The Issue Whether Petitioner's license to operate a day care center should be suspended or revoked. Whether Petitioner's license to operate a day care center should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Parties Respondent is the state agency responsible for licensing and regulating child care facilities. Respondent routinely conducts inspections of licensed child care facilities to determine whether facilities are in compliance with the applicable statutes and rules. Any problems found during the inspections are noted on a report, which is provided to the facility's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections--monthly or every six weeks-- are conducted on child care facilities which have a provisional license rather than a standard license. Respondent also conducts inspections in response to complaints it receives, and it has the authority to inspect child care facilities at any time with or without notice. Petitioner is the owner and operator of a licensed child care facility located at 2625 North Hiawasee Road, Orlando, Florida, which is operated under the business name: Today's Kids Daycare Center (hereinafter "Petitioner's facility" or "the facility"). Petitioner has operated the child care facility at the above address for approximately five years and previously worked as director of another child care facility for five years. Petitioner has taken all required training in order to be licensed. As a result, she is, or should be, familiar with the rules regulating child care facilities. The Incident Following a complaint, Susan Wujastyk, former child protective investigator for Respondent, interviewed the mother of the child, W.P., at the child's school on March 5, 2004, in relation to an alleged incident which occurred at Petitioner's facility on March 3, 2004. She then prepared a preliminary report and went to Petitioner's facility to investigate further. Respondent's child care licensing division was also notified and an inspector came to the facility, as well. On or about March 3, 2004, the child, W.P., a pre- kindergarten student at Petitioner's facility, swallowed an unknown solid substance while in Tangela Muskin's classroom. Muskin believed the substance to be rat pellets and lead W.P. to Petitioner, who was in another room, and told her of her suspicions. Petitioner, who had taken some nursing courses at the local community college, put on a rubber glove and swabbed the child's mouth to dislodge any other substances that might still be in the child's mouth. She also gave him some milk, with the intent to make him throw up. Petitioner then inspected the vomit but found no foreign substances in it. Petitioner did not call "9-1-1" for emergency assistance, nor did she call the poison control center. Instead, she observed W.P. for a period of time and sent him back to his classroom. Muskin also testified that she found the child, W.P., with a bag labeled rat pellets and claimed that Petitioner, in the presence of another employee at the facility, threw the rat pellets in the trash and told Muskin and the other employee not to report this to anyone. This statement is not credible. Petitioner testified that she attempted to call the child's mother, but could not reach her by telephone. Thereafter, she waited for the child's father to come and pick him up and she told him that W.P. had swallowed something but that Petitioner believed that she got all of the material out of his mouth. She advised him to take the child to the emergency room, but the father declined to do so. This statement appears to be credible. Susan Wujastyk inspected the facility on March 5, 2004, as part of her investigation of this matter and found two pellets under a toy chest in Muskin's classroom. Wujastyk thought they were rat pellets; however, that fact was never verified. An examination of the child, W.P., on March 5, 2004, found no evidence of ingestion of a toxic substance, and his condition was found to be stable. Petitioner retains a pest control company that performs regular services at the facility, but does not use rat pellets or any form of rodent control devices. Three of Petitioner's employees testified that they perform regular inspections of the facility and none of them ever found rat pellets or other toxic substances on the premises. Following the joint investigation, a joint report was prepared and approved by Respondent's staff, and it was recommended that Petitioner's license be revoked. Thereafter, on March 23, 2004, the acting district director sent a letter to Petitioner informing her that her license was being revoked and advised Petitioner of her right to "appeal" that decision through the administrative process. Subsequently, on June 10, 2004, Petitioner was sent a letter informing her that her license would not be renewed. The basis for the denial was the same as the revocation letter. At the hearing, Patricia Richard testified that she was particularly concerned that Petitioner was aware the W.P. may have swallowed a toxic and other dangerous substance and did not take immediate action to report it to "9-1-1" or the poison control center; and did not take it upon herself to take the child to a health care professional for examination but waited for the parents to arrive to inform them of the incident. Richard also testified that it was improper