Findings Of Fact Chapter 402, Florida Statutes, provides for licensing of child care facilities by the Department of Health and Rehabilitative Services (hereinafter "HRS"). It mandates minimum standards for personnel, physical facilities, sanitation and safety, nutritional practices, admissions and record keeping, transportation safety, child discipline, and plans of activities. Section 402.306, Florida Statutes, allows counties whose licensing standards meet or exceed state minimum standards to perform child care facility licensing in that county rather than HRS performing that activity. Chapter 402, Florida Statutes, was originally enacted in 1974 to provide minimum standards for the growing number of commercial day care facilities. In the definitional section of that Chapter, the legislature specifically defined a child care facility and further specified those programs and facilities exempted from the child care facility licensing laws. Section 402.302(4), Florida Statutes, provided as follows: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools which are in compliance with the Compulsory School Attendance Law, chapter 232; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during vacation periods. [Emphasis supplied.] Due to extensive publicity involving certain abuse incidents by personnel at child care facilities and public opinion, the child care facility licensing laws were revisited in 1984. In a special session, the Legislature strengthened some requirements of Chapter 402 and provided for screening and background checks of personnel in child care facilities and for reasonable parental access to children in those facilities. Chapter 84-551, Laws of Florida. Due to the insistence of HRS and certain counties performing their own child care facility licensing that pre- kindergarten programs in schools required those schools to obtain licensure as child care facilities, Chapter 402 was further amended in 1985 to clarify the exclusion of schools. As amended, the statutory definition of child care facility now provides: "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for profit. The following are not included: public schools and non- public schools and their integral programs; summer camps having children in full-time residence; summer day camps; and Bible Schools normally conducted during during vacation periods. [Emphasis supplied.] Section 402.302(4), Florida Statutes 1985. The Senate Staff Analysis and Economic Impact Statement regarding the amendment of Chapter 402 provides that this change is a "Technical amendment which clarifies that public and non-public school programs are not subject to licensure as child care facilities." Respondent's Exhibit numbered 6. Following the 1985 amendments to Chapter 402, HRS and the Palm Beach County Health Department (which was responsible for child care facility licensing in Palm Beach County) jointly requested a legal opinion from the Attorney General regarding the scope of the statutory exclusions from child care licensing laws for public and nonpublic schools and their integral programs. The specific question posed was as follows: Do the exemptions under s. 402.302(4), F.S., as amended, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer: Prekindergarten classes during regular school hours in the same physical plant or in an adjoining structure? Infant care during regular school hours in the same physical plant or in an adjoining structure? School age child care services before and after school hours in the same physical plant or in an adjoining structure? In a lengthy analysis of the statutory exclusion of schools from child care facility licensing requirements, the Attorney General concluded: In sum, then, and unless and until legislatively or judicially determined otherwise, it is my opinion that the exemptions under s. 402.302(4), F.S., as amended by Chs. 84-551 and 85-54, Laws of Florida, and s. 9, Ch. 77-620, Laws of Florida, apply to public and nonpublic schools which offer prekindergarten classes or infant care during regular schools hours or school age child care services before and after school hours. . . . AGO 55-74, p. 7. Attorney General Opinion 85-74 also provides at page 3 as follows: Thus, public schools and nonpublic schools and their integral programs are not "child care facilit[ies]" for purposes of ss. 402.301-402.319, F.S., as amended. The term "integral programs" is not defined within ss. 402.301-402.319, F.S., as amended, or Oh. 85-54, Laws of Florida; however, the word "integral" has generally been defined as "[c]onstituting a completed whole; . . . lacking nothing of completeness." See, 46 C.J.S. Integral p. 1100; Ballentine's Law Dictionary 645 (3rd ed. 1969). And see, Random House Dictionary of the English Language Integral p. 738 (unabridged ed. 1967) (pertaining to or belonging as a part of the whole; constituent or component; necessary to the completeness of the whole); Webster's Third International Dictionary Integral p. 1173 (1966) (composed of constituent parts; making up a whole). Of., Matezak v. Secretary of Health, Education and Welfare, 299 F.Supp. 409, 413 (D.C.N.Y. 1969)("integral" means part of constituent component necessary or essential to complete the whole). Whether a particular child care center or arrangement constitutes an integral program for purposes of s. 402.302(4), FS., as amended, would appear to present a factual question which can only be reached on a case-by-case basis. [Emphasis supplied.] During the special session in 1984 and the regular session in 1985, the Legislature increased funding for HRS' child care facility licensing activities and also created 48 additional staff positions for those licensure activities. Several HRS employees determined that (1) the Attorney General's Opinion was confusing, (2) it was too difficult to determine on a case-by-case basis whether a program was an integral part of a school or a child