichment Program, Inc. (Jumpstart), and place it on probation for up to six months for not complying with child care facility staff-to-children ratio requirements for the fourth time.
Findings Of Fact The Department has issued Respondent license C09OR0629 to operate a child care facility in Orlando under sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. The statutes and rules have minimum staff-to-children ratio requirements that are clear, but not uncomplicated, and not always easy to implement. It is necessary to have one staff person for every four children from birth to age one, for every six aged one to two, for every ten aged two to three, for every 15 aged three to four, for every 20 aged four to five, and for every 25 aged five or older. Generally, the ratio requirement for a mixed group of children aged two or older is dictated by the age group with the largest number of children in the group. However, if children under the age of two are present, the ratio requirement for a group is dictated by the age of the youngest child. It was undisputed that staff-to-children ratio requirements are Class II standards under the Department's rules. Citation Issued January 6, 2012 The Administrative Complaint alleges that a citation for insufficient staff was issued to Respondent during a Department inspection on January 6, 2012. It alleges that this was the fourth violation of the standard, justifying a $75 fine and probation for up to six months conditioned on being subject to unannounced visits to ensure compliance with all statutes and codes and on ensuring the maintenance of appropriate staff-to- children ratio. On January 4, 2012, Sabrina Hayles and Conswela Green were the staff on duty at Jumpstart. Eight children were present that morning when Ms. Hayles left the facility to go to lunch. She took two of the children with her so that Ms. Green would meet ratio requirements for the remaining six. While Ms. Hayles was gone, a grandmother dropped off another child, which put the facility out-of-compliance with staffing ratio requirements. Ms. Green asked the grandmother to stay until Ms. Hayles returned, but she said she had an appointment and could not stay. Ms. Green accepted the child into the facility and telephoned Ms. Hayles to tell her to return to the facility because they were out-of-compliance. Ms. Hayles, who already was on her way back, arrived several minutes later. The facility's being out- of-compliance was observed by staff from the Early Learning Coalition of Orange County (ELCOC), who happened to drop some paperwork off at the facility at that time. ELCOC reported the ratio violation to the Department, which investigated the allegation on January 6 and issued a citation. The Administrative Complaint alleges that this was Respondent's fourth insufficient staff violation and that the previous violations were on September 9 and April 14, 2011, and on August 20, 2010. Alleged Violation on September 9, 2011 There was no evidence of a staffing ratio violation on September 9, 2011. Actually, there was a staffing violation on September 7, 2011. One staff was caring for an infant and five toddlers; two staff were required. ELCOC reported the violation to the Department. When apprised of the violation, Michael Collins, the owner and director of the facility, took immediate action to increase staffing and bring the violation to an end as soon as possible. The Department investigated on September 9, 2011, verified the violation through interviews with Shawnda Bernard, and cited Respondent for the violation on September 9, 2011. Alleged Violation on April 14, 2011 Another entity involved in child care and school readiness, referred to in the hearing as Devoreaux, reported to the Department on April 12, 2011, that there was one staff caring for 13 children, when two staff were required. The Department investigated on April 14, 2011, determined from interviews with staff that the violation had in fact occurred, and cited Respondent for the violation. There was hearsay evidence of another staffing violation after the Department's inspection on April 14, 2012. The second alleged violation was not proven by any direct evidence or by any hearsay evidence that would be admissible over objection in a civil action. See § 120.57(1)(c), Fla. Stat. Alleged Violation on August 20, 2010 On August 20, 2010, the Department conducted a routine inspection and cited Respondent for having six children at its facility and no staff, just the owner/director, Mr. Collins. Two qualified staff were required for the six children. There was an unscreened volunteer there, who would have counted and made the staffing ratio sufficient prior to August 1, 2010, when the law changed to require staff to be screened. First Affirmative Defense In May 2011, the Department filed an Administrative Complaint against Respondent charging staffing ratio violations on August 20, 2010, and on August 6 and December 28, 2009, plus numerous other kinds of violations, including some on August 20, 2010. In October 2011, the Department and Respondent settled the charges in that Administrative Complaint by payment of a $500 fine (reduced from $2,205) and a reduced period of probation, through August 15, 2011. The alleged facts and charges were not admitted as part of the settlement. The settlement included a provision that the Department would "make no further orders and will take no further action on the Administrative Complaint and underlying violations in connection with this proceeding that is being settled." It also including a provision in the next numbered paragraph saying: However, if in the future, the Petitioner should have to