for Petitioner to put her fingers down the child's throat in order to induce vomiting. She characterized these as serious child safety violations and failure to follow proper emergency procedures. These were the primary reasons she recommended that Petitioner's child care license be revoked and not renewed. Petitioner, in her testimony, did not deny giving the child milk and swabbing his mouth with her finger, but did deny that she stuck her fingers in his mouth in order to induce vomiting. The evidence is not clear and convincing that the child, W.P., swallowed a toxic or hazardous material; and it is not at all clear from the evidence what it was that the child swallowed. However, it is clear that the child swallowed something that was suspected to be toxic; and when this fact was reported to Petitioner, she did not follow proper emergency procedures and did not properly notify the child's parents promptly. Petitioner has demonstrated that her license for a child care facility should not be denied or revoked but that a lesser penalty should be imposed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of violating the provisions of Florida Administrative Code Rule 65C-22.004(2)(d)1. and 2. (one count each). Finding Petitioner not guilty of violating the provisions of Florida Administrative Code Rule 65C-20.010(1)(b) or similar provisions. Imposing a fine of $200, and a one-month suspension of Petitioner's license, followed by the issuance of a provisional license. DONE AND ENTERED this 5th day of October, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 5th day of October, 2004.
The Issue At issues are whether Respondent committed the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes. Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. Ms. Hall owns and operates the child care facility doing business as Children of Liberty pursuant to License Number C04DU0101. The facility is located at 232 East 19th Street, Jacksonville, Florida. Ms. Hall testified that she has operated the facility for 21 years. C.R. was born on October 21, 2013. C.R. was four years old on August 27, 2018, the date of the event that precipitated the investigation in this case. L.S. is the mother of C.R. She enrolled C.R. at Children of Liberty from November 2017 through early August 2018. As of August 9, 2018, L.S. withdrew C.R. from Children of Liberty in order to enroll him in “big boy school,” i.e., the voluntary pre-kindergarten (“VPK”) program at North Shore Elementary School (“North Shore”). Because of his age, C.R. was not yet eligible to attend kindergarten in a Florida public school. See § 1003.21(1)(a)2., Fla. Stat. Therefore, C.R. was not a “school-age child” for purposes of Florida Administrative Code Rule 65C-22.008, or the “School-Age Child Care Licensing Handbook” adopted by reference therein. Supervision of C.R. was governed by the Department’s “Child Care Facility Handbook,” adopted by reference in rule 65C-22.001(6). L.S. is a full-time nursing student during the week and works at Panera on the weekends. She testified that her only support system in Jacksonville is her grandparents, both of whom are in precarious health. L.S. stated that it would be very difficult for her to take C.R. to VPK given her school schedule. She was hesitant to place C.R. on a school bus at his young age. She had hoped that her grandparents would be able to help her get C.R. back and forth from the North Shore VPK program, but her grandfather told her that he was unsure of their ability to do so. After discussing the situation with Ms. Hall, L.S. re- enrolled C.R. at Children of Liberty because Ms. Hall agreed to take C.R. to and from his VPK program. L.S. would drop off C.R. at Children of Liberty at 7:30 a.m. C.R. would be given breakfast and then be driven to VPK by 8:00 a.m. Ms. Hall then would pick up C.R. in the afternoon and keep him at Children of Liberty until L.S. could pick him up at 4:30 p.m. North Shore requires its students to wear uniforms. The uniform for North Shore is royal blue, navy blue, or white shirts, and black, khaki, or navy blue pants. Parents sometimes send their children to school out of uniform, but the school sends reminders home to inform the parents of the correct uniform colors. Children are not sent home for being out of uniform. C.R.’s first day of being transported to North Shore by Ms. Hall was August 27, 2018. L.S. brought C.R. to Children of Liberty that morning. C.R. was dressed in the uniform for North Shore. L.S. testified that she had made it clear to Ms. Hall that C.R. was attending North Shore. L.S. was taken aback that morning when Ms. Hall mentioned that C.R. would be attending Andrew Robinson Elementary School (“Andrew Robinson”). L.S. corrected Ms. Hall, reminding her that C.R. was going to North Shore. Ms. Hall said, “That’s right, that’s right.” Ms. Hall denied that any such conversation took place and denied that L.S. ever told her that C.R. was attending North Shore. Ms. Hall testified that when L.S. first broached the subject of C.R.’s needing school transportation, she told L.S. that she drove only to Andrew Robinson. Ms. Hall believed that L.S. understood that Andrew Robinson was the only option for transportation from Children of Liberty to school. Ms. Hall testified that on two occasions prior to August 27, 2018, L.S. asked her to pick C.R. up