care facility, and (3) the exclusion of schools from child care facility licensing requirements was inconsistent with legislative intent of protecting children. Accordingly, HRS drafted an amendment to Rule 10M-12.001, Florida Administrative Code, to define the term "integral program". The "rule package" prepared by HRS in compliance with Section 120.54, Florida Statutes, commences with the following language: Reason rule is being filed or amended: Chapter 402.302(4), Florida Statutes, provides the definition of a child care facility. Public and non public schools and their integral programs are precluded from this definition as a child care facility and therefore are not subject to licensure. . . . The term "integral programs", which is not defined by statute, is ambiguous and has been the subject of various interpretations by public and non public schools. For purposes of licensure, this rule amendment is necessary in order to clarify which specific child care programs in the public and non public schools are required to be licensed. Without the rule amendment, some schools will continue to interpret their "integral programs" as meaning their infant and preschool programs, or before and after school programs, thereby avoiding licensure and resulting in no regulation by the department . . . Rule 10M-12.001, Florida Administrative Code, as proposed, would provide as follows: (1) Child Care Standards and Licensure. Child Care Standards included in this chapter were adopted by the department to protect the health, safety and well being of the children of the State who receive child care in child care facilities as defined in Section 402.302, Florida Statutes, and to promote their emotional and intellectual development and care. Public and nonpublic schools and their integral programs are not child care facilities as defined in Section 402.302(4) Florida Statutes, and are not subject to licensure. The term "integral programs" includes school activities which are directly related to the educational component of the school for 5 year old kindergarten programs through grade 12, and extra curricular activities, such as sport teams, school yearbook, school band, meetings, and service clubs. The term also includes child care programs administered directly by the school to care and supervise children from 5 year old kindergarten through grade 12 before and after the school day. The term "integral program" does not include child care programs for children below 5 year old kindergarten, such as infants and preschoolers, and child care programs which are contracted by the school to provide care and supervision for children from 5 year old kindergarten through grade 12 before and after the school day. The proposed rule as published and noticed by HRS, although defended by HRS vigorously in this proceeding, is not in fact the rule that HRS intends to adopt. HRS now admits that it has no authority to regulate any program in a public school since only the Florida Department of Education can regulate public schools. HRS intends, therefore, to delete the reference to public schools in its proposed rule and to only regulate nonpublic schools although it admits that such regulation of only nonpublic schools would therefore be discriminatory. HRS further intends to amend its proposed rule so as to clarify that those nonpublic schools which are religious in affiliation will continue to enjoy the additional exemption from child care facility licensure given to them by Section 402.316(1), Florida Statutes, which provides: The provisions of ss. 402.301-402.319, except for the requirements regarding screening of child care personnel, shall not apply to a child care facility which is an integral part of church or parochial schools conducting regularly scheduled classes, courses of study, or education programs accredited by, or by a member of, an organization which publishes and requires compliance with its standards for health, safety, and sanitation. However, such facilities shall meet minimum requirements of the applicable local governing body as to health, sanitation, and safety and shall meet the screening requirements pursuant to ss. 402.305 and 402.3055. Failure by a facility to comply with such screening requirements shall result in the loss of the facility's exemption from licensure. Petitioner Florida Association of Academic Nonpublic Schools (hereinafter "FAANS") is comprised of approximately 25 associations of schools. Additionally, archdioceses, which are separate corporate entities, and which own and operate schools, are direct members as are county organizations and the Florida Catholic Conference. The organization itself represents nonpublic schools in the state of Florida before state agencies, including the Legislature which it actively lobbies. It has a direct relationship as a state representative, one of only five in the country, with the United States Department of Education. It is involved in accreditation and has a code of ethics with which all schools (both direct members and indirect members) must comply. FAANS presently represents 943 schools with approximately 230,000 students, out of the approximate 1,750 nonpublic schools in the state of Florida. A majority of the schools represented by FAANS operate educational programs for children under 5 years of age. For the most part, these school programs are not licensed as child care facilities although some of the schools have licensed their programs under duress rather than have their programs closed by the child care facility licensing agencies. All of the nonpublic schools represented by FAANS comply with the Florida Department of Education requirement that they annually submit statistical information including the number of students and faculty in their prekindergarten programs for the Department of Education's Nonpublic School Data Base. Petitioner Jacksonville Country Day School presented no evidence