The Issue The issues are whether Respondent, a child care facility, violated the minimum staffing ratio in one of its classes and, if so, what penalty should be imposed.
Findings Of Fact Respondent owns and operates the Children's Christian School House, which is a licensed child care facility. Ileana Echevarria is the director of Respondent. Each year, Petitioner's inspectors conduct three routine and one annual-renewal inspection of each licensed child care facility. On one such inspection, conducted on June 5, 2006, the inspector observed that the facility's two-year-old room had 12 children and only one adult. Pursuant to Petitioner's policy not to fine a facility for the first violation, the inspector directed Ms. Echevarria to telephone one of the parents and have her come and pick up her child. Ms. Echevarria did so, and the violation was corrected before the inspector left the facility. The same inspector returned to the facility on June 20, 2006, to perform a re-inspection. On this occasion, the facility was out of compliance in a different room. The room occupied by children five years old and older contained 39 children and one adult. On June 20, two of the teachers were on vacation and another teacher had called in sick. A new teacher had reported to work for her first day, but she was sitting in the cafeteria and was not supervising any children. Ms. Echevarria herself had been sick, had come to school earlier, and had returned home to retrieve her medicine, so she was not at the facility at the time of the re-inspection of the out-of-compliance classroom.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order imposing a civil penalty of $100 against Respondent for a violation of the staff-to-children ratio during the June 20, 2006, inspection. DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2007. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1 Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Kimberly D. Coward, Esquire Department of Children and Family Services 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 Ileana Echevarria Qualified Representative Children's Christian School House, Inc. 380 West 21st Street Hialeah, Florida 33010
The Issue The issue to be resolved in this proceeding concerns whether violations of Sections 402.305 and .310, Florida Statutes, and Section 65C-22.001, Florida Administrative Code, have been committed with regard to the care of children at the Petitioner's facility, such that its license should be revoked or other penalty imposed.
Findings Of Fact The Petitioner Gwendolyn Gobler was licensed to operate a daycare facility called Discovery Christian Learning Center, by the Department of Children and Family Services (Department) from August 13, 2001 through August 12, 2002. The Petitioner has a Bachelor's degree in early childhood education and has had a license for a family daycare home or center since sometime in 1998. Discovery Christian Learning Center, the subject facility, is located in St. Augustine, Florida at Number 260, State Road 16. State Road 16 is a busy four-lane highway in St. Augustine connecting Interstate 95 to downtown St. Augustine. On the day in question, January 17, 2002, an insurance agent Bill Matetzsck and his passenger, Ms. Lee Stec, were traveling on Highway 16 in the outer-left lane when they observed two children playing near the street on the outside of the Petitioner's facility. The children, a boy almost aged two and a girl aged two and one-half were playing on the sidewalk throwing leaves in the gutter. The little boy was observed to step into the highway while chasing leaves. Mr. Matetzsck stopped his car after observing the children and Ms. Stec retrieved them before they could be hit by a car and took them back into the facility. Ms. Stec became somewhat upset about the discovery of the children outside of the facility and immediately called the police, local television stations, the Florida Times Union Newspaper and waited for the police to arrive. Mr. Matetzsck observed that the double gate on the side of the property in the area of the backyard had a chain wrapped around it, but there was no lock on the chain. The Petitioner acknowledged to the law enforcement officer who investigated the incident that, although chained, the gate had not been properly fastened or secured. During that same time period Ms. Stec had also made a call to the Department of Children and Family Services reporting the incident. This triggered an inspection and investigation by the Department. Carmen Baselice is a Family Services Counselor assigned to St. John's County. The territory of her regulation and inspection of child care facilities includes the Discovery Christian Learning Center operated by the Petitioner. Ms. Baselice's duties include regulating and inspecting child care facilities and family daycare homes. Ms. Baselice initiated her investigation into the complaint by visiting the Discovery Christian Learning Center and discussing the complaint with Ms. Gobler. Ms. Gobler had noticed that the children were missing from her playground in the backyard and had just gone inside to see if they had gone back in the house at the time the children were being brought inside from the front of the house by Ms. Stec. Ms. Baselice observed that the front door of the facility was not properly fastened due to tape being placed around the doorknob locking mechanism. The door could only be locked by use of a deadbolt. Ms. Baselice felt at the time that the children may have exited the