from school in the afternoon. On both occasions, Ms. Hall drove to Andrew Robinson and did not find C.R. there. She assumed that C.R.’s grandparents had picked him up. Ms. Hall stated that she had no reason to believe she had driven to the wrong school because she never heard a complaint from L.S. about her failure to pick up C.R. C.R.’s enrollment form at Children of Liberty indicated “Andrew Robinson” as the school attended by the child. However, this form was completed by L.S. well before she enrolled the child in VPK. The “Andrew Robinson” notation was made later, apparently by Ms. Hall, and is therefore at best indicative of Ms. Hall’s state of mind on August 27, 2018.2/ Ms. Hall drove another child, K.A., to Andrew Robinson every morning. K.A. was born on January 12, 2013. She was five years old on August 27, 2018, and eligible to attend kindergarten at a Florida public school. Therefore, K.A. met the Department’s definition of a “school-age child.” On the morning of August 27, 2018, K.A. was wearing the uniform of Andrew Robinson. The Andrew Robinson uniform varies depending on the day of the week, but the uniform shirts are required to bear the school’s logo. However, as with North Shore, children are not sent home or disciplined for failing to wear the correct uniform. On this day, the Andrew Robinson uniform was green or pink shirts with khaki, blue, or black pants. Ms. Hall testified that she generally pays little attention to the uniforms the children are wearing. Her experience is that children often go to school out of uniform. The Children of Liberty transportation log for August 27, 2018, shows that C.R. and K.A. left the child care facility at 8:15 a.m. It is undisputed that Ms. Hall was driving the children in a van. Billing records for Ms. Hall’s cell phone show that she phoned or attempted to phone L.S. at 8:15 a.m. on August 27, 2018. The call lasted one minute. Ms. Hall phoned or attempted to phone L.S. again at 8:16 a.m. This call lasted two minutes. Ms. Hall had no explanation for why she phoned L.S. at the precise time she was also driving C.R. to school. She speculated that she must have been returning a call from L.S., but produced no documentation to support her theory. The Children of Liberty transportation log indicates that Ms. Hall dropped off C.R. and K.A. at Andrew Robinson at 8:18 a.m. Ms. Hall testified that she pulled up at the front of the school, made sure that the school patrol and teachers were at the drop-off point, and dropped off the children. Ms. Hall stated that C.R. told her that he knew where to go. She did not personally hand the child off to responsible school personnel at the drop-off point. Ms. Hall’s practice of dropping off the students was acceptable under Department standards for K.A., who was a school-age child. See Section 2.5.2, “Driver Requirements,” of the School-Age Child Care Licensing Handbook. However, C.R. was not a school-age child. Ms. Hall was required by Department standards to directly place C.R. into the care of an authorized individual from the school. See Section 2.4.1E of the Child Care Facility Handbook. Ms. Hall claimed that Department rules prevented her from leaving the van to ensure that an authorized individual took over supervision of C.R. However, the Department standard referenced by Ms. Hall requires only that the correct staff-to- child ratio be maintained during transportation. See Section 2.5.4.C of the Child Care Facility Handbook. Because Ms. Hall was dropping off both of the children in her van, nothing prevented her from exiting the van to make sure that C.R. was received by an authorized individual at the school. Had Ms. Hall escorted C.R. onto the Andrew Robinson campus, she likely would have learned the child was not enrolled at that school. The school patrol at Andrew Robinson realized that C.R. was not a student there. They brought C.R. to school staff, who took him to the main office. They looked through the child’s backpack and found paperwork indicating C.R. was enrolled at North Shore. They contacted their counterparts at North Shore, who in turn contacted C.R.’s family. L.S. testified that she learned of the situation from her grandmother, who had received the call from North Shore. She was not sure why they called her grandmother first, but shortly thereafter she got a call from the principal of North Shore. L.S. was informed that the school could not undertake the liability of transporting C.R. and that she would have to pick him up at Andrew Robinson and deliver him to North Shore. She drove to Andrew Robinson and picked up C.R., then headed to Children of Liberty to find out why Ms. Hall dropped her child off at the wrong school. C.R. was at the wrong school for at least an hour before his mother picked him up. Ms. Hall testified that L.S. cursed and threatened her bodily harm upon her arrival at Children of Liberty, although no physical altercation took place. L.S. conceded that she was very angry and used inappropriate language, though she said much of her anger was due to Ms. Hall’s refusal to take responsibility for taking C.R. to the wrong school. L.S. never took C.R. back to Children of Liberty after August 27, 2018. Ms. Hall testified that she believed C.R. was enrolled at Andrew Robinson. Her phone calls to L.S. during the drive to the school raise the question of whether she was in doubt about the matter. Her alteration of C.R.’s enrollment form, and her unlikely story about her two attempts to pick up C.R. at Andrew Robinson, also call into question her good faith belief that the child attended Andrew Robinson. As she stated repeatedly, Ms. Hall had no reason to drop off the child at the wrong school. Nonetheless, Ms. Hall took on the responsibility for C.R.’s safe transport to and from his VPK. Even giving full credit to her good intentions does not change the fact that she left C.R. at the wrong school and, in so doing, failed to supervise the child in accordance with the standards set forth in the Department’s rules and Child Care Facility Handbook.