in this proceeding. Petitioner The Cushman School is a nonpublic school in Miami, Florida, and is an indirect member of FAANS. It has been in operation for 62 years and has operated educational programs for children under 5 since it was founded. It begins enrolling students at the age of 3 years (and on rare occasion 2 years) and offers education through grade 6. It is not presently licensed as a child care facility. Under the proposed rule as published in the June 6, 1986, Florida Administrative Weekly, The Cushman School would be required to obtain a child care facility license, the economic impact of which would be significant. First, it would lose its exemption from property taxes as an educational institution at a speculated cost of approximately $10,000. Structural modifications would need to be made to the school for bathing and sleeping facilities. Additional requirements, such as fencing and child-staff ratios, would come into play imposing more costs on the school. The Cushman School possesses historic site status which means even minor repairs, let alone structural modifications, have extensive restrictions imposed as to how they can be done and the materials that can be used. The end result is that if the proposed rule goes into effect, The Cushman School will have to discontinue its educational programs for children under 5 years of age. The economic impact of compliance with child care facility licensing requirements by schools is not unique to The Cushman School. Section 120.54, Florida Statutes, requires each agency proposing or amending a rule to provide a detailed economic impact statement. The purpose of an economic impact statement is to promote informed decision-making by ensuring an accurate analysis of economic factors, and those factors an agency must consider are clearly specified. An agency must also consider the impact of a proposed rule on small businesses as defined in the Florida Small and Minority Business Assistance Act of 1985. There are nonpublic schools throughout Florida which fit the statutory definition of small business. It is clear from the economic impact statement for proposed rule 10M-12.001 that HRS did not consider the impact of the rule on small business nonpublic schools. Also to be considered is the cost to an agency of implementing the rule. According to HRS' impact statement, actual implementation statewide will only cost $31. There is no consideration of additional staff time and paperwork to process applications, issue additional licenses, or conduct additional inspections. There is no comment in the economic impact statement of the impact on competition and the open market for employment, or any indication that such an analysis is inapplicable; rather, the agency's estimate of effect on competition speaks to potential cost savings from deregulation of before and after school care programs. Similarly, the required analysis of the costs or economic benefits to all persons directly affected by the proposed rule speaks in terms of deregulation and substantial savings and is, accordingly, deceptive. An agency is also required to provide a detailed statement of the data and method used in making each of the estimates required in the economic impact statement. The only detailed statement in HRS' economic impact statement refers to the costs of printing and mailing, publication of the proposed rule in the Florida Administrative Weekly, and conducting a public hearing on the proposed rule. There is no hint of the data and method used, if any, in reaching other conclusions contained within the economic impact statement. The economic impact statement accompanying proposed rule 10M-12.001 is inadequate. Section 120.54(1), Florida Statutes, further requires that an agency proposing a rule give notice of its intended action and the specific legal authority under which its adoption is authorized. As set forth above, the rule proposed by HRS does not reflect its intended action since the rule purports to apply to both public and nonpublic schools and HRS intends to further amend the rule so as to exclude its application to public schools and its application to religious nonpublic schools. As to the specific legal authority under which the proposed rule is authorized, HRS cites, at the end of the proposed rule, as its rulemaking authority Section 402.301, Florida Statutes. That section is entitled "Child care facilities; legislative intent and declaration of purpose and policy". Nowhere in that legislative intent section is HRS authorized to promulgate rules. The proposed rule thus fails to fulfill that requirement.
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 At issue in DOAH Case No. 03-3152 is whether the Department of Children and Family Services ("Department") established sufficient grounds for suspending the provisional child care license of S & S Achievers Learning Center ("S & S Achievers") for 30 days due to noncompliance with minimum licensing standards. At issue in DOAH Case No. 03-4240 is whether S & S Achievers' license to operate a child care facility should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Department is the state agency responsible for licensing and regulating child care facilities. S & S Achievers, owned by Lavaine Shuler, was initially licensed in April 2001 to operate a child care facility in Apopka. The licensed capacity for the facility was 30 children. The Department routinely inspected the facility. On October 5, 2001, Milhem Ashy, a licensing counselor for the Department, conducted a routine inspection of the facility. Mr. Ashy's inspection checklist reported S & S Achievers for multiple violations of minimum licensing standards: failure to post a list of planned daily activities in a place accessible to parents; old, unsafe toys and long sticks on the outdoor playground; no adult at the facility with first aid or CPR training; failure to have physical