facility by that door. Ms. Gobler, however, stated that the only possible way that the children could have gotten out was by the gate which she acknowledged was not properly fastened. On January 17, 2002, Ms. Baselice received another complaint from a parent who was concerned that it was her child who had gotten out of the facility. The parent was concerned because her own child had gotten out of the facility by the front door in December 2001. Ms. Baselice reviewed the complaint with Ms. Gobler who confirmed that the child had gotten out of the facility by way of the front door by turning the deadbolt, but that she had apprehended the child while the child was still on the front porch and returned her to safety inside the house. On January 8, 2002, before the incident with the two children, Ms. Baselice conducted an annual renewal inspection on the facility. She observed an infant in a crib unattended and the facility "out-of-ratio" for more than thirty minutes. Out of ratio means that there was an insufficient number of staff members for the number of children being kept at the facility. On this occasion there were four children being kept, as well as the infant asleep in the crib in the infant room. Ms. Gobler was the only person present at the time of this inspection, on January 8, 2002. Thirty minutes later the second worker came on duty. The thirty-minute delay in being properly staffed was caused by that worker having a flat tire on her way to work. Ms. Gobler was attending to the toddlers in the larger room and the infant was asleep in the crib in the adjoining infant room, a separate room. However, it is also true that Ms. Gobler had the infant in plain sight from her station in the room with the four other children and could hear the infant through the open or sliding door. Through her testimony, and through Respondent's Exhibit two, in evidence, Ms. Baselice established that Ms. Gobler had a long history of incidents investigated and inspected by the Department and a substantial number of attendant violations. The incidents reported in Respondent's Exhibit two and in Ms. Baselice's testimony began prior to 1998 and there was a history of non-compliance which continued to the present time. During these years Ms. Gobler operated in disregard of the law in a number of instances, either by non- compliance with specific regulatory requirements concerning how her child care facility operated or was equipped, or without licensure in all instances. When the violations were cited she would often correct the immediate problem but later repeat the same type of violation. Many of the violations in her regulatory history are germane to child safety. The subject violations involving the children escaping form the home obviously are directly and dramatically involved with child safety. The little boy in question was about to get into the street and was barely missed by an oncoming car when Ms. Stec retrieved him. Those repetitive violations in the past are referenced in Respondent's Exhibit two and are incorporated herein by reference.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services revoking the Petitioner's license. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Gwen Gobler, pro se Post Office Box 1122 Ponte Vedra, Florida 32004 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul F. Flounlacker, Jr., 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 Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent corporation operates a licensed day care center in Duval County, Florida. Marie Flood owns Respondent and personally operates the day care center. She holds 51 per cent of the corporate stock for the Respondent corporation. Her husband is a 49 per cent stock holder. In the day care center is located a large room. The room is divided into smaller spaces by shelves which are called "cubbies". Those shelves are three feet high. The areas divided by the shelves constitute separate rooms for purposes of defining the proper ratio for day care staff members to children cared for in the facility. In May, 1995, an inspection was made at the day care center facility by an inspector working for Petitioner. That inspector was Joyce E. Bates. During the visit Ms. Bates observed a day care worker leave one of the small areas in the large room that was divided from other spaces in the room by the presence of the shelves. The worker went to put plates out for toddlers who were cared for at the facility. When the worker left the first area to go and put the plates in place, Ms. Bates considered that the appropriate staff ratio to children had been compromised in the area where the worker had been located. Ms. Bates indicated in her inspection report that this departure by the worker from one area where children were kept to another area where the plates were being placed constituted a deficiency in delivering the care to the children by not maintaining the proper ratio for staff and children. Ms. Flood did not believe that the departure by the worker for a brief period of time necessary to set out plates for the toddlers constituted non- compliance with the proper arrangement for staff in the requirement to monitor the children's activities. Ms. Flood believed that the worker while in another area placing the plates was still able to directly supervise the children in the area that had been left by watching and directing their activities within close proximity to the children. Given the difference of opinions Ms. Flood asked Ms. Bates to arrange for