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 finding that Respondent provided inadequate supervision in violation of Section 2.4.1E of the Child Care Facility Handbook, and imposing a fine of $250.00 upon Terri Hall, d/b/a Children of Liberty Child Care Center. DONE AND ENTERED this 1st day of May, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 1st day of May, 2019.
The Issue Whether Petitioner, Department of Children and Families’ (the Department), intended action to cite Respondent, Kids Village Early Learning Center, with a Class I violation and impose a fine in the amount of $500, is appropriate.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Kids Village is a child care facility licensed by the Department. Kids Village is operated by Angela Mitchell and is located at 1000 West Tharpe Street, Suite 24, Tallahassee, Florida. Kids Village is located in a shopping area commonly referred to as a “strip mall,” a series of retail and office establishments located along a sidewalk with exterior entrances. A Dollar General store is located across the parking lot from the strip mall. On November 2, 2017, L.C., a two-year-old child enrolled at Kids Village, exited the facility unaccompanied and on his own volition. A stranger spotted the child in the parking lot near the Dollar General store and left her vehicle to pick up the child. A parent of a former student at Kids Village, who works in the strip mall, recognized L.C. and returned him to the facility. L.C. was absent from the facility for approximately four minutes. Teresa Walker, a teacher at Kids Village, who was working on the day of the incident, called and reported the incident to Ms. Mitchell, who was not working at the facility that day. Both Ms. Walker and Ms. Mitchell completed required incident reports and filed them with the Department. The incident was also the subject of an anonymous complaint received by the Department’s child abuse hotline the same day. Elizabeth Provost, a Department family services counselor, received both the incident reports and the complaint and began an investigation. As part of her investigation, Ms. Provost interviewed the child protective investigator who received the complaint from the abuse hotline, as well as Ms. Mitchell and Ms. Walker. Ms. Provost also viewed the facility’s security camera footage from the day of the incident. Based on her investigation, Ms. Provost determined that L.C.’s mother arrived at the facility on the morning of November 6, 2017, signed the child in at the reception desk, engaged in conversation with another employee of the facility, looked around the corner where a gate separates the reception area from a hallway leading to classrooms, then exited the facility. Afterward, security video shows L.C. exiting the facility without supervision. Based upon her investigation, Ms. Provost concluded that the facility was in violation of Florida Administrative Code Rule 65C-22.001(5), which reads, in pertinent part, as follows: Direct supervision means actively watching and directing children’s activities within the same room or designated outdoor play area, and responding to the needs of the child. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children at all times. Ms. Provost also determined the violation was a Class I violation of Department rules, which is described as “the most serious in nature, [which] 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)1. At hearing, Ms. Mitchell admitted that, on November 2, 2016, L.C. was indeed faced with a serious or imminent threat to his safety which could have resulted in injury or death. As such, Ms. Mitchell admitted the Department properly determined the incident was a Class I violation of rule 65C-22.001(5). Ms. Mitchell’s contention was that Kids Village was not completely at fault, and that the penalty assessed should be reduced to account for the mother’s negligence. L.C. was known to the staff at Kids Village as a “runner.” He experienced separation anxiety and would frequently try to follow his mother when she left the facility after dropping him off for school. Ms. Mitchell testified that L.C.’s mother had been instructed to walk L.C. to his classroom and hand him over to his teacher before leaving the facility. Ms. Mitchell faults the mother for having signed the child in on the morning of the incident, but leaving the facility without walking the child all the way to his classroom. The evidence adduced at hearing did not support that version of the facts. Ms. Walker was the only witness who testified at the final hearing who was actually at the facility on the day in question. Her recollection of the