examination and immunization records in children's files; and failure to complete and document the background screening of facility staff. Mr. Ashy discussed the deficiencies with Ms. Shuler, who also received a copy of the inspection checklist. On February 18, 2002, Mr. Ashy conducted another routine inspection of the S & S Achievers facility. Mr. Ashy's inspection checklist again reported S & S Achievers for multiple violations of minimum licensing standards. The most critical violation regarded the staff-to-children ratio. Among the children at S & S Achievers were some under one year of age. Florida Administrative Code Rule 65C-22.001(4)(b) provides that in groups of mixed ages where children under one year of age are included, the minimum ratio is one staff member for any four children. Mr. Ashy observed a ratio of one staff member for five children. After discussing the matter with Ms. Shuler, Mr. Ashy decided not to recommend a fine for this violation. On the February 18, 2002, inspection, Mr. Ashy found that the facility continued not to post a list of planned daily activities in a place accessible to parents. He found insufficient lighting in the infant room. On the outdoor playground, Mr. Ashy found that the frame of the swing set was not securely anchored. S & S Achievers continued its failure to have immunization records in children's files and to have documentation of staff's background screening. In April 2002, S & S Achievers' license was scheduled for renewal. On April 15, 2002, Mr. Ashy conducted a renewal inspection of the facility. In this inspection, Mr. Ashy found that the kitchen needed cleaning. He noted that the files still did not indicate sufficient credentialed staff at the facility, did not document employees' background screening, and did not contain students' immunization and health examination records. After discussing the noted deficiencies with Ms. Shuler, Mr. Ashy concluded that S & S Achievers was making progress toward full compliance. In light of the good working relationship between the Department and S & S Achievers, he recommended that the deficiencies cited in his report should not affect the facility's license renewal. On April 15, 2002, the Department issued an annual license to S & S Achievers. On June 26, 2002, Mr. Ashy conducted a routine inspection of the facility. He found the following elements of noncompliance with minimum standards: the infant teacher was observed caring for three infants, one six-year-old child and one four-year-old child, where the ratio requirements stated that she should have been caring for no more than four children; the second teacher was observed caring for 16 children, including one child under one year of age, three one-year-olds, four two-year-olds, one three-year-old, one four-year-old, and six children who were at least five years old; two children were observed in the rest room without any adult supervision; the facility's plan of scheduled activities was not posted in a place accessible to parents; the floors were stained and cluttered, tiles were peeling off the floors, and walls were peeling in the infant room; plastic and paper trash were observed on the playground; the swing set frame was not anchored; the facility could not document that it had conducted the monthly fire drills required by Department rules; the facility had no documentation that any staff member was trained in first aid or infant and child CPR. The facility continued to lack documentation regarding background screening and student health records. On his inspection checklist, Mr. Ashy noted that Ms. Shuler would be required to bring in the required documents for review at the Department's offices. By letter dated June 27, 2002, Patricia Richardson, supervisor of the Department's child care licensing office, notified S & S Achievers that the repeat violation of ratio and supervision requirements were being referred to the Department's legal counsel with a recommendation that a fine be imposed on S & S Achievers. Ms. Richardson further requested that S & S Achievers provide a "full and complete corrective action plan" addressing all the violations cited in the June 26, 2002, inspection checklist and that the plan be submitted no later than July 10, 2002. Ms. Shuler scheduled a meeting with Mr. Ashy for July 5, 2002. At that meeting, she provided some files regarding staff and children at the facility. On July 6, 2002, Ms. Shuler filed a plan of corrective action responsive to Ms. Richardson's letter of June 27, 2002. Nonetheless, on July 12, 2002, the Department filed an Administrative Complaint against S & S Achievers seeking a civil penalty, totaling $200.00 for the violations of staff-to-child ratio requirements and for the failure to supervise the children in the bathroom. S & S Achievers did not contest the imposition of the penalty. On July 16, 2002, Mr. Ashy conducted a follow-up inspection of S & S Achievers. He found that S & S Achievers was within the required staff-to-child ratios, but was in excess of its licensed capacity of 30 children. On August 30, 2002, Mr. Ashy visited the S & S Achievers facility and observed that there were 40 children at the facility. He also noted that the facility was again out of compliance with staff-to-child ratios and instructed S & S Achievers that it was required to comply with the Department's minimum standards for child care facilities. On October 10, 2002, Mr. Ashy conducted a routine inspection of the S & S Achievers facility. He found the following elements of noncompliance with minimum standards: the kitchen needed to be cleaned; the outdoor playground contained debris and rusted toys; the facility still had no documentation of monthly fire drills; the frame of the swing set remained unanchored; and staff training was still not documented. A follow-up inspection on October 31, 2002, indicated that the facility had corrected the items cited in the