take administrative action against the Respondent, the Respondent agrees that the Petitioner shall not be estopped from using the facts set forth in the Administrative Complaint in this case as additional basis' [sic] for any future denials, revocations or other administrative actions, taken against the Respondent by the Petitioner resulting from any future non- compliances with applicable statute, code or agreements, by the Respondent. Since one of the "facts set forth" in the settled Administrative Complaint was that Respondent had insufficient staffing on August 20, 2010, the Department was not estopped from using those facts as it does in this case--i.e., as one of the three staffing violations that preceded the one in January of 2012. Second Affirmative Defense Because of the insufficient staffing on January 4, 2012, ELCOC withheld payment for that day under the federal school readiness program it administers, which requires qualified staff to be present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order: finding Respondent guilty as charged; fining Respondent $75; and placing Respondent on probation for six months, with unannounced visits to ensure compliance with all statutes and codes, including the maintenance of appropriate staff-to-children ratio. DONE AND ENTERED this 17th day of September, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 17th day of September, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Jack P. Caolo, Esquire 131 East Woodland Drive Sanford, Florida 32773 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether respondent should be fined $3,350 for allegedly violating various agency rules.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Barbara Knight Manors, Inc., d/b/a Four Palms (Four Palms or respondent), operates a licensed adult congregate living facility (ACLF) at 302 11th Avenue Northeast, St. Petersburg, Florida. The facility is subject to the regulatory jurisdiction of petitioner, Department of Health and Rehabilitative Services (HRS). As such, Four Palms is required to adhere to various HRS rules codified in Chapter 10A-5, Florida Administrative Code (1987). On December 3, 1987, an HRS program analyst, Diane Cruz, conducted a change of ownership survey of respondent's facility. The survey was prompted by the fact that the facility had just been purchased by its present owner, Barbara Knight. During the course of the survey, Cruz noted the following deficiencies which constituted a violation of applicable portions of Chapter 10A-5, Florida Administrative Code (1987): the patient daily medication records were incomplete in that some medications administered to patients had not been documented by the staff (10A-5.024(1)(a)3., FAC); (2) two employees did not have medical certificates reflecting they were free from communicable diseases (10A-5.019(5)(g), FAC); there were no standardized recipes (10A- 5.20(1)(g), FAC) the facility did not have a one week supply of non-perishable food (fruit and vegetables)(10A-5.20(1)(k), FAC) two showers did not have grab bars (10A- 5.023(9), FAC); and there were no screens on the windows (10A-5.023(13), FAC) The deficiencies were noted in a survey report received in evidence as petitioner's exhibit 4. A copy of the survey report was given to the facility's administrator on January 14, 1988. The report advised the licensee that monetary fines could be imposed if the violations were not timely corrected. At the completion of the December 3 survey, Cruz held an exit interview with Knight and explained the reason why each deficiency was cited and the steps required to correct the same. Also, Cruz advised Knight that all deficiencies had to be corrected no later than February 3, 1988 and that she would return for an unannounced follow-up visit to verify whether such deficiencies had been corrected. An "exit letter" confirming this process was furnished to Knight, and Knight signed and acknowledged receiving the letter. On March 2, 1988, Cruz returned to the facility for an unannounced follow-up visit. The purpose of the visit was to ascertain whether the deficiencies noted on December 3 had been corrected. During the visit, Cruz observed the following deficiencies that had not been corrected: The daily medicine records were still not accurately documented (initialed); one staff member had no medical certi- ficate attesting she was free from communicable diseases; there were no standardized recipes; the facility did not have a one week supply of non-perishable food (fruit and vegetables) on hand; two showers did not have grab bars; and two bedrooms did not have screens on the windows. As the result of an unidentified complaint, an HRS analyst, Sharon McCrary, visited respondent's facility on March 28, 1988. McCrary discovered that one resident's records had not been properly documented (initialed) to reflect that the staff had observed the patient receiving medication that morning. This violation was the same type that had been previously noted during the December 3, 1987 survey. On June 24, 1988, Cruz and a registered dietician, Mary Cook, returned to Four Palms to conduct a routine, annual survey. During the course of their survey, the two noted the following deficiencies that constituted violations of chapter 10A-5: there were three employees who had no medical certificate showing they were free from communicable diseases (10A-5.019(5)(g), FAC); three residents required supervision when given medications, but there was no licensed nurse on the staff to supervise this activity (10A-5.0182(3)(c), FAC) the facility had no activities calendar (10A-5.0182(7)(a), FAC) live roaches were observed in the kitchen