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.
The Issue The issues in this case are: (1) whether Respondent misrepresented or fraudulently provided information to Petitioner regarding compliance of its child care facility with the annual physical examination and annual vehicle inspection requirements in Florida Administrative Code Rule 65C- 22.001(6)(a) and (c), in violation of section 402.319(1)(a), Florida Statutes, and Child Care Facility Standard No. 63, incorporated by reference into rule 65C-22.010(1)(d)1.; and (2) if Respondent committed the alleged violations, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency responsible for licensing, inspecting, and monitoring child care facilities pursuant to chapter 402, Florida Statutes. Respondent is a child care facility licensed by Petitioner, operating under License No. C11MD1476. Respondent's facility is located at 968 Southwest 82nd Avenue, Miami, Florida. Soraya Sanabria and Lyan Barrus are the Respondent's owners, and Sanabria is its Director. At the time of the alleged conduct giving rise to this proceeding, Respondent was designated a Gold Seal Quality Care provider pursuant to section 402.281(1)(b) and was participating in the Gold Seal Quality Care program. Events Giving Rise to this Proceeding License Renewal Process Pursuant to section 402.308(1), Respondent applied for the annual renewal of its child care facility license in mid- to late 2013. On November 20, 2013, Pauline Kinsey, Family Service Counselor, conducted a license renewal inspection of Respondent's facility. During the inspection, Kinsey identified a few minor noncompliance issues, which Respondent expeditiously addressed and are not at issue in this proceeding. As part of the annual license renewal application review process, Petitioner's auditors carefully review each application to ensure compliance with the statutes and rules governing child care facility licensure. Gloria Johnson, an auditor with Petitioner's child care facility regulation program, reviewed Respondent's 2013 license renewal application.5/ The Vehicle Inspection and Health Examination Forms In the course of her review of Respondent's 2013 application, Johnson discovered that Respondent had submitted a vehicle inspection form for its facility's child transportation vehicle dated June 14, 2011, that previously had been submitted as part of Respondent's 2011 license renewal application. Johnson notified Kinsey, who contacted Sanabria on December 17, 2013. Kinsey requested that Respondent submit a current vehicle inspection form for inclusion in its 2013 license renewal application. That same day, Sanabria faxed a vehicle inspection form, dated June 14, 2013, to Petitioner. Johnson reviewed this vehicle inspection form and determined that it was a copy of the June 14, 2011, form that had been altered. Specifically, the date in the top left space on the form had been altered by writing a "3" over the last "1" in "2011." In every other respect——including handwriting, vehicle mileage, name of inspector and business (Goodyear),6/ and date of inspection written in the lower right-hand corner——the two forms were identical. This spurred Johnson to take a closer look at Respondent's facility licensing files. In doing so, she discovered that the June 14, 2011, vehicle inspection form also had been submitted to Petitioner as part of Respondent's 2012 license renewal application.7/ Johnson notified Kinsey that the vehicle inspection form Respondent submitted on December 17, 2013, was an altered version of the form dated June 14, 2011. Kinsey immediately contacted Respondent regarding the altered form. On December 18, 2013, Respondent submitted a vehicle inspection form indicating that the vehicle had been inspected at Tires Plus that same day. Petitioner refused to accept the December 18, 2013, form. Kinsey informed Respondent that Petitioner had determined that the vehicle inspection form Respondent had submitted on December 17, 2013, was altered, so the matter was being referred to Petitioner's legal department to determine appropriate action. In the course of reviewing Respondent's license renewal application files, Johnson also discovered that a "Health Examination" form that Respondent had submitted in its 2012 license renewal application8/ also was altered. Respondent submitted a copy of the Health Examination form dated "6/10/2011" as part of its 2011 application, and then again submitted the same form in its 2012 application; however, the date on the form submitted in the 2012 application had been changed from "6/10/2011" to "6/10/2012" by whiting out the last "1" in "2011" and replacing it with a "2." In every other respect, including handwriting and other marks, the forms were identical.9/ Complaint Inspection and Administrative Complaints As a result of Johnson's discovery of the altered vehicle inspection and health examination forms in Respondent's application files, Kinsey conducted a complaint inspection of Respondent's facility on December 20, 2013. At that time, Petitioner issued an Administrative Complaint citing Respondent for violating section 402.319(1)(a), rules 65C-22.001(11) and 