October 10, 2002, inspection. On December 30, 2002, Mr. Ashy conducted a surprise inspection. In this inspection, he looked only at the facility's staff-to-child ratios and supervision of children. The inspection found no violation of staff-to-child ratios and found that adult supervision of children was adequate. On March 17, 2003, Mr. Ashy conducted the annual license renewal inspection of S & S Achievers. He counted a total of 32 children under the supervision of S & S Achievers, either at the facility itself or on a field trip. Mr. Ashy found that the facility did not maintain a log for all children that it transported in its van, did not have documentation of an annual vehicle inspection, and did not have verification of insurance coverage for its van. The swing set frame was still not anchored. The facility did not have documentation showing that its staff persons had enrolled in or completed the required introductory course in child care or that staff had completed the required eight hours of annual in-service training. The facility still lacked documentation of criminal background screening for all staff. By letter dated March 20, 2003, Ms. Shuler clarified that S & S Achievers did not provide transportation to and from the facility for any of its students. Therefore, the deficiencies cited by Mr. Ashy related to transportation did not require correction. A follow-up inspection by Mr. Ashy on April 9, 2003, found that S & S Achievers had corrected the remaining items found deficient in the March 17, 2003, inspection. By letter dated April 10, 2003, Ms. Richardson informed Ms. Shuler that S & S Achievers would be issued a provisional license, pending completion of a corrective action plan to increase compliance with minimum standards. This provisional license was to be valid for a period of six months. S & S Achievers did not contest the issuance of the provisional license. By letter to Ms. Shuler dated May 19, 2003, Ms. Richardson noted the repeated violations of S & S Achievers regarding ratios and supervision, as well as the maintenance of records. She stated that these continuing violations were "repetitive, serious, and reflect a lack of organization in management and oversight of the facility." Ms. Richardson "strongly recommended" that Ms. Shuler enroll in a training course for child care facility owners. Ms. Richardson notified Ms. Shuler that her facility "will be inspected more frequently during this provisional period for increased compliance," and cautioned that insufficient progress toward compliance could lead to suspension of the license and could jeopardize future licensing for S & S Achievers. Donna Boatwright was a pediatric occupational therapist. From roughly April until June 2003, Ms. Boatwright visited S & S Achievers from one to three times per week to provide therapy to a one-year-old child with spina bifida. On June 4, 2004, Ms. Boatwright arrived at S & S Achievers to find her patient in a crib. The child was covered in vomit, "from his head to his butt, feet, on both sides, back and front," as if he had rolled around in it. Ms. Boatwright picked up the child and called for the staff person in the room to help her clean him. Ms. Boatwright noted that there was one adult in the room caring for ten small children, all of whom she described as "toddlers." She had seen similar ratios on previous visits. The staff person took the baby from Ms. Boatwright and left the room. For about five minutes, Ms. Boatwright was the only adult in the room with nine children. The staff person returned with the child after cleaning him. Ms. Boatwright took the child to another room and treated him. She saw that his clothes had been changed, but he still smelled strongly of vomit. After Ms. Boatwright was finished, a staff person returned the child to his crib. Ms. Boatwright did not believe the crib had been cleaned, because it still smelled of vomit. On June 4 or 5, 2003, Ms. Boatwright wrote a letter to Ms. Richardson to report this incident. In her letter, Ms. Boatwright added that in her visits to S & S Achievers, she had observed two toddlers playing in a toilet, dirty and broken toys within reach of small children, staff persons constantly yelling at children, and a general atmosphere of chaos. On or about June 5, 2003, Gwendolyn Butler, a child protective services investigator for the Department, went to S & S Achievers to investigate Ms. Boatwright's allegations. Ms. Butler counted 24 children in the facility. She stated that the youngest child was about three months old and the oldest was four or five years old. Ms. Butler noted that there were only two adults to supervise the 24 children spread among four or five rooms of the facility, meaning that some of the children were unsupervised. She was never able to see Ms. Boatwright's patient or to contact the child's parents because Ms. Shuler was unable to give her a correct phone number or address for the family. Ms. Butler closed the investigation with a finding of "some indicators" of physical injury and threatened harm to children and a "verified" finding of inadequate supervision. By letter dated June 25, 2003, Ms. Richardson notified Ms. Shuler of the Department's decision to suspend the license of S & S Achievers for a period of 30 days. On July 22, 2003, Ms. Shuler met with Mr. Ashy and initially informed him that she intended to comply with the suspension and make use of the 30-day period to bring her facility into compliance with the Department's minimum standards. However, later on the same day, Ms. Shuler wrote Mr. Ashy a note stating that she wished to confer with her attorney before making any decision. S & S Achievers challenged the suspension decision, and the facility remained open pending the results of its challenge. On August 28, 2003, Janice Nilles, a licensing counselor for the Department, conducted an inspection of the S & S Achievers facility. Ms. Nilles