area (10A-5.020(1)(n)1., FAC); the facility did not have a one week supply of powdered milk on hand (10A- 5.020(1)(k), FAC) there were no meal patterns or modified menus at the facility (10A-5.020(1)(e), FAC), and a county sanitation report citing various health deficiencies contained no evidence that such deficiencies had been corrected (10A-5.024(1)(d)2.a., FAC). An exit interview was conducted after the survey, and respondent was advised that it had until July 24, 1988 in which to correct the deficiencies. Also, a copy of the survey report was furnished to respondent. On September 13, 1988, an unannounced follow-up survey was conducted by Cruz and Cook to determine if the previously noted deficiencies had been corrected. They observed the following deficiencies that were not corrected: One staff member had no medical certificate reflecting he was free from communicable diseases; the facility's records indicated one resident required supervision when given medications but the facility did not employ a licensed nurse; although an activities calendar had been prepared, it was incomplete; there were no modified menus in the kitchen; live roaches were observed in the kitchen area; and the deficiencies noted on the county health inspection report had not been corrected. Respondent did not deny that many of the violations occurred. However, its owner and administrator argued that HRS was unfair in filing an administrative complaint more that a year after the first violations were noted. The facility maintained that HRS should have assisted it in remedying the violations since the owner had just purchased the business a few months earlier and was going through a "learning curve." The owner contended that many of the chapter 10A-5 requirements were impractical for a small ACLF and that HRS was simply "nit-picking." Knight also claimed she did not understand what she had to do in order to meet HRS rule requirements. Respondent offered a number of excuses as to why the violations occurred. For example, she contended that (a) the screens were off the windows because the windows were being painted, (b) her employees either would not bring their medical certificates to work or would not see a doctor to obtain one, (c) the quantity of non-perishable foods required to be kept on hand was a judgment call and was not susceptible to precise measurement, (d) roaches can never be totally eradicated in Florida, (e) one of the bathrooms without a grab bar was not being used by the residents, (f) the patient medication records were inaccurate or incomplete due to a misunderstanding by the physician who had prepared some of those records, and it is impossible to prepare a detailed, accurate activities calendar for ACLF residents. While these matters may serve to mitigate the severity of any penalty to be imposed, they do not excuse or justify the rule violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint and that it pay an administrative fine of $1600, or $100 per violation DONE and ORDERED this 3rd day of October, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of October, 1989.
The Issue The issue addressed in this proceeding is whether Respondent's child care facility license should be disciplined for alleged violation of chapter 402, and if so the appropriate penalties. Neither party timely submitted Proposed Recommended Orders.
Findings Of Fact Respondent Donna J. Downing owns and operates a child care facility known as the Downing House, located at 8508 Lorento Street, Panama City, Florida. The child care facility is also her family's residence. She lives with her husband, son, and daughter who help operate the facility and who have been successfully screened by HRS. Ms. Downing was licensed in 1985 and holds a currently valid license. Her license is endorsed to allow her to operate her facility during nighttime hours. In April 1988, HRS became concerned that the operation of the Downing House into the night was proving too much for the husband and wife team, since HRS regulations require an adult to be present and awake during the night. HRS, therefore, inquired of the Downings concerning their proposed arrangements to ensure the presence of an awake adult. In order to continue to operate into the night, Respondent assured HRS that either she or her husband would be awake during the night while children were present on the premises. However, the evidence established that Respondent and her husband did not always live up to Respondent's representation to HRS. A standard mode of operation by Respondent was for both she and her husband to retire in the evening, leaving the front door unlocked so that the children's parents could pick up their children without disturbing the Downings. However, occasionally one of the Downings would stay up with the children. On May 5, 1988 a two year old male child was left at the Downing House by his mother for nighttime caretaking. At approximately 11:00 - 11:15 pm., Mr. and Ms. Downing had gone to bed. There were three children present at the Downing House when the Downings retired, including the two year old male child. The three children were asleep when Ms. Downing left them in the living room. No other adults were present. Ms. Downing had made arrangements for her adult son to look after the children when he got home from work. He was expected home at about 11:30 p.m. The son arrived home at approximately 11:40 p.m. When he arrived there were two children present. No method had been established by Respondent to advise her son of the number of children who should be present when he arrived home. He therefore did not realize that one child was missing. The son laid