events was clear and her testimony was credible. Ms. Walker works in the “baby room,” which is located to the left of the reception area past the reception desk. The gate separating the reception area from the hallway to the classrooms is to the right of the reception desk. Ms. Walker testified that after his mother signs L.C. and his older brother in on most mornings, L.C. comes to stay with her in the baby room. Ms. Walker gives him hugs and extra attention to help overcome his anxiety, then walks him to his classroom when he is calm. On the morning in question, L.C.’s mother came into the facility and signed the children in at the reception desk. Signing a child in requires both completing a physical sign-in sheet, and an electronic interface with a computer system. While his mother was signing in the children, L.C. went to the baby room where Ms. Walker greeted him and hugged him. L.C.’s mother finished signing in the children and talking to the staff, then she turned to find both children gone. The mother “hollered out” to Ms. Walker something to the effect of “Where did the children go?” Ms. Walker replied that they had gone “to the back.” L.C.’s mother walked over to the gate separating the reception area from the classroom hallway and peered around it down the hallway. She then exited the facility. Shortly thereafter, L.C. came back through the gate, into the reception area, and exited the facility through the front door unaccompanied. L.C. was alone outside the facility in a crowded parking lot of a retail strip mall for almost five minutes. He had crossed the parking lot during morning traffic to almost reach the Dollar General store. L.C. was spotted by a stranger who got out of their own vehicle to pick up the child. L.C. was recognized, and returned to the facility, by someone who worked at a nearby store. One does not need an overactive imagination to list the dangers that could have befallen the child during that brief time period. Kids Village has taken corrective action since the incident and installed a security system on the front door which requires a person to push a button on a panel next to the door in order to exit the facility. There was no testimony regarding any prior citations against Kids Village for violation of child care licensing standards. The investigative summary prepared by Ms. Provost states, “Kid’s Village has one prior with the Department earlier in 2016[;] there were no indicators of inadequate supervision.” Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In determining to impose a $500 penalty, Ms. Provost considered the subsequent remedial action taken by Kids Village to prevent future escapes by children in its care. She also considered the serious threat of harm or death posed to L.C. due to inadequate supervision by Kids Village. Imposition of the maximum fine for the Class I violation is supported by the record in this case. Neither the statute nor the rule direct the Department to consider the negligence of persons other than the licensee in determining the appropriate penalty to be imposed for a Class I violation.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Kids Village Early Learning Center committed a Class I violation of child care facility licensing standards and imposing a monetary sanction of $500. DONE AND ENTERED this 1st day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 1st day of August, 2017. COPIES FURNISHED: Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308 (eServed) Angela Mitchell Kids Village Early Learning Center Suite 24 1000 West Tharpe Street Tallahassee, Florida 32303 (eServed) Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Windwood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue is whether Petitioner should impose a fine against Respondent for committing both a Class I and a Class II violation of child care licensing standards.
Findings Of Fact Respondent currently holds license number C10PO0538, issued by the Department, to operate a child care facility in Bartow, Florida, pursuant to sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. On July 29, 2014, Child Care Regulations Counselor Cheryl Dishong completed a routine inspection at Respondent child care facility. In the course of the inspection, Ms. Dishong advised Natasha Richardson, the director of Respondent, that her driver’s certification had expired on June 11, 2014, and that she would have until August 29, 2014, to provide a current certification form. Respondent was cited for a Class III violation for not having a current driver’s certification form in Ms. Richardson’s employee file. When Ms. Dishong advised Ms. Richardson that her driver’s certification had expired, she appeared genuinely surprised to learn it had expired. At no time during the July 29, 2014, inspection did Ms. Richardson tell Ms. Dishong she had received a health exam in May 2014. Also, Ms. Richardson did not provide Ms. Dishong with any health records concerning a health exam conducted in May during the July 29 inspection. Due to a heavy workload, Ms. Dishong was not able to revisit Respondent on August 29, 2014, to ensure Ms. Richardson had received a new driver’s certification, and she did not follow up with Respondent concerning the expired certification. On or about November 14, 2014, the Department received a license renewal application