found the facility once more in violation of staff-to-child ratios. She found no daily plans posted. She noted several aspects of disrepair in the facility: exposed metal on a doorframe; a metal bracket holding some carpeting in place had come loose, exposing a cutting edge and causing a tripping hazard; three electrical outlets were uncovered; a nail protruded from the wood frame of the girls' bathroom door; detergents and bleach were within the reach of children in the boys' bathroom; the general storage of cleaning products did not prevent children's access to them; soap and paper towels or air dryers were not provided in the bathrooms; old wooden chairs created a splinter hazard; and lighting was insufficient. As to the outdoor playground, Ms. Nilles found debris and broken play equipment. The wooden gate to the playground was unaligned, with an exposed nail between the slats. The ground cover within the landing zones of swings and slides was not properly maintained. Wooden play blocks littered the playground, creating landing and tripping hazards. A protruding screw on the slide created a hazard. Ms. Nilles found that the facility did not provide developmentally appropriate toys for the ages of children in care and did not provide enough play equipment for the number of children under care at the facility. She found that linens, pillows, and blankets were not provided for napping children, and some of the bedding that was provided was dirty. The facility's first aid kit was incomplete. The facility still did not have on file the required background screenings for staff or the immunization information for children. On September 18, 2003, Ms. Nilles conducted an inspection for the renewal of S & S Achievers' provisional license. She found that the facility had "repaired" the loose carpet bracket by placing a rug over it. The splintered wooden chairs had not been replaced. Ms. Nilles observed cans of paint inside a storage cabinet in the infant room, with no secure lock for the cabinet. The first aid kit remained incomplete. The diapering changing area was not on an impermeable surface. The wooden blocks remained on the playground, and the broken play equipment had not been repaired or replaced. A nail protruded on the slide. The ground cover for the landing zones of the slides and swings remained insufficient. The facility did not have documentation showing that staff had enrolled in the introductory course in child care or had completed the required eight hours of in-service training. The facility had no documentation of criminal background screening for its employees. On October 14, 2003, one day before the scheduled expiration of the provisional license, Ms. Shuler applied to renew the license of S & S Achievers. Ms. Shuler hand-delivered the application to Ms. Richardson and told Ms. Richardson that every violation noted in the September 18, 2003, inspection had been corrected. Because of the number and frequency of S & S Achievers' violations, Ms. Richardson sent a team of licensing counselors to inspect the facility on October 16, 2003, in order to verify Ms. Shuler's claim to have corrected all of the noted deficiencies. The inspection revealed that some of the violations had been corrected, but that many others continued: the failure to document criminal background screening of employees; dangerous conditions on the playground; toxic cleaning supplies accessible to children; no soap or paper towels in the bathrooms; diaper changing area not on an impermeable surface; the protruding nail on the slide; incomplete first aid kit; and operating in excess of licensed capacity. By letter dated October 17, 2003, the Department notified Ms. Shuler that her license would not be renewed based upon continuing violations that were "repetitive, serious, and pose potential risk to children" under the care of S & S Achievers. At the hearing, Ms. Shuler testified at length on the various violations found by the Department's inspectors. She admitted to most of them, attempted to minimize others, and sought to leave the impression that Mr. Ashy and Ms. Richardson were of little assistance and seemed intent on closing her facility. In fact, the evidence establishes that the Department bent over backward to help Ms. Shuler bring her facility close enough to the minimum standards to justify keeping it open. The evidence leads to a finding that Ms. Shuler did not take the Department's authority seriously and that the Department was, if anything, too lenient in allowing her to avoid the consequences of repeated, serious violations of its minimum standards. Several parents testified at the hearing to the effect that even if all the alleged violations were true, they would nonetheless continue to place their children at S & S Achievers. This testimony is credited as honest, but it is irrelevant. To keep its license, S & S Achievers was bound to comply with the requirements of Florida Administrative Code Chapter 65C-22, even if parents were willing to waive those requirements. At the hearing, Ms. Shuler introduced considerable evidence that after receiving the October 17, 2003, denial letter, she finally corrected many of the deficiencies in the structure of her facility and in the playground. This evidence is irrelevant to the instant cases, though it should assist Ms. Shuler should she apply for a child care facility license in the future.
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: Sustaining its initial decision to suspend the license of S & S Achievers for the reasons set forth in the Department's letter dated June 25, 2003; and Sustaining its initial decision to deny the application of S & S Achievers for a license to operate a child care facility for the reasons set forth in the Department's letter dated October 14, 2003, with the exception that S & S Achievers be found not to have violated the provisions of Florida Administrative Code Rule 65C-22.001(6), related to the transportation of children. DONE AND ENTERED this 9th day of February, 2005, 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 SUNCOM 278-9675 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, 2005.
