The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
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 dismissing the Administrative Complaint. DONE AND ENTERED 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 October, 2013.
The Issue The issue is whether the administrative fine levied by Petitioner, Department of Children and Family Services (Department), against Respondent, Beacon Hill Preschool (Respondent, Beacon Hill or facility), is appropriate.
Findings Of Fact Respondent is a licensed child care facility in Lakeland, Florida, and is owned by Sheila Holton and Diane DeSena. The facility’s license number is C14PO0013. On February 27, 2004, a complaint was made to the Department alleging that B.M., a two-year-old boy, had returned home from Beacon Hill with "bruises to different parts of his body" and that he "also had bite marks that were inflicted by another child" at the facility. Amy Anderson, a child protection investigator, investigated the complaint. As part of her investigation, on the morning of February 28, 2004, Ms. Anderson went to the home where B.M. resided. She was unable to see the child at that time because no one was at home. However, she returned later that day at about 5:43 p.m. and met with B.M.’s relative caregivers, his aunt and uncle. During this visit, Ms. Anderson saw B.M. and observed that he had various bruises on his lower legs, right flank area, elbows, and lower back, but determined that theses bruises were "all older in age." During the course of the investigation, Ms. Anderson met with one of the co-directors and some of the teachers at Beacon Hill. Ms. Anderson also reviewed Respondent's incident reports that documented the bruises, scratches, and bites that B.M. sustained at the facility. The incident reports indicate that between September 3, 2003, and February 12, 2004, B.M. was bitten eight times by other children while at the facility. These incidents, described in detail below, were recorded by facility staff at or near the time of each incident. On September 17, 2003, while B.M. was playing with a toy truck, another child bit him on the left side of the face. About one month later, on the morning of November 21, 2003, there were two biting incidents. First, while B.M. was sitting in a wagon, B.S., a two-year-old boy, was sitting behind him and bit B.M. on his back; less than two hours later, B.S. bit B.M.’s hand. About two weeks later, on December 4, 2003, B.S. bit B.M. on the palm area of his hand, immediately after B.M. bit B.S. In the two-week period between January 29, 2004, and February 12, 2004, the biting incidents involving B.M. continued. On the morning of January 29, 2004, B.M. was bitten on the wrist by another child, D.M.; that afternoon, B.S. bit B.M. again, this time on his upper forearm. On February 3, 2004, B.S. pinched and then tried to bite B.M. The next day, February 4, 2004, B.S. bit B.M. on the right arm/hand because B.M. had a toy that B.S. wanted. The following week, on February 12, 2004, B.S. bit B.M. on the hand. There were eight incidents at the facility in which B.M. was bitten by other students. In seven of the eight biting incidents, B.S. was the child who bit B.M. Some time after the last biting incident, B.S., who was described in one of the facility's incident reports as aggressive, was dismissed from the facility. In the time period between September 3, 2003, and February 20, 2004, B.M. also sustained several bumps, scratches, and bruises at the facility.1/ These incidents, detailed below, were documented by the facility staff at or near the time the incidents occurred. On September 3, 2003, B.M. was scratched on the left side of his face as he was playing near the toy refrigerator, and another child opened the refrigerator door. On September 5, 2003, B.M. bumped his face into another child, as the two children accidentally ran into each other. On September 11, 2003, a child at the facility grabbed B.M. near the eye, causing a scratch under B.M.’s eye. On October 6 and 20, 2003, B.M. was running outside and fell and bumped his head. The October 6, 2003, incident left a "purplish mark" on B.M.'s forehead. On October 13, 2003, B.M. bumped his mouth on a pole while playing near the monkey bars. In February, four incidents occurred. On February 9, 2004, B.M. was fighting another child, and the child grabbed and scratched B.M.’s face. The next day, February 10, 2004, B.M. was pushed into a shelf by a child from when he was trying to take a toy; there is no indication that the push left any marks. B.M. injured himself on February 13, 2004, after he accidentally pinched his hand on the door of a toy car. Finally, on February 20, 2004, B.M. fell off a play table; no injuries were reported in connection with this incident.2/ After completing the investigation, Ms. Anderson made the following findings, which are included in the "Summarized Findings of Maltreatment Findings" of the Investigative Summary and Narrative: [B] had several bruises all over his body when he was seen on February 27, 2004. [B] was bitten by another child 15 times before the "offending" child was dismissed from the facility; and the "daycare" admitted that a classroom of two-year-olds was left unattended for several minutes while the teacher used the bathroom. Ms. Anderson closed the Department’s official investigation, finding some indicators of bruises on the child victim; conditions hazardous to the health of the child due to a much delayed diaper change; and inadequate supervision on the part of Beacon Hill personnel due to leaving a classroom unattended, even if only momentarily. The child protection investigator's findings included in the abuse report and quoted in paragraph 14 above, that B.M. was bitten 15 times, was not established in this proceeding. Moreover, the findings in the abuse report, described in paragraph 15 above relating to conditions hazardous to health and inadequate supervision due to a teacher leaving the classroom unattended, were not established at this proceeding. Given the number of biting incidents in which B.M. was bitten by the same child at the facility, the staff should have taken corrective action to prevent further injury to B.M. Respondent maintained the required ratio of teachers to children. Nonetheless, the fact that B.M. was bitten as frequently as he was by the same student indicates that the staff failed to adequately supervise the children and to take steps to ensure that B.S. would not bite B.M. or to substantially reduce the likelihood of that happening. The failure of the Beacon Hill staff to take such action, even though present, resulted in repeated and predictable injury to B.M. On the other hand, the bumps, bruises, and scratches that B.M. received at the day care were due, in large part, to falls and accidents involving and caused only by B.M. The three incidents that involved deliberate actions by other children were infrequent and were the type of common encounters that occur with a group of two-year-olds, even when adequate staff is present and supervising the children.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Family Services, issue a final order imposing an administrative fine on Respondent, Beacon Hill Preschool, in the amount of $300.00. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 2nd day of December, 2004.