Ms. Flood to meet with Ms. Bates' supervisor to discuss the disagreement between those individuals concerning maintenance of the proper ratio for staff and children. Shortly after the May, 1995 inspection was conducted Ms. Flood met with Andrea J. Trzcinski, a supervisor for Petitioner for whom Ms. Bates worked in the child care licensure field. At this meeting Ms. Flood told Ms. Trzcinski about the concern that workers would be temporarily away from the areas in which children were located in the small spaces within the large room where care was provided. Ms. Flood explained that those short intervals where the workers were unavailable in the immediate areas where children were being attended were associated with various types of staff emergencies, staff preparing bottles for infants, or staff going to the restroom. Ms. Flood believed that to meet the exact terms for the staff to children ratio would require extra staff to meet the various contingencies where workers were absent from the discrete space where care was delivered to the children. Ms. Flood believed at the time and continues to believe that she cannot afford to have extra staff available to meet the contingency where the principal care giver has left the discrete space. Ms. Trzcinski explained to Ms. Flood that the choices which Ms. Flood had concerning the staff to children ratio were to divide the large room into discrete areas to deliver care or to leave the room as one area where care was given, thus requiring more staff than would be needed to maintain smaller areas within the large room. In the conversation between Ms. Flood and Ms. Trzcinski, Ms. Flood expressed the belief that the ability to look over the tops of the dividers which were only three feet tall would meet the requirements for maintaining the proper ratios when the staff was away from the immediate area where the children were located. Ms. Trzcinski explained to Ms. Flood that Ms. Flood's perception concerning the ability to maintain direct supervision by looking over the divider walls was not providing the direct supervision that was necessary. Ms. Trzcinski made Ms. Flood aware that Ms. Trzcinski's interpretation was that direct care meant having staff in the immediate area of the infants not monitoring from some other part of the overall large room by looking over the divider walls back into the area where the infants had been left. In summary, Ms. Trzcinski told Ms. Flood that a caregiver could not leave the discrete space where the children were located and move to another area and still maintain the called for ratio for staff to children. On October 11, 1995, Ms. Bates made another visit to the facility. The visit was as a follow up to an inspection that was conducted on September 29, 1995, unrelated to proper ratios for staff to children and upon a complaint that had been made concerning care provided to a child in the facility, again, unassociated with the proper ratio of staff to children. While Ms. Bates was inspecting the facility on October 11, 1995, she observed that in the room referred to as an infant room there were five children and one staff member. One child in that room was younger than one year old. Consequently, the ratio which Ms. Bates believed was appropriate for staff to children was 1 to 4, there being a child in the group who was not a year old. During the October 11, 1995 inspection Ms. Bates spoke to Marjorie James who was in charge of the facility on that occasion and explained the problem concerning the ratio in the infant room, in that the Florida Administrative Code required a ratio of 1 staff member to 4 children, not 1 staff member to 5 children as discovered in the inspection. Ms. Bates expressed to Ms. James the importance of maintaining those ratios in an instance where infants are involved in the receipt of care. A check-list for the inspection was prepared and provided to Ms. James who signed for the document. The document pointed out the problem of the ratios for staff to children wherein an infant not 1 year old was in the group of children. Ms. Bates made Ms. Trzcinski aware that the inspection of October 11, 1995, was being conducted and the results pertaining to that inspection wherein the ratio problem for staff to children had been identified. On November 8, 1995, Ms. Flood intended to work at the facility as a caregiver. By that arrangement it would allow Ms. James to leave the facility and go to a different location to pick up children from a kindergarten and return those children to the facility for care. Before arriving at the facility on November 8, 1995, Ms. Flood called the personnel at the facility and stated that Ms. Flood was going to be late. Ms. Flood recognized that the consequence would be that the ratios for staff to children would not be met for a short period of time. The reason Ms. Flood was tardy for her assignment was based upon an automobile accident on the road between her location and the facility. Ms. Flood explained to the other caregiver at the facility that she wanted to place a 22-month old child in the front room of the facility creating a problem for the staff to children ratio in that room, while maintaining the proper ratio in another room where infants less than one year old were found. As described before, the ratio for staff to children in the infant room should be 1 staff member for 4 children. The staff member who received Ms. Flood's call abided by the instructions and moved the 22-month old child to the front room. That meant that the