The Issue Whether Respondent committed a Class II violation by failing to properly supervise children in its care, and, if so, what is the appropriate penalty.
Findings Of Fact The Department has the authority to license and regulate day care facilities pursuant to sections 402.301 through 402.319, Florida Statutes.1/ Respondent is licensed by the Department to operate a child care facility named Marroquin's Learning Center, which is located at 1220 Highway 29 South, LaBelle, Florida 33935. MaryAnn Marroquin is the owner/director of the facility. Ms. Marroquin has been providing child care services for approximately 30 years. Chemenda Sawyer is employed as a child care regulation worker for the Department, and has worked in this capacity for the previous four years. In 2015, Ms. Sawyer was assigned to monitor Respondent's facility for compliance with applicable child care regulations. On January 7, 2016, and again on April 5, 2016, Respondent was cited for violating child care supervision standards, which require that children be supervised at all times. Each deviation from the standard constituted a Class II violation. In order to assist Respondent with compliance, Ms. Sawyer provided the facility with technical support regarding the violations and explained to Respondent strategies for ensuring future compliance. Following the April 5, 2016, violation, an administrative fine was imposed against Respondent. On February 23, 2017, Ms. Sawyer, while performing a re-inspection of Respondent’s facility, again noticed that Respondent was not providing proper supervision for some of the children in its care. Specifically, soon after Ms. Sawyer arrived at Respondent’s facility on February 23, 2017, she was seated alone in the “yellow classroom” when the backdoor of the classroom opened and at least two boys, who were both enrolled at the child care facility, entered the room. The door closed behind the boys and Ms. Sawyer observed that the children were not being supervised. According to Ms. Sawyer, the boys were “horsing around” as they entered the room, and they stopped in a corner of the room to play for one to two minutes. A staff member then called the children into the “multicolor classroom” where proper supervision of the boys was provided. Ms. Sawyer then exited the “yellow classroom” to report the violation to Ms. Marroquin, who was at her desk in another room eating lunch.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Marroquin’s Learning Center committed its third violation of the same Class II standard and imposing a fine of $60. DONE AND ENTERED this 19th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 19th day of January, 2018.
Findings Of Fact The Parties HRS receives federal funds through the Social Services Block Grant for the purpose of purchasing child day care services for certain clients of the agency. HRS District V issued its RFP for those services for fiscal year 1986/1987 on March 28, 1986. The statement of purpose for the RFP provides: The Department is requesting proposals to provide child day care services in Pasco and Pinellas Counties through one or more central agencies as defined in the Rules of the Department of Health and Rehabilitative Services, Chapter 10M-11, Section 11.02[sic] and HRSM 175-14. It is the Department's intent to contract with no more than three (3) central agencies. A potential provider may submit a proposal to provide services in any or all of the following components: The development and provision of infant care, preschool care and school age care in predominantly rural Pasco County. The provision of preschool care and school age care in predominantly urban Pinellas County. The provision of infant care in Pinellas County that is compatible with the unique county licensing program requiring the care of infants in family day care homes. Since only two infants may be in care in each home, a minimal percentage of pre- schoolers will be allowed in this com- ponent. * * * [Respondent's Exhibit #1, p3-4] On April 29, 1986, proposals were received as follows: Project Playpen proposed providing infant and some preschool care in Pinellas County with administrative costs of 4 percent. Latchkey proposed to provide all three components with administrative costs of 12 percent. RCMA proposed providing infant, preschool and school age care in Pasco County with administrative costs of 11 percent. Project Playpen has been providing infant and some preschool care in Pinellas County since 1972. Latchkey has provided after school and some preschool care in Pinellas County for seven years, and has provided after school care in Pasco County for two years. Also for two years Latchkey has provided the infant and preschool care in Pasco County through a subcontract with RCMA. Latchkey is a central agency in District V. After the proposals were received, the HRS evaluation committee met to distribute evaluation sheets and copies of the proposals to its five members. The members then individually reviewed the proposals. On May 5, 1986, the committee met again to resolve areas of doubt and determine the final score for each proposal. As to the Pasco County component the total score derived for RCMA was 384 points; the total score for Latchkey was 355.4; the total available score was 410. Signature Authority The RFP addresses the need for an appropriate signature on the proposal in two places: On page 16, Paragraph L., "Required Copies of the Proposal", sub- paragraph 2. provides, All copies must bear the original signature of an official of the provider agency who is authorized to bind the Provider to the proposal. If the signature is that of an agency, individual other than the President