65C-22.001(6)(c), and Petitioner's Child Care Facility Standard No. 63, by having misrepresented information and fraudulently provided information to Petitioner related to Respondent's child care facility. On January 13, 2014, Respondent filed a request for administrative hearing challenging the Administrative Complaint. Attached to the request for hearing was a vehicle inspection form dated June 14, 2013. The information on the form stated that the vehicle had been inspected on that date by Francisco Perez, a mechanic employed at Albert of Miami. This document had not previously been submitted to Petitioner and was not part of Respondent's 2013 license renewal application. On February 18, 2014, Petitioner issued an Amended Administrative Complaint, alleging in greater detail the facts giving rise to its charges that Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility. The Amended Administrative Complaint charged Respondent with the same statutory and rule violations as had been charged in the Administrative Complaint, and imposed the same penalties. Respondent's Defenses At the final hearing, Barrus and Sanabria testified that Respondent inadvertently had submitted a copy of the June 14, 2011, vehicle inspection form in its 2013 license renewal application. When contacted by Kinsey, Sanabria had accidentally faxed a draft copy of the vehicle inspection form with the date changed to June 14, 2013. Barrus and Sanabria testified that this draft had been prepared for the purpose of demonstrating to the mechanic how to complete the form. They claimed that Perez did, in fact, inspect the vehicle on June 14, 2013, as evidenced by the vehicle inspection form showing his name that was submitted as an exhibit to the request for administrative hearing filed on January 13, 2014.10/ They claimed that the vehicle actually had been inspected twice in 2013, so that Respondent was in compliance with the rule requirement regarding annual vehicle inspection.11/ Barrus testified that the June 14, 2011, vehicle inspection form mistakenly had been included in the 2012 license renewal application. Barrus and Sanabria both testified that Respondent did not transport children in its facility vehicle in 2012, so that in any event, Respondent was not required to submit a vehicle inspection form showing current inspection status for that year. Neither Barrus nor Sanabria disputed that the Health Examination form discovered in its 2012 license renewal application file had been altered by the date having been changed from "6/10/2011" to "6/10/2012." Barrus testified that she did not know how the altered form came to be part of Respondent's 2012 license renewal application. She reiterated that Respondent did not transport children in its facility vehicle in 2012, so that under any circumstances, Sanabria was not required to have a physical examination that year.12/ Findings of Ultimate Fact The undersigned finds the testimony of Barrus and Sanabria regarding the vehicle inspection form issue incredible and unpersuasive. The evidence establishes that Respondent submitted the June 14, 2011, inspection form as part of its 2013 license renewal application. The credible, persuasive evidence in the record gives rise to the inference that when Petitioner discovered the outdated form and contacted Respondent, on December 17, 2013, Respondent intentionally submitted the altered inspection form with the date changed from June 14, 2011, to June 14, 2013. Petitioner discovered this alteration and contacted Respondent. Thereafter, in an attempt to comply with the annual inspection requirement, Respondent had the vehicle inspected by Tires Plus on December 18, 2013, and submitted the vehicle inspection form to Petitioner that day. The credible, persuasive evidence further gives rise to the inference that when Petitioner refused to accept the December 18, 2013, form, Respondent created another vehicle inspection form that it dated June 14, 2013, obtained Perez' handwritten name on the form, and submitted the form to Petitioner as an exhibit to the request for hearing that it filed on January 13, 2014.13/ In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. The undersigned also finds the testimony of Barrus and Sanabria regarding the "Health Examination" form in the 2012 application incredible and unpersuasive.14/ The credible, persuasive evidence gives rise to the inference that Respondent altered the Health Examination form by changing the date from "6/10/2011" to "6/10/2012" and intentionally submitted the altered form to Petitioner as part of its 2012 renewal application. In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. In sum, Petitioner has proved, by clear and convincing evidence, that Respondent committed the violations alleged in the Amended Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order imposing a $200.00 administrative fine on Respondent, My First School, Inc.; converting Respondent's child care facility license, License No. C11MD1476, to probation-status for a six-month period; and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 6th day of August, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of August, 2014.