down on the couch in the living room and went to sleep. Sometime between the Downings going to bed and the arrival of their son, the two year old male child awakened, opened the front door and left the house. The child then unlatched the front yard gate and headed down Lorento Street towards its intersection with Laurie Lane. He then proceeded down Laurie Lane. At approximately 11:15 p.m., Denise Albert was driving down Laurie Lane. About two tenths of a mile from the Downing House, at 2414 Laurie Lane, Ms. Albert saw the missing child walking down the unlit and unpaved road. He was barefoot and in his pajamas. Ms. Albert stopped and questioned the child for 15 or 20 minutes. She could not obtain any information. She therefore called the Sheriff's office. Officer Troy Johns was dispatched at 11:30 p.m. The officer picked the child up from Ms. Albert and drove him around the neighborhood, including Lorento Avenue. The child could not or would not identify where he had come from and would not give his name. The child was more interested in the officer's gun and vehicle than in his surroundings. The officer took the child to the Sheriff's station and called HRS. Debra Young an HRS protective services investigator took the call and picked the child up from the Sheriff's office. She also could not establish the child's identity or address. She placed the child in a foster home. At 4:11 a.m. the Sheriff's office received a phone call in reference to a missing male child from the Downing House. The missing child was the child the Sheriff's office had turned over to Ms. Young. The Sheriff's office contacted Ms. Young. Mother and child were reunited the next morning. The call to the Sheriff's office from the Downing House had been prompted when the child could not be found after a search. The search ensued when, at approximately 3:00 a.m., the mother arrived to pick up her son. She discovered his absence and woke Respondent's son who in turn woke Mr. and Ms. Downing. One child remained. A second child had been picked up at approximately 2:30 a.m. by that child's mother. The son did not awaken and was not aware that the second child had been taken from the room in which he was asleep. The Downings searched the neighborhood for the missing child, including checking the Lagoon which is within a few blocks of the Downing House. The call to the Sheriff's office located the child. From 1985 until May 1988, Respondent was cited for the following violations of chapter 402, F.S. and the rules related thereto: September 3, 1985 Two gates in the play yard were left unlocked making it possible for children to have access to the road, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code, in that this was an obvious hazard. Medicine was left on the kitchen cabinet within the children's reach, in violation of Rule 10M-12.003(1) and (d), Florida Administrative Code. April 22, 1986 Cleaners were on the washer and dryer within the children's reach and Lysol and Windex were on the kitchen cabinet with food within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. No fire drills, in violation of Rule 10M-12.003(8)(a), Florida Administrative Code. October 1, 1987 Clorox, detergent, charcoal, briquettes, pliers, plastic bags, cigarette and cough drops were out at several locations throughout the facility and within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. An iron was left with the cord hanging over the table within the children's reach making it possible for the iron to be reached and pulled down on top of a child, in violation of Rule 10M- 12.003(1)(a), Florida Administrative Code. March 23, 1988 A medicine bottle containing medicine and tanning accelerator within the children's reach were located inside the facility and rose dust, Progreen, Spectracide ant killer and touch up paint were at several locations on the porch at the main entrance within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. Suntan lotion and tanning accelerator and three sand filled milk cartons, all located on the patio at the back of the house leading to the play yard and all within the children's reach, in violation of Rule 10M-12.003 (1)(b) and (d), Florida Administrative Code. The gate to the play yard was unlocked allowing children access outside the play area, in violation of Rule 10M- 12.003(4)(b), Florida Administrative Code. The store room containing a lawn mower and other tools and hazardous materials was left unlocked, in violation of Rule 10M-12.003(4)(b) , Florida Administrative Code in that it was an obvious hazard, with the children having access to said store room. A throw rug was on the steps leading to the patio and was not secure making an obvious hazard, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code. To Respondent's credit, all of the above violations were corrected within the time frames established by HRS. No fines were ever levied on the Respondent for the above violations. Also, to Respondents credit, the evidence disclosed that Respondent is generally a good caretaker of children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services revoke the nighttime operation endorsement on Respondent's license and impose an administrative fine of $1000. DONE and ENTERED this 14th day of March 1989, in Tallahassee, Lean County, Florida. DIANE CLEAVINGER 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 14th day of March, 1989. COPIES FURNISHED: John L. Pearce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32302 Donna J. Downing 8508 Lorento Street Panama City, Florida 32407 R. S. 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
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.