packet from Respondent. Ms. Dishong noted that some documents, which related to Respondent’s driver and vehicle, were missing from the application packet. Specifically, Ms. Dishong noted that the packet was missing the driver’s certification form, the driver’s CPR and first aid information, the vehicle inspection report, and the proof of insurance for the vehicle. On November 20, 2014, Ms. Dishong visited Respondent to complete the renewal inspection. On that date, Ms. Richardson provided Ms. Dishong with her employee file. Ms. Dishong obtained copies of the CPR and first aid information, Ms. Richardson’s driver’s license, and the driver’s certification form, which were contained within the employee file. Ms. Dishong also noticed some medical records in the employee file, but these appeared to be addressing medical conditions of a then current illness and of a personal nature, and not related to a certification of Ms. Richardson’s fitness to transport children in Respondent’s vehicle. Ms. Dishong told Ms. Richardson that all she needed from her was the driver’s certification form, not the medical records from her May 2014 exam. Ms. Dishong examined a driver’s certification form during the November 20, 2014, inspection that was dated July 29, 2014, and appeared to have been signed by both Michael Cogdill, ARNP, at Lakeside Occupational Medical Center (“Lakeside”), and by Ms. Richardson. Ms. Dishong took the documents she obtained on November 20, 2014, added them to Respondent’s renewal application packet, and submitted the packet to her supervisor. Ms. Dishong’s supervisor reviewed the packet and discussed it with her. Ms. Dishong’s supervisor specifically questioned the driver’s certification form and directed her to contact Lakeside to confirm that Ms. Richardson had been seen by Mr. Cogdill on July 29, 2014. Ms. Dishong testified that when she called Lakeside, she was told that Mr. Cogdill could not have seen Ms. Richardson on July 29, 2014, since his employment at Lakeside ended in March or April of 2014. Ms. Dishong was also informed that Ms. Richardson had not been to Lakeside at any time between 2010 and 2014. Ashley Goff, the records custodian for Lakeside, appeared at the hearing. She testified that she is familiar with how records are kept at Lakeside and that she has access to these records. She further testified that the only records kept onsite at Lakeside are from December 2010 to the present. When presented with the July 29, 2014, certification form, she stated that this could not have been signed by Mr. Cogdill since he had retired in April 2014. Ms. Goff also testified that she had reviewed her records from December 2010 to November 20, 2014, and that she could find no evidence that Ms. Richardson had ever been to Lakeside during that time period. When presented with a certification form signed by Mr. Cogdill on July 11, 2012, and by Portia Jones on November 16, 2012, Ms. Goff testified that this one could be authentic since Mr. Cogdill was still employed by Lakeside in July 2012. Finally, when presented with a driver’s certification signed by Darin Lastrapes at Lakeside and by Ms. Richardson on November 25, 2014, Ms. Goff testified that Ms. Richardson was seen at Lakeside on November 25, 2014, for a physical and that the driver’s certification form was a true and correct copy of the form completed by Mr. Lastrapes. Ms. Dishong returned to Respondent on November 25, 2014, and confronted Ms. Richardson about the driver’s certification form. Ms. Richardson became upset and said “this is ridiculous.” Ms. Richardson then grabbed the keys and left the facility. Ms. Dishong finalized the renewal inspection report and had the form signed by the owner, Carolyn Richardson. At that time, Respondent was cited for misrepresentation, a Class I violation of licensing standards, resulting from the altered driver’s certification form. Ms. Richardson’s testimony contradicted that given by Ms. Dishong. She stated that when Ms. Dishong came for the inspection on July 29, 2014, she knew her driver’s certification had expired, but that she told Ms. Dishong she had been to her doctor at the Watson Clinic for her physical in May of that year. She testified that Ms. Dishong told her the “certification” (there was no driver’s certification included in the May 2014 medical records) was on the wrong form and needed to be submitted on the correct form. Ms. Richardson then admitted she took the certification form of another employee, and used whiteout to cover the original date on the form and the signature of the employee. Ms. Richardson joked about how Ms. Dishong always calls her the “Queen of Whiteout” since her printer is never in good working order. She said her intent was to have her physician, Dr. Elena Batardo, either sign over the signature of Mr. Cogdill or complete a new form on July 29, 2014. She testified she had called Dr. Batardo’s office on July 29, 2014, but could not be seen by the doctor that day. She said she then placed the altered form in her file and forgot about it. Ms. Richardson also testified, contrary to Ms. Dishong’s testimony, that she did not become upset during the renewal inspection on November 25, 2014, when confronted with the altered certification form. Ms. Richardson conceded that she had gone to see her doctor at the Watson Clinic on May 7, 2014, not