ratio for staff to Children should be 1 to 6. In reality the ratio of staff to children was 1 to 9. Coincidentally on November 8, 1995, beyond the point and time at which Ms. James left to pick up the kindergarten children and the ratios where modified for staff to children in the front room, Ms. Bates arrived to conduct a follow-up inspection to check the ratios of staff to children. Ms. Bates discovered that the ratio of staff to children in the front room was 1 staff member for 9 children, whereas the ratio anticipated by Ms. Bates for the front room in which the 22-month old child was found should have been 1 staff member for 6 children. When Ms. Bates arrived to conduct the inspection on November 8, 1995, Virginia Sikes was caring for the children in the front room, and another caregiver was taking care of children in the infant room. Shortly after Ms. Bates arrival Ms. Flood came into the facility to provide care, thus the problem with the ratio with staff to children was corrected. Not long after Ms. Flood arrived Ms. James returned to the facility with the kindergarten children. The inspection which Ms. Bates conducted on November 8, 1995, was unannounced. Because the problem with staff ratios for children had been observed on both October 11, 1995 and November 8, 1995, Petitioner determined to impose an administrative fine in the amount of $150.00. The fine was perceived by Ms. Trzcinski to be a fine of $50.00 for each child over the ratio allowed as discovered on November 8, 1995, in which the proper ratio was 1 staff member for 6 children as opposed to the ratio discovered which was 1 staff member for 9 children. From Petitioner's view, expressed through Ms. Trzcinski, the violation was a Class II violation. Ms. Trzcinski characterized the violation as a "middle" violation. Respondent, through Ms. Flood, takes no issue that the ratios discovered for staff to children in the inspections performed on October 11, 1995 and November 8, 1995 were incorrect. Her principle concern is that the Respondent not be required to pay an administrative fine for the events which transpired on November 8, 1995. Her reasoning is that you cannot get substitute personnel quickly when contingencies arise such as were encountered on November 8, 1995. Also, her belief is that the problem was quickly corrected making imposition of a fine uncalled for.
Recommendation Upon the consideration of the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered imposing a $100.00 administrative fine for the failure to comply with the requirements related to maintenance of ratio for staff to children on November 8, 1995. DONE and ENTERED this 24th day of May, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 24th day of May, 1996. APPENDIX CASE NO. 96-1223 The following discussion is given concerning the findings of fact by the parties: Petitioner's facts are subordinate to facts found with the exception that Paragraph 2 is not necessary to the resolution of the dispute. Respondent's submission constitutes legal argument which was considered in entering the recommended order. COPIES FURNISHED: Roger L.D. Williams, Esquire HRS District 4 Legal Office Post Office Box 2417 Jacksonville, FL 32231-0083 Marie Flood Progressive Learning Center 1855 Hamilton Street Jacksonville, FL 32210 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7 Suite 728 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue is whether to deny Respondent's application to renew its child care facility license and impose an administrative fine for the reasons stated in the Department's letter dated September 16, 2016.
Findings Of Fact Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the 395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection: Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees. Two violations of rule 65C-22.006(d) and (e) by failing to have background screening documents in the staff files. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4). Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection: Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to maintain a ratio of two staff personnel for each five infants under one year of age. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat. On August 4, 2016, Ms. Garcia filed an application for renewal of her license. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely performs follow-up inspections if a facility's license is on probation. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following: Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or $100.00 per violation. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or 35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help Ms. Garcia, repeat violations were observed. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for Roy Garcia to call the parents and ask that they come to the facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30, and 31) during the same week.2/ When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman." While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children. However, Class 1 violations were repeatedly observed. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the application to renew Respondent's license and imposing an administrative fine of $1,565.00. DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2017.
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
The Issue The issue in this proceeding is whether the Department of Children and Family Services should renew the daycare license of Petitioner.