or Chief Executive Officer of the Board, the proposal must be accompanied by a written delegation of authority from the governing board. On page 23, in the proposal evaluation check list, paragraph 1., "Proposal Requirements" provides "(Any one 'No' statement for the following items will automatically disqualify the proposal)." Subparagraph C, on page 24, asks, "Is the proposal signed by a duly authorized officer of the applicant organization?" [Respondent's Exhibit #1] The RCMA proposal was signed by Wendell N. Rollason as Executive Director. He is not a member of the RCMA state board of directors and the proposal did not include a separate board statement of authority. The organizational chart and position description included in the proposal indicate that the Executive Director alone is responsible directly to the Board of Directors. Through delegation or directly, he supervises all RCMA staff. He must keep the RCMA Board fully informed but must [A]ssume and accept full responsibility for all activities, planned or not of the Redlands Christian Migrant Association and its several subdivisions." [Respondent's Exhibit #5, pp. 187-188] The evaluation committee assumed that Mr. Rollason was the chief executive officer, as there was nothing to indicate otherwise and the position description defined a very authoritative position. [tr. - 70] After Latchkey's protest raised the issue of signature authority, the President of the RCMA board, Wm. H. Krome, executed an affidavit stating: May 27, 1986 To Whom It May Concern: For much of the past twenty years I have been associated with Redlands Christian Migrant Association, Inc. as a Board Member. For the last six years I have served as President. I have participated in each writing or rewriting of the Corporation's By-Laws, the latest being two years ago. In 1966 , we employed Mr. Wendell N. Rollason as our corporation's chief executive officer, with the appropriate title Executive Director. It seems unnecessary to add that he is the chief executive officer of the Board, of the senior staff, of the programming and any and all functions and appendages of the Corporation. That is exactly what the use of "Corporation" in the below quoted R.C.M.A. By-Laws means: Article IV Section 2 Paragraph (b) Select or dismiss the Executive Director of R.C.M.A. who shall have responsibility of the day-to-day operations of said Corp- poration without interference by State Board or Directors or its individual members. I might add in all of R.C.M.A.'s dealings with agencies, colleges, or local, state, and federal authorities this is the first time Mr. Rollason's full authority as chief executive officer of the R.C.M.A. and its Board of Directors has ever been challenged. [Petitioner's Exhibit #1] The RCMA by-laws provide for the Board to approve a maximum dollar amount for contracts which may be negotiated and executed by the Executive Director without prior approval, and the Board may authorize the Executive Director to sign contracts annually for ongoing renewable contracts. [Pet. Ex #3, p3] Central Agency The RFF sought proposals from central agencies as defined in HRS rule 10M-11.002 Florida Administrative Code. That rule provides that "central agencies" are "...agencies which operate or subcontract to [sic] three or more centers and render administrative, supervisory, training and technical assistance activities necessary to insure the provision of services at the required level of standards." HRS considers RCMA a central agency. It operates as a central agency in several areas of the state and operates far more than three child care centers throughout the state. It also provides administrative, supervisory, training and technical assistance activities. [tr. - 105, Respondent's Ex #5] School Age Child Care Component RCMA's discussion of school age child care in Pasco County was minimal and the proposal lost points accordingly. [tr - 49]. However, the component is addressed in the proposal. The preference of RCMA was that Latchkey continue its existing school programs as part of Latchkey's proposal, but if that were not feasible RCMA would seek to continue the established programs. [Respondent's exhibit #5, p. 12] Under program objectives, RCMA states that it will expand types of child care services to include school age care as necessary as need is determined by waiting lists. [Respondent's Exhibit #5, p. 18] Data from the 1985 waiting lists indicates that the need for expanded school age care is miniscule (5 percent), compared to preschool (64 percent) and infant Care (31 percent). [Respondent's exhibit #5, pp 40-43] Evaluation of Latchkey: Component vs. Overall The RFP is explicit with regard to HRS' intent to enter into up to three contracts for child care in District V. Its instructions to bidders provide that complete proposals are not necessary for each component but that certain portions of the RFP must be addressed separately for each component. [Respondent's Exhibit #1, pp3, 17] At the bidders' conference attended by Linda Morelock, Latchkey's Executive Director, HRS' representative did not indicate the Department was soliciting an overall proposal rather than the components called for in the RFP. [tr. - 63] At the conference Linda Morelock asked whether the submittals had to be separate packages or could they be included in one notebook for more than one proposal. She was referred to page 17 of the RFP, and was told that the proposals could be packaged together so long as the sections within the package were clearly indicated. [tr. - 44,45] HRS does not, in any district in the state, limit its contracts for child care to a single central agency. There are three central agencies in Palm Beach County alone. [tr. - 106] Latchkey characterized its proposal as an "overall" proposal for all three components in the RFP. It contends that its proposal should have been scored as a whole, rather than by each component.