to receive a new driver’s certification, but for personal medical issues that had arisen at the time. She agreed that Ms. Dishong would not be able to divine, from those medical records, that Ms. Richardson was certified to transport children at the child care facility. Ms. Dishong rebutted Ms. Richardson’s testimony that the medical records were in the file on July 29, 2014, by confirming she had never seen the May 7, 2014, medical records at the first of her three inspections of Respondent on July 29, 2014. This conflicted with her earlier testimony that she saw the medical records in the employee file during the November 20, 2014, inspection. Without a transcript, the only finding the undersigned can make is that Ms. Dishong did not see the May 7, 2014, records on July 29, 2014, but may have seen them, yet discounted their relevance since they did not include a driver’s certification, at the time of the November 20, 2014, inspection. She further testified that at no time did Ms. Richardson tell her the driver’s certification form dated July 29, 2014, was not intended to be used as her own certification form. Ms. Dishong conceded that the July 29 altered form could have been put in the file and forgotten about by Ms. Richardson. If Ms. Richardson had told Ms. Dishong the altered form had been placed in the file and forgotten about and that she had not received her new driver’s certification, Respondent would not have been cited for the Class I violation for misrepresentation. Respondent would have been cited a second time for failure to have the required driver’s certification form in the employee’s file, a lesser violation. The issue of whiting out information on official forms had been raised by Ms. Dishong with Ms. Richardson on at least one prior occasion. In December 2013, a child’s enrollment form had been altered by whiting out the name of one child and filling in the name of another child belonging to the same family. Ms. Dishong stated that Respondent was not cited in December 2013 for the altered form, but Ms. Richardson was warned that any further altered forms would result in a citation for misrepresentation.
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 finding that Respondent violated a Class I day care licensing standard and fining Respondent $300 for the violation of the misrepresentation standard, and finding that Respondent violated a Class II day care licensing standard and fining Respondent $50 for the violation of the staff-to- children ratio standard. DONE AND ENTERED this 15th day of April, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of April, 2015. COPIES FURNISHED: Natasha Richardson Richardson's Learning Enrichment Center 1426 West Bryant Street Bartow, Florida 33830 Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Cheryl D. Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue At issue is whether the Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes.2/ Section 402.310 authorizes the Department to take disciplinary action against child care facilities for violations of sections 402.301-402.319. Magellan is a child care facility operating pursuant to License Number C04DU0288. The facility is located at 10550 Deerwood Park Boulevard, #704, Jacksonville, Florida. Walter Giannone is a child care licensing counselor for the Department. He has worked for the Department for 24 years, all in the area of child care licensing. Mr. Giannone was the licensing counselor assigned to assist Magellan when the company was obtaining its first license to operate a day care roughly a decade ago. He is very familiar with Magellan and its facilities. For the past two years, Mr. Giannone has been assigned to inspect the Magellan daycare. He testified that Magellan's inspections have been uniformly satisfactory. On Friday, December 9, 2011, Mr. Giannone received a complaint that K.J., a two-year-old boy, was injured when he fell from a piece of play equipment at Magellan. The complaint was made by K.J.'s mother, who alleged that the child was alone in the classroom for around seven minutes, that no one came to his immediate assistance when he fell, that 911 was not called and the parents were not immediately notified. On Monday morning, December 12, 2011, Mr. Giannone conducted an on-site investigation of the incident at Magellan. He interviewed several people, including the facility's director, Marilyn Potts. Ms. Potts gave Mr. Giannone her report of the incident and assured him that it was not nearly as severe as the parent's complaint alleged. Mr. Giannone viewed Magellan's security camera video for December 9, 2011. The tape, which had no audio, showed a classroom designated for two-year-olds in which there were eight children and one teacher. The time was around 5:30 p.m., which was parent pick-up time preliminary to Magellan's 6:00 p.m. closure. Most of the children were "milling around the room." At around 5:37 p.m., the teacher placed a female child on the changing table and began changing the child's diaper. The mother of the child was visible in the video, talking to the teacher as the teacher changed her child's diaper. The teacher was facing the classroom and could see the other children in the room. At about 5:39 p.m., K.J. climbed up onto a play stove in the classroom. A few seconds later he was joined by a little girl, who quickly climbed