Findings Of Fact Tara Grizzell owned and operated Koala Kuties (the Center) which was located in Brooksville, Florida. At the time of the notice of denial, Petitioner's annual license was scheduled to expire on July 9, 2006. Glenda McDonald is a daycare licensing agent with the Department. She conducted an inspection of the Center on October 30, 2003. During the course of the inspection, Ms. McDonald completed a 63-item checklist of the facility. On this checklist, Ms. McDonald noted that the Center was not in compliance with applicable statutes and rules in some areas. The areas of non-compliance noted were that the Center was not in compliance in posting a log of monthly fire drills, medication was not locked or properly stored, and the required record keeping for the children's health and immunization records was disorganized. The checklist shows a required compliance date of the close of business on the date of inspection for the violations regarding records of fire drills and improperly stored medications. Regarding record keeping of health and immunization records, Ms. McDonald noted that there would be a re-check in four months. Approximately four months later, Ms. McDonald conducted another inspection of the Center on February 23, 2004. Again, Ms. McDonald noted on the inspection checklist that the Center was not in compliance with the requirements regarding record keeping of the children's health and immunization records. In addition, Ms. McDonald found that the Center was not in compliance regarding proper storage of toxic and hazardous materials because bleach, cleaner, and fingernail polish were accessible to children; the Center had failed to complete a required form regarding mandatory training for its employees; and required personnel and screening documents for the Center's employees were not complete. Ms. McDonald next inspected the Center on June 7, 2004. During that inspection, she again found that the monthly fire drill log had not been posted and employees' screening documents were still not completed. Ms. McDonald returned to the Center on October 28, 2004, to conduct another inspection. Ms. McDonald found the Center very disorganized with toys, dishes, and other items in places where people could trip over them. She noted on her inspection checklist that the Center was in violation for failure to keep the Center in clean and good repair. Additionally, Ms. McDonald again found the facility to be in non-compliance in the area of record keeping for the children's health and immunization records, personnel records, and personnel screening records. She also found the Center to be out of compliance regarding crib requirements because an infant was asleep on its tummy, and found the Center to be out of compliance for failure to maintain safe and adequate fencing because the playground fence was unlocked. On November 18, 2004, Ms. McDonald conducted a reinspection of the facility to determine whether Ms. Grizzell brought the facility into compliance. She again found it to be in non-compliance for failure to maintain the children's health and immunization records and failure to maintain the required employee screening documents. Ms. McDonald next made an inspection of the Center on February 7, 2005. She again found the Center to be in non- compliance in the areas of failure to post fire drill logs, failure to maintain required personnel documents, and the Center's lack of required documentation on two of the children. Additionally, Ms. McDonald found the Center to be cluttered and out of compliance with the requirement that the facility be clean and in good repair, and that substitutions to the planned menu were not recorded on the posted menu as required. Ms. McDonald made a reinspection of the facility on April 21, 2005, during which she again found the Center to be in non-compliance in the areas of the children's health and immunization records and required personnel and background screening records. On June 2, 2005, Ms. McDonald made another inspection of the Center and found everything to be in compliance except the children's immunization records, as they needed to be updated to reflect current immunizations. On October 6, 2005, Ms. McDonald made another inspection of the Center and again found it to be in non- compliance for failure to update the children's immunization and medical records, and failure to have complete personnel and background screening records on file. On January 24, 2006, Ms. McDonald inspected the Center and again found it to be in non-compliance, in that there was no report posted to show that a fire drill had been conducted in December 2005; there was evidence of smoking near the entrance of the facility and in the outdoor play area, and, therefore, not in compliance with requirements that all areas be free of toxic substances and hazardous materials; the immunization records of two of the children were not up-to-date; and the facility still did not have a complete record on file for all of the child care personnel nor required background screening documents. Additionally, Ms. McDonald found the Center to be in non-compliance for not posting their plan of scheduled activities as required and failing to store medicine properly. On May 25, 2006, Ms. McDonald again made an inspection of the facility and found it to be in non-compliance for incomplete files documenting required training of personnel, failure to have sufficient credentialed staff on the premises, failure to post a menu, and failure to maintain employee records and employee background screening requirements. Petitioner previously paid a civil penalty in the amount of $500 when a child wandered away from the Center and was found walking down a busy road in 2005.1/ Ms. Grizzell acknowledged at hearing that she had trouble with record keeping because there was a lot of turnover of employees. Further, she noted that on the January 24, 2006, inspection checklist, she was later found to be in compliance regarding the alleged violation of toxic and hazardous materials being present. Regarding the child who wandered away, Ms. Grizzell noted that the incident happened on the second day of care for the child.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order denying Petitioner's application for relicensure. DONE AND ENTERED this 4th day of December, 2006, in Tallahassee, Leon County, Florida. S ____ BARBARA J. STAROS 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 4th day of December, 2006
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon Petitioner's license.
Findings Of Fact On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of notification that Molly Hilbert had not been background screened. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2003. COPIES FURNISHED: Edward T. Cox, Jr., Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Lillie Shells Shell's Family Day Care Home 9340 County Road 231 Wildwood, Florida 34785 Paul F. Flounlacker, Jr., 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