down. Mr. Giannone stated that K.J. was dancing around on top of the stove and appeared to be having fun when he fell from the stove. Mr. Giannone testified that K.J. was on top of the stove for one minute and 19 seconds before he fell. The teacher immediately ran to K.J. The mother took over at the changing table. Mr. Giannone testified that K.J. did not move for a moment or two. The teacher carried K.J. out of the room. About four minutes later, K.J. was brought back into the room and appeared to be fine. K.J.'s mother later took him to the emergency room, where he was pronounced in good health save for a sinus infection. While agreeing that the incident was not nearly as serious as the parent's complaint made it seem, Mr. Giannone still found a violation of the supervision requirement. Because there was no audio on the tape, Mr. Giannone took the teacher's word that she told the child to get down, but he found this insufficient. The child was on top of the play stove for over one minute, yet the teacher did not physically intervene to take him down and did not call for assistance. Mr. Giannone concluded that this was a direct supervision violation. He determined that it was a Class 2 violation, meaning that it could be anticipated to pose a threat to the health, safety or well-being of a child, but that the threat was not imminent. The teacher, Sarah Rahman, testified that she was at the changing table when K.J. began climbing on the play stove. She called out to him to stop and he obeyed, but started climbing again as soon as she looked down to change the diaper of the child on the changing table. She called out again but K.J. would not come down. Ms. Rahman stated that she could not physically intervene because she could not leave the other child alone on the changing table. Ms. Rahman did not adequately explain why she could not have left the child with her mother. She testified that the mother was not present when K.J. began to climb on the stove, but conceded that the mother was present no later than when Ms. Rahman called out to K.J. for the second time. Ms. Rahman further conceded that she could have prevented K.J.'s fall if she had let the mother take care of her own child on the changing table. Ms. Rahman testified that K.J. had a history of climbing on this play equipment, and that it had occurred to her that the equipment might pose a fall risk. Magellan has an intercom system that allows teachers to call for assistance from the front office. After K.J. fell, Ms. Rahman used the intercom to call Teresa Sanchez, a fellow employee who was at the desk in the front lobby greeting parents as they arrived to pick up their children. Ms. Sanchez immediately went back to assist. Ms. Sanchez testified that the purpose of the intercom is to allow teachers to push a button and quickly get assistance in the classroom. However, Ms. Rahman failed to ask for assistance until after K.J. fell off the play stove. Magellan presented evidence establishing that K.J. was an unruly, disobedient child. He was very aggressive and was known to slap, kick and spit at his teachers. His mother told school personnel that K.J. climbed on the furniture at home and that she could not control him. At the time of the incident, Magellan was in the process of expelling K.J. for his behavior. Marilyn Potts, Magellan's director, testified that she could not assign a teacher to follow one child around to be sure he does not hurt himself. None of these factors serves to excuse Magellan for this incident. Ms. Rahman testified that whether a child is well behaved has no bearing on her responsibility to ensure the child's safety. The foreknowledge that K.J. was prone to climb on the equipment and was not inclined to obey verbal instructions was all the more reason for Ms. Rahman to intervene physically before the child fell. Magellan argued that Ms. Rahman could not be expected to rush over and pull K.J. off the play stove because Department rules require a 30-second hand wash after the changing of a diaper. This argument is unavailing. Ms. Rahman rushed to K.J. after he fell without bothering to wash her hands. Given the exigent circumstances, Ms. Rahman could as well have gone to K.J.'s assistance before he fell. Finally, Magellan argued that the matter should have been dropped when K.J.'s mother subsequently attempted to withdraw her complaint. Mr. Giannone credibly testified that dropping the matter was not an option. Once a complaint is filed, the Department is required to investigate and determine the facts of the situation regardless of whether the complainant has a subsequent change of heart. Though in this instance the complainant's change of heart was motivated by sincere regret at exaggerating the seriousness of the incident, in other cases a complaint might be withdrawn because the complainant has been intimidated. Mr. Giannone testified that it was important for child safety that the Department follow the facts of each case rather than the whims of the complainant.
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 finding that Respondent provided inadequate supervision in violation of rule 65c-22.001 (5)(a), imposing a fine of $50.00 upon Magellan Christian Academies, LLC. DONE AND ENTERED this 23rd day of August, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 23rd day of August, 2012.
